Thursday, September 5, 2019
Court of Appeal:
By a MetNews Staff Writer
A restaurant’s website, which contains the eatery’s menu and a link to a service enabling the making of online reservations, is a public accommodation, the Court of Appeal for this district has held, affirming a summary judgment under the state’s Unruh Civil Rights Act in favor of a blind woman whose screen reader software could not read aloud to her was what visible on the website to sighted persons.
The Unruh Act can be breached, under a provision of it, based on a violation of the federal Americans With Disabilities Act (“ADA”). Tuesday’s opinion by Justice Maria E. Stratton of Div. Eight expresses agreement with the Ninth U.S. Circuit Court of Appeals’ interpretation of the requirements of the ADA vis-a-vis websites.
Upholding a May 21, 2018 judgment rendered by Los Angeles Superior Court Judge Samantha P. Jessner in favor of plaintiff Cheryl Thurston, the opinion spurns the contention of the Midvale Corporation, which owns the Whisper Restaurant and Lounge, that the ADA applies only to physical facilities. That view was adopted in a 1998 opinion by the Third U.S. Circuit Court of Appeals.
“We decline to adopt what is clearly the minority position, and one which has failed to persuade any other federal court of appeal,” Stratton wrote. “We, too, find it unpersuasive.”
Whisper is located in The Grove, an extension, to the east, of The Original Farmers’ Market, at Fairfax Avenue and Third Street. The Grove is a trendy shopping center owned by attorney/entrepreneur Rick Caruso.
The Whisper’s website is whisperloungela.com.
The ADA sets forth:
“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 leases to), or operates a place of public accommodation.”
It specifies that a restaurant is a place of public accommodation.
“The court finds a plain reading of the statute, as well as the Department of Justice’s treatment of websites under the ADA, indicate that Defendant’s website falls within the category of ‘services,...privileges, advantages, accommodations of’ a restaurant, which is a place of public accommodation under the ADA….”
The judge recited that Thurston’s uncontroverted evidence showed that she went on the Whisper website on Feb. 20, 2017, and four or five times after that, and her software could not read the menu because it was in the form of a graphic and that she found herself powerless to use the reservation feature.
Midvale asserted that the restaurant’s phone number and email address were provided, and those presented alternatives to Thurston gaining access to menu information and the ability to make a reservation. Jessner responded:
“The court finds that the provision of an email or phone number does not provide full and equal enjoyment of Defendant’s website…, but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have [24-hour] access via Defendant’s website as other sighted customers. Thus, the email and telephone options do not provide effective communication ‘in a timely manner’ nor do they protect the independence of the visually impaired.”
Unchallenged on appeal was Jessner’s conclusion that Thurston was entitled only to a single $4,000 statutory penalty in connection with her initial trip to the website, and not a penalty stemming from each of her subsequent visits.
Stratton embraced the Ninth Circuit’s determination last Jan. 15 in Robles v. Domino’s Pizza, LLC. In that opinion, Circuit Judge John B. Owens quoted, with approval, a 2006 opinion by the District Court for the Northern District of California that says that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”
The quoted language adds:
“To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.”
The Jan. 15 opinion dealt with Domino’s website and its app, which enabled customers place orders for pizzas at a particular restaurant of the chain.
Stratton noted that the Ninth Circuit opinion holds websites subject to ADA “only if there is a nexus between the website and access to a physical place of public accommodation.”
Thurston urged the Court of Appeal to align itself with the First, Second, and Seventh Circuits which have held such a nexus is unnecessary. Stratton responded:
“Here appellant’s website provides information and services connected to The Whisper Lounge, a specific restaurant and bar and a physical place to which the public has access. The website would be just a fictional page on the Internet if it provided menus and other information and services for a restaurant and bar that did not exist.”
She said there is no need to decide the “wholly hypothetical question” as to whether ADA “governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.”
The case is Thurston v. Midvale Corporation, 2019 S.O.S. 2432.
Alison M. Turner and Marc J. Poster of the Los Angeles appellate law firm of Greines, Martin, Stein & Richland, LLP, teamed with Roger M. Mansukhani, Jon C. Yonemitsu, and Kara A. Ritter of the San Diego firm of Gordon Rees Scully Mansukhani, represented Midvale.
Scott J. Ferrell, David W. Reid, Victoria C. Knowles and Richard H. Hikida of Newport Beach’s Pacific Trial Attorneys presented the winning argument for Thurston.
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