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Case Number:__________________-CV-_____________________ 

ANDRES GOMEZ,

 Plaintiff

V.

TOP VALUE SUPERMARKET

Defendant

________________________________/

COMPLAINT FOR PERMANENT INJUNCTION 

REQUIRING CHANGES TO CORPORATE POLICY AND THE ELIMINATION OF 

DIGITAL ACCESS BARRIERS PURSUANT TO 42 U.S.C. § 12188(a)(2) 

ANDRES GOMEZ (“Plaintiff Gomez” or “Plaintiff”), seeks a permanent injunction requiring a 

change in TOP VALUE SUPERMARKET (“Defendant” or the “Company”) corporate polices to 

cause Defendant’s website to become, and remain, accessible and in support thereof asserts as follows:

INTRODUCTION 

1. Plaintiff brings this action against Defendant and asserts that its website is not accessible

to blind and visually impaired consumers in violation of Title III of the Americans with Disabilities 

Act, 42 U.S.C. § 12101 et seq. (the “ADA”). Plaintiff seeks a permanent injunction to cause a change 

in Defendant’s corporate policies related to its web-based technologies so that Defendant’s website will 

become, and will remain, accessible. The website(s) at issue is www.suertopvalue.com (the “Website”).

2. While the increasing pervasiveness of digital information presents an 

unprecedented opportunity to increase access to goods and services for people with perceptual or motor 

disabilities, website developers and web content developers often implement digital technologies without 

regard to whether those technologies can be accessed by individuals with disabilities. This is 

notwithstanding the fact that accessible technology is both readily available and cost effective.

3. Blind and visually impaired consumers must use screen reading software or other assistive 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA

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technologies in order to access website content. Defendant’s Website contains digital barriers which limit 

the ability of blind and visually impaired consumers to access the site.

4. Plaintiff has patronized Defendant’s Website in the past, and intends to continue to 

patronize Defendant’s Website. However, unless Defendant is required to eliminate the access 

barriers at issue, and required to change its policies so that access barriers do not reoccur on Defendant’s

Website, Plaintiff will continue to be denied full access to the Website as described, and will be deterred 

from fully using Defendant’s Website.

5. The ADA expressly contemplates the type of injunctive relief that Plaintiff seeks in this 

action. In relevant part, the ADA requires:

[i]n the case of violations of . . . this title, injunctive relief shall include an order to alter 

facilities to make such facilities readily accessible to and usable by individuals with 

disabilities....Where appropriate, injunctive relief shall also include requiring the . . . 

modification of a policy. . . 42 U.S.C. § 12188(a)(2).

6. Plaintiff invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring:

a) that Defendant retain a qualified consultant acceptable to Plaintiff (“Mutually Agreed 

Upon Consultant”) who shall assist it in improving the accessibility of theWebsite so that it complies 

with version 2.0 of the Web Content Accessibility Guidelines (“WCAG 2.0 AA”);

b) that Defendant work with the Mutually Agreed Upon Consultant to ensure that all 

employees involved in website development and content development be given web accessibility 

training on a periodic basis calculated to achieve ongoing compliance with WCAG 2.0 AA;

c) that Defendant work with the Mutually Agreed Upon Consultant to perform an automated 

accessibility audit on a periodic basisto evaluate whether Defendants’ Website continues to comply 

with WCAG 2.0 AA on an ongoing basis;

d) that Defendant work with the Mutually Agreed Upon Consultant to perform end-user 

accessibility/usability testing on a periodic basis with said testing to be performed by individuals 

with various disabilities to evaluate whether Defendants’ Website continues to comply with 

WCAG 2.0 AA on an ongoing basis; and,

e) that Defendant work with the Mutually Agreed Upon Consultant to evaluate whether 

the inaccessible website has been rendered accessible, and whether corporate policies related 

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to web- based technologies have been changed in a meaningful manner that will cause the 

website to remain accessible, the website must be reviewed on periodic basis using both

automated accessibility screening tools and end user testing by disabled individuals.

JURISDICTION AND VENUE 

7. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 and 42 U.S.C. § 

12188.

8. Plaintiff’s claims asserted herein arose in this judicial district and Defendant(s) does 

substantial business in this judicial district.

9. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2) in that this is the 

judicial district in which a substantial part of the acts and omissions giving rise to the claims occurred.

PARTIES 

10. Plaintiff Gomez and, at all times relevant hereto, has been a resident of the State of 

Florida. Plaintiff Gomez is and, at all times relevant hereto, has been legally blind and is therefore a 

member of a protected class under the ADA, 42 U.S.C. § 12102(2) and the regulations implementing 

the ADA set forth at 28 CFR §§ 36.101 et seq. 

11. Defendant TOP VALUE SUPERMARKET is a for profit company doing significant 

business in this judicial district. Defendant has physical brick and mortar retail locations throughout the United 

States. Defendant owns operates and maintains brick and mortar retail stores in the State of Florida and 

specifically at 1490 NW 3rd Avenue, Miami, FL 33136 which Plaintiff would and has attempted to 

frequent if not for the digital barriers that impede his access to the location. Defendant’s retail stores

offer goods and services to the public. Defendant also offers goods and services to the public through 

the Website. Defendant’s brick and mortar retail store and website are integrated and are public 

accommodations pursuant to 42 U.S.C. § 12181(7).

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FACTUAL BACKGROUND AND ALLEGATIONS

12. The Internet has become a significant source of information and a means for conducting 

everyday activities such as shopping, banking, etc. for both sighted and blind and visually-impaired 

persons, as well as individuals with other perceptual or motor disabilities.

13. Blind individuals may access websites by using keyboards in conjunction with screen 

reader software that converts text to audio. Screen reader software provides the primary method by 

which a blind person may independently use the Internet. Unless websites are designed to be read 

by screen reader software, blind individuals are unable to fully access websites and the information, 

products and services available through the sites. The international website standards organization, 

W3C, has published WCAG 2.0 AA. WCAG 2.0 AA provides widely accepted guidelines for making 

websites accessible to individuals with disabilities. These guidelines have been endorsed by the 

United States Department of Justice and numerous federal courts.

14. Through the Website, Defendant offers special sales, price listings of items found at 

the store and the option to access hours of operations, and store phone number using information 

gathered from the website. Defendant’s Website also helps users locate stores, view items on sale, 

read item descriptions and prices, gain access to special promotions and perform a variety of other 

functions.

15. Plaintiff is permanently blind and usesscreen reader software in order to access the Internet 

and read website content.

16. There is a physical nexus between Defendant’s website and physical retail stores in that the 

website provides the contact information, operating hours, access to products found at the retail 

establishment and address to the retail establishments.

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17. Despite several attempts to use and navigate the Website, Plaintiff has been denied the full 

use and enjoyment of the facilities, goods and services available on the Website as a result of access 

barriers on the site. As a result of Defendant’s access barriers, Plaintiff has been denied information that 

would allow him to access a physical brick and mortar location.

18. The barriers at the Website have caused a denial of Plaintiff’sfull and equal access multiple 

times in the past, and now deter Plaintiff from attempting to use Defendant’s website although Plaintiff 

intends to use the website in the future once it becomes accessible.

19. The access barriers at the Website that Plaintiff has encountered include but are not 

limited to, the following:

a) Text equivalent for every non-text element is not provided;

b) Information about the meaning and structure of the Website’s content is not conveyed by more 

than the visual presentation of content;

c) When the sequence in which content is presented affects its meaning, a correct reading 

sequence cannot be programmatically determined;

d) Web pages do not have titles that describe topic or purpose;

e) Images on the website are not explained to the user with use of a screen reader program; 

and,

f) There is no Accessibility Statement regarding a company policy to assist disabled users found 

on the website.

g) The “Weekly Ad” PDF document, which advertises weekly special discounts, is not 

compatible with Plaintiff’s screen reader software.

20. Upon information and belief, Defendant has never had a plan or policy that is reasonably 

calculated to make its Website fully accessible to, and independently usable by blind people.

21. Plaintiff is without adequate remedy at law, is suffering irreparable harm, and 

reasonably anticipates that he will continue to suffer irreparable harm unless and until Defendant is

required to modify its website to correct the discriminatory conditions as set forth herein. The relief 

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requested serves the public interest and the benefit to Plaintiff and the public far outweigh any 

detriment to Defendant.

22. Without injunctive relief, Plaintiff and other blind individuals will continue to be unable to 

independently use the Website in violation of their rights under the ADA.

23. Plaintiff has been obligated to retain the undersigned counsel for the filing and prosecution of 

this action, and has agreed to pay the undersigned counsel reasonable attorney’s fees, costs, and expenses 

from Defendant pursuant to 42 U.S.C. § § 12205 and 12117, and Plaintiff is entitled to attorney’s fees, costs, 

and expenses from Defendant.

SUBSTANTIVE VIOLATION 

(Title III of the ADA, 42 U.S.C. § 12181 et seq.)

24. The allegations contained in the previous paragraphs are incorporated by reference.

25. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., 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.” 42 U.S.C. 

§ 12182(a).

26. Defendant’s retail store and integrated website are public accommodations within the 

definition of Title III of the ADA, 42 U.S.C. § 12181(7).

27. There is a physical nexus between Defendant’s website and physical retail store in that the 

website provides the contact information, operating hours, and access to products found at the retail

establishment and address to the retail stores. 

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28. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny 

individuals with disabilities the opportunity to participate in or benefit from the goods, services, 

facilities, privileges, advantages or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i).

29. Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny 

individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, 

privileges, advantages or accommodations, which is equal to the opportunities afforded to other individuals. 

42 U.S.C. §12182(b)(1)(A)(ii).

30. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also 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, unless the entity can demonstrate that making such 

modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages 

or accommodations; and 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.” 42 U.S.C. § 

12182(b)(2)(A)(ii)-(iii); see also 28 C.F.R. § 36.303(a).

31. Title III requires that “[a] public accommodation shall furnish appropriate auxiliary aids 

and services where necessary to ensure effective communication with individuals with disabilities.” 28 

C.F.R. § 36.303(c)(1). The regulation sets forth numerous examples of “auxiliary aids and services,” 

including “...accessible electronic and information technology; or other effective methods of making 

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visually delivered materials available to individuals who are blind or have low vision.” 28 C.F.R. § 

36.303(b).

32. The acts alleged herein constitute violations of Title III of the ADA, and the regulations 

promulgated thereunder. Plaintiff, who is blind and has disabilities that substantially limit the major life 

activity of seeing within the meaning of 42 U.S.C. §§ 12102(1)(A) and (2)(A), has been denied full and 

equal access to Defendant’s Website because of his disability. He has not been provided services that are 

provided to other patrons who are not disabled, and/or have been provided services that are inferior to the 

services provided to non-disabled persons. Defendant has failed to take any prompt and equitable steps 

to remedy its discriminatory conduct. These violations are ongoing.

33. Pursuant to 42 U.S.C. § 12188 and the remedies, procedures and rights set forth and 

incorporated therein, Plaintiff requests relief as set forth below.

 COUNT II: VIOLATION OF SECTION 504 OF REHABILITATION ACT

34. Plaintiff repeats and realleges the foregoing paragraphs in support of this claim.

35. Plaintiff is a qualified individual with a disability.

36. Upon information and belief, Defendant is a recipient of federal financial funding in the 

form of acceptance of EBT cards which is used to gain access to the Federal SNAP Program (Food 

Stamps).

37. As a recipient of Federal funds and pursuant to Section 504 the Defendant may not afford 

a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or 

service that is not equal to that afforded others; 45 CFR § 84.4 (b)(1)(ii).

38. As a recipient of federal funds and pursuant to Section 504 the Defendant may not provide 

a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided 

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to others; 45 CFR § 84.4 (b)(1)(iii).

39. As a recipient of federal funds and pursuant to Section 504 the Defendant may not provide 

different or separate aid, benefits, or services to handicapped persons or to any class of handicapped 

persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, 

or services that are as effective as those provided to others; 45 CFR § 84.4 (b)(1)(iv).

40. As a recipient of federal funds and pursuant to Section 504, Defendant may not (directly 

or through contractual or other arrangements) utilize criteria or methods of administration (i) that 

have the effect of subjecting qualified handicapped persons to discrimination on the basis of 

handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment 

of the objectives of the recipient's program or activity with respect to handicapped persons, or (iii) 

that perpetuate the discrimination of another recipient if both recipients are subject to common 

administrative control or are agencies of the same State; 45 CFR § 84.4 (b)(4).

41. As a recipient of federal funds and pursuant to Section 504, Defendant is required to 

evaluate (with the assistance of interested persons including handicapped persons or organizations 

representing handicapped persons) its current policies and practices and the effects thereof that do 

not or may not meet the requirements of this part; 45 CFR § 84.6 (c)(1)(i).

42. As a recipient of federal funds and pursuant to Section 504, Defendant is required to 

modify, after consultation with interested persons (including handicapped persons or organizations 

representing handicapped persons), any policies and practices that do not meet the requirements of 

this part; 45 CFR § 84.6 (c)(1)(ii).

43. As a recipient of federal funds and pursuant to Section 504, Defendant is required to take, 

after consultation with interested persons (including handicapped persons or organizations 

representing handicapped persons), appropriate remedial steps to eliminate the effects of any 

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discrimination that resulted from adherence to these policies and practices; 45 CFR § 84.6 (c)(1)(iii).

44. Due to Defendant’s failure to provide an equal opportunity and ensure effective means of 

participation through it’s website, Plaintiff has been and continues to be unable to access the benefits 

and services provided by Defendant, which is readily available to sighted persons although 

Defendant receives federal funding. This is a clear violation of Plaintiff’s fundamental rights and 

Defendant’s obligation to comply with Section 504 of the Federal Rehabilitation Act.

45. As a result of Defendant’s actions, Plaintiff has been injured and suffered emotional pain, 

suffering, mental anguish, and other nonpecuniary losses.

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff prays for:

a. A Declaratory Judgment that at the commencement of this action Defendant was in 

violation of the specific requirements of Title III of the ADA and Section 504 of the 

Federal Rehabilitation Act as described above, and the relevant implementing regulations 

of the ADA, in that Defendant took no action that was reasonably calculated to ensure 

that its Websites are fully accessible to, and independently usable by, blind individuals;

b. A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504 (a) 

which directs Defendant to take all steps necessary to bring the Website into full 

compliance with the requirements set forth in the ADA, and implementing regulations, 

so that the Website is fully accessible to, and independently usable by, blind individuals, 

and which further directs that the Court shall retain jurisdiction for a period to be 

determined to ensure that Defendant has adopted and is following an institutional policy 

that will in fact cause Defendant to remain fully in compliance with the law—the specific 

injunctive relief requested by Plaintiff is described more fully in Paragraph 6 above;

c. Payment of costs of suit;

d. Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR § 

36.505; and,

e. The provision of whatever other relief the Court deems just, equitable and 

appropriate.

Dated: May 1, 2020 Respectfully Submitted,

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/ s / A l b e r t o R . L e al

Alberto R. Leal, Esq. 

Florida Bar No.: 1002345 

The Leal Law Firm, P.A. 

8927 Hypoluxo Rd. #157

Lake Worth, FL 33463 

Phone:561-237-2740 

Facsimile: 561-237-2741 

E-Mail: al@thelealfirm.com

 

 

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