Virginia Lawyers Weekly VA Lawyers Weekly
Although the Fourth Circuit has not addressed whether a website can constitute a place of public accommodation under the Americans with Disabilities Act, and other circuits have reached differing conclusions, the court agreed that places of “public accommodation” are not limited to physical, brick-and-mortar establishments and include commercial websites that offer goods and services.
Background
Brittney Mejico filed this action against Alba Web Designs LLC, alleging that Alba’s website violates Title III of the ADA. Alba operates a website, 500labels.com, through which it sells personalized return address labels. Mejico is a blind resident of California who alleges she has been unable to use the website. The case is presently before the court on Alba’s second motion to dismiss for lack of subject matter jurisdiction and its motion for judgment on the pleadings.
Standing
Turning first to the “concrete and particularized” prong, the court concludes that Mejico’s allegations are sufficient to withstand Alba’s motion to dismiss. According to the amended complaint, Mejico, who is permanently blind and relies on a screen reader to access the internet, visited the website on several occasions between September 2019 and May 2020. During those visits, Mejico encountered a number of specific access barriers that prevented her purchasing items from Alba and otherwise denied her equal access to the goods and services available on the website.
By alleging that Mejico visited the website, attempted to complete a purchase and “personally encountered . . . barriers to access,” the court is satisfied that the amended complaint “pleads past injuries that are concrete, particularized, and actual,” rather than “conjectural or hypothetical.” Mejico need not have purchased a product in the past to have standing to sue under Title III’s general prohibition of discrimination.
However, because Mejico seeks injunctive relief, the court must determine whether the amended complaint “sufficiently alleges a likelihood that [plaintiff] will again suffer such injuries.” For the following reasons, the court concludes that it does.
First, Mejico specifically alleges that she “continues to attempt to utilize the website and plans to continue to attempt to utilize the website in the near future for both personal and professional purposes.” The denial of equal access to the website in the past, coupled with Mejico’s plausible intentions to utilize the website in the future, are sufficient to plead a likelihood of future injury.
Second, neither Mejico’s role as a “tester” under the ADA nor her litigation history “strips [her] of standing to sue” Alba. Although tester status alone is insufficient to confer standing, this is not a case in which the plaintiff relies solely on her tester status to establish a threat of future injury.
Instead, Mejico identifies particular reasons for wanting to access the website that are separate and apart from her role as a tester. Thus, even if Mejico’s status as a tester fueled her motivation to pursue this action, it does not deprive her of standing. Accordingly, Alba’s motion to dismiss under Rule 12(b)(1) will be denied.
Merits
“To prevail under Title III of the ADA, a plaintiff must show that: (1) [s]he is disabled within the meaning of the ADA; (2) the defendant owns, leases, or operates a place of public accommodation; and (3) the defendant discriminated against [her] because of [her] disability.” In moving for judgment on the pleadings, Alba focuses exclusively on the second element, arguing that the website is not a “place of public accommodation” subject to Title III.
It is undisputed that Alba does not operate a brick-and-mortar store that is open to the public. Instead, Alba sells its goods and services through the website. The issue presented—whether a website itself can constitute a place of public accommodation—has not been addressed by the Fourth Circuit. Other circuit courts have reached differing conclusions regarding the scope of entities subject to Title III.
After carefully considering the record, the parties’ arguments and applicable law, the court is persuaded that places of “public accommodation” are not limited to physical, brick-and-mortar establishments and instead include commercial websites that offer good and services. Thus, the fact that Alba has no physical location open to the public is not dispositive and its motion for judgment on the pleadings must be denied.
Alba’s motions denied.
Mejico v. Alba Web Designs LLC, Case No. 7:20-cv-00039, Jan. 25, 2021. WDVA at Roanoke (Conrad). VLW 021-3-039. 22 pp.
