Law360, Miami (October 4, 2018, 8:18 PM EDT) — Winn-Dixie Stores Inc. urged the Eleventh Circuit on Thursday to reverse a June 2017 decision that found its website violated a blind customer’s rights under the Americans with Disabilities Act and opened the floodgates for lawsuits against companies over website accessibility.
Counsel for the Southern supermarket chain asserted during oral arguments in Miami that the trial court erred by finding its website is subject to regulation of public accommodations under the ADA and that plaintiff Juan Carlos Gil was denied full access to its stores’ goods and services. She also contended the judge overstepped his authority in ordering compliance with the privately formulated Web Content Accessibility Guidelines, or WCAG.
“The question in this case is: Is the website in and of itself a place of public accommodation?” Susan V. Warner said, arguing it cannot be under existing Eleventh Circuit case law.
Gil’s counsel countered that the ADA does not limit what part of a public accommodation’s facilities must be accessible and said that while the company’s website does not block Gil from accessing the physical stores, it is a portal or gateway to the stores.
“If you and I can use the website in a certain way, a blind person needs to be able to use the website in a certain way,” attorney David Ferleger told the panel, adding, “You can’t have a service that keeps people out.”
In the underlying decision, U.S. District Judge Robert N. Scola Jr. concluded that Gil sufficiently alleged the incompatibility of Winn-Dixie’s website with standard screen reader software caused him injury by denying him the full and equal enjoyment of what the chain offers to sighted customers.
The judgment, entered after a two-day bench trial in Miami, was believed to be the first case on website accessibility to go to trial and was closely watched by lawyers and businesses. While Judge Scola stopped short of ruling whether Winn-Dixie’s website is a public accommodation in and of itself, he confirmed that Title III of the ADA applies if the website is “heavily integrated” with and serves as a “gateway” for the physical stores.
The Eleventh Circuit has not ruled on whether a website is itself a public accommodation, a question that has split other circuits, but it did rule in Rendon v. Valleycrest Products Inc. that the ADA covers both tangible, physical barriers as well as “intangible barriers … that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges,” Judge Scola said in his order.
On Thursday, the appeals panel questioned Warner on the Rendon decision, which she said was distinguishable because in that case the court found that the defendant’s requirement for applicants for a game show to call a telephone number to have a chance to become contestants served as an intangible barrier to disabled people from availing themselves of the benefits of the television studio, which qualified as a public accommodation.
In Gil’s case, he alleged that he had shopped for 16 years at Winn-Dixie stores, Warner said, arguing that the website did not block him from continuing to access the physical stores and offered no different goods or services except for the ability to order prescription refills — and that service was part of a microsite run by a third-party vendor within the website and still required customers to come into the stores to pick up their orders.
“He has full access,” Warner told the court.
Ferleger said Gil’s case is not about whether a website is a public accommodation in general and pointed out that the district court did not decide that point. Rather, the case is concerned with what the ADA is about, pointing out that another section of the law is about denial of participation. The inaccessibility of Winn-Dixie’s website denies Gil and other disabled users the ability to fully participate or benefit from its website, he said.
Winn-Dixie also argued that the district court overstepped its authority and legislated from the bench by ordering the company to comply with WCAG version 2.0 in the face of a lack of standards issued by Congress or the U.S. Department of Justice. Warner said this violated the company’s due process rights because it was not given fair notice of these standards and the standards represent a “moving target” as new versions of the guidelines are issued and they do not preclude claims that it is not complying with competing standards.
“Just because there is a void does not mean it’s the court’s place to step in and fill that void,” Warner argued.
U.S. District Judge Danny C. Reeves, who was sitting with the Eleventh Circuit by designation, noted to Ferleger that Gil’s expert witness testified that he had never reviewed a site that was 100 percent compliant with WCAG standards.
“It looks like there is no way to comply,” the judge said.
Ferleger responded that the WCAG guidelines are not strict, precise standards, such as specific measurements for physical accommodations. He said that numerous businesses and even government websites have had no difficulty working with them.
Ferleger also argued that there are other examples, such as the ADA’s requirement for “reasonable accommodations,” where the standards are not “etched in stone.”
But the due process argument should not even be considered by the appeals court, he said, arguing that Winn-Dixie had not raised it before the district court.
“They didn’t offer any alternative,” he said.
U.S. Circuit Judges Jill Pryor and Elizabeth L. Branch and U.S. District Judge Danny C. Reeves sat on the panel for the Eleventh Circuit.
Winn-Dixie is represented by Susan V. Warner of FisherBroyles LLP.
Gil is represented by Scott R. Dinin PA, Joshua M. Entin of Entin Law Group PA, and David Ferleger.
The case is Gil v. Winn-Dixie Stores Inc., case number 17-13467, in the U.S. Court of Appeals for the Eleventh Circuit.