SD Fla. Holds Website That ‘Operates as Gateway to Physical Locations’ Is Subject to ADA

The U.S. District Court for the Southern District of Florida recently held, after a non-jury trial, that a regional supermarket chain violated the federal Americans with Disabilities Act (ADA) because its website was inaccessible to the visually impaired.

A copy of the Verdict and Order in Gil v. Winn-Dixie Stores, Inc. is available at:  Link to Opinion.

The plaintiff, a legally-blind customer of the supermarket who also suffers from cerebral palsy, sued under the ADA, 42 U.S.C. §§ 12181-12189, alleging that its website was not accessible, seeking declaratory and injunctive relief and attorney’s fees and costs.

The parties did not dispute that the plaintiff had a qualifying disability under the ADA or that the stores, some of which also had pharmacies, were “public accommodations” as defined by the ADA. The issues in dispute were: (1) whether the supermarket’s website was subject to the ADA as a public accommodation or was itself a public accommodation; (2) whether the plaintiff “was denied the full and equal enjoyment of [the supermarket’s] goods, services, facilities, privileges, advantages, or accommodations because of his disability; and (3) whether the requested modifications to [the] website are reasonable and readily achievable.”

After a non-jury trial, the Court held that “the Defendant has violated the Plaintiff’s rights under the ADA” and found in favor of the plaintiff.

The plaintiff testified that he could use a computer, but could not see the screen. Instead, he “uses access technology software” called “JAWS” that “reads” the screen for him by telling him what is happening on the screen and “what he needs to type.” He also used other access programs, but they didn’t work as well as JAWS.

The plaintiff frequently shopped at the defendant grocery chain because of its low prices, and also filled his prescriptions at the stores that had a pharmacy, the last time being two and a half to three years ago.

In 2015 or 2016, the plaintiff learned that the defendant had a website that was supposedly accessible. He wanted to use the website because he found it embarrassing to have to go to the store in person to ask for help filling a prescription.

He testified that 90 percent of the website’s functions did not work properly with the JAWS program. This deterred him from “enjoying [the supermarket’s] goods and services.” In contrast, the plaintiff “has used other grocery stores because from their website he can create a shopping list and just hand it to the employee and he could use coupons he obtains from the website and he can pick up prescriptions in privacy.” In addition, the plaintiff testified, these competitors “have websites which he can use with his screen reader software.”

The defendant’s corporate representative “testified that the defendant was in the process of designing an ADA policy for its website but did not currently have one in place,” and that the supermarket was taking steps to modify its website to make it more accessible to those with disabilities, but that the current website had “not been tested … for use with universal screen readers.” He also testified that his employer “knows that it is feasible to make its website accessible to screen reader software and has set aside $250,000 to do this.”

The plaintiff’s expert, who works at a company in Washington state “that tests mobile and web software for accessibility issues[,]” testified that “[i]f the web page is using the common industry standards or following the World Wide Web Consortium accessibility guidelines then the screen reader software should work on the web page. The consortium is made up of a group of committees and subcommittees with representatives from government and industry.”

Having performed an analysis of the defendant’s website, which included manual and automated testing of the “main website as well as the digital coupon, store locator and pharmacy sections[,]” the expert “opin[ed] that most of the accessibility issues can be corrected with simple modifications of one or two source codes.” Finally, he testified that “his company could fix all the problems for $37,000 or less.”

The Court found that “whether the cost to modify the website is $250,000 or $37,000 is of no moment” because it “pales in comparison to the $2 million [defendant] spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website….” In addition, the Court stressed the expert’s unrebutted testimony that it was feasible to modify the website and was, in fact, in the process of doing so.

The Court also found that “the fact the third party vendors operate certain parts of the … website is not a legal impediment to [defendant’s] obligation to make its website accessible to the disabled” because “many, if not most, of the third party vendors may already be accessible to the disabled and, if not, [defendant] has a legal obligation to require them to be accessible if they choose to operate within the [defendant’s] website.”

Turning to its conclusions of law, the Court first addressed whether the plaintiff had standing to sue under the ADA, concluding that he did because “[a] plaintiff’s allegation that he intends on visiting the subject premises in the near future is sufficient to establish standing to seek injunctive relief under the ADA.” Since the plaintiff testified that “he tried unsuccessfully to access [the defendant’s] website and that he intends to patronize [defendant’s] stores again if he can access [its] website[,] [and,] [i]n addition, there is a causal connection between the injury and the alleged inaccessibility of the website, and it is likely that the injury will be redressed by a favorable decision[,]” the Court concluded that the plaintiff “has standing to bring his claim.”

The Court then turned to the question of “whether, as a result of the fact that he is visually impaired, [plaintiff] was denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation[,]” which is what the ADA prohibits.

The Court pointed out that “[c]ourts are split on whether the ADA limits places of public accommodation to physical spaces” and that “[t]he Eleventh Circuit has not addressed whether websites are public accommodations for purposes of the ADA.”

“Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations, courts have found that the website is a service of a public accommodation and is covered by the ADA. … On the other hand, where a website is wholly unconnected to a physical location, courts within the Eleventh Circuit have held that the website is not covered by the ADA.”

The Court, however, ultimately determined that it “need not decide whether [defendant’s] website is a public accommodation in and of itself, because the factual findings demonstrate that the website is heavily integrated with [defendant’s] physical store locations and operates as a gateway to the physical store locations.”

The Court rejected the defendant’s argument that the plaintiff was not denied access to the defendant’s stores “as a result of the inaccessibility of the website” because “the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation….’”

The Court concluded that “[t]he services offered on [defendant’s] website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by [defendant’s] physical store locations. These … are especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.”

The Court held that, because “[t]he factual findings demonstrate that [defendant’s] website is inaccessible to visually impaired individuals who must use screen reader software[,]” the defendant “violated the ADA because the inaccessibility of its website has denied [plaintiff] the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that [it] offers to its sighted customers.”

The Court then turned to the plaintiff’s remedy under the ADA, explaining that “a prevailing plaintiff is not entitled to damages, but he may recover reasonable attorney’s fees.” In addition, “[i]injunctive relief is available under the ADA if the discrimination includes ‘a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities … where such removal is readily achievable.”

Because the defendant “presented no evidence that it would be unduly burdensome to make its website accessible to visually impaired individuals” and making the recommended modifications would make the website accessible to the visually impaired, the Court concluded that plaintiff was entitled to injunctive relief.

Finally, the Court found that the plaintiff was entitled to recover his reasonable attorney’s fees and costs as the prevailing party and established a briefing schedule, warning both sides that it would not hesitate to impose sanctions for unreasonably seeking or opposing fees and costs.

The Court then provided the parties with the basic terms of the proposed injunction, and instructed the parties to submit the dates by which the website modifications need to be completed, with the injunction to expire in three years given “the Defendant’s sincere and serious intent to make its website accessible to all.”

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Hector Lora has substantial experience in all phases of complex commercial litigation, including motion practice, written discovery, depositions, mediations, bench and jury trials, and appellate practice. For more than a decade, his practice has focused extensively on the defense of civil enforcement actions filed by the FTC, as well as real estate litigation, and contested mortgage and condominium lien foreclosures and foreclosure of security interests under UCC Article 9. Hector also has substantial experience in advising a variety of types of businesses regarding their compliance with applicable federal and state laws, including the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Controlling the Assault of Nonsolicited Pornography and Marketing Act of 2003, and Florida laws governing telephone solicitation and communication. Hector received his Juris Doctor from the Georgetown University Law Center, and his undergraduate degree with honors from the University of Florida.