Yesterday, I celebrated my birthday. It turns out that both my wife and my daughter had the day off. So, I got some time with the family and some alone time, including watching the Braves lose unfortunately. Still, a great season for the Braves. If you still have a team in the hunt, good luck!

One of the things that I do is a great deal of legal consulting. That includes this blog and training. It also includes serving as an expert witness, consulting expert, or consultant on litigation when it comes to ADA compliance. The Expert Institute is running a best legal blog contest, and I would appreciate your vote if you have the time to do so. Of course, I so much appreciate you voting for me with respect to the ABA 100. I should find out about that around Thanksgiving. Thanks again for all your support and your readership. I wouldn’t do this otherwise.

Today’s blog entry explores whether curiosity is sufficient to get you pass a motion to dismiss when it comes to website accessibility. The Middle District of Florida in Price v. Everglades College Inc. says it is not. I fully expect this case to be appealed in light of how progressive the 11th Circuit has been lately when it come to the rights of persons with disabilities. Also, I note that last week the 11th Circuit heard argument in the Winn-Dixie case (the lower court decision we discussed here).

As usual, the blog entry is divided into categories and they are facts; court’s reasoning granting the motion to dismiss; deep dive into court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts Taken Directly from the Court Opinion

“The Complaint states that the Plaintiff, who is visually impaired, “is a prospective student who is interested in attending the Keiser University by taking classes at its Daytona Beach campus location.”122 Doc. 1 ¶ 24. The Plaintiff allegedly called the Defendant223 in order “to inquire about Admission to the Keiser University, requirements for admissions, available courses, and accommodations for his disability.” Id. ¶ 25. The Plaintiff claims that the “Defendant’s representative failed to fully assist Plaintiff and referred him to its Website.” Id. The Plaintiff apparently attempted to utilize the Defendant’s website using screen reader software, but because the software was unable to access various electronic documents on the website, the Plaintiff states that he could not find out information necessary to apply to Keiser; research available degree types, pre-requisites, and course descriptions; view the course catalog; and view available accommodations that Keiser could offer him for his disability. Id. ¶ 29.”

The defendant filed a motion to dismiss.

II

Court’s Reasoning Granting the Motion to Dismiss

  1. Citing to a Middle District of Florida case, the court says that a website itself is not a public accommodation for purposes of the ADA.
  2. Citing to Rendon v. ValleyCrest Productions, Limited, an 11th Circuit case from 2002, the court says that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations.
  3. The court notes disagreement among the district courts with respect to website accessibility, but goes on to say that it appears to it that the majority of courts agree that websites are not covered by the ADA unless some function on the website hinders the full use and enjoyment of a physical space. In particular, the court cites to Gomez v. Bang and Olufsen Am., Inc., which we discussed in this blog entry.
  4. A plaintiff alleging an inaccessible website impedes access to a physical location must establish some nexus between the website and the physical place of public accommodation.
  5. All the ADA requires is if a public accommodation chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick and mortar place of public accommodation.
  6. While a nexus is obviously a requirement, alleging the mere existence of some connection or link between the website and the physical location is not sufficient to survive a motion to dismiss.
  7. District Courts in the 11th Circuit distinguish between the inability to use a website to gain information about a physical location and the inability to use a website that impedes access to enjoy a physical location by holding, that the inability to use a website to gain information is not sufficient to state a claim under the ADA.
  8. To hold otherwise, would mean that all websites with any nexus to a physical public accommodation must be formatted in such a way that they are accessible to screen reader software. District courts have been unwilling to take such a leap and neither will this court.
  9. Plaintiff alleged only facts indicating his inability to gain information about the location, rather than his access to enjoyment of the University itself. The plaintiff did not make any allegation that he was unable to apply to the University, pay tuition, or use the student portal on the website.
  10. The court dismissed the complaint without prejudice. Therefore, the plaintiff has 21 days from the date of the order to file an amended complaint.

 

III

Deep Dive

  1. It is absolutely true that the 11th Circuit has held that the ADA covers both tangible and intangible barriers to enjoyment of public accommodations. However, reading Rendon v. Valleycrest Productions, Limited reveals that what they were referring to with respect to intangible barriers was practices, policies, and procedures. In that case, they held that the practices, policies, and procedures screened out persons with disability from being able to participate in the game show. Rendon at its core is really a screen out case. As such, Rendon could be used to support the plaintiff on appeal.
  2. Interestingly enough, there is no mention of Haynes v. Dunkin’ Donuts LLC in the decision. Admittedly, Haynes is unpublished, but in the 11th Circuit, citing to unpublished decisions is permissible when that decision is very much on point, which is the case here.
  3. The court doesn’t quite get it right how Internet accessibility jurisprudence is evolving. As we have talked about in our blog, there are several possibilities when it comes to website accessibility litigation and they are: 1) a place of public accommodation must be a physical space; 2) the Internet is always subject to the ADA; 3) an Internet site is subject to the ADA if it acts as a gateway to a brick-and-mortar store; and 4) the Internet site is subject to the ADA if one of the activities and 42 U.S.C. §12181(7) is involved. As we have discussed here and here, the trend is headed towards #4.
  4. The Bang and Olufsen case, which we discussed here, is a real outlier. There is a difference between that holding and between the cases holding that a gateway to the physical place of public accommodation must exist for the ADA to apply to the Internet site. There is also a difference between the holding in Bang and Olufsen and the 11th Circuit holding in Haynes v. Dunkin’ Donuts, LLC, discussed here, which focuses on whether the website was facilitating the use of the place of public accommodation.
  5. The inability to use a website to gain information about a physical location being insufficient for coverage under the ADA does in fact screen out people with disabilities in that how are they going to find out about something they are curious about if the site is inaccessible?

IV

Takeaways

  1. I fully expect the plaintiff to either appeal this decision to the 11th Circuit or to take advantage of amending the complaint within 21 days of the order in order to satisfy the concerns of the court. If an amended complaint does not satisfy the court, I definitely would expect an appeal.
  2. As I mentioned above, Winn-Dixie was argued last week and the decision there will very much impact this particular case.
  3. The Southern and Middle District of Florida and other District Courts in the 11th Circuit are clearly lagging behind the 11th Circuit jurisprudence.
  4. If there is a moral of the story, setting forth enough facts to give the court a very specific idea as to what is going on is always a good approach. That is, pure notice pleading is not recommended. The closer you get to fact-based pleadings, the better off you are going to be.
  5. A close read of Rendon reveals that that case can be used to support the plaintiff as well as the defendant.
  6. The court’s reliance on Bang and Olufsen is interesting in light of the fact that particular case is very much an outlier.
  7. Richard Hunt, who blog can be found in my blog roll, in one of his recent blog entries, discussed why the lack of regulations for website accessibility even if it offers businesses more flexibility, is a disaster. I commend readers to its reading.

2 Responses to In the Middle District of Florida, Curiosity isn’t Enough to get by a Motion to Dismiss When it Comes to Website Accessibility

Great blog as usual. I’m not sure I agree with your characterization of the holdings. I would put it this way (from most restrictive to least restrictive)

1) a website is never subject to the ADA, only physical places have to be accessible.
2) a website is subject to the ADA if it serves as a means to obtain access to a physical place of business.
3) a website is subject to the ADA if it is a service of or communication tool for a physical place of business because these things are required to be accessible.
4) a website is subject to the ADA if it offers the kinds of goods and services offered by the physical places of business listed in 42 U.S.C. §12181(7) even though it has no association with a physical place of business.

The Bang & Olufsen case makes a distinction within category 3 between services offered by a website that are not related to a physical place of business and those that are. That same distinction was present in the Winn-Dixie decision. These cases say that if the inaccessible service was a purely internet service the ADA doesn’t cover it even though the website offers services for physical places of business as well. Thus, in Bang & Olufsen ordering online for delivery to home does not implicate the ADA, while in Winn-Dixie ordering online to pick up at the store does. This subtlety reveals a problem with the nexus requirement – modern websites have a complicated relationship to physical places of business, sometimes serving as a gateway by providing location services, sometimes acting as a service of the physical place by offering on-line ordering for in-store pickup, and sometimes acting as a service independent of any physical place by offering on-line ordering for home delivery. The reasoning in Bang & Olufsen makes sense, but the result – that the website’s compliance with the ADA depends on how it is used by a particular customer – does not.

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