Saturday, June 13, 2020
ARE WEBSITES "PLACES OF PUBLIC ACCOMMODATION" UNDER THE AMERICANS WITH DISABILITIES ACT?
The first website accessibility case to go to trial was argued and is awaiting decision by the United States Court of Appeals for the Eleventh Circuit.
The trial court had ruled fully for the plaintiff, Juan Gil, and ordered Winn-Dixie, the grocery store chain, to make its website fully accessible to the blind, and to do so through compliance with the accepted standard, WCAG.
The case was argued by David Ferleger, Jenkintown, PA on October 2, 2018. Together with Joshua Entin, Florida, Mr. Ferleger represents Plaintiff Juan Gill; The lower court decision is at Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. FL 2017).
Mr. Ferleger stated, “We seek a decision guarantees that the internet’s doors are open to the blind. accessible websites are good for the blind, good for businesses, and good for society as a whole. As Mr. Gil, a paralympic athlete, testified at the trial, “Why me, as an individual that’s visually impaired, why can I not access the same, goods, services on a website…” “The dignity and perseverance of Juan Gil is inspiring,” said co-counsel Joshua Entin.
United States Senators wrote to the Attorney General to urge limits on ADA website accessibility cases, citing the Gil v. Winn-Dixie case at the outset of the letter.
Organizations representing thousands of businesses asked the court of appeals to overturn the verdict, arguing that their obligations under the ADA do not extend to websites, and expressing concern about the cost of compliance. The brief was filed by the Chamber of Commerce of the United States of America, Restaurant Law Center, American Bankers Association, American Hotel & Lodging Association, American Resort Development Association, Asian American Hotel Owners Association, International Council of Shopping Centers, National Association of Convenience Stores, National Association of Realtors®, National Association of Theatre Owners, National Federation of Independent Businesses, National Multifamily Housing Council, and National Retail Federation, and a separate brief by the Florida Justice Reform Institute.
On the other side, the disability advocacy community’s friend of the court brief was filed by the National Federation of The Blind, American Council of the Blind, American Foundation For the Blind, Association of Late Deafened Adults, Disability Independence Group, Disability Rights Advocates, Disability Rights Education & Defense Fund, Disability Rights Florida, Florida Council Of The Blind, National Association of The Deaf, National Disability Rights Network, National Federation of the Blind of Florida, Washington Lawyers’ Committee For Civil Rights and Urban Affairs, and the World Institute on Disability. It is authored by Greg Care, Brown Goldstein & Levy.
The various federal courts of appeals have adopted their own standards for accessibility. Though there have been thousands of lawsuits on ADA website accessibility, Mr. Gil’s case is the first to have gone to trial.
For whatever reason, the 11th Circuit has not yet decided Winn-Dixie. It remains to be seen how the court will enter the legal fray. Federal courts of appeals have developed various flavors of standards on website website accessibility. Some are “all are covered” or “none or covered.” Some, including a prior 11th Circuit decision, find that the ADA covers a website if the site has a “nexus” to a physical store.
Of course, with so much commerce having moved online, including to businesses with products and services being sold solely online, the caselaw’s “none covered” and the “nexus” approach are seriously deficient. The situation has been changing since those cases were decided.
“What percentage of retail sales are ecommerce? More than 10 years ago, ecommerce was at 5.1% of total retail purchases. Ecommerce now  accounts for 16%.” “Since 2007, the web has tripled its share of retail sales.”
March 3, 2020
For federal circuit court cases at the time of argument (and I know of none since then), see Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002);Haynes. v. Dunkin' Donuts LLC, 2018 U.S. App. LEXIS 21126 *5-6 (11th Cir. 2018);Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Cullen v. Netflix, 600 F.Appx 508 (9th Cir 2015); Earll v. eBay, 599 F.Appx 695 (9th Cir. 2015); Carports Distribution Center, v. Automotive Wholesaler's, 37 F.3d 12 (1st Cir. 1994); Peoples v. Discover Fin. Servs., Inc., 387 F. App'x 179, 183 (3d Cir. 2010); Ford v. Schering-Plough, 145 F.3d 601 (3d Cir. 1998); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Morgan v. Joint Admin. Bd, 268 F.3d 456, 459 (7th Cir. 2001); Stoutenborough v. National Football League, 59 F.3d 580 (6th Cir. 1995); Carroll v. Fedfinancial Fed. Credit Union, 2018 U.S. Dist. LEXIS 108808, *11 (ED VA June 25, 2018); Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), opinion amended on denial of reh'g, 204 F.3d 392 (2d Cir. 2000).
Please let me know of any court decisions on this issue, both in courts of appeals and district courts.
To check on status of the case, or for copies of the briefs, feel free to write or call Mr. Ferleger, email@example.com
For various perspectives on the suit generally (and before the new court of appeals decision):
Courthouse News Service
Court Decisions Brief – Southeast ADA Center
“Perspectives from an ADA Lawyer: Practical Implications of the Winn-Dixie Lawsuit”
Seyforth Shaw – ADA Title III
Fredrickson & Byron: