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Standalone Website Is Not a ‘Public Accommodation’—C.A.
By a MetNews Staff Writer
A retail-sales website that is not accessible to the visually impaired through use of screen reading software cannot be held liable under California’s Unruh Act if it has no connection with a “brick and mortar” store, the Court of Appeal for this district has declared in a case of first impression for the state’s courts.
The issue resolved by Div. One has come up in federal courts in cases brought under Art. III of the federal Americans With Disabilities Act (“ADA”), with disparate holdings. Monday’s decision by Presiding Justice Frances Rothschild rejects the reasoning of those cases in which liability has been found.
Rothschild also found unpersuasive the fact that the U.S. Department of Justice (“DOJ”) “has unofficially endorsed a view that all retail websites constitute ‘place[s] of public accommodation’ for purposes of the ADA,” thus imposing upon them a duty not to discriminate based on disabilities.
“Regardless of what the DOJ has said in amicus briefs, it has opted not to issue any regulations or formal guidance to this effect, even after repeated requests from Congress that the DOJ do so,” the presiding justice said, remarking that “weighs against, not in favor, of” affixing liability.
Byrdsong’s Ruling
The opinion affirms a judgment of dismissal which followed Los Angeles Superior Court Judge Rupert A. Byrdsong’s sustaining of demurrers without leave to amend to a complaint brought by Abelardo Martinez Jr., who was blind. The software he used read aloud alternative text embedded in website graphics—but defendant Cot’n Wash, Inc. (“CW”), a Pennsylvania corporation that sells cleaning supplies, did not provide alternative text.
Martinez sued under the Unruh Act— Civil Code §51 et seq.—based on alleged violations of the ADA. That act provides:
“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.”
The California act affords a benefit not available under the ADA: minimum damages of $4,000 per violation.
Following the death of the plaintiff while the appeal was pending, his brother, Alejandro Martinez, as the successor to the decedent’s estate, was substituted as the appellant.
Limitations of Statute
Spurning his arguments, Rothschild said:
“…Martinez has not alleged, as he must in order for Title III of the ADA to apply, that CW’s website constitutes a ‘place of public accommodation.’…Under current law, we cannot read this phrase as including retail websites without any connection to a physical space. The statutory language does not include a category that encompasses such websites, and Congress has chosen not to amend the ADA to clarify whether and under what circumstances a website can constitute a ‘place of public accommodation’—despite Congress recognizing over 20 years ago the lack of clarity on this point and the resulting federal circuit split that persists today. We cannot rely, as Martinez encourages us to, on the policy goals of the ADA as a basis for ignoring the plain language of the statute and doing what Congress has for decades declined to do.”
She wrote that “the plain meaning of the term ‘place’ weighs against adopting Martinez’s proposed interpretation,” noting that “[d]ictionaries ‘overwhelmingly’ define ‘place’ as involving a physical location.”
The Unruh Act, in addition to providing a cause of action based on an ADA violation, also provides for liability based on intentional discrimination. The plaintiff—represented by Pacific Trial Attorneys, a Newport Beach firm that also acted for his brother on appeal—maintained that the Unruh Act was breached based on CW having failed to revamp its website once it was apprised of the discriminatory effect.
Rothschild responded that California courts “do not recognize a failure to address known discriminatory effects of a policy as alone sufficient to establish intentional discrimination under the Unruh Act.”
The case is Martinez v. Cot’n Wash, Inc., 2022 S.O.S. 3411.
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