Gil v. Winn Dixie Stores, Inc.

COMPLAINT against Winn Dixie Stores, Inc. Filing fees $ 400.00 receipt number 113C-8908519, filed by Juan Carlos Gil.

Southern District of Florida, flsd-1:2016-cv-23020

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8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Civil Action Number: JUAN CARLOS GIL, Plaintiff, vs. WINN-DIXIE STORES, INC. Defendant COMPLAINT COMES NOW Plaintiff Juan Carlos Gil, by and through his undersigned counsel hereby files this Complaint and sues Defendant Winn-Dixie Stores, Inc. for injunctive relief, attorney's fees and costs (including, but not limited to, court costs and expert fees) pursuant to Title III of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§s 12181-12189 ("ADA"), 28 C.F.R. Part 36 and alleges as follows: INTRODUCTORY STATEMENT 1. Plaintiff Juan Carlos Gil brings this action in Federal Court to stop the marginalization of blind, vision impaired, and low vision patrons of Defendant Winn- Dixie Stores, Inc.'s website (which is an extension of its grocery stores) throughout the United States of America, where the groundbreaking "American with Disabilities Act" has been the law of the land for over twenty-six years. 1 8 2. In a world of increasing number of low vision and blind individuals that is expected to double by 2050, it is essential that low vision and blind individuals are not excluded from society and segregated in area of web commerce. 3. This case arises out the fact that Defendant Winn-Dixie Stores, Inc. has operated its business in a manner and way that completely excludes individuals with disabilities who are visually impaired from enjoying and visiting their place of public accommodation, namely the Defendant's website www.winndixie.com. 4. Defendant Winn-Dixie Stores, Inc. (also referenced as "Defendant") owns and operates places of public accommodation which are grocery and pharmacy stores under the brand name "Winn Dixie." Winn Dixie grocery stores offer for sale to the general public grocery items including, but not limited to: meat, vegetables, dry goods, dairy products, bakery goods, magazines, gift cards, packaged ready-to-eat meals and snacks, and a full service pharmacy. Heretofore, referenced as "grocery/deli items and pharmacy." 5. The Defendant offers an adjunct website www.winndixie.com ("website") which is directly connected to its Winn Dixie grocery and pharmacy stores since the website provides a site locator to the Defendant's Winn Dixie grocery and pharmacy store locations (places of public accommodation). Thus, www.winndixie.com ("website") has a true nexus to the Defendant's Winn Dixie grocery and pharmacy stores. 6. This is an action to put an end to civil rights violations committed by Defendant Winn-Dixie Stores, Inc. against individuals with disabilities who are visually impaired and who cannot access and comprehend the internet and the websites that operate therein without the aid of assistive technology. 2 8 JURISDICTION & VENUE 7. This is an action for declaratory and injunctive relief pursuant to Title III of the Americans With Disabilities Act, 42 U.S.C. §§12181-12189 ("ADA"), 28 U.S.C. § 1331, and 28 C.F.R. § 36.201. 8. This is also an action for declaratory and injunctive relief to prevent discrimination which includes equal access to internet website for services to order/reorder Winn Dixie pharmacy (prescriptions) online. 9. Venue in this Court is proper pursuant to 28 U.S.C. §1391(b) because the Defendant resides in this District, the Defendant transacts business in this District, and the acts constituting the violation of the ADA occurred in this District. 10. Plaintiff seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§s 2201 and 2202. THE PARTIES Juan Carlos Gil 11. Plaintiff Juan Carlos Gil is a resident of the state of Florida and resides within the Southern judicial district, is sui juris, is disabled as defined by the ADA and the Rehabilitation Act. 12. Plaintiff Juan Carlos Gil suffers from what constitutes a "qualified disability" under the ADA. Plaintiff Juan Carlos Gil is legally blind with a vision disability (optic nerve damage) and a learning disability, and therefore is substantially limited in performing one or more major life activities, including but not limited to accurately visualizing his world, adequately traversing obstacles and walking without assistance. The Plaintiff's disability is defined in 42 U.S.C. §12012 (1)(A) and in 42 U.S.C. 3602, §802(h). 3 8 Winn-Dixie Stores, Inc. 13. Defendant Winn-Dixie Stores, Inc. (also referenced as Defendant) is the owner and operator of a chain of grocery and pharmacy stores under the brand name "Winn Dixie." 14. At all times material hereto, the Defendant Winn-Dixie Stores, Inc. was (and is) grocery and pharmacy store chain wherein all of its grocery and pharmacy stores under the Winn-Dixie brand are open to the public. The Defendant's grocery retail stores are over 40,000 square feet and offer a full range of grocery goods including (but not limited to) fruits, vegetables, dairy products, meats, dry goods, miscellaneous household items, bakery goods, delicatessen (which includes a lunch counter that serves hot and cold food), pharmacy, and financial services (such as Western Union) to the general public. 15. Defendant Winn-Dixie Stores, Inc. is authorized to conduct, and is conducting, business within the State of Florida and within the jurisdiction of this court. FACTS 16. The Defendant is defined as a "public accommodation" because it is an entity which owns and operates a chain of grocery and pharmacy stores under the brand name "Winn Dixie," each of which is a "Place of Public Accommodation" which is defined as "[A] bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment," 42 U.S.C. §12181(7)(E) and 28 C.F.R. §36.104. (2). Because many of the Winn Dixie stores contain full service pharmacies, the Winn Dixie is defined as a Place of Public Accommodation under 42 U.S.C. §12181(7)(F). Thus, each of the Defendant's Winn Dixie grocery stores and adjunct pharmacies are a place of 4 8 public accommodation subject to the requirements of Title III of the ADA and its implementing regulation; 42 U.S.C. §12182, §12181(7)(E), §12181(7)(F), and 28 C.F.R. Part 36. The Defendant's Winn Dixie grocery stores are also referenced throughout as "place(s) of public accommodation," "Winn Dixie (grocery and pharmacy) stores," or "grocery stores." 17. The Defendant's website www.winndixie.com ("website") is offered to provide the general public information including but not limited to information on the various locations of the Defendant's Winn Dixie stores. 18. The Defendant owns and/or operates 513 grocery and pharmacy stores in Florida, Alabama, Louisiana, Georgia and Mississippi. The Defendant also offers its own Winn Dixie brand grocery/deli items (under the Winn Dixie brands: Winn Dixie, and also Chek, Clear Value, Fisherman's Wharf, Kuddles, Prestige, Top Care, La Baguetterie, and Lip Lickin Chicken). 19. The Defendant's website www.winndixie.com services the various Winn Dixie grocery store locations, allows the general public to fill/refill medicine prescriptions on-line (for in-store pick up or delivery), provides information on its Winn Dixie brand products, and (among other things) provides: home-cooking recipes and tips, information about product recalls, and other services. 20. Since the Defendant's website allows the general public the ability to locate one of the many Winn Dixie grocery store/pharmacy locations, the website is an extension of the physical Winn Dixie grocery stores and on-site pharmacies. Therefore, the website has a direct nexus between the website and the Defendant's Winn Dixie 5 8 grocery stores and on-site pharmacies, hence the website is also characterized as a place of public accommodation; 42 U.S.C. §§s 12181(7)(E) and (F). 21. The website also allows the general public access to fill-refill pharmacy prescriptions for in-store pick up or delivery. As such, the website is a sales establishment, which is a public accommodation pursuant to 42 U.S.C. § 12181(7)(F) and must comply with the ADA. This means it must not discriminate against individuals with disabilities and may not deny full and equal enjoyment of the services afforded to the general public. As such, the Defendant has subjected itself and the website it has created and maintains, to the Americans with Disabilities Act ("ADA").1 22. Plaintiff Juan Carlos Gil is a customer of Winn Dixie grocery and pharmacy stores and is interested in filling/refilling pharmacy prescriptions on-line, as offered through the Defendant's website www.winndixie.com. 23. Plaintiff Juan Carlos Gil frequently utilizes the internet. In order to comprehend information available on the internet and access/comprehend websites, Plaintiff Juan Carlos Gil uses commercially available screen reader software to interface with the various websites. 24. In order to comprehend the Defendant's website and to become informed of the Defendant's Winn Dixie brand grocery/deli items and pharmacy (which other members of the general public may order online), Plaintiff Juan Carlos Gil must use screen reader software. 1 "The Department of Justice has long taken the position that both State and local government Websites and the websites of private entities that are public accommodations are covered by the ADA. In other words, the websites of entities covered by both Title II and Title III of the statute are required by law to ensure that their sites are fully accessible to individuals with disabilities." (See: Statement of Eve Hill Senior Counselor to the Assistant Attorney General for the Civil Rights Department of Justice - Before the Senate Committee on Health, Education, Labor & Pensions United States Senate – Concerning The Promise of Accessible Technology: Challenges and Opportunities – Presented on February 7, 2012. 6 8 25. Filling and refilling prescriptions online and having those items ready for pick up or delivered to one's home is a highly sought after accommodation that helps improve the lives of vision impaired people such as the Plaintiff (and thousands of others like him), and helps them integrate and participate in society. 26. Plaintiff Juan Carlos Gil is interested in shopping at Winn Dixie grocery stores and pharmacy. Plaintiff Juan Carlos Gil had heard about the Winn Dixie on-line pharmacy services and website and decided to look online to learn about the Winn Dixie brand items, store locations and find out more about the online pharmacy services through its website, www.winndixie.com. 27. During June and July, 2016, the Plaintiff attempted on several occasions to utilize the Defendant's website to learn about the Winn Dixie brands and Winn Dixie on- line pharmacy. The Plaintiff utilizes JAWS Screen Reader software (hereinafter referenced as "screen reader software"), which is the most popular screen reader software utilized worldwide as it allows individuals who are visually impaired to comprehend information available on the internet and access websites. 28. However, the Defendant's website did not integrate with Plaintiff's screen reader software, nor was there any function within Defendant's website to permit access for visually impaired through other means. 29. Plaintiff Juan Carlos Gil attempted to locate any Accessibility Notice or any information relating to the website's future accessibility plans or information regarding contacting the Defendant to alert the Defendant to the inaccessibility of its 7 8 website www.winndixie.com, but was unable to do so, because no such link or notice was provided2. 30. The fact that Plaintiff Juan Carlos Gil could not access the Defendant's www.winndixie.com website, he felt as if another door had been slammed in his face, as he is/was unable to participate in the shopping experience online at the www.winndixie.com website as experienced by the general public, 26 years after the Title III of the ADA was enacted and which promised to remove such barriers. 31. Plaintiff Juan Carlos Gil continues to desire to p