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Case 1:16-cv-23020-RNS Document 1 Entered on FLSD Docket 07/12/2016 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Plaintiff,


Civil Action Number:

JUAN CARLOS GIL,


vs.

WINN-DIXIE STORES, INC.




Defendant









COMPLAINT






COMES NOW Plaintiff Juan Carlos Gil, by and through his undersigned counsel

hereby files this Complaint and sues Defendant Winn-Dixie Stores, Inc. for injunctive

relief, attorney’s fees and costs (including, but not limited to, court costs and expert fees)

pursuant to Title III of the Americans with Disabilities Act of 1990, as amended, 42

U.S.C. §§s 12181-12189 (“ADA”), 28 C.F.R. Part 36 and alleges as follows:

INTRODUCTORY STATEMENT

1.

Plaintiff Juan Carlos Gil brings this action in Federal Court to stop the

marginalization of blind, vision impaired, and low vision patrons of Defendant Winn-

Dixie Stores, Inc.’s website (which is an extension of its grocery stores) throughout the

United States of America, where the groundbreaking “American with Disabilities Act”

has been the law of the land for over twenty-six years.



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2.

In a world of increasing number of low vision and blind individuals that is

expected to double by 2050, it is essential that low vision and blind individuals are not

excluded from society and segregated in area of web commerce.

3.

This case arises out the fact that Defendant Winn-Dixie Stores, Inc. has

operated its business in a manner and way that completely excludes individuals with

disabilities who are visually impaired from enjoying and visiting their place of public

accommodation, namely the Defendant’s website www.winndixie.com.

4.

Defendant Winn-Dixie Stores, Inc. (also referenced as “Defendant”) owns

and operates places of public accommodation which are grocery and pharmacy stores

under the brand name “Winn Dixie.” Winn Dixie grocery stores offer for sale to the

general public grocery items including, but not limited to: meat, vegetables, dry goods,

dairy products, bakery goods, magazines, gift cards, packaged ready-to-eat meals and

snacks, and a full service pharmacy. Heretofore, referenced as “grocery/deli items and

pharmacy.”

5.

The Defendant offers an adjunct website www.winndixie.com (“website”)

which is directly connected to its Winn Dixie grocery and pharmacy stores since the

website provides a site locator to the Defendant’s Winn Dixie grocery and pharmacy

store locations (places of public accommodation). Thus, www.winndixie.com (“website”)

has a true nexus to the Defendant’s Winn Dixie grocery and pharmacy stores.

6.

This is an action to put an end to civil rights violations committed by

Defendant Winn-Dixie Stores, Inc. against individuals with disabilities who are visually

impaired and who cannot access and comprehend the internet and the websites that

operate therein without the aid of assistive technology.



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JURISDICTION & VENUE

7.

This is an action for declaratory and injunctive relief pursuant to Title III

of the Americans With Disabilities Act, 42 U.S.C. §§12181-12189 (“ADA”), 28 U.S.C. §

1331, and 28 C.F.R. § 36.201.

8.

This is also an action for declaratory and injunctive relief to prevent

discrimination which includes equal access to internet website for services to

order/reorder Winn Dixie pharmacy (prescriptions) online.

9.

Venue in this Court is proper pursuant to 28 U.S.C. §1391(b) because the

Defendant resides in this District, the Defendant transacts business in this District, and

the acts constituting the violation of the ADA occurred in this District.

10.

Plaintiff seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§s

2201 and 2202.

Juan Carlos Gil


THE PARTIES

11.

Plaintiff Juan Carlos Gil is a resident of the state of Florida and resides

within the Southern judicial district, is sui juris, is disabled as defined by the ADA and

the Rehabilitation Act.

12.

Plaintiff Juan Carlos Gil suffers from what constitutes a “qualified

disability” under the ADA. Plaintiff Juan Carlos Gil is legally blind with a vision

disability (optic nerve damage) and a learning disability, and therefore is substantially

limited in performing one or more major life activities, including but not limited to

accurately visualizing his world, adequately traversing obstacles and walking without

assistance. The Plaintiff’s disability is defined in 42 U.S.C. §12012 (1)(A) and in 42

U.S.C. 3602, §802(h).



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Winn-Dixie Stores, Inc.


13.

Defendant Winn-Dixie Stores, Inc. (also referenced as Defendant) is the

owner and operator of a chain of grocery and pharmacy stores under the brand name

“Winn Dixie.”

14.

At all times material hereto, the Defendant Winn-Dixie Stores, Inc. was

(and is) grocery and pharmacy store chain wherein all of its grocery and pharmacy stores

under the Winn-Dixie brand are open to the public. The Defendant’s grocery retail stores

are over 40,000 square feet and offer a full range of grocery goods including (but not

limited to) fruits, vegetables, dairy products, meats, dry goods, miscellaneous household

items, bakery goods, delicatessen (which includes a lunch counter that serves hot and

cold food), pharmacy, and financial services (such as Western Union) to the general

public.

15.

Defendant Winn-Dixie Stores, Inc. is authorized to conduct, and is

conducting, business within the State of Florida and within the jurisdiction of this court.

FACTS

16.

The Defendant is defined as a “public accommodation" because it is an

entity which owns and operates a chain of grocery and pharmacy stores under the brand

name “Winn Dixie,” each of which is a "Place of Public Accommodation" which is

defined as “[A] bakery, grocery store, clothing store, hardware store, shopping center, or

other sales or rental establishment,” 42 U.S.C. §12181(7)(E) and 28 C.F.R. §36.104. (2).

Because many of the Winn Dixie stores contain full service pharmacies, the Winn Dixie

is defined as a Place of Public Accommodation under 42 U.S.C. §12181(7)(F). Thus,

each of the Defendant’s Winn Dixie grocery stores and adjunct pharmacies are a place of



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public accommodation subject to the requirements of Title III of the ADA and its

implementing regulation; 42 U.S.C. §12182, §12181(7)(E), §12181(7)(F), and 28 C.F.R.

Part 36. The Defendant’s Winn Dixie grocery stores are also referenced throughout as

“place(s) of public accommodation,” “Winn Dixie (grocery and pharmacy) stores,” or

“grocery stores.”

17.

The Defendant’s website www.winndixie.com (“website”) is offered to

provide the general public information including but not limited to information on the

various locations of the Defendant’s Winn Dixie stores.

18.

The Defendant owns and/or operates 513 grocery and pharmacy stores in

Florida, Alabama, Louisiana, Georgia and Mississippi. The Defendant also offers its own

Winn Dixie brand grocery/deli items (under the Winn Dixie brands: Winn Dixie, and also

Chek, Clear Value, Fisherman’s Wharf, Kuddles, Prestige, Top Care, La Baguetterie,

and Lip Lickin Chicken).

19.

The Defendant’s website www.winndixie.com services the various Winn

Dixie grocery store locations, allows the general public to fill/refill medicine

prescriptions on-line (for in-store pick up or delivery), provides information on its Winn

Dixie brand products, and (among other things) provides: home-cooking recipes and tips,

information about product recalls, and other services.

20.

Since the Defendant’s website allows the general public the ability to

locate one of the many Winn Dixie grocery store/pharmacy locations, the website is an

extension of the physical Winn Dixie grocery stores and on-site pharmacies. Therefore,

the website has a direct nexus between the website and the Defendant’s Winn Dixie



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grocery stores and on-site pharmacies, hence the website is also characterized as a place

of public accommodation; 42 U.S.C. §§s 12181(7)(E) and (F).

21.

The website also allows the general public access to fill-refill pharmacy

prescriptions for in-store pick up or delivery. As such, the website is a sales

establishment, which is a public accommodation pursuant to 42 U.S.C. § 12181(7)(F) and

must comply with the ADA. This means it must not discriminate against individuals with

disabilities and may not deny full and equal enjoyment of the services afforded to the

general public. As such, the Defendant has subjected itself and the website it has created

and maintains, to the Americans with Disabilities Act (“ADA”).1

22.

Plaintiff Juan Carlos Gil is a customer of Winn Dixie grocery and

pharmacy stores and is interested in filling/refilling pharmacy prescriptions on-line, as

offered through the Defendant’s website www.winndixie.com.

23.

Plaintiff Juan Carlos Gil frequently utilizes the internet. In order to

comprehend information available on the internet and access/comprehend websites,

Plaintiff Juan Carlos Gil uses commercially available screen reader software to interface

with the various websites.

24.

In order to comprehend the Defendant’s website and to become informed

of the Defendant’s Winn Dixie brand grocery/deli items and pharmacy (which other

members of the general public may order online), Plaintiff Juan Carlos Gil must use

screen reader software.


1 “The Department of Justice has long taken the position that both State and local government
Websites and the websites of private entities that are public accommodations are covered by the ADA. In
other words, the websites of entities covered by both Title II and Title III of the statute are required by
law to ensure that their sites are fully accessible to individuals with disabilities.” ( See: Statement of Eve
Hill Senior Counselor to the Assistant Attorney General for the Civil Rights Department of Justice -
Before the Senate Committee on Health, Education, Labor & Pensions United States Senate – Concerning
The Promise of Accessible Technology: Challenges and Opportunities – Presented on February 7, 2012.



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25.

Filling and refilling prescriptions online and having those items ready for

pick up or delivered to one’s home is a highly sought after accommodation that helps

improve the lives of vision impaired people such as the Plaintiff (and thousands of others

like him), and helps them integrate and participate in society.

26.

Plaintiff Juan Carlos Gil is interested in shopping at Winn Dixie grocery

stores and pharmacy. Plaintiff Juan Carlos Gil had heard about the Winn Dixie on-line

pharmacy services and website and decided to look online to learn about the Winn Dixie

brand items, store locations and find out more about the online pharmacy services

through its website, www.winndixie.com.

27.

During June and July, 2016, the Plaintiff attempted on several occasions to

utilize the Defendant’s website to learn about the Winn Dixie brands and Winn Dixie on-

line pharmacy. The Plaintiff utilizes JAWS Screen Reader software (hereinafter

referenced as “screen reader software”), which is the most popular screen reader software

utilized worldwide as it allows individuals who are visually impaired to comprehend

information available on the internet and access websites.

28.

However, the Defendant’s website did not integrate with Plaintiff’s screen

reader software, nor was there any function within Defendant’s website to permit access

for visually impaired through other means.

29.

Plaintiff Juan Carlos Gil attempted to locate any Accessibility Notice or

any information relating to the website’s future accessibility plans or information

regarding contacting the Defendant to alert the Defendant to the inaccessibility of its



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Case 1:16-cv-23020-RNS Document 1 Entered on FLSD Docket 07/12/2016 Page 8 of 18

website www.winndixie.com, but was unable to do so, because no such link or notice was

provided2.

30.

The fact that Plaintiff Juan Carlos Gil could not access the Defendant’s

www.winndixie.com website, he felt as if another door had been slammed in his face, as

he

is/was unable

to participate

in

the shopping experience online at

the

www.winndixie.com website as experienced by the general public, 26 years after the

Title III of the ADA was enacted and which promised to remove such barriers.

31.

Plaintiff Juan Carlos Gil continues to desire to patronize the Defendant’s

website, but is unable to do so as he is unable to comprehend the Defendant’s website,

thus he will continue to suffer irreparable injury from the Defendant’s intentional acts,

policies, and practices set forth herein unless enjoined by this Court.

32.

The Defendant’s website did\does not offer an adequate system to permit a

disabled person with a visual impairment (who requires screen reader software) to

comprehend its website in an effective manner.

33.

The Defendant’s website is\was not designed and programmed to interface

with commercially available screen reader software for disabled individuals who are

visually impaired in the same manner as the website is offered to the general public.

34.

The Defendant’s website is\was so poorly functional for visually impaired

individuals who require screen reader software, that any utilization of the website


2 Other online retailers have taken steps to notice and inform disabled users of their website programming
plans and have direct email / toll free numbers to enable contact with the retailer e.g.
http://www.starbucks.com/about-us/company-information/online-policies/web-accessibility
http://www.tiffany.com/Service/Accessibility.aspx?isMenu=1&
http://www.potbelly.com/Company/Accessibility.aspx




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contains barriers that prevent full and equal use (of the website) by individuals with

disabilities who are visually impaired.

35.

On information and belief, the Defendant has not initiated a Web

Accessibility Policy to insure full and equal use of its website by individuals with

disabilities.

36.

On information and belief, the Defendant has not instituted a Web

Accessibility Committee to insure full and equal use of its website by individuals with

disabilities.

37.

On information and belief, the Defendant has not designated an employee

as a Web Accessibility Coordinator to insure full and equal use of its website by

individuals with disabilities.

38.

On information and belief, the Defendant has not instituted a Web

Accessibility User Accessibility Testing Group to insure full and equal use of its website

by individuals with disabilities.

39.

On information and belief, the Defendant has not instituted a User

Accessibility Testing Group to insure full and equal use of its website by individuals with

disabilities.

40.

On information and belief, the Defendant has not instituted a Bug Fix

Priority Policy.

41.

On information and belief, the Defendant has not instituted an

Automated Web Accessibility Testing program.



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42.

On information and belief, the Defendant has not created and instituted a

Specialized Customer Assistance line, nor service, or email contact mode for customer

assistance for the visually impaired.

43.

On information and belief, the Defendant has not created and instituted on

its website a page for individuals with disabilities, nor displayed a link and information

hotline, nor created an information portal explaining when and how the Defendant will

have its website, Applications, and Digital Assets accessible to the visually impaired

community.

44.

On information and belief, the Defendant’s website does not meet the Web

Content Accessibility Guidelines (“WCAG”) 2.0 Basic Level of web accessibility3.

45.

On information and belief, the Defendant does not have Web Accessibility

Policy.

46.

Thus, the Defendant has not provided full and equal enjoyment of the

services, facilities, privileges, advantages and accommodations provided by and through

its website www.winndixie.com.

47.

Under the ADA, all places of public accommodation must ensure that the

disabled individuals enjoy full and equal enjoyment of its goods and services by making

reasonable modifications to its services and sales policies and procedures.

48.

Public Accommodations that use the Internet for communications

regarding their programs, goods or services, must offer those communications through

adequate accessible means as well.


3 developed by the Web Accessibility Initiative (WAI) working group of the World Wide Web Consortium
which defined how to make Web content more accessible to people with disabilities (W3C)



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49.

For many individuals with disabilities who are limited in their ability to

travel outside their home, the internet is one of the few available means of access to the

goods and services in our society.

50.

The broad mandate of the ADA to provide an equal opportunity for

individuals with disabilities to participate in and benefit from all aspects of American

civic and economic life. That mandate extends to internet websites, such as the

Defendant’s website.

51.

On information and belief, the Defendant is aware of these common

access barriers within its website which prevent individuals with disabilities who are

visually impaired from the means to comprehend its website to become informed of its

Winn Dixie grocery store locations, Winn Dixie brand products, on-site pharmacies, and

the ability to order/reorder medical prescriptions online.

52.

On information and belief, the Defendant is aware of need to provide full

access to all visitors of the Website.4

53.

Such barriers result in discriminatory and unequal treatment of individuals

with disabilities who are visually impaired.

54.

Such barriers result in punishment and isolation of blind and low vision

from the rest of society.

55.

Thus, the Defendant has refused to make its website accessible to

individuals with disabilities who are visually impaired.


4 Major Retailing Trade Magazines have been publishing articles to alert retailer of the need to update their
websites in light of current legal trends and cases e.g (www.internetretailer.com/2016/04/01/web-
accessibility-what-e-retailers-need-know) (www.retailingtoday.com/article/lawsuit-highlights-importance-
ada-compliance)



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56.

According to Statistic Brain Research Institute5, in 2014, online sales in

the United States exceeded $304 Billion U.S. Dollars. On average, 87% of Americans

that have browsed online stores such as www.winndixie.com and have made an internet

purchase, while 57% of Americans that have browsed online stores have made a purchase

multiple times.

57.

According to the National Federation for the Blind6, there are 6,670,300

Americans with visual disabilities.

58.

The National Federation for the Blind has also reported that there are

434,600 Americans with visual disabilities living within the state of Florida.

59.

The Defendant has failed to provide any mechanism by which to

adequately serve visually impaired individuals such as Plaintiff Juan Carlos Gil. The

Defendant is operating in violation of Plaintiff Juan Carlos Gil’s rights as protected by

the ADA and is entitled to injunctive relief. 42 U.S.C. §12188.

60.

Plaintiff Juan Carlos Gil has no plain, adequate, or complete remedy at

law to redress the wrongs alleged herein and this suit for declaratory judgment and

injunctive relief is their only means to secure adequate redress from the Defendant’s

unlawful and discriminatory practices.

61.

Plaintiff Juan Carlos Gil and others will continue to suffer irreparable

injury from Defendant’s intentional acts, policies, and practices set forth herein unless

enjoined by the court.


5 US Commerce Department, Forrester Research date: October 9, 2014, See
http://www.statisticbrain.com/total-online-sales/
6 Statistics for 2012, see http://www.NFB.org/blindness-statistics



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62.

Notice to the Defendants is not required as a result of the Defendant’s

failure to cure the violations. Enforcement of the Plaintiff’s rights is right and just

pursuant to 28 U.S.C. §§s 2201, 2202.

63.

The Plaintiff has retained the law offices of Scott R. Dinin, P.A. and has

agreed to pay a reasonable fee for services in the prosecution of this cause, including

costs and expenses incurred.

COUNT I – VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT

64.

Plaintiff Juan Carlos Gil re-alleges and incorporates by reference the



allegations set forth in ¶¶s 1-63 above.

65.

The Department of Justice has long taken the position that both State and

local government websites and the websites of private entities that are public

accommodations are covered by the ADA. In other words, the websites of entities

covered by both Title II and Title III of the statute are required by law to ensure that their

sites are fully accessible to individuals with disabilities7.

66.

As a result of the inaccessibility of the Defendant’s website and by the

barriers to access in its website (when removal of those barriers is readily achievable), the

Defendant has denied individuals with disabilities who are visually impaired full and

equal enjoyment of the information and services that the Defendant has made available to

the general public on its website www.winndixie.com, in derogation of 42 U.S.C. §12101

et. seq., and as prohibited by 42 U.S.C. §12182 et. seq.


7 See: Statement of Eve Hill Senior Counselor to the Assistant Attorney General for the Civil Rights Department of
Justice - Before the Senate Committee on Health, Education, Labor & Pensions United States Senate – Concerning
The Promise of Accessible Technology: Challenges and Opportunities – Presented on February 7, 2012.



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67.

Pursuant

to 42 U.S.C. §12181(7)(E), www.winndixie.com

(the

Defendant’s website) is a place of public accommodation under the ADA because it

serves to augment its chain of Winn Dixie grocery and pharmacy stores by providing the

general public information on the various locations of the Defendant’s chain of Winn

Dixie grocery and pharmacy stores and educate the general public as to the line of Winn

Dixie brand grocery/deli items and other grocery items, and also to provide the general

public with the ability to order/fill/re-fill medical prescription items from its pharmacy

online.

68.

As such, the Defendant’s website must be in compliance with the ADA.

However, the Defendant’s website is\was not in compliance with the ADA. Plaintiff Juan

Carlos Gil has suffered an injury in fact because of the website’s (and Defendant’s) non-

compliance with the ADA.

69.

Types of website programming errors include (but are not limited to)

Programming Error Types (“PETs”), which are easily identifiable and correctable, and

Programing Alert Error Types (“PATs”), which are prone to making the website

inaccessible.

70.

A sampling review of just part of the Defendant’s website revealed that

the website is not functional for users who are visually impaired. The Defendant’s

website contains several types of PETs (easily identifiable and correctable), which occur

throughout the website such as:

1) The language of the document is not identified,
2) Image alternative text is not present, and
3) A form control does not have a corresponding label.





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71.

Further, the Defendant’s website contains various types of PATs (prone to

making the website inaccessible), which occur throughout the website, such as:

1) Alternative text is likely insufficient or contains extraneous information,
2) An event handler is present that may not be accessible,
3) A heading level is skipped,
4) Flash content is present,
5) Adjacent links go to the same URL,
6) A link contains no text, and
7) Alternative text is likely insufficient or contains extraneous information.



72. More violations may be present on other pages of the website, and they

will be determined and proven through the discovery process.

73.

Further, the Defendant’s website did\does not offer include the universal

symbol for the disabled8, which would permit disabled individuals to access the website’s

accessibility information and accessibility facts.

74.

Therefore, due to the Plaintiff’s disability and the Defendant’s failure to

have its website adequately accessible to individuals with visual impairments, the

Plaintiff was unable to comprehend the Defendant’s website.

75.

The Defendant has violated the ADA (and continues to violate the ADA)

by denying access to its website, www.winndixie.com, to individuals with disabilities

who are visually impaired and who require the assistance of interface with screen reader

software to comprehend and access internet websites. These violations within the

www.winndixie.com website are ongoing.



8



, or HTML “Accessibility” link for those individuals who are visually impaired

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76.

As a result of the Defendant’s inadequate development and administration

of www.winndixie.com, Plaintiff Juan Carlos Gil is entitled to injunctive relief pursuant

to 42 U.S.C. §12133 to remedy the discrimination.

77.

Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to

grant Plaintiff Juan Carlos Gil injunctive relief; including an order to:

a) Require Defendant Winn-Dixie Stores, Inc. to adopt and implement a web

accessibility policy to make publically available and directly link from the

homepage of www.winndixie.com to a statement as to Winn-Dixie

Stores, Inc.’s policy to ensure persons with disabilities have full and equal

enjoyment of

the services, facilities, privileges, advantages, and

accommodations through its website, and

b) Require Defendant Winn-Dixie Stores, Inc.

to cease and desist

discriminatory practices and if necessary to cease and desist operations of

the website known as www.winndixie.com until

the

requisite

modifications are made such that its website becomes equally accessible

to persons with disabilities.

78.

Plaintiff Juan Carlos Gil has been obligated to retain the undersigned

counsel for the filing and prosecution of this action. Plaintiff Juan Carlos Gil is entitled to

have reasonable attorneys’ fees, costs and expenses paid by Defendant Winn-Dixie Stores,

Inc..

WHEREFORE, Plaintiff Andres hereby demands judgment against Defendant

Winn-Dixie Stores, Inc. and request the following injunctive and declaratory relief:



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a)

The Court issue a declaratory judgment that Defendant Winn-Dixie Stores,

Inc. has violated the Plaintiff’s rights as guaranteed by the ADA;

b)

The Court enter an Order granting temporary, preliminary and permanent

injunction prohibiting Defendant Winn-Dixie Stores, Inc. from operating

its website www.winndixie.com without adequate accommodation for the

visually impaired community;

c)

The Court enter an Order requiring Defendant Winn-Dixie Stores, Inc. to

update website to remove barriers in order that individuals with visual

disabilities can access the website to the full extent required by the Title

III of the ADA;

d)

The Court enter an Order requiring Defendant Winn-Dixie Stores, Inc. to

clearly display the universal disabled logo9 within its website, wherein the

logo would lead to a page which would state Winn-Dixie Stores, Inc.’s

accessibility information, facts, policies, and accommodations. Such a

clear display of the disabled logo is to insure that individuals who are

disabled are aware of the availability of the accessible features of website

www.winndixie.com;

e)

The Court enter an order requiring Defendant Winn-Dixie Stores, Inc. to

provide ongoing support for web accessibility by implementing a website

accessibility coordinator, a website application accessibility policy, and

providing for website accessibility feedback to insure compliance thereto.





9



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f)

The Court enter an Order directing Defendant Winn-Dixie Stores, Inc. to

evaluate its policies, practices and procedures toward persons with

disabilities, for such reasonable time so as to allow the Defendant to

undertake and complete corrective procedures to the website known as

www.winndixie.com.

g)

The Court enter an Order directing Defendant Winn-Dixie Stores, Inc. to

establish a policy of web accessibility and accessibility features for the

website known as www.winndixie.com.

h)

The Court award reasonable attorney’s fees, compensatory damages, all

costs (including, but not limited to court costs and any expert fees), and

other expenses of suit, to the Plaintiff; and

i)

That the Court award such other and further relief as it deems necessary,

just and proper.

Dated this 12th day of July, 2016.









Respectfully submitted,







s/Scott Dinin
Scott R. Dinin, Esq.
Scott R. Dinin, P.A.
4200 NW 7th Avenue
Miami, Florida 33127
Tel: (786) 431-1333
[email protected]
Counsel for Plaintiff

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