ADA Does Not Apply to a Virtual Business
By Catherine M. Corfee, Esq. * 916-487-5441 * [email protected]
If there is ever good news regarding the numerous ADA access lawsuits being filed, at least one California Appellate court have given us such. The Court ruled that the ADA does not apply to a virtual business online, which lacks a physical location for patrons to visit. In Martinez v. Cot’n Wash Inc. (Second Appellate District, Division One) No. B314476, 2022 Cal. App. LEXIS 673 (Ct. App. Aug. 1, 2022), the Court held that the websites of online-only businesses are not “places of public accommodation” within the meaning of the ADA or with regard to the California Unruh Act. Conversly, if your business has a building for patrons to visit, like a restaurant, and your website provides information about the menu, hours of operations and location, then your website must comply with the ADA and be compatible for the sight and hearing impaired. The disabled are entitled to access the same information as the non-disabled if they intend to visit your business.
The sight and hearing impaired have software that will enable the disabled to access information on a website if it meets certain ADA standards, which are not clear. There are a lot of grey areas because the Department of Justice has not provided regulations applicable to private businesses. People who are blind may use screen readers, which are devices that speak the text that appears on a screen. People who are deaf or hard of hearing may use captioning. Those who have disabilities affecting their ability to grasp and use a mouse may use voice recognition software to control their computers and other devices with verbal commands. Certain plug-ins in a website enable the disabled to access the information.
The Americans with Disabilities Act (“ADA”) is federal law governing access for the disabled. The California Unruh Act, and California Disabled Person’s Act (“DPA”) are similar to the ADA and provide that persons with disabilities are entitled to “full and equal accommodations, advantages, facilities or services in all business establishments of every kind whatsoever.” Cal. Civ. 51, 52, 4.3. Pursuant to the Unruh Act, a disabled plaintiff is entitled to recover a minimum of statutory damages of $4,000 per visit plus attorneys’ fees and costs if the plaintiff prevails. In many cases the plaintiff’s attorneys make more money than his/her disabled client.
If a disabled person was actually injured, the plaintiff can recover “actual damages.” In general, however, most disabled plaintiffs seek the $4000 “per visit” and they counsel seeks to obtain attorneys’ fees and costs. To obtain the statutory $4000, a disabled plaintiff must establish that he/she intended to use the goods and services a personally encountered a barrier that denied him/her equal access as the non-disabled. This means the disabled person suffered difficulty, discomfort and/or humiliation in attempting to access the facility or knew and saw a barrier and was deterred from accessing such. For example, if a wheelchair user intends to patronize a business and sees steps without a ramp, the disabled person could be barred from access and file a lawsuit for monetary damages, and a court order to provide an accessible ramp per the ADA standards.
The laws are not strict liability as the disabled must prove that the lack of ADA code compliance caused a denial of full and equal access or deterred the person from access. Unfortunately, for years, some courts have treated the law as strict liability assuming that non-compliance actually denied the person access. This is why there is so much ADA lawsuit abuse in California. No-one has been questioning whether the wheelchair user can really “grasp” a loop handle on an entrance door, or park easily despite a missing “tow away” sign.
The ADA does not provide monetary relief, only injunctive relief, which is basically a fix-it order to ensure ADA compliance with the standards. Under the ADA, I a disabled person obtains such a court order, the plaintiff can recover all of his/her attorneys’ fees incurred to litigate to obtain that court order. For example, a business could be ordered by the court to provide a ramp if the business does not voluntarily provide one. You never want such a court order, and if you have your facility inspected by a CASp, and provide ADA compliance within 120 days from the CASp inspection, and during that time a disabled plaintiff is barred, there is no liability. California provides this legal defense for a business in the process of providing access. Ms. Catherine M. Corfee has an excellent strategy and plan for those seeking to potentially avoid an ADA/Unruh lawsuit.
As to website lawsuits in California, disabled plaintiffs allege that the websites are not accessible to the hard of hearing and visually impaired because they contain elements that are not closed captioned or are not compatible with screen-reading software that allows a sight impaired person to use the website. In the case of Martinez v. Cot’n Wash Inc., a blind plaintiff sued a company that sold cleaning products through the website and it did not have a building/business for patrons to visit. The Court interpreted the ADA’s law of whether the website was a “place of public accommodation?” The ADA literally states that no individual with a disability shall be denied full an equal enjoyment of a “place of public accommodation.” The question was whether a virtual online business was a “place” within the meaning of the ADA. The Court found that an online business only is not covered by the ADA and need not make its website accessible. The court’s rationale was that a place of public accommodation must be connected to a physical location, a brick and motor place.
Virtual is virtual and not a place of accommodation. It may seem unfair; however, Congress must amend and/or change the ADA laws as the courts cannot enact laws, they can only interpret their plain meaning and words.
Making your website ADA accessible is not always difficult and expensive as some may advertise. Contact Ms. Catherine M. Corfee for legal advice regarding such. She has been practicing ADA law since approximately 1995, worked for two U.S. Magistrate Federal Judges in the Eastern District Court of California (Sacramento),