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United States District Court
for the
Southern District of Florida

Juan Carlos Gil, Plaintiff

v.

Winn Dixie Stores, Inc., Defendant )

)
)
)
Civil Action No. 16-23020-Civ-Scola
Order on the Defendant’s Motion to Dismiss and Motion to Strike
The Plaintiff, Juan Carlos Gil, sued Winn-Dixie Stores, Inc. (“Winn-
Dixie”) for injunctive relief under Title III of the Americans with Disabilities Act
of 1990, 42 U.S.C. §§ 12181–12189 (the “ADA”). This matter is before the Court
on Winn-Dixie’s Motion for Judgment on the Pleadings. (ECF No. 15.) After
briefing on Winn-Dixie’s motion was completed, the Department of Justice filed
a Statement of Interest on behalf of the United States of America (the
“Government”). (ECF No. 23.) Winn-Dixie subsequently moved to strike the
Government’s Statement of Interest. (ECF No. 25.) For the following reasons,
the Court denies Winn-Dixie’s motion to strike and denies the Motion for
Judgment on the Pleadings.

1. Background
Plaintiff Gil is legally blind and suffers from a learning disability;
“therefore [he
activities . . ..” (Compl. ¶ 12, ECF No. 1.) In order to access and comprehend
information on the internet, Mr. Gil must use screen reader software. (Id. ¶¶
23-24.) Defendant Winn-Dixie is a grocery and pharmacy store chain. (Id. ¶
14.) Winn-Dixie operates a website, www.winndixie.com, that allows consumers
to locate physical Winn-Dixie store locations, fill and refill prescriptions for in-
store pick-up or delivery, learn about Winn-Dixie brand items, access home-
cooking recipes, and receive information about product recalls.
1
(Id. ¶¶ 17, 19.)
The Plaintiff alleges that when he attempted to access Winn-Dixie’s
website, the website did not integrate with his screen reader software, “nor was
there any function within [the
impaired through other means.” (Id. ¶¶ 27-28.) The Plaintiff alleges that due to
the website’s inaccessibility, the Defendant has not provided full and equal
enjoyment of the services, facilities, privileges, advantages and

1
In his response to the Defendant’s Motion for Judgment on the Pleadings, the Plaintiff also
alleged that Winn-Dixie’s website allows customers to access coupons for in-store use and to
sign up for a customer rewards program. (Resp. at 2, ECF No. 18.) However, these allegations
are absent from the Complaint and will not be considered by the Court in ruling on the
Defendant’s motion. Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 1 of 8
accommodations provided by and through its website. (Id. ¶ 46.) He also claims
that, for individuals “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.” (Id. ¶ 49.)
On July 12, 2016, the Plaintiff filed the instant lawsuit, claiming that
Winn-Dixie’s website is in violation of the ADA because it is inaccessible to the
visually impaired. (ECF No. 1.) On October 24, 2016, the Defendant filed its
Motion for Judgment on the Pleadings, asserting that websites are not places of
public accommodation under the ADA, and thus its website could not have
violated the ADA as a matter of law. (ECF No. 15.) After the briefing was
complete, the United States filed a Statement of Interest pursuant to 28 U.S.C.
§ 517. (ECF No. 23.) Winn-Dixie subsequently moved to strike the Statement of
Interest. (ECF No. 25.) The Motion for Judgment on the Pleadings and the
motion to strike are ripe for the Court’s review.

2. Legal Standard
Under Federal Rule of Civil Procedure 12(c), a party may move for
judgment on the pleadings “[a
not to delay trial . . . .” Judgment on the pleadings is only appropriate if there
are no material facts in dispute and the moving party is entitled to judgment as
a matter of law. Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc., 404 F.3d
1297, 1303 (11th Cir. 2005) (citation omitted). In ruling on the motion, “[a
facts alleged in the complaint must be accepted as true and viewed in the light
most favorable to the nonmoving party.” Scott v. Taylor, 405 F.3d 1251, 1253
(11th Cir. 2005) (citation omitted).

3. Analysis
As an initial matter, the Court must address the Defendant’s motion to
strike the Government’s Statement of Interest. The Defendant asserts that the
Court must strike the Statement of Interest because it was untimely and filed
without leave of the Court. (ECF No. 25.) However, as the Government
explained, 28 U.S.C. § 517, which allows an officer of the Department of
Justice (“DOJ”) to file a statement of interest, contains no time limitation and
does not require the Court’s leave. (Resp. to Def.’s Mot. to Strike at 1-2, ECF
No. 27.) Courts have interpreted 28 U.S.C. § 517 broadly and have generally
denied motions to strike statements of interest. See, e.g., Alvey v. Gualtieri, No.
15–1861, 2016 WL 6071746, at *2 (M.D. Fla. Oct. 17, 2016) (denying motion to
strike United States’ statement of interest because it was timely, not
redundant, and provided the “valuable perspective” of the DOJ); Ferrand v.
Schedler, No. 11-926, 2012 WL 1247215, at *1-2 (E.D. La. April 13, 2012) Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 2 of 8
(denying motion to strike United States’ statement of interest and noting that
“the United States has broad discretion to attend to any interests of the United
States”). Accordingly, the Court denies Winn-Dixie’s motion to strike (ECF No.
25) and will proceed to its analysis of whether websites are public
accommodations under the ADA.
Title III of the ADA prohibits the owner of a place of public
accommodation from discriminating “on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation. . .” 42 U.S.C. §
12182(a). The ADA defines a public accommodation as a private entity whose
operations affect commerce, and which falls within one of the following twelve
categories:

A)
an inn, hotel, motel, or other place of lodging, except for an
establishment located within a building that contains not more
than five rooms for rent or hire and that is actually occupied by
the proprietor of such establishment as the residence of such
proprietor;

B) a restaurant, bar, or other establishment serving food or drink;

C) a motion picture house, theater, concert hall, stadium, or other
place of exhibition or entertainment;

D) an auditorium, convention center, lecture hall, or other place of
public gathering;

E) a bakery, grocery store, clothing store, hardware store,
shopping center, or other sales or rental establishment;

F)
a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station,
office of an accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider, hospital, or other
service establishment;

G) a terminal, depot, or other station used for specified public
transportation;

H) a museum, library, gallery, or other place of public display or
collection;

I) a park, zoo, amusement park, or other place of recreation;
Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 3 of 8
J)
a nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;

K) a day care center, senior citizen center, homeless shelter, food
bank, adoption agency, or other social service center
establishment; and

L)
a gymnasium, health spa, bowling alley, golf course, or other
place of exercise or recreation.

42 U.S.C. § 12181(7).
The Attorney General has promulgated regulations that further define a
public accommodation as “a facility operated by a private entity, whose
operations affect commerce and fall within at least one of [42 U.S.C.
§ 12181(7)’s twelve categories
36.104. The
regulation defines
“facility” as “all or any portion of buildings, structures, sites, complexes,
equipment, rolling stock or other conveyances, roads, walks, passageways,
parking lots, or other real or personal property, including the site where the
building, property, structure, or equipment is located.” Id.
Winn-Dixie admits that its physical grocery stores and pharmacies are
places of public accommodation. (Answer ¶ 16, ECF No. 7.) However, Winn-
Dixie disputes that its website qualifies as a public accommodation under the
ADA. The Plaintiff asserts that Winn-Dixie’s website is a public accommodation
for two reasons. First, the Plaintiff asserts that Winn-Dixie’s website is a public
accommodation in and of itself because it allows customers to fill or re-fill
prescriptions for in-store pick up or for delivery. (Compl. ¶ 21, ECF No. 1.)
Therefore, the Plaintiff asserts that this service makes Winn-Dixie’s website a
sales establishment, which is an enumerated public accommodation pursuant
to the ADA. (Id.) Second, the Plaintiff asserts that the website is “directly
connected” to the physical stores and has a “true nexus” to Winn-Dixie’s
grocery and pharmacy stores. (Id. ¶¶ 5, 20.) In furtherance of this assertion,
the Plaintiff alleges that the website “augments” Winn-Dixie’s physical store
locations by assisting customers in finding physical store locations, educating
the public as to the line of Winn-Dixie brand grocery items as well as other
grocery items, and providing the public with the ability to fill and re-fill
prescriptions from its pharmacy for in-store pick-up and delivery. (Id. ¶ 67.)
Courts are split on whether the ADA limits places of public
accommodation to physical spaces. Courts in the First, Second, and Seventh
Circuits have found that the ADA can apply to a website independent of any
connection between the website and a physical place. See, e.g., Morgan v. Joint
Admin. Bd., Retirement Plan of the Pillsbury, Co., and others, 268 F.3d 456, 459 Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 4 of 8
(7th Cir. 2001) (citations omitted) (stating that “An insurance company can no
more refuse to sell a policy to a disabled person over the Internet than a
furniture store can refuse to sell furniture to a disabled person who enters the
store. . . The site of the sale is irrelevant to Congress’s goal of granting the
disabled equal access to sellers of goods and services.”); Nat’l Fed’n of the Blind
v. Scribd Inc., 97 F.Supp.3d 565, 576 (D. Vt. 2015) (holding that Scribd’s
website, which allows consumers to access a digital library for a monthly fee, is
a place of public accommodation even though it is not associated with any
physical location); Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196,
200-02 (D. Mass. 2012) (concluding that Netflix’s on-demand service website is
a place of public accommodation even though its services are accessed
exclusively in the home). Courts in these circuits have typically looked at
Congress’s intent that individuals with disabilities fully enjoy the goods,
services, privileges and advantages available indiscriminately to other members
of the public, and at the legislative history of the ADA, which indicates that
Congress intended the ADA to adapt to changes in technology. See, e.g., Scribd
Inc., 97 F.Supp.3d at 574-6; Netflix, Inc., 869 F.Supp.2d at 200-01.
On the other hand, courts in the Third, Sixth, and Ninth Circuits have
concluded that places of public accommodation must be physical places, and
that goods and services provided by a public accommodation must have a
sufficient nexus to a physical place in order to be covered by the ADA. See, e.g.,
Earll v. Ebay, Inc., 599 Fed. App’x. 695, 696 (9th Cir. 2015) (the term “place of
public accommodation” requires some connection between the good or service
alleged to be discriminatory and a physical place); Ford v. Schering-Plough
Corp., 145 F.3d 601, 614 (3rd Cir. 1998) (finding that the term public
accommodation does not refer to non-physical access); Parker v. Metro. Life Ins.
Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997) (stating that a public
accommodation is a physical place). Courts in these circuits have concluded
that a public accommodation must be a physical place because the twelve
enumerated categories of public accommodations in the statute are all physical
places. See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,
1114 (9th Cir. 2000); Parker, 121 F.3d at 1010-11; Ford, 145 F.3d at 612-13.
The Eleventh Circuit has not addressed whether websites are public
accommodations for purposes of the ADA. However, the Eleventh Circuit’s
decision in Rendon v. Valleycrest Prods., Inc. offers some guidance. 249 F.3d
1279 (11th Cir. 2002). The Rendon Court noted that the plain language of Title
III of the ADA covers both tangible, physical barriers that prevent a disabled
person from accessing a public accommodation, as well as “intangible barriers,
such as eligibility requirements and screening rules or discriminatory policies
and procedures that restrict a disabled person’s ability to enjoy the defendant Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 5 of 8
entity’s goods, services and privileges. . .” 249 F.3d at 1283 (citations omitted).
Rendon involved an automated telephone answering system used by the
television show “Who Wants to Be a Millionaire” to select contestants to appear
on the program. Id. at 1280. The Rendon Court held that the plaintiffs stated a
valid claim under the ADA because the plaintiffs alleged that the inaccessibility
of the automated system to persons with hearing and upper-body mobility
impairments effectively denied them access to a privilege (competing in the
television show) offered by a public accommodation (the television studio). Id.
at 1284-86 (noting that the plaintiffs “seek the privilege of competing in a
contest held in a concrete space. . .”).
District courts within the Eleventh Circuit that have considered the
question of whether websites are public accommodations have uniformly held
that the ADA does not apply to a website that is wholly unconnected to a
physical location. Gomez v. Bang & Olufsen Am., Inc., No. 16-23801, at 8 (S.D.
Fla. Feb. 2, 2017) (Lenard, J.) (holding that a website that is wholly
unconnected to a physical location is generally not a place of public
accommodation under the ADA); Access Now, Inc. v. Southwest Airlines, Co.,
227 F.2d 1312, 1321 (S.D. Fla. 2002) (Seitz, J.) (dismissing complaint because
the plaintiffs failed to establish a nexus between the defendant’s website and a
physical, concrete place of public accommodation); Kidwell v. Florida Comm’n
on Human Relations, No. 16-403, 2017 WL 176897, at *4 (M.D. Fla. Jan. 17,
2017) (holding that a website is not a public accommodation under the ADA).
However, district courts in the Eleventh Circuit have found that websites are
subject to the ADA if a plaintiff can establish a nexus between the website and
the physical premises of a public accommodation. Gomez v. Bang & Olufsen
Am., Inc., No. 16-23801 at 9 (citing Rendon for the proposition that if a plaintiff
establishes some nexus between the website and the physical place of public
accommodation, the plaintiff’s ADA claim can survive a motion to dismiss);
Gomez v. J. Lindeberg USA, LLC, No. 16-22966, at 2-3 (S.D. Fla. Oct. 17, 2016)
(Williams, J.) (order granting default judgment in part) (finding that plaintiff
stated a claim under the ADA by alleging that the inaccessibility of the
defendant’s website prevented him from purchasing the defendant’s clothing
online and searching for physical store locations); Access Now, 227 F.2d at
1320. Indeed, this concept has support in Rendon. There, the Eleventh Circuit
noted that some courts require a nexus between the challenged service and the
premises of the public accommodation, and that the plaintiffs in that matter
demonstrated such a nexus. 249 F.3d at 1284 n.8.
Here, the Defendant asserts that the Plaintiff has not alleged an adequate
nexus between its website and its physical grocery stores and pharmacies,
reasoning that the Plaintiff does not assert that the inaccessibility of the Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 6 of 8
website prevented him from visiting a Winn-Dixie store or pharmacy. (Mot. for
J. on the Pleadings at 7-8, ECF No. 15.) The Defendant cites Rendon in support
of this argument. (Id.) However, the Rendon Court noted that the ADA bars
“intangible barriers. . . that restrict a disabled person’s ability to enjoy the
defendant entity’s goods, services and privileges. . .” 249 F.3d at 1283
(citations omitted). In Rendon, the issue was not that the inaccessibility of the
automated phone system prevented the plaintiffs from physically accessing the
television studio, but rather that the inaccessibility of the phone system
prevented the plaintiffs from accessing a privilege (the opportunity to be a
contestant on the television show) afforded by the television studio.
In a case remarkably similar to this one, the Northern District of
California denied the defendant’s motion to dismiss a complaint alleging that
Target Corp.’s (“Target”) website failed to comply with the ADA. Nat’l Fed’n of
the Blind v. Target Corp., 452 F.Supp.2d 946, 949 (N.D. Cal. 2006). The plaintiff
alleged that Target’s website, which was inaccessible to blind individuals,
allowed customers to perform functions related to Target stores, such as access
information about store locations and hours, refill prescriptions, and order
photo prints for pick-up at a store. Id. The Target Corp. court noted that in
Rendon, even though the plaintiffs did not contest the actual physical barriers
of the studio, the Eleventh Circuit found that the ADA was implicated because
the plaintiffs were deprived of the opportunity to compete to be a contestant on
the television show. Id. at 955 (citations omitted). The Target Corp. court
further noted that the statutory language of the ADA “applies to the services of
a place of public accommodation, not services in a place of public
accommodation,” and concluded that Target’s website was “heavily integrated
with the brick-and-mortar stores and operates in many ways as a gateway to
the stores.” Target Corp., 452 F.Supp.2d at 953, 955 (emphasis added)
(citations omitted).
In Gomez v. J. Lindeberg, Inc., Judge Williams cited to Target Corp. in
finding that a plaintiff stated a claim that the defendant’s website violated the
ADA because the plaintiff alleged that the website was inaccessible to blind
individuals and allowed customers to purchase the defendant’s clothing online
and search for physical store locations. Gomez v. J. Lindeberg, Inc., No. 16-
22966 at 3. Similarly, here the Plaintiff has alleged that the inaccessibility of
Winn-Dixie’s website has denied blind individuals the ability to enjoy the
services, privileges, and advantages of Winn-Dixie’s stores. Specifically, the
Plaintiff has alleged, among other things, that Winn-Dixie’s website allows
customers to locate physical Winn-Dixie store locations and fill and refill
prescriptions for in-store pick-up or delivery. (Compl. ¶¶ 17, 19, ECF No. 1.)
Viewing the facts in the light most favorable to the Plaintiff, it appears that, Case 1:16-cv-23020-RNS Document 32 Entered on FLSD Docket 03/15/2017 Page 7 of 8