Retailers facing Americans with Disabilities Act (“ADA”) claims may be out of frying pan, but into the fire in light of recent developments.

Out of the Frying Pan: Gomez v. Bang & Olufsen America, Inc., No. 16-cv-23801 (S.D. Fla. Feb. 2, 2017); and Kidwell v. Fl. Commission on Human Rights and SeaWorld Entertainment, Inc., No. 16-cv-00403 (M.D. Fla. Jan. 17, 2017).

Two new rulings in Florida federal courts have rejected plaintiff’s claims in ADA website access claims. In Gomez v. Bang & Olufsen America, Inc., a Florida federal district court judge dismissed a complaint alleging that Bang & Olufsen, an audio equipment company, violated the Title III of the ADA because its website presented access barriers to blind individuals. And in Kidwell v. Florida Commission on Human Right and SeaWorld Entertainment, another Florida federal judge similarly found that a plaintiff cannot plead an accessibility claim of an online website under Title III of the ADA.

In a complaint filed September of 2016, plaintiff Andres Gomez alleged that Bang & Olufsen’s website contained accessibility barriers that prevented him from enjoying the same access to information available to fully sighted consumers in store. Judge Joan Lenard dismissed the complaint and held that Gomez’s “generalized grievances” with the website were “wholly unconnected to any harm he actually suffered at the place of public accommodation (i.e. the concrete, physical store) … .”

In another ADA complaint filed against SeaWorld, plaintiff Billy Ray Kidwell, a disabled veteran, alleged that an online ticket website for Busch Gardens was too complex to navigate and did not provide accommodations for plaintiff’s disability. The U.S. District Court for the Middle District of Florida concluded that Kidwell could not plead a claim based on an online website’s accessibility under Title III of the ADA because he could not demonstrate how the website prevented his access to a specific, physical, concrete space.

These decisions highlight an important, yet unsettled, issue facing retailers—whether, and to what extent, the ADA applies to websites. As background, Title III of the ADA prohibits owners of places of public accommodation (e.g., retail stores) from discriminating against disabled persons. (42 U.S.C. § 12182(a).) Circuits are split on whether websites fall within the category of “places of public accommodation,” with the majority of courts agreeing that websites are not subject to Title III “unless some function on the website hinders the full use and enjoyment of a physical space.” The Ninth Circuit, for example, takes the position that websites must be connected to a brick-and-mortar store to be subject to the ADA; whereas, the First and Seventh Circuits, and at least one Pennsylvania federal court, have decided that websites are not physical accommodations regardless of whether the retailer has a physical storefront. On the other hand, in a 2015 published decision, a Vermont district court held that a library website, unconnected to any physical location, was a place of public accommodation.

Although non-binding, these prior retailer-friendly decisions provide support for the position that the ADA does not require that retailers “provide a blind person with the same online-shopping experience as a non-disabled person.” Instead, Judge Lenard, writing for the Southern District, provided much-needed clarification: “All the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-mortar store.” In a closing footnote, Judge Lenard noted what some consider to be the future of Title III of the ADA, explaining that it is up to Congress, and not the courts, to amend the statute to include websites: “If Congress—recognizing that the internet is an integral part of modern society—wishes to amend the ADA to define a website as a place of public accommodation, it may do so.” Until then, retailers and attorneys alike await the Department of Justice to issue guidance on the ADA, which the DOJ announced it would do back in 2010. As the recent political climate suggests that the DOJ will delay any further rulemaking under the current administration, retailers and counsel should anticipate continued litigation, particularly in California and Florida, two hotbeds for accessibility claims.

Into the Fire: Gomez v. Target Corp., No. 17-cv-20488-CMA (S.D. Fla. Feb. 7, 2017)

Even though the Gomez v. Bang & Olufsen and Kidwell v. Florida Commission on Human Relations and SeaWorld decisions may present additional hurdles for plaintiffs in web accessibility cases, the plaintiffs’ bar is expanding its brick-and-mortar store ADA claims.

A recent complaint, filed by Scott Dinin on behalf of Andres Gomez (the same counsel and plaintiff in Gomez v. Bang & Olufsen), alleges that Target violated the ADA because the in-store “Price Reader kiosks … were not equipped with auxiliary aids for the visually impaired.”

Price Reader kiosks are self-service stations placed throughout stores that allow shoppers to perform their own price verifications without a store employee. According to the complaint, in May 2016, plaintiff Gomez attempted to use a Price Reader kiosk in a Miami Target store, but “was unable to comprehend the information (prices)” because of the access barriers.

Unlike the website accessibility cases, brick-and-mortar stores clearly fall within the purview of the ADA and thus retailers are required to provide appropriate “auxiliary aids or services” that comply with their effective communication and access obligations. (42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.303(a), (c)(1).)

Physical storefronts, however, are required only to provide “reasonable modifications in policies, practices, or procedures” or to make “accommodations available through alternative methods” such that the goods and services offered are equally available to all. (42 U.S.C. § 12182(b)(2)(A)(ii) & (v).) In Gomez’s case, he was able to seek the assistance of a sales associate—either via telephones attached to each Price Reader kiosk or by taking the item to a cash register, both of which should be considered sufficient reasonable modifications or alternative methods to make the kiosks ADA compliant.

Nonetheless, the Gomez complaint poses a unique risk to retailers because some states have separate laws that require retailers to provide price-verification scanners to shoppers. For example, Massachusetts and Connecticut both have laws requiring retailers to provide price scanners to shoppers in certain circumstances, such as where a price tag is not affixed to every individual piece of merchandise.

Although this case is still in the preliminary stages, as the old adage goes, when one door closes, another opens. Retailers will have to wait and see how the Gomez saga unfolds, but it’s safe to say that the plaintiffs’ bar will always find another open door. Ultimately, if retailers are concerned about their exposure, they should consult with counsel to determine what steps are necessary to bring their storefronts and websites in compliance with applicable laws.