                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1954

           CARPARTS DISTRIBUTION CENTER, INC., ET AL.,
                      Plaintiffs-Appellants,

                                v.

               AUTOMOTIVE WHOLESALER'S ASSOCIATION
                  OF NEW ENGLAND, INC., ET AL.,
                      Defendants-Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Martin F. Loughlin, U.S. District Judge]
                                                       

                                           

                              Before

                    Torruella, Circuit Judge,
                                            
                  Coffin, Senior Circuit Judge,
                                              
                    and Boudin, Circuit Judge.
                                             

                                           

     James P.  Reidy,  with whom  James  Q. Shirley  and  Sheehan
                                                                 
Phinney Bass  &amp; Green Professional Association were  on brief for
                                              
appellants.
     Samuel  A. Marcosson,  Attorney, with  whom James  R. Neely,
                                                                 
Jr.,  Deputy  General Counsel,  Gwendolyn Young  Reams, Associate
                                                      
General  Counsel and  Vincent  J.  Blackwood,  Assistant  General
                                            
Counsel  were  on  brief  for the  Equal  Employment  Opportunity
Commission, amicus curiae.
     William   Garza,  Cary   LaCheen,  Herbert   Semmel,  Thomas
                                                                 
Kendricks  on brief for  American Civil Liberties  Union, Gay and
         
Lesbian  Advocates and  Defenders  and Gay  Men's Health  Crisis,
amici curiae.
     James H.  Schulte, with whom  Burns, Bryant, Hinchey,  Cox &amp;
                                                                 
Schulte, P.A. was on brief for appellees.
             

                                           

                         October 12, 1994

                                           

                               -2-

          TORRUELLA,   Circuit   Judge.     Plaintiffs-appellants
                                      

Carparts Distribution Center, Inc.,  Daniel W. Dirsh, and Shirley

M.  Senter, appeal  from  the district  court's order  dismissing

their  complaint for illegal  discrimination based  on disability

under state and federal  laws.  The court granted  judgment under

Fed. R. Civ. P. 12(b)(6) in favor of defendants.

                                I.

                        STANDARD OF REVIEW
                                          

          Our review of dismissal under  Fed. R. Civ. P. 12(b)(6)

is  plenary.  Roth v. United States,  952 F.2d 611, 613 (1st Cir.
                                   

1991).  We accept as true all of the allegations in the complaint

and draw  all reasonable inferences  in favor of  the plaintiffs.

Id.
   

                               II.

                            BACKGROUND
                                      

          In May 1986, Plaintiff  Ronald J. Senter ("Senter") was

diagnosed  as  infected with  Human Immunodeficiency  Virus ("HIV

positive").   In March 1991,  he was diagnosed  as suffering from

Acquired  Immune  Deficiency  Syndrome  ("AIDS").    He  died  on

January 17, 1993.

          Senter  was  the  sole  shareholder,  president,  chief

executive  director, and  an  employee  of Carparts  Distribution

Center,   Inc.  ("Carparts"),   an  automotive   parts  wholesale

distributor incorporated in New Hampshire.

          Since 1977, Carparts has been a  participant in a self-

funded medical reimbursement plan known as Automotive Wholesalers

                               -2-

Association  of  New England  Health  Benefit  Plan ("the  Plan")

offered by  the defendants  in this case,  Automotive Wholesalers

Association of New England,  Inc. ("AWANE") and its administering

trust,  Automotive Wholesalers Association  of New  England, Inc.

Insurance Plan ("AWANE Plan").   Senter was enrolled in  the Plan

since  1977.   In October  1990, AWANE  Plan informed  members of

AWANE,  including Carparts, of its intention to amend the Plan in

order to  limit benefits  for AIDS-related illnesses  to $25,000,

effective January 1,  1991.   Otherwise, lifetime  benefits under

the Plan were, and are, afforded in the amount of  $1 million per

eligible plan member.

          On a number of occasions during and after  1989, Senter

had several serious  illnesses, many  of which were  HIV or  AIDS

related.   Senter directly  submitted claims  for payment  of his

medical  treatment and  medications to  AWANE and the  AWANE Plan

until  spring  or summer  of  1991, when  Carparts  submitted the

claims on Senter's behalf  because he became too sick  or matters

were too complicated for him to do so.

          Senter  and  Carparts  ("plaintiffs"  or  "appellants")

alleged,1  that the Trustees of  the Plan were  aware of Senter's

condition  at the time the  amendments to the  plan were adopted.

Plaintiffs  claim  that the  cap  on  AIDS-related illnesses  was

instituted by defendants with knowledge that Senter was diagnosed

                    

1   Following  Senter's death,  Shirley M.  Senter and  Daniel W.
Dirsh  were appointed co-executors for  his estate.   On April 1,
1993,  the district  court allowed  the  substitution of  the co-
executors for Senter as plaintiffs in this action.

                               -3-

HIV positive,  suffering from  AIDS, and subject  to AIDS-related

medical  expenses  and that  the  lifetime  cap on  AIDS  related

expenses  was  instituted in  response  to  Senter's illness  and

related  claims that  he had  filed during  the  previous several

months.    According  to  plaintiffs, after  Senter  reached  the

lifetime cap on AIDS related illnesses, defendants breached their

contractual obligation to provide, at a minimum, medical coverage

to Senter for non-AIDS related treatments, by failing, neglecting

or  refusing to make payments  for non-AIDS related  matters in a

complete or consistent manner.

          Plaintiffs  brought  this  action  alleging   that  the

lifetime  cap  on  health  benefits for  individuals  with  AIDS,

instituted by defendants,  represented illegal discrimination  on

the basis  of  a disability.    Such a  discriminatory  provision

allegedly   rendered  Carparts   responsible   for  payments   to

healthcare  providers  on  Senter's behalf  and  effectively  put

Carparts   out  of  compliance   with  anti-discrimination  laws,

subjecting Carparts to potential  liability under N.H. Rev. Stat.

Ann.   354-A ("Section  354-A"), a state anti-discrimination law,

and  the Americans with Disabilities Act ("the ADA"), 42 U.S.C.  

12101, et seq.
              

          The district court dismissed  all of plaintiffs' claims

on July 19, 1993.  This appeal followed.

                               III.

                            DISCUSSION
                                      

                 A.  Notice of Proposed Dismissal

                               -4-

          Plaintiffs first contend that  the district court erred

in dismissing  their complaint  without affording them  notice of

the court's intended dismissal.  We agree.

          Plaintiffs commenced this action in the state courts of

New Hampshire ten  days before  the ADA became  effective.   They

asserted claims under state law only.  The defendants removed the

case  to  federal  court claiming  that  the  issues raised  were

governed and preempted by the Employee Retirement Income Security

Act of 1974, as amended, 29 U.S.C.   1001, et seq. ("ERISA").
                                                  

          At  a  pretrial  conference  on  April  15,  1993,  the

defendants  indicated  their intention  to  move  to dismiss  the

pendent claims, and the plaintiffs moved to amend their complaint

to  assert  claims under  the ADA.    The plaintiffs'  motion was

granted  and  they  amended  their complaint  to  include,  among

others,  claims alleging violations of  Title I and  Title III of

the ADA.  42  U.S.C    12112(a), 12182(a).  The  defendants filed

an  objection to the amendment and the district court treated the

defendants' objection as a  motion to dismiss under Fed.  R. Civ.

P. 12(b)(6).  The court dismissed plaintiffs claims, holding that

neither  Title I nor  Title III of  the ADA applied  to this case

because neither defendant, AWANE or AWANE Plan, was an "employer"

with  respect  to plaintiffs  as required  by  Title I,  and that

neither  defendant was  a "public  accommodation" as  required by

Title III.

          Where no motion to dismiss has  been filed, "a district

court may,  in appropriate circumstances, note  the inadequacy of

                               -5-

the complaint and, on its own initiative, dismiss the  complaint.

Yet a  court may  not do  so without  at least giving  plaintiffs

notice  of the proposed action and  affording them an opportunity

to  address the issue."  Literature, Inc. v. Quinn, 482 F.2d 372,
                                                  

374  (1st  Cir.  1973)  (internal citations  omitted);  see  also
                                                                 

Pavilonis v.  King, 626 F.2d  1075, 1078 &amp; n.6  (1st Cir.), cert.
                                                                 

denied, 449 U.S. 829 (1980).
      

          Although AWANE filed an objection to plaintiffs' motion

to  amend  the complaint,  and  plaintiffs  filed a  response  to

AWANE's  objection,  neither  filing  addressed  the  substantive

issues regarding  Title I and Title  III of the ADA  on which the

district  court based its dismissal order.  The court also failed

to give plaintiffs any  notice of its proposed dismissal,  or any

opportunity  to respond  to the  perceived shortcomings  in their

complaint regarding  their claims  under Title  I  and Title  III

prior to the court's  order dismissing the case pursuant  to Fed.

R. Civ.  P. 12 (b)(6).   The court's failure to  give such notice

alone  justifies reversal of this case.  See Literature, 482 F.2d
                                                       

at 374.   We also find,  however, that the court's  dismissal was

erroneous as a matter of law.  See id.  The district  court erred
                                      

by  interpreting  Title  I  and  Title III  of  the  ADA  to have

excessively limited applications.  Questions regarding the proper

interpretation  of  the  ADA  are   sure  to  arise  on   remand.

Therefore, we feel that timely guidance is appropriate.

                      B.  Title I of the ADA

          Plaintiffs  contend that  the  district court  erred in

                               -6-

finding that defendants were not "covered entities" under Title I

of the ADA.

          Title I of the ADA, entitled "Employment" provides:

            No  covered   entity  shall  discriminate
            against  a  qualified  individual with  a
            disability[2]  because of  the disability
            of  such  individual  in  regard  to  job
            application   procedures,   the   hiring,
            advancement,  or discharge  of employees,
            employee compensation,  job training, and
            other  terms, conditions,  and privileges
            of employment.

42 U.S.C.   12112(a).

          "Covered entity" is defined as "an employer, employment

agency, labor organization, or joint labor-management committee."

42 U.S.C.   12111(2).

          As the  district court noted, this  provision "makes it

unlawful for a  covered entity  to discriminate on  the basis  of

disability against  a qualified  individual with a  disability in

regard  to, among  other  things, fringe  benefits, available  by

virtue  of employment, whether or not administered by the covered

entity," see 29 C.F.R.    1630.4(f), and "[h]ealth insurance such
            

as  that  provided  by  the  defendants  is  considered  a fringe

benefit."  Carparts Distribution Ctr.  v. Automotive Wholesaler's
                                                                 

Ass'n, 826 F. Supp. 583, 585  (D.N.H. 1993).  The district  court
     

found, however, that because neither defendant was an employer of

Senter, neither entity qualified as a "covered entity" as defined

                    

2   For purposes  of  this appeal,  we assume  that  Senter is  a
"qualified   individual  with   a  disability."     We   make  no
determination  as to whether  defendants' cap on  benefits in the
present case constitutes "discrimination" based on a disability.

                               -7-

by the ADA and  therefore neither was subject to  liability under

Title  I of the ADA.  We believe that the district court erred by

interpreting  Title I  of the  ADA to  permit suits  only against

employers  who  discriminate  with   respect  to  the  terms  and

conditions of employment of their own employees.

          In making our determination we look for guidance to the

Civil Rights Act of 1964, as amended, 42 U.S.C.   2000-e, et seq.
                                                                 

("Title VII") and cases  interpreting that statute.  There  is no

significant  difference  between  the   definition  of  the  term

"employer" in the  two statutes.   Compare 42  U.S.C.    2000e(b)
                                          

(Title  VII)   with  42  U.S.C.      12111(5)(A)  (ADA).3     The
                   

Interpretive Guidance on  Title I  of the ADA,  published by  the

                    

3  Title VII provides:

            The  term  "employer"   means  a   person
            engaged in an industry affecting commerce
            who  has  fifteen or  more  employees for
            each working  day in  each  of twenty  or
            more calendar  weeks  in the  current  or
            preceding  calendar  year, and any  agent
            of such a person . . . except that during
            the  first  year  after  March  24, 1972,
            persons  having  fewer  than  twenty-five
            employees (and their agents) shall not be
            considered employers.

42 U.S.C.   2000(e)(b).

The term "employer" is defined in the ADA as:

            A person engaged in an industry affecting
            commerce who has 25 or more employees for
            each working  day in  each of 20  or more
            calendar   weeks   in   the  current   or
            preceding calendar year, and any agent of
            such person.

42 U.S.C.   12111(5)(A).

                               -8-

Equal  Employment  Opportunity  Commission ("EEOC"),  establishes

that  the term "employer" is "to be  given the same meaning under

the  ADA that  [it is]  given under  Title VII."4   56  Fed. Reg.

35,740  (1991) (to  be  codified  at  29  C.F.R.     1630,  App.)

(Interpretive Guidance on   1630.2(a)-(f)).  See Meritor  Savings
                                                                 

Bank,  FSB v. Vinson, 477 U.S. 57, 65 (1986) (EEOC's interpretive
                    

guidelines "while not  controlling upon the  courts by reason  of

their  authority, do constitute a body of experience and informed

judgment to  which courts and  litigants may properly  resort for

guidance")   (internal   quotations   and    citation   omitted).

Additionally,  Title I  of  the ADA  provides  that the  "powers,

remedies  and procedures" of Title  VII shall apply  to claims of

discrimination under Title I of the ADA.  42 U.S.C.   12117(a).

          The  issue before  us  is not  whether defendants  were

employers  of Senter  within the  common sense  of the  word, but

whether they can be considered "employers"  for purposes of Title

I   of  the   ADA  and   therefore   subject  to   liability  for

discriminatorily denying employment benefits to Senter.  If under

any legal  theory defendants could be  considered "employers" for

purposes  of  Title  I,  then   plaintiffs  should  be  given  an

opportunity  to  amend  their   complaint  to  allege  the  facts

establishing the application  of that theory to the present case.

Plaintiffs  have argued, and  we agree, that  defendants could be

considered Senter's "employers," and  therefore may be subject to

                    

4  The EEOC is the agency entrusted by Congress to administer and
enforce  the  employment provisions  of the  ADA.   42  U.S.C.   
12116-17.

                               -9-

liability  under Title  I,  under  any  one  of  at  least  three

theories.

          First,   defendants  would   be  "employers"   if  they

functioned as  Senter's "employer"  with respect to  his employee

health  care coverage, that is, if they exercised control over an

important aspect of his employment.  See Spirt v. Teachers Ins. &amp;
                                                                 

Annuity  Ass'n, 691 F.2d 1054,  1063 (2d Cir.  1982), vacated and
                                                                 

rem'd  on other  grounds, 463  U.S.  1223 (1983),  reinstated and
                                                                 

modified  on other  grounds, 735  F.2d 23  (2d Cir.  1984), cert.
                                                                 

denied,  469 U.S.  881 (1984)  (interpreting the  term "employer"
      

under Title VII) ("term  'employer,' . . . is  sufficiently broad

to encompass  any party who  significantly affects access  of any

individual  to  employment opportunities,  regardless  of whether

that  party may technically be  described as an  'employer' of an

aggrieved individual as that  term has generally been defined  at

common law.") (internal quotation  and citations omitted); Barone
                                                                 

v.  Hackett, 602  F. Supp.  481, 483  (D.R.I. 1984)  (court found
           

director  of State agency  that administered  disability benefits

for State employees liable under Title VII even though agency did

not employ  the plaintiffs, stating  "Title VII liability  is not

limited  to the entity which issues pay checks to the employee");

Baranek v. Kelly, 630 F. Supp. 1107,  1113 (D. Mass. 1986) (state
                

home care agency that  had "the 'means and authority'  to control

discriminatory employment practices" of regional employers was an

"employer"  under Title VII  because it  "exercise[d] significant

control over an employment situation").

                               -10-

          If AWANE and AWANE Plan exist solely for the purpose of

enabling   entities   such   as  Carparts   to   delegate   their

responsibility to provide  health insurance for their  employees,

they are so  intertwined with  those entities that  they must  be

deemed  an "employer" for  purposes of Title  I of the  ADA.  See
                                                                 

Spirt,  691 F.2d at 1063 (finding that an annuity association and
     

an  equities fund "which exist solely for the purpose of enabling

universities   to  delegate   their  responsibility   to  provide

retirement  benefits   for  their   employees,  are   so  closely

intertwined  with  those universities  . .  .  that they  must be

deemed  an 'employer' for purposes  of Title VII").   Relevant to

this inquiry is whether defendants had the authority to determine

the  level  of benefits  that  would  be  provided  to  Carparts'

employees and whether alternative  health plans were available to

employees through their employment  with Carparts.  If defendants

had  the authority to determine the level of benefits, they would

be acting as an  employer who exercises control over  this aspect

of  the   employment  relationship.5    Also   relevant  to  this

determination is  whether Carparts shares  in the  administrative

responsibilities that result from its employees' participation in

AWANE and AWANE  Plan.  See id.  Such sharing of responsibilities
                               

would  tend  to suggest  that  Carparts  and  defendants  are  so

                    

5  In contrast,  insurance companies which merely sell  a product
to an  employer but  do not  exercise control  over the level  of
benefits provided  to employees  could not be  deemed "employers"
under  this  rationale.    Where  alternative  health  plans  are
available,  it could not be said  that defendants controlled this
aspect of  the employment relationship and  therefore, they would
not be deemed "employers" under this rationale.

                               -11-

intertwined  as to  be  acting  together  as an  "employer"  with

respect  to  health care  benefits.   Only  if the  litigation is

allowed  to proceed  can  plaintiffs develop  a record  to answer

these questions.  For  purposes of Fed. R. Civ.  P. 12(b)(6), the

possibility of a claim is enough to defeat dismissal.

          Second, even  if the defendants did  not have authority

to determine the level of benefits, and even if Carparts retained

the  right to control the  manner in which  the Plan administered

these benefits, defendants would still be rendered "employers" of

Senter  if defendants  are "agents" of  a "covered  entity,"6 who

act  on  behalf of  the  entity in  the matter  of  providing and

administering employee health benefits.7   Just as "delegation of

responsibility   for  employee   benefits   cannot   insulate   a

discriminatory [retirement benefits] plan from attack under Title

VII,"  Spirt, 691  F.2d  at  1063,  neither  can  it  insulate  a
            

discriminatory health benefits  plan under  Title I  of the  ADA.

See  id.  (recognizing   that  "exempting   plans  not   actually
        

administered  by   an   employer  would   seriously  impair   the

effectiveness of Title VII").

          Third, under   102(a)  of the ADA, an employer  may not

discriminate against  a "qualified  individual with a  disability

. . . in  regard to" specified enumerated  aspects of employment.

                    

6  The district court found that Carparts is a "covered entity."

7  Like Title VII, Title I of the ADA applies to "any agent" of a
"covered  employer."  42 U.S.C.    12111(5)(A) (ADA); Los Angeles
                                                                 
Dept. of Water &amp; Power v. Manhart, 435 U.S. 702, 718 n.33, (1978)
                                 
(Title VII).

                               -12-

42 U.S.C.    12112(a).  A  number of cases, although  not in this

circuit, have  interpreted analogous  provisions of Title  VII to

apply to actions taken by a defendant against  a plaintiff who is

not  technically an employee of  that employer.   For example, in

Sibley  Memorial Hospital v.  Wilson, 488  F.2d 1338,  1341 (D.C.
                                    

Cir.  1973),  the court  applied Title  VII  to a  hospital which

refused  to assign a private  male nurse to  female patients even

though  the nurse was technically not an employee of the hospital

but was an employee  of a particular patient.  We  do not want to

be understood as  holding at  this time that  there is  automatic

coverage wherever one who is an employer of a requisite number of

persons takes  some action that  affects the employee  of another

entity; a great deal  may depend on circumstances.   At the  same

time, we think it premature to rule out the possibility that when

additional facts are developed,  a claim under Title I  analogous

to that in  Sibley might be  made out.   See also Christopher  v.
                                                             

Stouder Memorial  Hospital, 936  F.2d 870, 875  (6th Cir.  1991),
                          

cert. denied, 112 S. Ct. 658 (U.S. 1991) (interpreting Title VII,
            

court stated that "a  plaintiff is protected if the  defendant is

one  who  significantly  affects  access  of  any  individual  to

employment  opportunities")  (internal  quotations and  citations

omitted); Doe on  behalf of Doe v.  St. Joseph's Hosp., 788  F.2d
                                                      

411,  422  (7th Cir.  1986) (argument  that  plaintiff is  not an

employee of defendant employer is not dispositive under Title VII

because  "[t]here are no  indications that  [language proscribing

discrimination by an employer against] 'any individual' should be

                               -13-

read to mean only an employee of an employer").  

          Plaintiffs  alleged  that   defendants  were   "covered

entities"  for purposes of the  ADA.  Because  the district court

prematurely  dismissed  plaintiffs'  complaint without  affording

them an opportunity to address the issues upon which the district

court relied  for its dismissal,  the record is  not sufficiently

complete  for  us to determine  whether defendants were  Senter's

employer for purposes of  Title I.  On remand,  plaintiffs should

be  given  an  opportunity to  address  this  issue  so that  the

district court can make a determination as to defendants' Title I

status.8

                     C.  Title III of the ADA

          Title III of the ADA provides:

            (a).   General Rule.  No individual shall
                   General Rule
            be  discriminated against on the basis of
            disability   in   the   full  and   equal
            enjoyment   of   the   goods,   services,
            facilities,  privileges,  advantages,  or
            accommodations  of  any  place of  public
            accommodation  by  any  person who  owns,
            leases  (or leases  to),  or  operates  a
            place of public accommodation.

42 U.S.C.   12182(a).

          Prohibited discrimination under Title III  includes the

denial,   on  the  basis of  disability,  of the  opportunity  to

benefit  from  the  goods, services,  privileges,  advantages  or

                    

8   We recognize defendants' claim  that a number  of the factual
allegations advanced  in the briefs supporting the appeal are not
alleged in  the complaint.   Our  view, however,  is that  in the
present procedural circumstances the opportunity should have been
given to flesh out the complaint with more  detailed allegations.
If on  remand the plaintiffs  are unwilling or  unable to do  so,
that will be a quite different matter.

                               -14-

accommodations  of an  entity.  42  U.S.C.   12182(b);  28 C.F.R.

  36.202.

          The  district   court  interpreted  the   term  "public

accommodation"  as "being limited  to actual  physical structures

with  definite  physical  boundaries  which  a  person physically

enters for the purpose  of utilizing the facilities or  obtaining

services therein."  Because  the court found that neither  of the

defendants possessed those characteristics, it dismissed Senter's

Title  III claim.   Plaintiffs  contend that  the district  court

erred  in finding  that Title  III of  the ADA  did not  apply to

defendants because they were not places of "public accommodation"

within the meaning of the Act.

          Whether  establishments  of "public  accommodation" are

limited to  actual  physical structures  is a  question of  first

impression  in this Circuit.   For the following  reasons we find

that they are not so limited and remand to the  district court to

allow  plaintiffs  the  opportunity  to adduce  further  evidence

supporting their view  that the defendants are  places of "public

accommodation" within the meaning of Title III of the ADA.

          We begin our analysis by looking at the language of the

statute.   Sierra Club v.  Larson, 2 F.3d  462, 467 (1993).   The
                                 

definition of "public accommodation" states that "[t]he following

private   entities  are  considered   public  accommodations  for

purposes of this subchapter,  if the operations of such  entities

affect commerce-"  and then  provides an illustrative  list which

includes  a "travel service," a "shoe repair service," an "office

                               -15-

of  an   accountant,  or   lawyer,"  an  "insurance   office,"  a

"professional  office  of  a  healthcare  provider,"  and  "other

service establishment[s]".  42 U.S.C.   12181(7)(f).9   The plain

meaning of the  terms do not  require "public accommodations"  to

have  physical  structures for  persons to  enter.   Even  if the

meaning  of "public accommodation" is not plain, it is, at worst,

ambiguous.   This  ambiguity,  considered  together  with  agency

regulations  and public  policy concerns,  persuades us  that the

phrase is not limited to actual physical structures. 

          By  including  "travel  service"  among   the  list  of

services  considered  "public  accommodations," Congress  clearly

contemplated that  "service establishments" include  providers of

services which do  not require  a person to  physically enter  an

actual physical structure.  Many travel services conduct business

by telephone or correspondence  without requiring their customers

to enter an office in order  to obtain their services.  Likewise,

one   can  easily   imagine  the   existence  of   other  service

establishments conducting  business  by mail  and  phone  without

providing  facilities for  their customers to  enter in  order to

utilize  their services.  It would be irrational to conclude that

persons who enter an office to purchase services are protected by

the  ADA, but  persons who  purchase the  same services  over the

telephone or by  mail are not.  Congress  could not have intended

such an absurd result.

                    

9    The defendants  are private  entities  that operate  a self-
insured  plan.   They  have  not  disputed  that their  operation
affects commerce.

                               -16-

          Our   interpretation  is   also  consistent   with  the

legislative  history of the  ADA.  The  purpose of the  ADA is to

"invoke  the sweep of  Congressional authority . .  . in order to

address  the major  areas of  discrimination faced  day-to-day by

people with  disabilities,"  42 U.S.C    12101(b).   The ADA  was

enacted to  "provide a  clear and comprehensive  national mandate

for the  elimination of  discrimination against individuals  with

disabilities."   42 U.S.C.    12101(b)(1).  The  purpose of Title

III of the ADA,  is "to bring individuals with  disabilities into

the economic  and social mainstream of  American life . .  . in a

clear,  balanced, and  reasonable manner."   H.R.  Rep. No.  485,

101st  Cong., 2d Sess.,  pt. 2, at  99 (1990), reprinted  in 1990
                                                            

U.S.C.C.A.N. 303, 381.   In drafting Title III, Congress intended

that people with disabilities  have equal access to the  array of

goods  and services  offered by  private establishments  and made

available to  those who do  not have  disabilities.  S.  Rep. No.

116, 101st Cong., 1st Sess. at 58 (1989).

          Beyond our threshold determination, we must  tread with

care.  Some of the critical language of Title III is both general

and ambiguous--for  example, a key provision  concerns the denial

based  on a disability "of  the opportunity of  the individual or

class  to participate  in or  benefit from  the  goods, services,

facilities,  privileges,  advantages,  or  accommodations  of  an

entity."  42  U.S.C.    12182(b)(1)(A)(1).  As  a matter of  bare

language, one could spend some time arguing about whether this is

intended  merely to provide access to whatever product or service

                               -17-

the subject entity may offer, or is intended in addition to shape

and  control which products and services may be offered.  Indeed,

there may be areas in which a sharp distinction between these two

concepts is illusory.

          One who  simply reads the  Committee Report  describing

the  operations  of Title  III could  easily  come away  with the

impression  that  it is  primarily concerned  with access  in the

sense  of   either  physical   access  to  a   place  of   public

accommodation  or something  analogous, such  as access  provided

through telephone lines, messengers or some other medium.  At the

same  time, there  is  nothing in  that  history that  explicitly

precludes an extension of the statute to the substance of what is

being  offered.  Suppose, for  example, a company  that makes and

distributes tools provides easy access to its  retail outlets for

persons  with every kind of disability, but declines to make even

minor adjustments in the design of  the tools to make them usable

by persons with only quite limited disabilities.

          The statute's treatment of  insurance is a good example

of these ambiguities.  On the one hand, the ADA carves out a safe

harbor  of  sorts for  anyone who  is  "an insurer,  hospital, or

medical service  company, health maintenance organization, or any

agent,  or  entity that  administers  benefit  plans, or  similar

organizations . . . ." 42 U.S.C.   12201(c)(1).  See also id.  at
                                                             

(c)(2),  (3).  One might  initially suppose that  this is because

Title III would  otherwise cover the  substance of the  insurance

plans.   However,  there is  some  indication in  the legislative

                               -18-

history that the industry received this exemption not because its

policies would  otherwise be substantively regulated  under Title

III, but  because "there is  some uncertainty  over the  possible

interpretations of the language contained in titles I, II and III

as it  applies to insurance .  . . ."   See S. Rep.  No. 116, 101
                                           

Cong., 1st Sess. at 84 (1989).

          We think that at this  stage it is unwise to  go beyond

the  possibility that the plaintiff  may be able  to develop some
                

kind of  claim under  Title III  even though this  may be  a less

promising vehicle in the present case than Title I.  Not only the

facts but, as we have already noted, even the factual allegations

are quite sparse.  In addition, because of our resolution of  the

Title I  claims, this  case must  be remanded  and is subject  to

further proceedings  regardless of  whether Title III  remains in

the  case.   While  it is  tempting  to seek  to  provide further

guidance, the  nature of the  record and  the way the  issues are

addressed in the appellate briefs make it imprudent to do so.

          Neither Title III nor its implementing regulations make

any mention of physical boundaries or physical entry.  Many goods

and  services are  sold  over  the  telephone  or  by  mail  with

customers never physically entering  the premises of a commercial

entity to purchase the goods or services.   To exclude this broad

category of businesses from the reach of Title III and limit  the

application  of Title  III to  physical structures  which persons

must  enter to obtain  goods and services would  run afoul of the

purposes  of  the ADA  and  would  severely frustrate  Congress's

                               -19-

intent that individuals with  disabilities fully enjoy the goods,

services, privileges and  advantages, available  indiscriminately

to other members of the general public.

                               IV.

                          MISCELLANEOUS
                                       

          Plaintiffs also alleged a  violation of N.H. Rev. Stat.

Ann.   354(A), referred  to as the "Law  Against Discrimination,"

and  of the  Civil Rights  Act of  1965, 42  U.S.C.    1985(3).10

Plaintiffs  claimed  in the  district  court  that Section  354-A

serves as an  enforcement vehicle for the ADA and for that reason

should not  be preempted by ERISA, 29 U.S.C.   1144.  Because the

district court found that the ADA did not apply to defendants, it

reasoned that no disruption  in the enforcement of the  ADA would

result by holding  that Section  354-A is preempted.   The  court

then  found Section  354-A  preempted by  ERISA  with respect  to

                    

10   Plaintiffs claimed that  Senter, being afflicted  with AIDS,
was  a member  of a  discrete and  insular minority  deserving of
protected class status  under 42 U.S.C.    1985(3).   Plaintiffs'
Section   1985  claim  alleged   that  defendants   conspired  to
discriminate against Senter through the institution of a lifetime
cap on AIDS-related medical benefits.

   The district  court noted that under  section 1985(3) "[t]here
must   be   some  racial,   or  perhaps   otherwise  class-based,
invidiously  discriminatory  animus   behind  the   conspirators'
action"  and   that  appellants   "must  identify  a   source  of
congressional power to  reach the private conspiracy alleged. . .
."  Carparts  Distribution Ctr.,  826 F. Supp.  at 587  (internal
                               
quotations and citations omitted).

   Because  the district  court  ruled that  defendants were  not
protected  by  either the  employment  provisions  or the  public
accommodation  provisions  of  the  ADA, it  further  found  that
appellants failed to identify a source of congressional  power to
reach  the   private  conspiracy  they   alleged  and  therefore,
dismissed their complaint.

                               -20-

plaintiffs' cause of action.

          The district  court's decision to dismiss  these claims

was based  primarily on its  finding that neither  the employment

provisions  nor the  public accommodation  provisions of  the ADA

applied to defendants.   Because we find that the  district court

erred in dismissing plaintiffs'  ADA claims, we vacate its  order

dismissing plaintiffs Section  354-A claim and  42 U.S.C.    1985

and remand these claims to the district court for reconsideration

in light of this opinion.

                                V.

                            CONCLUSION
                                      

          Because  the  district   court  dismissed   plaintiffs'

complaint without providing notice  of its intended dismissal and

erred  in interpreting the term  "employer" under Title  I of the

ADA  and   in  concluding   that  defendants  were   not  "public

accommodations" under Title III, we hold  that the district court

erred in dismissing plaintiffs' complaint.

          We  vacate   the  district  court's   order  dismissing
                                                                 

plaintiffs' ADA claims and  further order that plaintiffs' claims
                                                                 

under Section 354-A  and 42 U.S.C.    1985 claim be  reviewed and
                                                                 

reinstated.    We remand  for  proceedings  consistent with  this
                                                                 

opinion.
       

                               -21-
