Seyfarth synopsis: A Florida Judge Holds that SeaWorld’s website is not a place of public accommodation covered by Title III of the ADA but the decision has its limits.
Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that SeaWorld’s website is not a place of public accommodation was a small bright spot — albeit one with limitations.
The disabled pro se plaintiff in this case sued SeaWorld under Title III of the ADA because the business allegedly did not provide him with an electric wheelchair or allow his two service dogs entry. The court held that the plaintiff did not have standing to bring these claims because there was no threat of imminent harm. The plaintiff also alleged that SeaWorld’s website was not accessible to individuals with disabilities, although it is not clear how his disability impacted his use of the website. The court rejected this claim, holding:
“Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA. The 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. 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. As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.”
In so holding, the court cited to Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312 (S.D.Fl. 2002), where another Florida district court had dismissed an ADA Title III claim against Southwest because the Southwest website was neither a public accommodation nor was a means of accessing a physical place of public accommodation. The court in the Southwest Airlines case relied on the Eleventh Circuit holding in Rendon v. Valleycrest Prods., 294 F.3d 117 (11th Cir. 2002). There, the appellate court held that a plaintiff alleging that the telephone screening process for the Who Wants to be a Millionaire gameshow had stated a claim under Title III of the ADA — despite the fact that the telephone was not a physical place — because the screening process was a means of accessing the show which took place in a physical location.
The SeaWorld decision is not surprising in light of the Rendon decision and this pro se plaintiff’s failure to plead that the inaccessibility of the website prevented him from accessing a physical place of public accommodation. The outcome could have been different if the case had been brought by a different plaintiff who was represented by competent counsel.
Moreover, as we have noted, other judicial circuits such as the First Circuit do not require that a business have a nexus to a physical location to be a place of public accommodation. Thus, plaintiffs bringing lawsuits about websites that do not have a nexus to a physical place will likely choose those circuits for their lawsuits. The Department of Justice (“DOJ”) has also made clear its position that a website need not have any connection to a physical place to be covered by the ADA. Thus, businesses that choose to argue in defense of a lawsuit that their websites are not public accommodations may invite an intervention by the DOJ as we blogged about last month.
In short, many considerations should go into a business’ decision as to whether it should fight or resolve a website accessibility lawsuit.