Gil v. Winn-Dixie Stores, Inc.

257 F.Supp.3d 1340

Juan Carlos GIL, Plaintiff

v.WINN–DIXIE STORES, INC., Defendant

Civil Action No. 16-23020-Civ-Scola.

United States District Court, S.D. Florida.

Signed June 12, 2017

Entered June 13, 2017

Richard Francis Della Fera, Entin & Della Fera, Fort Lauderdale, FL, Scott Richard Dinin, Scott R. Dinin, P.A., Miami, FL, for Plaintiff.

Susan Virginia Warner, Nelson Mullins Riley & Scarborough, LLP, Jacksonville, FL, for Defendant.

Verdict and Order Following Non–Jury Trial

Robert N. Scola, Jr., United States District Judge

The Plaintiff brings this action under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181 – 12189 (the "ADA"), alleging that the Defendant's website, www.winndixie.com, is inaccessible to the visually impaired. The Plaintiff seeks declaratory and injunctive relief, as well as attorneys' fees and costs.

Juan Carlos Gil is a visually impaired individual who is a customer of Winn–Dixie Stores, Inc. ("Winn–Dixie"). Winn–Dixie is the owner and operator of a regional chain of grocery stores, some of which have pharmacies. The parties do not dispute that Gil has a qualified disability under the ADA. The parties also do not dispute that Winn–Dixie's grocery stores and pharmacies are public accommodations as defined by the ADA. The issues remaining to be determined are: (1) whether Winn–Dixie's website is subject to the ADA as a service of a public accommodation, or, in the alternative, whether the website is a public accommodation in and of itself; (2) whether Gil was denied the full and equal enjoyment of Winn–Dixie's goods, services, facilities, privileges, advantages, or accommodations because of his disability; and (3) whether the requested modifications to Winn–Dixie's website are reasonable and readily achievable.

On June 5 and 6, 2017, the Court held a non-jury trial. Prior to the trial, the parties submitted a Joint Pretrial Stipulation (ECF No. 34), as well as their proposed findings of fact and conclusions of law (ECF Nos. 38, 39.) The Court has carefully reviewed these submissions. After considering the credible testimony and evidence, and the applicable law, the Court finds that the Defendant has violated the Plaintiff's rights under the ADA. As a result, the Court finds in favor of the Plaintiff on Count One of the Complaint.

1. Findings of Fact

The Court heard testimony from three witnesses: Juan Carlos Gil, Rodney Cornwell, and Chris Keroack. There were virtually no disputes in the testimony and evidence and the Court found all three witnesses to be credible and forthcoming.

Plaintiff, Juan Carlos Gil, has resided in Miami for 25 years. He is visually impaired, is legally blind and has cerebral palsy. He lives in the area of SW 27th Avenue and Coral Way. He wears glasses because he has optic nerve hypoglasia. The glasses help protect his eyes from foreign objects.

He is able to use a computer but cannot see the screen. He uses access technology software. He uses JAWS or other screen reader software. The screen reader automatically tells Gil what is going on on the website. Every time he hits the tab or shift tab the program will tell him what he needs to type. He cannot use a mouse but uses a keyboard.

He uses JAWS 95% of the time. If JAWS crashes, he needs to have alternate screen access programs. He has used these screen access programs for over 25 years. He uses JAWS most often because it is the industry standard.

NVDA is a consortium of individuals who are blind who have created an access method for people who cannot afford JAWS. JAWS costs about $1200. Gil uses NVDA sometimes but its functions are rudimentary and JAWS works much better than NVDA.

NVDA has human sounding voices and JAWS has robotic voices.

Gil has also used Voiceover software when he uses his Mac Book Pro which is an excellent screen access program.

Windows has the Narrator screen access software but it does not work well at all.

There is no federal organization that mandates particulars of website accessibility. The Web Content Accessibility Guidelines (WCAG) is produced by a consortium of private organizations whose goal is to make websites accessible for all.

Gil also uses the Google search engine to locate businesses but it is faster to go directly to the business' website.

Gil used internet browsers Firefox, Internet Explorer and Safari on his different computers to access the Winn–Dixie website. He used Dell laptop and Mac computers to try to access the website.

Gil has worked with Florida Vision Technology for the past five years helping individuals maximize their potential with software. Prior to that, he volunteered for different organizations.

Gil has been a customer of Winn–Dixie. He went to school in 1999–2000 at the Florida School for the Deaf and Blind in St. Augustine, Florida. He graduated in 2002.

He was in a vending program and the school did a trip for the students to go to Winn–Dixie to learn how to use the services to buy products for the vending stand they were operating.

Since his only income at the time of graduation was from Social Security, Gil continued to use Winn–Dixie due to its low prices. The majority of Winn–Dixies have pharmacies and Gil sometimes used the pharmacies to fill his prescriptions.

Gil most recently used the Winn–Dixie in the summer of 2015 in the area of 27th Avenue. He has a Winn–Dixie rewards card.

Over the years, he shopped at Winn–Dixie 30–40 times. It is his main grocery store because of its low prices.

The last time he filled a prescription at Winn–Dixie was 2.5 to 3 years ago.

To refill the prescription, he would go into the store and ask someone to assist him. A store employee would walk him to the area of the pharmacy and he would tell the pharmacist what he needed. But he felt uncomfortable because he did not know who else was nearby listening.

He has used Walgreens and Publix to fill prescriptions. Sometimes he goes to the store to pick up the prescription and sometimes they would deliver the prescription to his home by carrier.

Without an accessible website, his only way of getting coupons was to have a friend read the coupons from a newspaper. He would also ask employees to find coupons for him but sometimes the employees seemed annoyed by his request for help.

In 2015–2016, he learned Winn–Dixie had a website and people in numerous organizations, including the Center for Independent Living, American Council of the Blind and National Federation of the Blind, told him the website was accessible. Gil was already familiar with using the screen reader software.

Gil heard ads on TV for the Winn–Dixie website and heard one could access coupons and refill prescriptions online. He was interested since he could finally do something independently without asking somebody for help.

When he accessed the Winn–Dixie website, some tabs worked but 90% did not work. Once you enter the website, you usually hit tab until you find a combo box like a box announcing "store hours" or "pharmacy." When the website is interfacing properly with the JAWS, you would then press enter and that would take you into the specific sub-category. But, when he tabbed through the website he could not access any of the sub-categories. He spent about a half an hour on the website but was not able to access any information including store locator. On other websites, he has been able to access store locations. By pressing "control s" most websites take you to a search box in which you can type the specific information you are looking for. But this was not available on the Winn–Dixie website.

Gil has been on 500–600 other websites that actually work with the screen reader software.

An accessibility notice is put on a website by the creator to showcase that the website is working diligently to create a better experience for the low-vision or blind users. No accessibility notice was found on the Winn–Dixie website. Nothing on the Winn–Dixie website announced any proposed changes to be made in 2017.

When the website is accessible, Gil is 100% certain he will return to using Winn–Dixie stores. The inaccessibility of the website has deterred Gil from enjoying Winn–Dixie's goods and services.

Gil wants to be able to refill prescriptions online so he does not have to orally announce to the person at the store what medications he is filling to protect his privacy under HIPPA.

Gil travels to several cities in Florida including Jacksonville, Tampa, Orlando and Tallahassee to participate in Para–Olympic events. He travels with a laptop with screen reader software and he would want to be able to find a Winn–Dixie store through the Winn–Dixie website.

Gil has used other grocery stores because from their website he can create a shopping list and just hand it to the employee and he could use coupons he obtains from the website and he can pick up prescriptions in privacy. Both Publix and Walgreens have websites which he can use with his screen reader software.

Gil has gone on several federal government websites including NOAA and the Social Security Administration and his screen reader software, both for Windows and Mac, works well on those federal websites.

Rodney Cornwell testified in his capacity as corporate representative for Winn–Dixie. Southeastern Grocers is the parent company of Winn–Dixie and he is the vice president of IT, Application and Delivery. He is the person with the most knowledge regarding website digital applications.

Winn–Dixie currently is building an ADA policy for its website but does not have one as of today. It is feasible for the website to be modified to be accessible to the disabled and independent of this law suit, Winn–Dixie is taking steps to modify the website and will modify the website to make it accessible to the disabled. Winn–Dixie is considering the WCAG guidelines among other sources in determining how to address the accessibility issue. The present website has not been tested by Winn–Dixie for use with universal screen readers.

There is a whole new group in the executive...