“Regardless, Plaintiff may not claim a violation of Title III based on an internet website’s accessibility. Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA. Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1321 (S.D. Fla. 2002). “[T]he internet is a unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.” See id. (internal quotation marks omitted). Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to “a specific, physical, concrete space such as a particular airline ticket counter or travel agency.” See id. As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA. See id.”
Kidwell v. Florida Commn. on Human Rel., 2017 WL 176897, at *5 (M.D. Fla. Jan. 17, 2017). This decision is important not only because website accessibility and the ADA remain an open question in most circuits, but also because Scott R. Dinan, a Florida attorney, has filed hundreds of ADA complaints alleging website inaccessibility. The Department of Justice has appeared to support him in one of the cases, Gil v. Winn-Dixie Stores, Inc. Case No. 1:16-cv-23020 in the Southern District of Florida. If the Southern District were to follow Magistrate Judge Mirando’s decision in the Middle District it would represent a significant setback for the law firms profiting from website accessibility litigation and for the Department of Justice as well.*
In a related development, a case from Arkansas shows the true colors of an ADA litigant. In Mardel, Inc. v. Hunter, 2017 WL 157744 (E.D. Ark. Jan. 11, 2017) the plaintiff send a demand letter claiming website inaccessibility. Mardel, Inc., the recipient, filed suit seeking a declaratory judgment that its website was did not violate the ADA because it was not a place of public accommodation. The complaining party immediately and unequivocally surrendered rather than face the possibility of a ruling holding that Title III does not apply to the ADA. Some questions the plaintiffs just don’t want answered because uncertainty generates settlements.
DOJ’s Title III website regulations, though many times delayed, are moving toward finality, and plaintiff’s emboldened by DOJ’s support and a few favorable decisions in the lower courts have filed hundreds of lawsuits and sent thousands of demands. A single magistrate judge’s decision won’t end the debate, but it is a good reminder that application of Title III to websites is by no means a foregone conclusion under the law. In the meantime, the Arkansas case reminds us that sometimes a strong defense will simply shut down a plaintiff’s lawyer looking to make a quick buck.
*As of the date of this blog Judge Scola in the Southern District of Florida is considering both Winn-Dixie’s motion for judgment on the pleadings and its motion to strike the DOJ’s statement of interest.