UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 

VICTOR ARIZA, 

Plaintiff,

vs.

WINGSTOP RESTAURANTS INC.,

a foreign for-profit corporation, 

Defendant.

_________________________________/

COMPLAINT

Plaintiff VICTOR ARIZA, through undersigned counsel, sues Defendant WINGSTOP 

RESTAURANTS, INC, a foreign for-profit corporation, and alleges as follows:

1. This is an action for declaratory and injunctive relief pursuant to Title III of the 

Americans with Disabilities Act, 42 U.S.C. §§12181-12189 (“ADA”), as amended, and 28 C.F.R. 

Part 36. This is also an action for declaratory and injunctive relief to prevent discrimination which 

includes equal access to an internet website for services, to order food, and to secure information 

about Defendant’s restaurants online. This is also an action for declaratory and injunctive relief to 

prevent the continuing act of trespass against the Plaintiff’s personal property (his personal 

computer), and for compensatory damages to Plaintiff for such trespass. Remedies provided under 

common law for trespass are not exclusive and may be sought in connection with suits brought 

under the ADA.

 2. This Court has jurisdiction over this case based on federal question jurisdiction, 28 

U.S.C. §1331 and the provisions of the ADA. Plaintiff seeks declaratory and injunctive relief 

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pursuant to 28 U.S.C. §§ 2201 and 2202. In addition, this Court has supplementary jurisdiction 

over Plaintiff’s common law tort claim pursuant to 28 U.S.C. §1367.

3. Venue is proper in this Court as all actions complained of herein and injuries and 

damages suffered occurred in the Southern District of Florida.

4. Plaintiff VICTOR ARIZA is a resident of Miami-Dade County, Florida, is sui juris, 

and is disabled as defined by the ADA and ADA Amendments Act of 2008, 42 U.S.C. §12101 

(“ADAAA”).

5. Plaintiff is and at all relevant times has been visually disabled in that he suffers 

from optical nerve atrophy, a permanent eye disease and medical condition that substantially and 

significantly impairs his vision and limits his ability to see. Plaintiff thus is substantially limited 

in performing one or more major life activities, including, but not limited to, sight, accurately 

visualizing his world, and adequately traversing obstacles. As such, he is a member of a protected 

class under the ADA, 42 U.S.C. § 12102(1)-(2), the regulations implementing the ADA set forth 

at 28 CFR §§ 36.101, et seq., and in 42 U.S.C. § 3602(h). 

6. Because he is visually disabled, Plaintiff cannot use his computer without the 

assistance of appropriate and available screen reader software.

7. Defendant is a Florida for-profit corporation authorized to do business and doing 

business in the State of Florida. Defendant owns and operates of a chain of restaurants, including 

one of the restaurants that Plaintiff intended to patronize at 1452 NE 163rd Street, North Miami 

Beach, Florida.

8. Plaintiff’s visual disability limits him in the performance of major life activities, 

including sight, and he requires assistive technologies, auxiliary aids, and services for effective 

communication, including communication in connection with his use of a computer. 

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9. Plaintiff frequently accesses the internet. Because he is significantly and 

permanently visually disabled, to effectively communicate and comprehend information available 

on the internet and thereby access and comprehend websites, Plaintiff uses commercially available 

screen reader software to interface with the various websites.

10. At all times material hereto, Defendant was and still is an organization that owns 

and operates a chain of restaurants selling food under the brand name “Wing Stop”. Each Wing 

Stop restaurant is open to the public. As the owner and operator of these restaurants, Defendant is 

defined as a place of “public accommodation" within meaning of Title III because Defendant is a 

private entity which owns and/or operates “[A] bakery, grocery restaurants, clothing restaurants, 

hardware restaurants, shopping center, or other sales or rental establishment,” per 42 U.S.C. 

§12181(7)(E) and 28 C.F.R. §36.104(2).

11. Because Defendant is a restaurant open to the public, each of Defendant’s physical 

restaurants is a place of public accommodation subject to the requirements of Title III of the ADA 

and its implementing regulation; 42 U.S.C. §12182, §12181(7)(E), and 28 C.F.R. Part 36. 

12. Defendant controls, maintains, and/or operates an adjunct website called 

http://www.wingstop.com (hereinafter the “Website”). One of the functions of the Website is to 

provide the public information on the various locations of Defendant’s restaurants that sell its food 

throughout the United States and within the State of Florida. Defendant also sells to the public its 

food and goods through its associated Website.

13. The Website also services Defendant’s physical restaurants by providing 

information on its available products and branded merchandise, tips and advice, editorials, sales 

campaigns, events, and other information that Defendant is interested in communicating to its 

customers.

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14. Because the Website allows the public the ability to locate Defendant’s physical 

restaurants, purchase merchandise and food products from Defendant that are also available for 

purchase in the physical restaurants, check gift card balances, and sign up for an electronic emailer 

to receive offers, benefits, exclusive invitations, and discounts for use in the physical restaurants, 

the Website is an extension of, and gateway to, Defendant’s physical restaurants. By this nexus, 

the Website is characterized as an intangible service, privilege and advantage provided by a place 

of public accommodation as defined under the ADA and thus an extension of the services, 

privileges and advantages made available to the general public by Defendant through its brick and 

mortar locations and businesses.

15. Because the public can view and purchase Defendant’s merchandise and food 

products that are also offered for sale by Defendant in its physical restaurants, check gift balances, 

and sign up for an electronic e-mailer to receive offers, benefits, exclusive invitations, and 

discounts for use in the physical restaurants, the Website is an extension of, and gateway to, the 

physical restaurants, which are places of public accommodation pursuant to the ADA, 42 U.S.C. 

§ 12181(7) (E). As such, the Website is an intangible service, privilege and advantage of 

Defendant’s brick and mortar restaurants locations that must comply with all requirements of the 

ADA, must not discriminate against individuals with visual disabilities, and must not deny those 

individuals the same full and equal enjoyment of the services, privileges and advantages afforded 

to the non-disabled general public both online and in its physical restaurants.

16. At all times material hereto, Defendant was and still is an organization owning and 

operating the Website. Since the Website is open to the public through the internet, by this nexus 

the Website is an intangible service, privilege and advantage of Defendant’s brick and mortar 

restaurants that must comply with all requirements of the ADA, must not discriminate against 

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individuals with visual disabilities, and must not deny those individuals the full and equal 

enjoyment of the services, privileges and advantages afforded to the non-disabled public both 

online and at the physical restaurants. As such, Defendant has subjected itself and the Website to 

the requirements of the ADA.

17. Plaintiff is and has been a customer who is interested in patronizing, and intends to 

patronize in the near future once the Website’s access barriers are either removed or remedied, 

Defendant’s physical restaurants (including the restaurants located at 1452 NE 163rd Street, North 

Miami Beach, Florida), and to search for the brick and mortar restaurants locations, check 

restaurants hours and pricing, purchase food and merchandise, check gift card balances, and sign 

up for an electronic emailer to receive offers, benefits, exclusive invitations, and discounts for use 

at the Website or in Defendant’s physical restaurants. 

18. The opportunity to shop and pre-shop Defendant’s food, check gift card balances,

and sign up for an electronic e-mailer to receive offers, benefits, exclusive invitations, and 

discounts for use in the physical restaurants from his home are important accommodations for 

Plaintiff because traveling outside of his home as a visually disabled individual is often difficult, 

hazardous, frightening, frustrating and confusing experience. Defendant has not provided its 

business information in any other digital format that is accessible for use by blind and visually 

impaired individuals using the screen reader software.

19. Like many consumers, Plaintiff accesses numerous websites at a time to compare

merchandise, prices, sales, discounts, and promotions. Plaintiff may look at several dozens of sites 

to compare features, discounts, promotions, and prices.

20. During the month of May 2020, Plaintiff attempted on a number of occasions to 

utilize the Website to browse through the merchandise and online offers to educate himself as to 

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the merchandise, sales, discounts, and promotions being offered, and with the intent of making a 

purchase through the Website or at one of the Defendant’s restaurants.

21. Plaintiff utilizes screen reader software that allows individuals who are visually 

disabled to communicate with websites. However, Defendant’s Website contains access barriers 

that prevent free and full use by visually disabled individuals using keyboards and available screen 

reader software. These barriers are pervasive and include, but are not limited to: 

a. Mislabeled homepage link;

b. Site function like pause button not labeled; and

c. Inconsistent site interfacing with the screen reader.

22. The Website also lacks prompting information and accommodations necessary to 

allow visually disabled individuals who use screen reader software to locate and accurately fill out 

online forms to purchase Defendant’s merchandise from the Website.

23. Plaintiff attempted to locate an “accessibility” notice, statement, or policy on the 

Website that would direct her to a webpage with contact information for disabled individuals who 

have questions, concerns, or who are having difficulties communicating with the Website. 

Although, the Website appeared to have an “accessibility” statement, statement or policy

displayed, that “accessibility” statement still could not be effectively accessed or utilized by 

Plaintiff and continued to be a barrier to visually disabled persons, including Plaintiff. Plaintiff 

was therefore unable to effectively navigate the Website through the “accessibility” statement.

24. The fact that Plaintiff could not communicate with or within the Website left him 

feeling excluded, as he is unable to participate in the same online computer shopping experience, 

with access to the merchandise, sales, discounts, and promotions as provided at the Website and 

for use in the physical restaurants, as the non-visually disabled public.

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25. Plaintiff desires and intends, in the near future once the Website’s access barriers 

are removed or remedied, to patronize Defendant’s physical restaurants and to use the Website, 

but he is unable to fully do so as he is unable to effectively communicate with Defendant due to 

his severe visual disability and the Website’s access barriers. Thus, Plaintiff, as well as others who 

are blind or with visual disabilities, will suffer continuous and ongoing harm from Defendant’s 

intentional acts, omissions, policies, and practices as set forth herein unless properly enjoined by 

this Court.

26. Because of the nexus between Defendant’s restaurants and the Website, and the 

fact that the Website clearly provides support and is connected to Defendant’s retail restaurants 

for its operation and use, the Website is an intangible service, privilege and an advantage of 

Defendant’s brick and mortar restaurants that must comply with all requirements of the ADA, must 

not discriminate against individuals with disabilities, and must not deny those individuals the same 

full and equal enjoyment of the services, privileges and advantages afforded to the non-disabled 

public both on-line and at its physical locations, which are places of public accommodations 

subject to the requirements of the ADA.

27. On information and belief, Defendant has not initiated a Web Accessibility Policy 

to ensure full and equal use of the Website by individuals with disabilities.

28. On information and belief, Defendant has not instituted a Web Accessibility 

Committee to ensure full and equal use of Website by individuals with disabilities.

29. On information and belief, Defendant has not designated an employee as a Web 

Accessibility Coordinator to ensure full and equal use of the Website by individuals with 

disabilities.

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30. On information and belief, Defendant has not instituted a Web Accessibility User 

Accessibility Testing Group to ensure full and equal use of the Website by individuals with 

disabilities.

31. On information and belief, Defendant has not instituted a User Accessibility 

Testing Group to ensure full and equal use of the Website by individuals with disabilities.

32. On information and belief, Defendant has not instituted a Bug Fix Priority Policy.

33. On information and belief, Defendant has not instituted an Automated Web 

Accessibility Testing program. 

34. On information and belief, Defendant has not created and instituted a Specialized 

Customer Assistance line or service or email contact mode for customer assistance for the visually 

disabled.

35. On information and belief, Defendant has not created and instituted on the Website 

a page for individuals with disabilities, nor displayed a link and information hotline, nor created 

an information portal explaining when and how Defendant will have the Website, applications, 

and digital assets accessible to the visually disabled or blind community.

36. On information and belief, the Website does not meet the Web Content 

Accessibility Guidelines (“WCAG”) 2.0 Level AA or higher versions of web accessibility.

37. On information and belief, Defendant has not disclosed to the public any intended 

audits, changes, or lawsuits to correct the inaccessibility of the Website to visually disabled 

individuals who want the safety and privacy of purchasing Defendant’s merchandise offered on 

the Website online from their homes.

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38. Thus, Defendant has not provided full and equal enjoyment of the services, 

facilities, privileges, advantages, and accommodations provided by and through the Website, in 

contravention of the ADA.

39. Further, public accommodations under the ADA must ensure that their places of 

public accommodation provide effective communication for all members of the general public, 

including individuals with disabilities such as Plaintiff.

40. The broad mandate of the ADA is to provide an equal opportunity for individuals 

with disabilities to participate in and benefit from all aspects of American civic and economic life. 

That mandate extends to internet shopping websites, such as the Website.

41. On information and belief, Defendant is, and at all times has been, aware of the 

barriers to effective communication within the Website which prevent individuals with disabilities 

who are visually disabled from the means to comprehend information presented therein.

42. On information and belief, Defendant is aware of the need to provide full access to 

all visitors to the Website.

43. The barriers that exist on the Website result in discriminatory and unequal 

treatment of individuals with disabilities who are visually disabled, including Plaintiff.

44. Plaintiff has no plain, adequate, or complete remedy at law to redress the wrongs 

alleged hereinabove, and this suit for declaratory judgment and injunctive relief is his only means 

to secure adequate and complete redress from Defendant’s unlawful and discriminatory practices 

in connection with its Website access and operation.

45. Notice to Defendant is not required because of Defendant’s failure to cure the 

violations. 

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46. Enforcement of Plaintiff’s rights under the ADA is right and just pursuant to 28 

U.S.C. §§ 2201 and 2202.

47. Plaintiff has retained the undersigned attorneys to represent him in this case and 

has agreed to pay them a reasonable fee for their services.

Trespass Violations

48. Plaintiff utilizes his computer to access websites such as Defendant’s Website.

49. Plaintiff uses his computer as a method of conveyance of his personal information. 

Plaintiff thus restaurants his personal information and retains his browsing history on his computer.

50. Throughout the Website, Defendant has placed forms of software to collect nonpublic information on the Website’s user’s preferences and internet browsing habits.

51. Defendant informs the Website user that the user’s personal information and 

browsing history is collected and is used for targeted marketing and advertising.

52. Because of his blindness, Plaintiff was unable to comprehend the Website; 

therefore, Plaintiff has had no choice, and likewise no knowledge, of Defendant’s installation of 

data and information tracking software and the collection of the Website user’s browsing history 

and analytics placed on the user’s computer.

53. Based upon the review of the Website, when a user accesses the Website, Defendant 

places software on the Plaintiff’s personal computer, without the user’s advance consent or 

knowledge. It is also clear that Defendant has used browser cookies to identify websites that 

Plaintiff has previously visited by accessing Plaintiff’s web browser history.

54. As such, through its Website, Defendant has committed a trespass against the 

Plaintiff, because the Website places information gathering software on the Plaintiff’s computer 

without Plaintiff’s knowledge or consent.

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COUNT I – VIOLATION OF THE ADA

55. Plaintiff re-alleges paragraphs 1 through 47 as if set forth fully herein.

56. Pursuant to 42 U.S.C. §12181(7)(E), Defendant is a public accommodation under 

the ADA because it owns and/or operates the Website, as defined within §12181(7)(E) and is 

subject to the ADA.

57. Pursuant to 42 U.S.C. §12181(7)(E), the Website is covered under the ADA 

because it provides the general public with the ability to locate Defendant’s physical restaurants,

purchase food and beverages from the physical restaurants, check gift card balances, and sign up 

for an electronic e-mailer to receive offers and sign up for an electronic emailer to receive offers,

benefits, exclusive invitations, and discounts for use at the physical restaurants. The Website thus 

is an extension of, gateway to, and intangible service, privilege, and advantage of Defendant’s 

physical restaurants. Further, the Website also serves to augment Defendant’s physical restaurants

by providing the public information on the various physical locations of the restaurants and by 

educating the public as to Defendant’s available merchandise sold through the Website and in its 

physical restaurants.

58. Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful 

discrimination to deny individuals with disabilities or a class of individuals with disabilities an 

opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, 

or accommodation, which is equal to the opportunities afforded to other individuals.

59. Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful 

discrimination includes, among other things, “a failure to make reasonable modifications in 

policies, practices, or procedures, when such modifications are necessary to afford such goods, 

services, facilities, privileges, advantages, or accommodations to individuals with disabilities, 

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unless the entity can demonstrate that making such modifications would fundamentally alter the 

nature of such goods, services, facilities, privileges, advantages or accommodations.”

60. In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful 

discrimination includes, among other things, “a failure to take such steps as may be necessary to 

ensure that no individual with a disability is excluded, denied services, segregated or otherwise 

treated differently than other individuals because of the absence of auxiliary aids and services, 

unless the entity can demonstrate that taking such steps would fundamentally alter the nature of 

the good, service, facility, privilege, advantage, or accommodation being offered or would result 

in an undue burden.”

61. Defendant’s Website must comply with the ADA, but it is not, as specifically 

alleged hereinabove and below.

62. Because of the inaccessibility of the Website, individuals with disabilities who are 

visually disabled are denied full and equal enjoyment of the information and services that 

Defendant has made available to the public on its Website, and at its physical restaurants, in 

violation of 42 U.S.C. §12101, et seq, and as prohibited by 42 U.S.C. §12182, et seq.

63. The Website was subsequently visited by Plaintiff’s expert in June 2020, and the 

expert determination was that the same access barriers that Plaintiff had initially encountered, as 

well as numerous additional access barriers, existed and that Defendant had made no material 

changes or improvements to the Website to enable its full use, enjoyment and accessibility for 

visually disabled persons such as Plaintiff. Despite being a defendant in prior ADA accessibility 

lawsuits involving the same Website, which likely resulted in a confidential settlement agreements

that obligated Defendant to fully remediate the Website, Defendant still has not adequately 

remediated the Website to make it fully accessible to blind and visually disabled persons such as 

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Plaintiff. When the Website was revisited, it was revealed that, although the Website appeared to 

have an “accessibility” statement on its home page, that “accessibility” statement still could not be 

effectively used or accessed by, and continued to be a barrier to, visually disabled persons such as 

Plaintiff. Defendant also has not disclosed to the public any intended audits, changes, or lawsuits 

to correct the inaccessibility of the Website to visually disabled individuals. Defendant thus has 

failed to make reasonable modifications in its policies, practices, or procedures when such 

modifications are necessary to afford goods, services, facilities, privileges, advantages, or 

accommodations to individuals with disabilities, in violation of 28 C.F.R. §36.302. The lack of a 

viable and effective “accessibility” notice, policy or statement and the numerous access barriers as 

set forth in the Declaration of Plaintiff’s expert, Robert D. Moody, attached hereto as Composite 

Exhibit “A” and the contents of which are incorporated herein by reference, continue to render the 

Website not fully accessible to users who are blind and visually disabled, including Plaintiff. 

64. More violations may be present on other pages of the Website, which can and will 

be determined and proven through the discovery process in this case.

65. Further, the Website does not offer or include the universal symbol for the disabled 

that would permit disabled individuals to access the Website’s accessibility information and 

accessibility facts.

66. There are readily available, well established guidelines on the internet for making 

websites accessible to the blind and visually disabled. These guidelines have been followed by 

other large business entities in making their websites accessible. Examples of such guidelines 

include, but not limited to, adding alt-text to graphics, and ensuring that all functions can be 

performed using a keyboard. Incorporating such basic components to make the Website accessible 

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would neither fundamentally alter the nature of Defendant’s business nor would it result in an 

undue burden to the Defendant.

67. Defendant has violated the ADA -- and continues to violate the ADA -- by denying 

access to the Website by individuals, such as Plaintiff, with visual disabilities who requires the 

assistance of interface with screen reader software to comprehend and access internet websites. 

These violations within the Website are ongoing.

68. The ADA and ADAAA require that public accommodations and places of public 

accommodation ensure that communication is effective. 

69. According to 28 C.F.R. §36.303(b)(1), auxiliary aids and services include “voice, 

text, and video-based telecommunications products and systems”. Indeed, 28 C.F.R. §36.303(b)(2) 

specifically states that screen reader software is an effective method of making visually delivered 

material available to individuals who are blind or have low vision.

70. According to 28 C.F.R. §36.303(c), public accommodations must furnish 

appropriate auxiliary aids and services where necessary to ensure effective communication with

individuals with disabilities: “In order to be effective, auxiliary aids and services must be provided 

in accessible formats, in a timely manner, and in such a way as to protect the privacy and 

independence of the individual with a disability,” 28 C.F.R. §36.303(c) (1) (ii).

71. Part 36 of Title 28 of the C.F.R. was designed and is implemented to effectuate 

subtitle A of Title III of the ADA, which prohibits discrimination on the basis of disability by 

public accommodations, and requires places of public accommodation to be designed, constructed, 

and altered in compliance with the accessibility standards established by Part 36.

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72. As alleged hereinabove, the Website has not been designed to interface with the 

widely and readily available technologies that can be used to ensure effective communication, and 

thus violates the ADA.

73. As a direct and proximate result of Defendant’s failure to provide an ADA 

compliant Website, with a nexus to its brick and mortar physical restaurants locations, Plaintiff 

has suffered an injury in fact by being denied full access to and enjoyment of Defendant’s Website 

and physical restaurants. 

74. Because of the inadequate development and administration of the Website, Plaintiff 

is entitled to injunctive relief pursuant to 42 U.S.C. §12133 and 28 C.F.R. §36.303, to remedy the 

ongoing disability discrimination. 

75. Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to grant 

Plaintiff appropriate and necessary injunctive relief, including an order to: 

a) Require Defendant to adopt and implement a web accessibility policy to make publicly 

available and directly link from the homepage of the Website to a statement as to the Defendant’s

policy to ensure persons with disabilities have full and equal enjoyment of the services, facilities, 

privileges, advantages, and accommodations through the Website.

b) Require Defendant to take the necessary steps to make the Website readily accessible 

to and usable by visually disabled users, and during that time period prior to the Website’s being 

readily accessible, to provide an alternative method for individuals with visual disabilitiesto access 

the information available on the Website until such time that the requisite modifications are made, 

and 

c) Require Defendant to provide the appropriate auxiliary aids such that individuals with 

visual impairments will be able to effectively communicate with the Website for purposes of 

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viewing and locating Defendant’s physical restaurants and locations, and becoming informed of 

and purchasing Defendant’s merchandise online, and during that time period prior to the Website’s

being designed to permit individuals with visual disabilities to effectively communicate, to provide 

an alternative method for individuals with visual disabilities to effectively communicate for such 

goods and services made available to the general public through the Website. 

76. Plaintiff is entitled to recover his reasonable attorney’s fees, costs, and expenses 

pursuant to the ADA. To that end, Plaintiff has been obligated to retain the undersigned counsel 

for the filing and prosecution of this action and has agreed to pay them a reasonable fee for their 

services. 

WHEREFORE, Plaintiff requests entry of judgment in his favor and against Defendant for 

the following relief:

A. A declaration that Defendant’s Website is in violation of the ADA;

B. An Order requiring Defendant, by a date certain, to update the Website, and continue 

to monitor and update the Website on an ongoing basis, to remove barriers in order that 

individuals with visual disabilities can access, and continue to access, the Website and 

effectively communicate with the Website to the full extent required by Title III of the 

ADA; 

C. An Order requiring Defendant, by a date certain, to clearly display the universal 

disabled logo within the Website, wherein the logo1 would lead to a page which would 

state Defendant’s accessibility information, facts, policies, and accommodations. Such 

1 or similar.

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a clear display of the disabled logo is to ensure that individuals who are disabled are 

aware of the availability of the accessible features of the Website;

D. An Order requiring Defendant, by a date certain, to provide ongoing support for web 

accessibility by implementing a website accessibility coordinator, a website application 

accessibility policy, and providing for website accessibility feedback to ensure 

compliance thereto;

E. An Order directing Defendant, by a date certain, to evaluate its policies, practices and 

procedures toward persons with disabilities, for such reasonable time to allow 

Defendant to undertake and complete corrective procedures to its Website;

F. An Order directing Defendant, by a date certain, to establish a policy of web 

accessibility and accessibility features for the Website to ensure effective 

communication for individuals who are visually disabled;

G. An Order requiring, by a date certain, that any third-party vendors who participate on 

Defendant’s Website to be fully accessible to the visually disabled;

H. An Order directing Defendant, by a date certain and at least once yearly thereafter, to 

provide mandatory web accessibility training to all employees who write or develop 

programs or code for, or who publish final content to, the Website on how to conform 

all web content and services with ADA accessibility requirements and applicable 

accessibility guidelines;

I. An Order directing Defendant, by a date certain and at least once every three months 

thereafter, to conduct automated accessibility tests of the Website to identify any 

instances where the Website is no longer in conformance with the accessibility 

requirements of the ADA and any applicable accessibility guidelines, and further 

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directing Defendant to send a copy of the twelve (12) quarterly reports to Plaintiff’s 

counsel for review;

J. An Order directing Defendant, by a date certain, to make publicly available and directly 

link from the Website homepage, a statement of Defendant’s Accessibility Policy to 

ensure the persons with disabilities have full and equal enjoyment of the Website and 

shall accompany the public policy statement with an accessible means of submitting 

accessibility questions and problems;

K. An award to Plaintiff of his reasonable attorney’s fees, costs, and expenses; and

L. Such other and further relief as the Court deems just and equitable. 

COUNT II – TRESPASS

77. Plaintiff re-alleges paragraphs 1 through 54 as if set forth fully herein.

78. Plaintiff’s tangible personal property, being his computer and the personal 

information and browsing history stored therein, has suffered a trespass by Defendant on each and 

every date that the Plaintiff has accessed Defendant’s Website, due to Defendant’s employment of 

software analytics which are present on and through the Website, which the Plaintiff has navigated.

79. At all relevant times, Plaintiff did not consent to and was unaware that the Website 

was placing software on his computer due to his inability to effectively communicate with and 

fully view and access the Website.

80. Plaintiff did not consent to the placement of tracking and information securing 

software on his computer; therefore, Defendant has committed a trespass against Plaintiff by 

placing such software on his computer without his knowledge or consent.

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81. By the acts described hereinabove, Defendant has repeatedly and persistently 

engaged in trespass of Plaintiff’s personal property in violation of Florida common law against 

trespass.

82. Defendant’s installation, operation, and execution of software on Plaintiff’s 

computer have directly and proximately impaired the condition and value of the Plaintiff’s 

computer, thereby causing Plaintiff damages.

83. The Website has a “Privacy Policy” that discusses the automatic gathering of 

information from, and the automatic placement of cookies and other information gathering 

software on, computers and electronic devices of users of the Website such as Plaintiff. A copy 

of that “Privacy Policy” is attached hereto as Exhibit “B” and its contents are incorporated herein 

by reference.

84. Defendant’s trespass to chattels, nuisance, and interference has caused real and 

substantial damage to Plaintiff as follows:

a) By consuming the resources of and/or degrading the performance of Plaintiff’s 

computer (including space, memory, processing cycles, and internet connectivity);

b) By infringing on Plaintiff’s right to exclude others from his computer;

c) By infringing on Plaintiff’s right to determine, as the owner of his computer, which 

programs should be installed and operated on his computer;

d) By compromising the integrity, security, and ownership of Plaintiff’s computer; and

e) By forcing Plaintiff to expend money, time, and resources in order to remove the 

programs that had been installed on his computer without notice or consent.

85. Defendant’s actions were taken knowingly, willfully, intentionally, and in reckless 

disregard for Plaintiff’s rights under the law.

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WHEREFORE, Plaintiff demands a judgment be entered against Defendant for all of 

Plaintiff’s compensatory damages, interest, costs, and such further relief as the Court deems just 

and equitable.

DATED: June 25, 2020.

RODERICK V. HANNAH, ESQ., P.A. LAW OFFICE OF PELAYO

Counsel for Plaintiff DURAN, P.A.

8751 W. Broward Blvd., Suite 303 Co-Counsel for Plaintiff

Plantation, FL 33324 4640 N.W. 7th Street

T. 954/362-3800 Miami, FL 33126-2309

954/362-3779 (Facsimile) T. 305/266-9780

Email: rhannah@rhannahlaw.com 305/269-8311 (Facsimile)

Email: duranandassociates@gmail.com 

By____s/ Roderick V. Hannah __ By ___s/ Pelayo M. Duran ______

RODERICK V. HANNAH PELAYO M. DURAN

Fla. Bar No. 435384 Fla. Bar No. 0146595

Case 1:20-cv-22642-XXXX Document 1 Entered on FLSD Docket 06/25/2020 Page 20 of 20