Following up on my earlier post regarding fake service dogs, news from up north that Massachusetts is also considering a law to penalize those that pass off pets at service dogs.

The bill would makes passing a pet off as a service dog a civil infraction, carrying a $500 fine.

__________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As the weather in South Florida turns cooler and the snow birds start flying south, there is a remarkable increase in the number of little dogs (and other animals) one sees in their local Publix grocery stores and favorite cafes.  Even off season, I recently spied a bunny rabbit at one of the restaurants I frequent on a regular basis.

This is my dog Simon.

That bunny encounter spurred my curiosity regarding whether anyone had been prosecuted under the Florida Law  passed in 2015 making it a second degree misdemeanor to misrepresent an animal as a service animal.  The answer, at least as of last year, is no.  No one has been criminally charged in Florida under the fake service dog law.

And in the bunny instance, it is clear that Bugs Bunny was in violation of Florida law and the Americans with Disabilities Act (“ADA”).  Additionally, the restaurant owner could have gotten in trouble with Department of Health or put its business license at risk.  Florida law doesn’t permit bunnies or kitty-cats or monkeys, or parrots (there is one I’ve seen dining out regularly in my local down town) at restaurants inside or outside (outside means within designated outdoor portions of a public food service establishments).  Once, I even dined next to a kitty-cat in a stroller while in Key West (only in Key West).

Key West kitty in a stroller.

Its quite confusing for business owners when it comes to which animals can accompany customers into their businesses.  Many business owners are afraid of ADA Title III litigation so they don’t do anything when people bring animals into their stores or restaurants, but that may open them up to other types of litigation. For example a few years ago a Publix employee in Palm Beach was bitten by an emotional support animal (“ESA”).

The first thing to understand is there is a big difference, under the law, between a service animal and an emotional support animal.

Service animal under the ADA:

  • Almost always a dog (sometimes a miniature pony but no other kind of animal);
  • Individually trained to assist a person with a disability;
  • Generally, businesses must permit a service dog anywhere the public is permitted.
  • Service dogs must be harnessed, leashed, or tethered, unless these devices interfere with the service dog’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

When it is not obvious what service a dog provides, only limited questions are permitted.  A business’ staff may ask two questions:  (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform.

Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

A person with a disability cannot be asked to remove his or her service dog from the premises unless:  (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken.  When there is a legitimate reason to ask that a service dog be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the dog’s presence.  Businesses that kick out customers with service dogs (or what they suspect as fake service dogs) should consider recording the dog and customer in case they are later sued under the ADA Title III.

Establishments that sell or prepare food must allow service dogs in public areas even if state or local health codes prohibit animals on the premises.

Here in Florida there are lot of people carrying around purse dogs and other pets that enter businesses and claim they can do so because the dog or animal is an emotional support animal (“ESA”).  Emotional support animals are not afforded the same access as service dogs.  So if a customer brings in a bunny or cat or snake into your business establishment they can be shown the door even if they claim that the animal is a service animal (remember that service animals under the ADA can only be dogs or miniature ponies) or ESA.  If someone claims their dog is an ESA that can be a murkier situation for a business owner, but dog ESAs are also not protected under the ADA.

An ESA is not a pet, rather it is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability.  The person seeking the emotional support animal under fair housing laws must have a verifiable disability (the reason cannot just be a need for companionship).  The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule.

ESAs are also provided protection under the Air Carrier Access Act which is why you see so many dogs (and other animals) on planes these days.  Airlines are somewhat stuck and many people are gaming the system to avoid having to pay to fly their dogs and other pets and to get around other rules for pets on planes. There have been all kinds of incidents including dog attacks and planes having to be diverted due to pet poop such that many in the airline community are lobbying for new rules on pets on planes.

__________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Back in the Spring, I posted about the next frontier in ADA Title III litigation (web site accessibility), see my posts here and here.  Since those posts, the next frontier has shown up, with a vengeance, in the Southern District of Florida.

This summer, the first trial (in the country) on ADA web site accessibility was held right here in the matter of Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.).

Following trial in the Winn-Dixie matter, U.S. District Judge Robert Scola ruled that:

  1. Winn-Dixie’s website was a “place of a public accommodation” under the ADA.
  2. Based on the testimony of the plaintiff and his expert, Winn-Dixie’s website was not sufficiently accessible.
  3. Accordingly, the court issued injunctive relief and also awarded attorneys’ fees.
  4. The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria.  Although the court did not note specify a level of compliance with WCAG 2.0 (A, AA, AAA).
  5. Further, the court ordered that any third-party vendors who interact with the website must also conform to such criteria.
  6. The court also ordered that Winn-Dixie homepage include a statement concerning its website accessibility policy.
  7. Winn-Dixie was also required to provide training to all employees who write or develop programs or code, and test its website to identify any incidence of nonconformance every three months for the next three years.

Since the ruling in the Winn-Dixie matter, there has been a summer deluge of cases filed in the Southern District of Florida and plaintiffs’ attorneys appear to be working their way through each and every national corporation to test web site accessibility and then sue for purported deficiencies.  While its mostly been the large national corporations that have been the target of these lawsuits or demands, there is no reason to believe that mid-size and smaller corporations are not next on the list.  Here in the Southern District of Florida, because of the legal precedent of the Winn-Dixie case (although nonbinding), I expect that web site ADA Title III litigation will follow the physical-plant ADA Title III litigation trend with the plaintiffs’ attorneys working their way down from big to small companies.

Retailers and other businesses (including restaurants, hotels, and other service based businesses) with web sites plus physical locations are advised to develop website accessibility policies for their web access and state those policies on their homepages.

____________________________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month I posted Part I on this topic which covered the state of federal statutes and regulations regarding web site access as well as the most recent Florida Federal case law on the topic.

46690451 - dog.

This time I around, I want to talk about reality for companies.

Plaintiffs are bringing these website cases here, and elsewhere, and many have already figured out how to plead the claims to survive the motion to dismiss phase.  So, if your company has an inaccessible website and a physical location and the two are physically linked then you are eventually going to face a Title III ADA website case.

Physically linked can mean situations such as:

  1. you offer coupons on your website that people can use in your store or restaurant;
  2. you advertise specials on your website that apply in your store or restaurant;
  3. customers can order merchandise on your website and pick it up at your store;
  4. customers can return merchandise ordered online to your store;
  5. you post your menus on your website for your restaurant; and
  6. you have an online reservation system for your hotel or your restaurant, etc.

If you want to get your website accessible, what should you do?  Head back to the DOJ guidance and consider working towards moving your website to WCAG 2.0 AA or higher level of accessibility.  Since websites are always changing and being updated, you can ask your ecommerce teams (internal and external) to begin moving content or updating content so it meets these standards over time.

The WCAG standards include such things as making content Screen Reader Software (“SRS”) compatible, adding captions to video, photos, etc.  But, there are many other issues that come with meeting the WCAG 2.0 AA standards that involve organization of website, navigation between pages, checkout for ordering, etc. that may require expert guidance.

While the ADA Title III regulations and standards have not caught up with technology, the plaintiffs’ bar has gone beyond.  If you want to avoid litigation regarding your website (and it has a nexus to your companies’ physical locations), you need to think about moving forward with redesign of your website or at least a retrofit that includes SRS compliance until regulations are in place.

____________________________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Florida, and particularly South Florida, has always been on the leading edge of legal trends that involve mandatory attorneys’ fees for plaintiffs.  For many years, the United District Court in and for the Southern District led the pack in the number of Title III cases filed under the Americans with Disabilities Act (“ADA”).  In 2013, one in every five ADA Title III case was filed right here in the Southern District.  In fact, the Southern District has a 435-page list of all the addresses where ADA Title III cases have been filed in an effort to prevent plaintiffs from suing a property location that was previously sued.

Perhaps because that the address list includes just about every physical location in the Southern District of Florida, the plaintiffs’ bar has now gone virtual and the hot new trend in ADA Title III litigation is website access.

The Feds

Starting with the basics, Title III of the ADA prohibits discrimination in public accommodation:

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 by any person who owns, leases or operates a place of public accommodation.

A location is a place of public accommodation if its operations “affect commerce” and it falls within one of the twelve categories described in the statute.  The twelve categories cover just about everyplace one might go during a day except for your own private residence.  The types of places covered include places of lodging, restaurants, bars, movie theaters, stadiums, concert halls, auditoriums, stores, banks, gas-stations, professional offices (i.e. doctor’s and lawyer’s offices), transportation facilities, all types of recreational facilities (i.e. zoos, libraries, galleries), and all types of schools and colleges, etc.

If you review the twelve categories in detail, you will likely notice that “website” and ” internet” and “online” are not listed anywhere.  On the other hand, the Department of Justice (“DOJ”), as evidenced by its enforcement and litigation activity, interprets places of public accommodation to include companies’ online websites.

In fact, the DOJ issued a Notice of Proposed Rulemaking directed to entities governed by Title II of the ADA (i.e. government agencies) which identified the barriers disabled people encounter when using the internet and best practices for removing or reducing those barriers.   The DOJ (and some Courts) propose utilizing Web Content Accessibility Guidelines (“WCAG”) 2.0 as the standard (and the regulations) to judge whether a web site is accessible or not.

It is unclear when the Federal government, under the new administration, will complete its rulemaking under Title II and then move on to Title III (commercial entities).  As such, unlike physical locations, there are presently no governing regulations for website accessibility.

 

23412684 - dog with computer keyboard. top view of funny dog using computer keyboard and mouse while isolated on white

The Courts

Alternatively, maybe the Courts will give us some more definite guidelines.  Back in 2002, the United States Court of Appeals for the Eleventh Circuit Court of Appeals (which has jurisdiction over federal cases originating in the State of Florida) was on the front edge of this topic when it analyzed similar issues regarding the once popular “Who Wants to Be a Millionaire” gameshow in the Rendon v. Vallycrest case.    In Rendon, the issue wasn’t focused on the internet but on an “automated fast finger telephone” selection process.  The Rendon Court determined that the show, since it was held in a theater, was a place of public accommodation.  The Renden Court went on to rule that since the telephone screening process imposed significant barriers to disabled people who wanted to be on the show, ADA Title III applied to the telephonic application process because it restricted access to the place of public accommodation (i.e. the studio).

Since 2002, the case law in the Eleventh Circuit and throughout the Florida Federal district courts has been somewhat muddy.  The most recent case related to this website accessibility is Gomez v. Bank & Olufsen America.  In Gomez, Mr. Gomez alleged that he could not utilize the defendant’s website because it is not compatible with his screen reader software (“SRS”).  While Mr. Gomez’s Complaint linked the defendant’s website with its physical locations the focus of his Complaint, in this instance, was his reliance on using the internet to shop because of his visual impairment (he is legally blind).  Judge Joan Leonard ruled his claim failed because the ADA does not require a place of public accommodation to have a web site at all.  However, she also ruled that if a place of public accommodation does have a web site it cannot impede a disabled person’s full use and enjoyment of the brick and mortar locations.  Mr. Gomez did not replead his claims, as he had the right to do under this recent order, so the case law remains unsettled in the Southern District.

Check back soon for my Part II post on this topic.  

____________________________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Recently, the United State Eleventh Circuit Court of Appeals ruled that an Americans with Disability Act (“ADA”) Plaintiff had standing to bring his ADA access complaint as a “tester”.

Joe Houston, a Florida resident who is paralyzed and confined to a wheelchair, has filed more than 270 ADA access lawsuits both in the Southern District of Florida and the Middle District of Florida.

wheelchair

Defendant Marod, the owner of a Presidente supermarket targeted by Mr. Houston, in its Motion to Dismiss argued that Houston’s professed intent to return to this particular grocery store was undermined by his filings in the other 270+ cases that he filed.  Specifically, one can only patronize so many businesses, so if Mr. Houston planned to imminently return to all the other locations identified in his other ADA access lawsuits, his plan to return to this particular business was not credible.  Furthermore, Marod argued that Mr. Houston could not demonstrate any threat of imminent discrimination since Mr. Houston lived in Broward County and this store was located 30 miles away and Mr. Houston had not indicated when his prior visits to the store had occurred or mentioned any “concrete” plans to return.

But, Mr. Houston countered with an affidavit in response to the Motion to Dismiss in which he produced a receipt purporting to show that he had shopped at this particular store.  Further, the affidavit noted that Mr. Houston regularly passed this particular grocery store in his travels because it is located only two (2) miles from, and is on the route, to the law firm that represents him in his various ADA access cases.

The district court applied a four-factor test to determine the likelihood that Mr. Houston would return to this particular store.  The four (4) factors were: (1) the proximity of the business to Plaintiff’s residence; (2) the Plaintiff’s past patronage of the business; (3) the definiteness of the Plaintiff’s plan to return; and (4) the frequency of Plaintiff’s travel near the defendant’s business.  While the district court did not question that Mr. Houston had visited this supermarket in the past and planned to do so in the future, it focused on the fact that Mr. Houston was an ADA tester.  And therefore, the district court found that because Mr. Houston was a tester, he was not a bona fide patron and further that his test visits were part of a testing campaign rather than a genuine prayer for relief by an aggrieved patron.

The Eleventh Circuit, in its review, focused on whether Mr. Houston’s tester motive and tester status deprived him of standing to sue for ADA access violations. First, the Court noted that the Supreme Court has recognized the tester standing under the Fair Housing Act.  Second, the Court also found that the fact that Mr. Houston’s motives were based on testing did not negate the fact that he had a right to the “full and equal enjoyment of the . . . facilities” of the Presidente Supermarket.  That legal right was not dependent on his motives.

Accordingly, the Eleventh Circuit found that Mr. Houston had standing to seek redress under the ADA access statutes regardless of his tester motives.  However, because Mr. Houston sought injunctive relief in his lawsuit he also had to show a real and immediate threat of future injury.  And, the Court found that the proximity of the store to his attorney’s office, the fact that he traveled by the store on a regular basis and his stated intent to return, were sufficient to show the threat of future injury.

This opinion will likely limit the ability of Florida businesses to attack a plaintiff’s standing based on tester status.  But, the Eleventh Circuit reiterated that there must be sufficient facts that show threat of future injury noting that Mr. Houston did “not live hundreds of miles away from the store with no particular reason to return.”

————————-
Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.