United States District Court, M.D. Florida
Gregory A. Presnell, Judge
Matter comes before the Court on the Defendant's Motion
to Dismiss (Doc. 17), the Plaintiff's Response in
Opposition (Doc. 21), and the Defendant's Reply (Doc.
Complaint states that the Plaintiff, who is visually
impaired, “is a prospective student who is interested
in attending the Keiser University by taking classes at its
Daytona Beach campus location.” Doc. 1 ¶ 24. The
Plaintiff allegedly called the Defendant in order
“to inquire about Admission to the Keiser University,
requirements for admissions, available courses, and
accommodations for his disability.” Id. ¶
25. The Plaintiff claims that the “Defendant's
representative failed to fully assist Plaintiff and referred
him to its Website.” Id. The Plaintiff
apparently attempted to utilize the Defendant's website
using screen reader software, but because the software was
unable to access various electronic documents on the website,
the Plaintiff states that he could not find out information
necessary to apply to Keiser; research available degree
types, pre-requisites, and course descriptions; view the
course catalog; and view available accommodations that Keiser
could offer him for his disability. Id. ¶ 29.
Legal Standards A. Motion to Dismiss
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.'
” U.S. v. Baxter Intern., Inc., 345 F.3d 866,
880 (11th Cir. 2003) (citing Fed.R.Civ.P. 8(a)). This is a
liberal pleading requirement, one that does not require a
plaintiff to plead with particularity every element of a
cause of action. Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001).
Americans with Disabilities Act
III of the Americans With Disabilities Act, 42 U.S.C.
§§ 12181-12189 (“Title III”), which
addresses “Public Accommodations and Services Operated
by Private Entities, ” provides that “[n]o
individual shall be discriminated against on the basis of
disability in any place of public accommodation.” 42
U.S.C. § 12182(a). Any person subjected to
discrimination on the basis of disability in violation of
Title III may bring a private action. 42 U.S.C. §
12188(a). To prevail on a Title III ADA claim, a plaintiff
generally has the burden of proving (1) that he or she is an
individual with a disability; (2) that the defendant owns,
leases, or operates a place of public accommodation; and (3)
that the defendant denied him or her full and equal enjoyment
of goods, services, facilities or privileges offered by the
defendant (4) on the basis of his or her disability.
Schiavo ex rel Schindler v. Schiavo, 358 F.Supp.2d
1161, 1165 (M.D. Fla. 2005). The only relief available to
plaintiffs suing under Title III of the ADA is injunctive
relief. Houston v. Marod Supermarkets,
Inc., 733 F.3d 1323, 1329 (11th Cir. 2013).
in the Eleventh Circuit have held that a website itself is
not a public accommodation for purposes of the ADA. See,
e.g., Kidwell v. Fla. Comm'n on Human
Relations, No. 2:16-CV-403-FTM-99CM, 2017 WL 176897, at
*5 (M.D. Fla. Jan. 17, 2017). However, the Eleventh Circuit
has held that the ADA covers both tangible and intangible
barriers to enjoyment of public accommodations. Rendon v.
Valleycrest Prods., Ltd., 294 F.3d 1279, 1283 (11th Cir.
2002) And, “[w]hile there is some disagreement amongst
district courts on this question, it appears that the
majority of courts agree that websites are not covered by the
ADA unless some function on the website hinders the full use
and enjoyment of a physical space.” Gomez v. Bang
& Olufsen Am., Inc., No. 1:16-cv-23801, 2017 WL
1957182, at *3 (S.D. Fla. Feb. 2, 2017). Thus, in order to
survive a motion to dismiss, a plaintiff alleging that an
inaccessible website impedes access to a physical location
must establish “some nexus between the website and the
physical place of public accommodation.” Id.
This is not to say that any impediment to access to a website
violates the ADA just because the website has a connection to
a physical public accommodation. Rather, “[a]ll the ADA
requires is that, if a [public accommodation] chooses to have
a website, the website cannot impede a disabled person's
full use and enjoyment of the brick-and-motar [public
accommodation].” Id. at *4. While a nexus is
obviously a requirement, alleging the mere existence of some
connection or link between the website and the physical
location is not sufficient.
clarifying the nexus requirement, district courts in the
Eleventh Circuit have distinguished between an inability to
use a website to gain information about a physical location
and an inability to use a website that impedes access to
enjoy a physical location, holding that the former “is
insufficient to state a claim.” E.g.,
Gomez v. La Carreta Enters., No. 17-civ-61195, 2017
U.S. Dist. LEXIS 202662, at *9 (S.D. Fla. Dec. 6, 2017). One
rationale underlying this holding is that a contrary finding
would require all websites with any nexus to a
physical public accommodation to be formatted in such a way
that they are accessible to screen reader software.
E.g., Price v. AFT Mgmt., Corp., No.
17-civ-61310, 2018 U.S. Dist. LEXIS 25896, at *9 (S.D. Fla.
Feb. 14, 2018). District courts in the Eleventh Circuit have
been unwilling to take a leap with such far-reaching
implications, and this Court is no exception. Here, the
Defendant correctly argues that “an inability to gain
information about the physical location does not adequately
allege that his inability to access the Website impedes his
access to enjoy the physical university.” Doc. 17 at 6.
Although the Plaintiff argues that he “has alleged that
the inaccessibility of Defendant's website impeded
Plaintiffs access to Defendant's University locations,
” Doc. 21 at 13, a review of the Complaint reveals that
the Plaintiff alleges only facts indicating that his ability
to gain information about the location, rather than his
access to enjoyment of the university itself, was
compromised. As the Defendant points out, the Plaintiff does
not claim that he was unable to apply to the university, pay
tuition, or use the student portal on the website. Doc. 26 at
4. Accordingly, the Plaintiff has failed to state a claim on
which relief can be granted.
foregoing reasons, the Defendant's Motion to Dismiss
(Doc. 17) is GRANTED. The Complaint is
DISMISSED without prejudice. If the
Plaintiff wishes to file an amended complaint, he may ...