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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

Case No.: 16-cv-23020-SCOLA

JUAN CARLOS GIL,

Plaintiff,

v.

WINN-DIXIE STORES, INC.,

Defendant.
________________________________/

PLAINTIFF, JUAN CARLOS GIL’S PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW

Plaintiff, JUAN CARLOS GIL, by and through undersigned counsel and pursuant to the
Court‘s August 31, 2016 Scheduling Order and Order of Referral to Mediation [ECF No. 10],
Fed. R. Civ. P. 52(a), and S.D. Fla. L.R. 16.1(k), hereby submits this Proposed Findings of Fact
and Conclusions of Law, and states as follows:
Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 1 of 35
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE came before the Court for a bench trial during the two-week trial period
beginning on April 17, 2017. Having heard the testimony and reviewed the exhibits, pursuant to
Fed. R. Civ. P. 52(a)(1) the Court makes the following findings of fact and conclusions of law:
I. FINDINGS OF FACT

A. Background.

1. Plaintiff, Juan Carlos Gil (―Gil‖ or ―Plaintiff‖), filed the instant matter against
Winn-Dixie Stores, Inc. (―Winn-Dixie‖), pursuant to the Americans with Disabilities Act of
1990, as amended 42 U.S.C. §§ 12101, et seq. (―ADA‖), on the grounds that Winn-Dixie
discriminated against him in the full and equal enjoyment of the services, facilities, privileges,
advantages, and accommodations provided by and through Winn-Dixie‘s website,
https://www.winndixie.com, (the ―Website‖). [See Compl., ECF No. 1].
2. Gil is legally blind and suffers from a learning disability.
3. Gil is an individual with a disability within the meaning of the ADA. [See Pre-
Trial Stip. § V at ¶ A, ECF No. 34]. Specifically, Gil has a ―qualified disability‖ under the ADA,
which prevents him from accurately visualizing his surroundings, adequately traversing obstacles
and walking without assistance. [Compl. ¶ 12, ECF No. 1]. Thus, Gil is substantially limited in
performing one or more major life activities. [Id. ¶ 12].
4. Winn-Dixie is the owner and operator of a regional chain of grocery stores, some
of which contain pharmacies, in the Southeastern United States. [Id. ¶¶ 13-14; see also Pre-Trial
Stip. § V at ¶ B, ECF No. 34].
5. 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, Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 2 of 35
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magazines, gift cards, packaged ready-to-eat meals and snacks, and full service pharmacies.
[Compl. ¶ 4, ECF No. 1].
6. Winn-Dixie owns and/or operates 513 grocery and pharmacy stores in Florida,
Alabama, Louisiana, Georgia and Mississippi. Winn-Dixie also offers 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). [Id. ¶ 18].
7. Winn-Dixie operates the Website, which enables members of the general public to
locate Winn-Dixie‘s physical stores, fill/re-fill prescription medications for in-store pick up, and
obtain information, cooking recipes and tips regarding products sold at Winn-Dixie‘s physical
stores. [Id. ¶¶ 19, 21].
8. The 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. [Id. ¶ 17].
9. The current version of Winn-Dixie‘s website was launched in September 2015.
[See Pre-Trial Stip. § V at ¶ E, ECF No. 34].
10. The Website is directly connected to its Winn-Dixie grocery and pharmacy stores
since the Website provides a site locator to the Winn-Dixie grocery and pharmacy store locations
(places of public accommodation). Thus, the Website has a true nexus to the Defendant‘s Winn
Dixie grocery and pharmacy stores. [Id. ¶ 5].
11. Since the 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 physical 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). [Id. ¶ 20]. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 3 of 35
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12. 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. As such, Winn-Dixie has subjected itself and the Website it has created and maintains, to
the ADA. [Id. ¶ 21].
13. Only some of the physical Winn-Dixie grocery stores have a pharmacy store.
[Pre-Trial Stip. § V at ¶ B, ECF No. 34]. Information concerning each store location is provided
on the Website. [Id. ¶ F].
14. 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 Website. [Compl. ¶ 22,
ECF No. 1].
15. Gil frequently utilizes the internet. In order to comprehend information available
on the internet and access/comprehend websites, he uses commercially available screen reader
software to interface with the various websites. [Id. ¶ 23].
16. Gil utilizes the Job Access With Speech screen reader software (―JAWS‖).
JAWS is a computer screen reader program for Microsoft Windows that allows blind and
visually impaired users to read the screen either with a text-to-speech output or by a refreshable
Braille display. The JAWS Scripting Language allows the user to use programs without standard
Windows controls. JAWS is the most popular screen reader software utilized worldwide because
it allows individuals who are visually impaired to comprehend information available on the
internet and access websites. [Id. ¶ 27].
17. In order to attempt to comprehend, view and interact with the Website, and to
become informed of the Winn-Dixie brand grocery/deli items and pharmacy (which other able-Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 4 of 35
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bodied members of the general public are able to access online), Gil must use screen reader
software. [Id. ¶ 25].
18. Filling and refilling drug 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 visually impaired persons such as the Plaintiff (and thousands of others like him),
and helps them integrate and participate in society. [Id.].
19. Plaintiff has been a customer of Winn-Dixie, and is interested in continuing to be
a customer at Winn-Dixie grocery stores and pharmacies.
20. Gil had learned about the Winn-Dixie on-line pharmacy services and Website and
decided to attempt to view same online to learn more about the Winn-Dixie brand items, store
locations and to avail himself of the goods and services provided by the Website, including but
not limited to utilizing online pharmacy services through the Website. [Id. ¶ 26].
21. During June and July 2016, the Plaintiff attempted on several occasions to utilize
the Website to avail himself of the Winn Dixie brands and Winn Dixie on-line pharmacy.
22. Gil is a customer of Winn-Dixie‘s grocery and pharmacy stores and desires to re-
fill his pharmacy prescriptions through the Website‘s online prescription re-fill service and
obtain information regarding Winn-Dixie‘s in-store products. [Id. ¶¶22, 27].
23. Gil desires to avail himself of online coupons available on the Website, and to
have those coupons applied to rewards account.
24. Gil attempted to locate an Accessibility Notice or other information relating to the
Website‘s future accessibility plans or the appropriate contact to provide Winn-Dixie with notice
of the Website‘s inaccessibility, but the Website did not contain any Accessibility Notice or
other information. [Id. ¶ 29]. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 5 of 35
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25. Gil desires to use the Website in the immediate future. [Id. ¶ 31]. However, the
Website‘s inaccessibility prohibits Gil from using its services as experienced by the general
public. [Id. ¶ 32].
26. Winn-Dixie completely excludes individuals with disabilities who are visually
impaired from enjoying and visiting their place of public accommodation, namely, the Website.
[Id. ¶ 3].
27. The Website pharmacy functionality provides users with a ―sign-in‖ process and
confirmation of the user‘s identity. [Cornwell Depo. Tr. 45:3-12]. The user‘s prescription
information, including all history of past fill/refill information, is displayed on the Website. [Id.].
28. Winn-Dixie‘s current Website does not integrate with screen reader software or
meet the Web Content Accessibility Guidelines (―WCAG‖) 2.0 Basic Level of web accessibility.
[Pre-Trial Stip. § V at ¶ H, ECF No. 34].
29. Winn-Dixie‘s Website permits patrons to access a third-party website by which
customers can manage and refill their pharmacy prescriptions for pick up in the store. [Id. § V at
¶ G].
30. The Website does not include the universal symbol for the disabled, which would
permit the disabled individual to access the website‘s accessibility information and accessibility
facts. [Compl. ¶ 73, ECF No. 1].
31. The Website is not compatible with any commercially available screen-reader
software, which would enable a blind individual to access the Website. [Compl. ¶ 33, ECF No.
1].
32. The Website is not compatible with JAWS. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 6 of 35
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33. Gil was unable to avail himself of the goods and services provided by Defendant
through its Website.
34. The Website is inaccessible to visually impaired persons, including Gil.
35. Winn-Dixie does not utilize any web accessibility testing programs and never
took steps to evaluate or conduct testing on accessibility of the Website. [Cornwell Depo. Tr.
21:17-19; 34:12-22].
B. Expert Testimony.

36. The testimony of Chris Keroack confirmed that the Website is not equally
accessible to persons that are blind or have significant vision loss.
37. Mr. Keroack has more than 23 years‘ experience working in in the information
technology industry, most particularly in testing and evaluating the accessibility of internet
websites. Mr. Keroack currently works as an Accessibility Consultant for Equal Entry LLC, a
consultant firm that provides advice and consultation to businesses for purposes of achieving
compliance with the ADA.
38. The Court finds Mr. Keroack to be qualified as an expert to render his expert
opinions in this case.
39. Gil called Mr. Keroack to testify as to industry standards, best practices,
requirements for websites to be accessible to the disabled, including the visually impaired, the
Website‘s inaccessibility for Gil, and the manner in which the Website should have been brought
in to compliance with the ADA and could be brought in to compliance with the ADA.
40. Winn-Dixie did not disclose or present any expert or rebuttal expert testimony. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 7 of 35
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41. After a high level audit of the Website, Mr. Keroack determined that the Website
is not equally accessible to persons that are blind or visually impaired. [See Keroack Report at P-
1, pp.1-2].
42. Mr. Keroack opined that the following are the most significant accessibility
problems present on the Website:
a. Keyboard accessibility is not thoroughly available on the Website. Some items in
the tab order are not visible but still receive focus, such as menu items and filter pane
options, and other essential items do not receive focus at all.
b. Timed items (such as carousel control) cannot be paused by users of assistive
technology who may need additional time to read and understand the content; and
c. A variety of user controls (such as buttons and checkboxes) are not labeled
programmatically and without programmatic description, an assistive technology such as
screen reader software will not be able to describe these elements. [See id.]
43. At trial, Mr. Keroack opined that under the WCAG 2.0 Basic Level Guidelines1,
Winn-Dixie‘s Website falls short in a number of critical respects, confirming the difficulties
Plaintiff had in accessing the Website. [See generally Keroack Report at P-1].
44. Among other things: 1) on the Pharmacy Account page, a keyboard-only user will
not be able to interact with the list to expand and collapse the sections, a mouse or other pointing
device is required; 2) throughout the site, when using the Tab key to navigate, the ―Log In‖ and

1 The WCAG 2.0 Basic Level Guidelines are published by W3C, which is the main international
standards organization for the World Wide Web and has been widely adopted as an appropriate measure
to evaluate and ensure the accessibility of commercial websites for visually-impaired disabled persons by
the United States Department of Justice (―DOJ‖) and by courts in connection with consent decrees for
ADA actions based on inaccessible websites. See National Federation of the Blind, et al. v. HRB
Digital LLC, et al., No. 1:13-cv-10799-GAO [ECF #60 at 5] (D. Mass. Mar. 24, 2014); See also a
settlement agreement with Internet www.peapod.com dated November 17, 2014 and available at:
https://www.justice.gov/opa/pr/justice-department-enters-settlement-agreement-peapod-ensure-
peapod-grocery-delivery-website. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 8 of 35
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―Sign Up‖ links are not in the Tab order, so the keyboard user moves from the logo link to the
search edit, skipping over those two links; 3) the ad carousel in the middle of the top-third of the
page does not pause when a keyboard user navigates it; 4) on the main page, if you are using a
screen reader, all links sound the same—they are all announced as ―Learn More; and 5) on the
main page, directions under the locator control are not described to the user, the text for the
locator control is hard to interpret, and the buttons next to each edit control are not
programmatically labeled. [Id.]. Each of these accessibility issues are detailed in the ―Winn Dixie
– Accessibility Issue List‖ spreadsheet prepared by Plaintiff‘s expert. [See id.].
45. Based on the testimony of Mr. Keroack, remediation measures to correct the
Website‘s significant block issues in many WCAG 2.0 categories is necessary to afford equal
access to the Website. [Id.].The Court finds the conclusions of this expert to be credible and
persuasive. The Court notes that Winn-Dixie did not call a single ADA expert or compliance
specialist to offer contrary testimony.
II. CONCLUSIONS OF LAW2

A. The Applicable Law: Title III.

The ADA is a remedial statute that is construed liberally to ―effectuate its sweeping
purpose to forbid discrimination against disabled individuals in major areas of public life.‖ Mary
Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013) (emphasis added). Access
to information and the social and economic opportunities that flow therefrom is one of the major
areas of public life the ADA sought to open for persons with disabilities. Authors Guild, Inc. v.
HathiTrust, 755 F. 3d 87, 102 (2d Cir. 2014) (42 U.S.C. § 12101(a)(7)).

2 To the extent the Court‘s factual findings constitute legal conclusions, they are incorporated into these
conclusions of law. To the extent that there are any additional findings of fact in this section, they shall
have the same effect as if listed in the findings of fact above. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 9 of 35
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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 (12) 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;
(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.
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 Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 10 of 35
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fall within at least one of [42 U.S.C. § 12181(7)‘s twelve categories].‖ 28 C.F.R. § 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.
As with the rest of the ADA, the statute‘s legislative history indicates this list of public
accommodations ―should be construed liberally” to afford people with disabilities equal access
to the wide variety of establishments available to the non-disabled. PGA Tour, Inc., v. Martin,
532 U.S. 661, 676-77 (2001) (expanding the ADA to hold that golf courses, including play areas
are places of public accommodation during professional tournaments) (emphasis added).
B. Preliminary Matters: Jurisdiction, the Parties, Standing, and the Applicability of
Title III.

i. Jurisdiction.

The Parties stipulate the basis of federal jurisdiction in this matter arises under 28 U.S.C.
§ 1331 and Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181-12189. [Pre-
Trial Stip. § II, ECF No. 34].
ii. Standing Under Article III of the United States Constitution.

A plaintiff alleging Title III ADA discrimination must initially prove that (1) he is a
disabled individual; (2) the defendant owns, leases, or operates a place of public accommodation;
and (3) the defendant discriminated against the plaintiff within the meaning of the ADA. 42
U.S.C. § 12182(a). Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 11 of 35
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A plaintiff must demonstrate three things to establish standing under Article III.3 First, he
must show that he has suffered an ―injury-in-fact.‖ Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). Second, the plaintiff must demonstrate a causal connection between the asserted
injury-in-fact and the challenged action of the defendant. Id. at 560. Third, the plaintiff must
show that ―the injury will be redressed by a favorable decision.‖ Id. at 561 (citations and internal
quotations omitted). These requirements are the ―‗'irreducible minimum‘ required by the
Constitution‖ for a plaintiff to proceed in federal court. Northeastern Fla. Chapter, Associated
Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 664 (1993) (citation omitted).
In addition, ―because injunctions regulate future conduct, a party has standing to seek injunctive
relief only if the party alleges…a real and immediate-as opposed to a merely conjectural or
hypothetical-threat of future injury.‖ Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d
1262, 1284 (11th Cir. 2001).
With this standard in mind, the Court finds that Gil has standing.
a. Injury-In-Fact.
The "injury-in-fact" demanded by Article III requires an additional showing when
injunctive relief is sought. In addition to past injury, a plaintiff seeking injunctive relief "must
show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the
future." Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001).
Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if
the party shows "a real and immediate—as opposed to a merely conjectural or hypothetical—

3 The parties do not dispute whether Plaintiff is disabled. Under the ADA, a disability is defined
three ways: ―(1) a physical or mental impairment that substantially limits one or more major life activities
of such individual; (2) a record of such an impairment; or (3) being regarded as having such an
impairment.‖ 42 U.S.C. § 12102(1)(A)-(C). Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 12 of 35
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threat of future injury." Shotz, 256 F.3d at 1081; Wooden, 247 F.3d at 1284 (citing City of Los
Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983)).
The evidence adduced at trial demonstrates Gil has an injury-in-fact, given that, as a
disabled individual, he was discriminated against by Winn-Dixie when he attempted to access
and use the Website, and he faced numerous barriers to accessibility.
b. Causation.

To establish Article III standing, Gil also must demonstrate a causal connection between
his injury and Winn-Dixie‘s conduct. Lujan, 504 U.S. at 560-61. The testimony of Gil supports
the Court‘s finding that a causal connection exists between this injury-in-fact and the action of
Winn-Dixie. At trial, Gil testified that the Website‘s accessibility barriers restricted and will
continue to restrict his ability to the full and equal enjoyment of the Website. See Lugo v. 141 Nw
20th St. Holdings, LLC, 878 F. Supp. 2d 1291, 1295 (S.D. Fla. 2012).
c. Redressability.
The third prong of an Article III standing analysis considers whether it is likely that the
plaintiff‘s injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560. At trial, Gil
testified that the Website is not accessible and thus he has been discriminated against, is without
an adequate remedy at law, is suffering irreparable harm and will continue to do so unless the
barriers are removed. Because Gil‘s relief depends on action by Winn-Dixie to remediate, a
favorable decision by the Court is likely to redress Gil‘s injury.
Accordingly, the Court finds that Gil has satisfied his burden of demonstrating Article III
standing.
iii. The Website Must Comply with Title III of the ADA. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 13 of 35
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The Website must comply with Title III. Gil is a qualified individual with a disability for
purposes of Title III, and has standing to maintain his claim for the alleged discrimination he
incurred while trying to access the Website. Winn-Dixie is a grocery and pharmacy store chain
that operates the Website, which allows consumers to locate physical Winn-Dixie store locations,
fill and refill prescriptions for in-store pick-up delivery, learn about Winn-Dixie brand items,
access home-cooking recipes, and receive information about product recalls. Thus, Winn-Dixie
is subject to liability under Title III. See 42 U.S.C. § 12182(a).
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 subject to Title III of the ADA 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,
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, 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.)
1. The Website Is a Public Accommodation Under Title III of the
ADA. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 14 of 35
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The Court finds the ADA applies to the Website, a place of public accommodation, for
the following reasons: (1) the statutory construction of the ADA demonstrates its applicability is
not limited to physical ―brick and mortar‖ locations; (2) Congress‘ intent was for the ADA to be
responsive to changes in technology; and (3) the Department of Justice has interpreted the ADA
to apply to websites.
a. The Statutory Construction of The ADA Demonstrates
Its Applicability Is Not Limited to Physical “Brick and
Mortar” Locations.

Winn-Dixie maintains that the ADA only applies to physical locations, relying upon
Access Now v. Sw. Airlines, 227 F. Supp. 2d 1312, 1314 (S.D. Fla. 2002). Access Now appears
to be the only decision within the Eleventh Circuit4 to address the issue of whether the ADA
applies to a website.5 Access Now is distinguishable from the instant case, and was decided
during a time period in which e-commerce was in its infancy.
In Access Now, the plaintiff filed a lawsuit against Southwest Airlines alleging its
website, Southwest.com, violated the ADA because it was inaccessible to blind persons using a
screen reader. Id. at 1316. The plaintiff alleged the website denied equal access to Southwest
Airline‘s ―virtual ticket counters as they exist on-line,‖ which enabled members of the general
public to book flights through the defendant‘s website. Id. at 1321. The plaintiff argued

4 Winn-Dixie acknowledges the Eleventh Circuit has not yet ruled on whether a website is a place of
public accommodation under the ADA. [ECF No. 15, p. 4]. In Access Now, Inc. v. Southwest Airlines,
Co., 385 F.3d 1324, 1328-29 (11th Cir. 2004), the Eleventh Circuit dismissed the plaintiff‘s appeal
because the plaintiff presented a new theory of liability that the district court did not have an opportunity
to consider, namely, that Southwest Airlines as a whole is a place of public accommodation because it
operates a travel service. The Eleventh Circuit in that opinion did not ultimately decide the issue of
whether a website is a place of public accommodation under the ADA.
5 In Gomez v. Lindeberg USA, LLC, 16-22966-CIV-WILLIAMS (S.D. Fla. 2016) the plaintiff alleged
defendant‘s website violated Title III of the ADA because it was inaccessible to the blind. [D.E. 1]. The
Defendant did not answer the Complaint, and the district court entered a default judgment, which required
the defendant to immediately undertake remedial measures to make its website, www.jlindebergusa.com
compliant with the ADA and accessible to people with visual disabilities. [D.E. 23, ¶ 3]. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 15 of 35
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Southwest.com was a ―place of public accommodation‖ because it qualified as an ―exhibition,‖
―display,‖ and ―sales establishment.‖ Id. at 1318.
In granting Southwest Airline‘s Rule 12(b)(6) motion to dismiss, the district court first
determined Southwest.com was not a ―place of public accommodation‖ as defined by the plain
language of the ADA. Id. at 1317. The court applied the doctrine of ejusdem generis, which
states ―where general words follow a specific enumeration of persons or things, the general
words should be limited to persons or things similar to those specifically enumerated.‖ Id. at
1318. In applying this rule, the court held the general terms of the ADA relied upon by the
plaintiff: ―exhibition,‖ ―display,‖ and ―sales establishment,‖ were limited to their ―corresponding
specifically enumerated terms‖ all of which were concrete structures such as ―museum,‖
―library‖ and ―bakery.‖ Id. at 1319. Thus, the court declared Southwest.com was not a public
place of accommodation because the ADA‘s language did not expressly enumerate ―virtual
spaces‖ as protected by the statute. Id.
Since the fourteen (14) year old decision in Access Now, other district courts throughout
the country have ruled to the contrary and have been critical of Access Now’s interpretation of
the ADA and its application to websites. Courts have more recently held websites are places of
public accommodation - regardless of whether the website has a connection with a physical
structure.
For example, in Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 199 (D.
Mass. 2012) the plaintiff sued Netflix, Inc., (―Netflix‖) under Title III of the ADA based on
Netflix‘s failure to provide equal access to its video streaming website ―Watch Instantly‖ for
deaf and hearing impaired individuals. There, the plaintiff alleged the website was a place of
public accommodation because the website qualifies as a ―place of exhibition and Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 16 of 35
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entertainment,‖ ―place of recreation,‖ ―sales or rental establishment,‖ and ―service
establishment‖ as enumerated by the ADA. Id. at 200.
In response, Netflix filed a motion for judgment on the pleadings arguing the plaintiff
failed to state a cause of action under the ADA because Netflix‘s ―Watch Instantly‖ website was
not a place of public accommodation. Id. Netflix argued its online streaming service was not a
public accommodation because ―every specific example of a public accommodation in the ADA
refers to a public arena that involves people outside of the home.‖ Id. at 201. Using the doctrine
of ejusdem generis, Netflix argued that according to the ADA‘s language, all ―public
accommodations‖ must be accessed outside of a private residence. Id.
The district court rejected Netflix‘s application of ejusdem generis outright and found its
interpretation of the ADA‘s plain language to be ―unpersuasive.‖ Id. In looking at the plain
language of the statute, the district court noted the ADA covered the services “of” a public
accommodation and not services “in” a public accommodation. Id. (citing 42 U.S.C. § 12182(a)
(―No individual shall be discriminated against 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. . .‖); Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d
946, 953 (N.D. Cal. 2006) (―The statute applies to the services of a place of public
accommodation, not services in a place of public accommodation. To limit the ADA to
discrimination in the provision of services occurring on the premises of a public accommodation
would contradict the plain language of the statute.‖) (emphasis added). This linguistic distinction
was crucial, because under Netflix‘s reading of the ADA, many businesses that provided services
to a customer‘s home – such as plumbers, pizza delivery services, or moving companies would
be exempt from the ADA. Id. The court rationalized that while the home itself is not a place of Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 17 of 35
18

public accommodation, entities that provided services in the home through the internet, such as
Netflix, could qualify as places of public accommodation. The court held Netflix‘s streaming
service was a public accommodation because its service fell into the same category of services
provided by a ―place of exhibition and entertainment,‖ ―place of recreation,‖ ―sales or rental
establishment‖ and ―service establishment,‖ which are all enumerated by 42 U.S.C.S. §
12181(7). Id. at 200. See Carparts Distrib. Ctr. v. Auto. Wholesaler's Ass'n, 37 F.3d 12, 19 (1st
Cir. 1994) (holding the ADA‘s definition of ―public accommodation‖ is not limited to actual
physical structures because it would be irrational for the ADA to only protect an individual who
physically enters an office to purchase services, but not to an individual who purchases the same
services over the telephone or by mail).
Similarly, in Nat'l Fedn. of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567 (D. Vt.
2015), the plaintiff filed a complaint alleging a violation of the ADA against Scribd, Inc.,
(―Scribd‖), a digital library operating reading subscription services on its websites and mobile
apps. The plaintiff alleged Scribd‘s website and apps were incompatible with reader software and
denied blind persons‘ access to Scribd‘s services, privileges and advantages. Id. In response,
Scribd moved to dismiss, and argued its website and mobile apps were not places of public
accommodation because the ADA did not apply to website operators whose goods or services
were not made available at a physical location open to the public. Id.
In denying the motion to dismiss, the court rejected Scribd‘s arguments that Congress‘s
use of the phrase ―place of public accommodation‖ and the doctrine of ejusdem generis show
that a public accommodation is defined exclusively as a physical space. Id. at 572. The court
looked at the language of the ADA as written in 42 U.S.C. § 12181(7), which enumerates the
categories of public accommodations covered by the statute. The court noted 42 U.S.C. § Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 18 of 35
19

12181(7) is entitled, ―Public Accommodation‖ and not ―Places of Public Accommodation,‖ and
refers to private entities as ―public accommodations‖ and not ―places of public accommodation.‖
Id. (emphasis added). As such, the ADA‘s failure to refer to public accommodations as ―places‖
of public accommodation in these two instances suggested to the court that accommodations
protected by the statute ―must be available to the public, but not necessarily at a physical place
open to the public.‖ Id.
The Scribd court further recognized that when referring to the examples of enumerated
public accommodations, the ADA does not always use the word ―place,‖ but instead uses the
word ―establishment.‖ Id. (citing 42 U.S.C. § 12181(7)(B) (―other establishment serving food or
drink‖); id. § 12181(7)(E) (―other sales or rental establishment‖); id § 12181(7)(F) (―other
service establishment‖); id. § 12181(7)(K)(―other social service center establishment‖)). This
suggested to the court that Congress likely used the word ―place‖ because there was ―no other
less cumbersome way‖ to describe businesses offering those particular goods or services to the
public. Id. (citing 42 U.S.C. § 12181(7)(D) (―other place of public gathering, not public place of
gathering‖); id. § 12181(7)(H) (―other place of public display or collection, not other public
place of display or collection‖)). Thus, this order of words suggested to the court that the
defining characteristic of a public accommodation was not its ―place‖ or location, but whether
the service it provided falls into the categories enumerated in 42 U.S.C. § 12181(7)6. Id.

6 The Scribd court noted that ―travel service‖ was enumerated as an example of a service establishment,
which is covered by the ADA. Id. (citing 42 U.S.C. § 12181(7)(F)). The court recognized that in 1990, the
year of the ADA‘s enactment, it was entirely plausible that a travel service might operate with no physical
location open to the public, and instead conduct all of its business by phone or mail. Id. The court found
that requiring a physical structure or ―some connection to a physical threshold‖ in order for the ADA to
apply would result in arbitrary treatment, and that it would be illogical for the ADA to not cover a
customer who bought insurance from a salesman selling policies door to door, but cover a customer who
purchased the same policy in the company‘s office. Id. Accordingly, the court determined Congress did
not intend for such inconsistent application of the ADA and held that Scribd qualified as a public
accommodation because the services Scribd offered fell within the majority of categories of public Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 19 of 35
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Further, the Supreme Court cautions against the limited reading employed by Access Now
and instructs courts not to ―woodenly apply limited principles every time Congress includes a
specific example along with a general phrase.‖ Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227
(2008) (rejecting application of a limiting principle to interpret a statute) (citing Harrison v. Ppg
Indus., 446 U.S. 578, 589 (1980) (―rejecting an argument that ejusdem generis must apply when
a broad interpretation of the clause could render the specific enumerations unnecessary‖)).
Application of a narrowing principle such as ejusdem generis is especially improper where, as
here, the district court is required to ―liberally construe‖ the categories enumerated in 42 U.S.C.
§ 12181(7) as mandated by the Supreme Court‘s decision in PGA Tour, Inc. PGA Tour, Inc., 532
U.S. at 676-77 (the list of public accommodations ―should be construed liberally” to afford
people with disabilities equal access to the wide variety of establishments available to the non-
disabled); Netflix, 869 F. Supp. 2d at 201; (noting the ADA should be construed broadly and
rejecting defendant‘s application of ejusdem generis to 42 U.S.C. § 12181(7)); Scribd, 97 F.
Supp. 3d at 572-74 (same). Instead, the dispositive factor in construing a statute such as the ADA
is Congress‘s intent in enacting the statute. United States v. Alpers, 338 U.S. 680, 682 (1950)
(instructing that the rule of ejusdem generis cannot be employed to ―obscure and defeat the intent
and purpose of Congress‖); United States v. Kennedy, 233 F.3d 157, 161 n.4 (2d Cir. 2000) (―We
note that ejusdem generis is only an aid in getting the meaning and does not warrant confining
the operations of a statute within narrower limits than were intended.‖)).

accommodation enumerated by the ADA such as ―library‖ or ―gallery.‖ Id. at 576; See Straw v. ABA, U.S.
Dist. LEXIS 16296, at *19 (N.D. Ill. 2015) (―that the Bar Association may not offer its services at a
―physical site,‖ such as a store, does not mean that it cannot be a public accommodation for purposes of
the ADA‖); see also Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) (―The defendant asks
us to interpret ―public accommodation‖ literally, as denoting a physical site, such as a store or a hotel, but
we have already rejected that interpretation. 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‖). Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 20 of 35
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Based on the plain language of the ADA, the Website is a public accommodation
because it is a private entity that provides services, which fall into the categories enumerated in
42 U.S.C.S. § 12181(7). First, the evidence adduced at trial established that the Website permits
its patrons to manage and refill their pharmacy prescriptions online. The Website provides the
services of a ―brick and mortar‖ pharmacy by enabling customers to manage and refill their
prescriptions online, the Website is therefore a public accommodation whose provision of
services is protected by the ADA. See 42 U.S.C. § 12181(7)(F) (enumerating ―pharmacy‖ as a
public accommodation). The Website also qualifies as a ―service establishment,‖ which is also
enumerated as a public accommodation pursuant to 42 U.S.C. § 12181(7)(F). The Website not
only enables patrons to fill and refill prescriptions, but also enables patrons to locate Winn-
Dixie‘s physical stores, and obtain information, cooking recipes and tips regarding products sold
at Winn-Dixie‘s physical stores. [D.E. 1, ¶¶ 19, 21].
After considering all of the evidence in this matter, because the Website provides many
of the services provided by Winn-Dixie‘s grocery stores and in-store pharmacies, it is a place of
public accommodation.
b. Congress Intended the ADA to Be Responsive to
Changes in Technology - Especially with Respect to
Available Accommodations.

Plaintiff also presented evidence which showed Congress intended the ADA to be
responsive to changes in technology especially with respect to available accommodations. While
web-based services did not exist when the ADA was passed in 1990, and could not have been
explicitly included in the Act, the ADA‘s legislative history makes clear Congress intended the
ADA to adapt to changes in technology – such as the technology afforded through websites, the
internet and e-commerce. Congress has stated that ―the types of accommodation and services Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 21 of 35
22

provided to individuals with disabilities. . . should keep pace with the rapidly changing
technology of the times.‖ Netflix, 869 F. Supp. 2d at 200 (citing H.R. Rep. 101-485(II), at 108
(1990)); Scribd, 97 F. Supp. 3d at 574 (same) (emphasis added). For example, Congress
identified ―information exchange‖ - the principal function of a website - as an important area of
concern where expanding technology would be subject to the ADA. Scribd, 97 F. Supp. 3d at
574 (citing H.R. Rep. 101-485(II), at 108 (1990)). Thus, as stated by Representative Nadler when
the ADA was enacted in 1990:
Despite Congress' great cognitive powers, it could not have foreseen these
advances in technology, which are now an integral part of our daily lives. Yet
Congress understood that the world around us would change and believed that
the nondiscrimination mandate contained in the ADA should be broad and
flexible enough to keep pace.

Scribd, 97 F. Supp. 3d at 574 (citing Achieving the Promises of the Americans with Disabilities
Act in the Digital Age -- Current Issues, Challenges and Opportunities: Hearing before the H.
Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the House Comm. on the
Judiciary, 111th Cong., 2d Sess. 111-95 (2010)). As such, while Congress could not predict
specific advances, it is obvious technology would progress in some manner and thus Congress
intended for the ADA to cover new means of access.7
Furthermore, the legislative history of the definition of ―public accommodation‖ shows
that Congress wanted the list of 12 exemplars enumerated in 42 U.S.C. § 12181(7) to be
―construed liberally‖ in harmony with the ADA‘s broad purpose. Netflix, 869 F. Supp. 2d at 200
(citing S. Rep. No. 116, at 59 (1990) ((―[W]ithin each of these categories, the legislation only
lists a few examples and then, in most cases, adds the phrase 'other similar' entities. The

7 Over a decade before the enactment of the ADA, the Supreme Court noted in applying the
Rehabilitation Act of 1973 that ―[i]t is possible to envision situations where an insistence on continuing
past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the
opportunity to participate in a covered program. Technological advances can be expected to enhance
opportunities. . . .‖ Se. Cmty. Coll. V. Davis, 442 U.S. 397, 412 (1979). Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 22 of 35
23

Committee intends that the 'other similar' terminology should be construed liberally consistent
with the intent of the legislation that people with disabilities should have equal access to the
array of establishments that are available to others who do not currently have disabilities.‖).
Scribd, 97 F. Supp. 3d at 572-73 (same) (emphasis added). Congress intended the defining
characteristic of public accommodations be that they offer goods or services to the public, not
that they offer goods or services to the public at a physical location. Scribd, 97 F. Supp. 3d at
574 (citing H.R. Rep. 101-485(III), at 54 (1990)). Therefore, a person alleging discrimination
does not have to prove that the entity being charged with discrimination is similar to the
examples of the specific private entities enumerated in 42 U.S.C. § 12181(7). Id. Rather, what
matters is that the entity provides a service or a good, which enables it to fall into one of the
general categories of entities enumerated by subsection 7. Id. (citing S. Rep. 101-116, at 54
(1990)) (―Similarly, although not expressly mentioned, bookstores, video stores, stationary
stores, pet stores, computer stores, and other stores that offer merchandise for sale or rent are
included as retail sales establishments.‖) (emphasis supplied); Netflix, 869 F. Supp. 2d at 200
(citing H.R. Rep. No. 485 (III), at 54 (1990)) (―A person alleging discrimination does not have to
prove the entity being charged with discrimination is similar to the examples listed in the
definition. Rather, the person must show the entity falls within the overall category.‖).
Congress enacted Title III of the ADA to protect people with disabilities; whether they
encounter discrimination in services offered by a public accommodation in person, through the
mail, over the phone, via the Internet, or through some other medium to come next in the
evolution of technology. Congress specifically reasoned that the defining feature of a ―public
accommodation‖ is the service offered and not the location of the service offered. Here, adoption
of Winn Dixie‘s interpretation of the ADA would contradict Congress‘s purpose in enacting the Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 23 of 35
24

statute by relegating it to only physical locations, thus preventing the statute from adapting to
technological changes as Congress intended. As stated supra, the Website‘s services such as its
online pharmacy feature and coupon-printing feature are readily classified in the categories of
services listed in the ADA‘s definition of ―public accommodations.‖
Consistent with this view, the Court finds the congressional intent and legislative history
in enacting the ADA persuasive.
c. The DOJ Has Interpreted Title III of the ADA to apply
to Websites.

This Court gives deference to the DOJ‘s consistent interpretation that Title III of the
ADA applies to websites and mobile apps.
In Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944), the Supreme Court opined that
an agency administrator‘s determinations are entitled to some respect because they are ―made in
pursuance of official duty, and based upon more specialized experience and broader
investigations and information than is likely to come to a judge in a particular case.‖ See also
United States v. Mead Corp., 553 U.S. 218, 234 (2001) (holding an agency‘s interpretation of a
statute may merit some deference given the ―specialized experience and broader investigations
and information‖ available to the agency); Scribd, 97 F. Supp. 3d at 575 (―Given the DOJ's body
of experience, the Court will give some deference to its conclusion that the ADA applies to
websites covered by one of the categories in the statute.‖).
The DOJ has consistently told courts, members of Congress, and businesses that Title III
applies to websites and services provided over the Internet. Scribd, 97 F. Supp. 3d at 574 (citing
Letter from Deval L. Patrick, Assistant Att‘y Gen., to Senator Tom Harkin (Sept. 9, 1996)
(―Covered entities under the ADA are required to provide effective communication, regardless of
whether they generally communicate through print media, audio media, or computerized media Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 24 of 35
25

such as the Internet.‖); 106th Cong., 2d Sess. 65-010 (2000)) (―It is the opinion of the
Department of Justice currently that the accessibility requirements of the Americans with
Disabilities Act already apply to private Internet Web sites and services.‖); 75 Fed. Reg. 43460-
01 (July 6, 2010) (―The Department believes that title III reaches the Web sites of entities that
provide goods or services that fall within the 12 categories of 'public accommodations,' as
defined by the statute and regulations.‖)). In addition, the DOJ is currently in the process of
promulgating regulations that would codify the position it has taken to establish the requirements
for making websites accessible. Id. at 574-75 (citing 75 Fed. Reg. 43460-01)).
Upon the review of all the evidence, the Court finds the DOJ‘s interpretation that Title III
of the ADA applies to websites and mobile apps to be persuasive and accurate under these
circumstances.
2. The Website Has a Nexus with Winn-Dixie’s Physical Stores.

The Website is also subject to the ADA because it has a nexus with Winn-Dixie‘s
physical stores.
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 (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 Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 25 of 35
26

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. Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 26 of 35
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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 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 Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 27 of 35
28

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.
The Court finds Plaintiff demonstrated an adequate nexus between the Website and
Winn-Dixie‘s physical grocery stores and pharmacies. The Court rejects Winn-Dixie‘s argument
that Plaintiff has not claimed that the inaccessibility of the website prevented him from visiting a
Winn-Dixie store or pharmacy. [Mot. for J. on the Pleadings at 7-8, ECF No. 15]. At trial, Winn-
Dixie relied upon Rendon in support of this argument. 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 Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 28 of 35
29

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 demonstrated that the inaccessibility of
Winn-Dixie‘s website has denied blind individuals the ability to enjoy the services, privileges, Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 29 of 35
30

and advantages of Winn-Dixie‘s stores. At trial, Gil testified that, among other things, 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. [See Compl. ¶¶ 17, 19, ECF No. 1]. The Court
finds that just as in Target Corp., Winn-Dixie‘s website is heavily integrated with, and in many
ways operates as a gateway to, Winn-Dixie‘s physical store locations. Thus, the Court finds the
Website‘s inaccessibility denies the Plaintiff equal access to the services, privileges, and
advantages of Winn-Dixie‘s physical stores and pharmacies.
Accordingly, the Court finds that the Plaintiff has demonstrated a nexus between Winn-
Dixie‘s website and its physical stores such that the inaccessibility of the Website impedes the
full and equal enjoyment of the Winn-Dixie physical locations.
C. Winn-Dixie’s Website Has Accessibility Barriers Relating to Plaintiff’s Disability
That Violate the ADA.

Based on the evidence presented at trial, as set forth above, this Court finds that Winn-
Dixie‘s Website is in violation of the requirements of the ADA. Winn-Dixie has violated the
ADA because the Website is inaccessible to visually impaired disabled individuals, including
Gil. As discussed, Gil is a customer of Winn-Dixie‘s grocery and pharmacy stores and desires to
re-fill his pharmacy prescriptions through the Website‘s online prescription re-fill service and
obtain information regarding Winn-Dixie‘s in-store products. During June and July of 2016, Gil
attempted to utilize the Website to obtain information regarding Winn-Dixie‘s in-store products
and access Winn-Dixie‘s on-line pharmacy services. Due to Gil‘s disability, he must use a
commercially available screen-reader software to access information and services available on
any web page including the Website. [Compl. ¶¶23-24, ECF No. 1].
The unrebutted expert testimony of Plaintiff‘s ADA Accessibility expert established that
the WCAG 2.0 Guidelines require functionality with screen readers that convert the visual Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 30 of 35
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interface into synthesized speech. As Plaintiff‘s expert indicated, the Website in its current form
is simply not accessible by visually impaired individuals who use screen reader software. The
Website did not integrate with Gil‘s screen-reader software nor contain any function for Gil to
comprehend the website through other means and thus Gil could not access the Website [Id.
¶¶27].
The Website violates the basic effective communication mandate of the ADA and Winn-
Dixie presents no evidence to establish that it would be unduly burdensome to make the
information on its website accessible – or that it has even considered this question. Nor has
Winn-Dixie established that it is not readily-achievable to make its Website compliant with the
ADA in order to permit visually impaired users to utilize the Website.
Thus, the Court finds Winn-Dixie‘s Website violates the accessibility requirements of the
ADA and Winn-Dixie has failed to provide services necessary to ensure equal access to Winn-
Dixie‘s Website.
D. Injunctive Relief Is Appropriate.
Title III of the ADA creates a private right of action in individuals with disabilities for
injunctive relief to redress violations of Title III. 42 U.S.C. § 12188(a)(1). In the ADA context,
"a disabled individual who is currently deterred from patronizing a public accommodation due to
a defendant's failure to comply with the ADA has suffered 'actual injury.' Similarly, a plaintiff
who is threatened with harm in the future because of existing or imminently threatened non-
compliance with the ADA suffers 'imminent injury.'" Pickern v. Holiday Quality Foods, Inc.,
293 F.3d 1133, 1138 (9th Cir. 2002); accord Gomez v. Dade Cty. Fed. Credit Union, 610 F.
App'x 859, 863 (11th Cir. 2015) ("In Title III cases, plaintiff must prove he is likely to suffer
discrimination in the future, either because he intends to return to a noncompliant establishment, Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 31 of 35
32

or because defendant's misconduct deterred his patronage."); Hagler v. Swami I Hosp. Corp., No.
1:15-CV-2144-RWS, 2016 U.S. Dist. LEXIS 21414, at *3-4 (N.D. Ga. Feb. 23, 2016).
As stated above, the evidence adduced at trial demonstrated that the current version of the
Website is not accessible by Gil, a legally blind individual.
The Court has carefully reviewed the record evidence and finds Gil has proven that he is
entitled to injunctive relief. See 42 U.S.C. § 12188(a)(1). The Court finds that Plaintiff
demonstrated a ―real and immediate threat that the plaintiff will be wronged again.‖ City of Los
Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The Court also
finds that Gil does not have an adequate remedy at law, and that an injunction will not disserve
the public interest. As discussed above, when Gil attempted to access Winn-Dixie‘s website, the
website did not integrate with his screen reader software, nor was there any function within the
website to permit access for the visually impaired through other means. Thus, due to the
Website‘s inaccessibility, Winn-Dixie has not provided full and equal enjoyment of the services,
facilities, privileges, advantages, and accommodations provided by and through the Website.
Accordingly, remediation measures in conformity with the WCAG 2.0 Guidelines will
provide Plaintiff and other legally blind consumers the ability to access Winn-Dixie‘s website
and permit full and equal enjoyment of the services, facilities, privilege, advantages, and
accommodations provided by and through the Website.
The Court finds injunctive relief would improve access to Winn-Dixie‘s website by
visually impaired users such as Plaintiff. Accordingly, pursuant to 42 U.S.C. §12188, this Court
is vested with the authority to grant Plaintiff‘s requested injunctive relief, and hereby Orders
Winn-Dixie to implement remediation measures to bring the Website in conformity with the
WCAG 2.0 Guidelines within 180 days from the date of this Order, as follows: Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 32 of 35
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a. Winn-Dixie shall perform a complete audit
b. Remediate the accessibility issues identified in the Winn-Dixie – Accessibility Issue
List spreadsheet;
c. Adopt and implement a web accessibility policy to make publicly available and
directly link from the homepage of the Website a statement as to Winn-Dixie‘s policy
to ensure persons with disabilities have full and equal enjoyment of the services,
facilities, privileges, advantages, and accommodations through its website;
d. 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 ensure that
individuals who are disabled are aware of the availability of the accessible features of the
Website;
e. 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; and
f. Cease and desist discriminatory practices and if necessary to cease and desist
operations of the Website until the requisite modifications are made such that its
website becomes equally accessible to persons with disabilities.
The Court reserves jurisdiction to enforce the terms of this Order, and to address any
motions for attorney‘s fees and costs.
Dated: March 31, 2017

Respectfully submitted,
Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 33 of 35
34

/s/Scott Dinin
Scott R. Dinin, Esq.
Fla. Bar No. 97780
SCOTT R. DININ, P.A.
4300 NW 7th Avenue
Miami, Florida 33127
Telephone: (786) 431-1333
Facsimile: (786) 513-7700
E-mail: [email protected]
Attorney for Plaintiff

-and-

/s/ Richard F. Della Fera
Richard F. Della Fera, Esq.
Fla. Bar No. 066710
ENTIN & DELLA FERA, P.A.
633 S. Andrews Avenue, Suite 500
Fort Lauderdale, Florida 33301
Telephone: (954) 761-7201
Facsimile: (954) 764-2443
Email: [email protected]
Attorney for Plaintiff


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 31st day of March, 2017, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached service list in the manner specified either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are not authorized to receive electronically Notices of Electronic Filing
/s/Scott Dinin
Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 34 of 35
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SERVICE LIST

JUAN CARLOS GIL vs. WINN-DIXIE STORES, INC.
CASE NO: 1:16-cv-23020-RNS
United States District Court, Southern District of Florida


Susan V. Warner, Esq.
NELSON MULLINS RILEY &
SCARBOROUGH, LLP
50 N. Laura Street, 41st Floor
Jacksonville, Florida 32205
Tel: (904) 665-3600
Fax: (904) 665-3699
Email: [email protected]
Attorney for Defendant
Via CM/ECF Notice of Electronic Filing Case 1:16-cv-23020-RNS Document 38 Entered on FLSD Docket 03/31/2017 Page 35 of 35