UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 

DANIEL MONCADA, 

Plaintiff,

vs.

HOBBY LOBBY STORES, INC. 

A foreign for-profit corporation,

Defendant.

______________________________/

COMPLAINT

Plaintiff DANIEL MONCADA, through undersigned counsel, sues Defendant HOBBY 

LOBBY STORES, 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 mobile website for services to order and secure information 

about Defendant’s store 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 handheld mobile 

smartphone device, hereinafter referred to as “mobile device”), 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 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 1 of 20
2

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 DANIEL MONCADA is a resident of Broward 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 and suffers from 

bilateral retinopathy and retinal detachment, a permanent eye disease and medical condition that 

substantially and significantly impairs his vision. Plaintiff thus is substantially limited in 

performing one or more major life activities, including, but not limited to, 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 mobile device without the 

assistance of appropriate and available screen reader software.

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

business in the State of Florida. Defendant owns and operates a nationwide chain of over 900

retail stores selling to the public arts, crafts, home décor, party supplies, and accessories, including 

the store Plaintiff intended to patronize at 3555 W. Hillsboro Boulevard, Deerfield 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 mobile device. 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 2 of 20
3

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

permanently visually disabled, in order to effectively communicate and comprehend information 

available on the internet and hereby access/comprehend mobile websites, Plaintiff uses 

commercially available screen reader software to interface with the various mobile websites.

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

and operates a chain of arts, crafts, home décor, party supplies, and accessories stores selling 

merchandise under the brand name “Hobby Lobby”. Hobby Lobby stores are open to the public. 

As the owner and operator of these retail stores, 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 store, clothing store, hardware store, 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 store open to the public, each of Defendant’s physical stores 

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 mobile website called 

https://www.hobbylobby.com (hereinafter the “Mobile Website”). One of the functions of the 

Mobile Website is to provide the public information on the various locations of Defendant’s stores 

that sell its merchandise throughout the United States and within the State of Florida. Defendant 

also sells to the public its merchandise and goods through the Mobile Website.

13. The Mobile Website also services Defendant’s physical stores 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.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 3 of 20
4

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

physical stores, purchase merchandise from Defendant that is also available for purchase in its

physical stores, purchase gift cards for use in the p[hysical stores, check gift card balances, and 

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

for use in the physical stores, the Mobile Website is an extension of, and gateway to, Defendant’s 

physical stores. By this nexus, the Mobile 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 that is also 

offered for sale by Defendant in its physical stores, purchase gift cards for use in the physical 

stores, check gift card balances, and sign up for an electronic emailer to receive offers, benefits, 

exclusive invitations, and discounts for use in the physical stores, the Mobile Website is an 

extension of, and gateway to, the physical stores, which are places of public accommodation 

pursuant to the ADA, 42 U.S.C. § 12181(7)(E). As such, the Mobile Website is an intangible 

service, privilege and advantage of Defendant’s brick and mortar store 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 stores.

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

operating the Mobile Website. Since the Mobile Website is open to the public through the internet,

by this nexus the Mobile Website is an intangible service, privilege and advantage of Defendant’s 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 4 of 20
5

brick and mortar stores that must comply with all requirements of the ADA, must not discriminate 

against 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 store. As such, Defendant has subjected itself and the Mobile 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 Mobile Website’s access barriers are removed or remedied, 

Defendant’s physical stores (including the store located at 3555 W. Hillsboro Boulevard, Deerfield 

Beach, Florida), and to search for the brick and mortar store locations, check store hours and 

merchandise pricing, purchase merchandise, purchase gift cards, check and sign up for an 

electronic emailer to receive offers, benefits, exclusive invitations, and discounts for use at the 

Mobile Website or in Defendant’s physical stores.

18. The opportunity to shop and pre-shop Defendant’s merchandise that can be 

purchased in the physical stores, purchase gift cards for use in the physical stores, check gift card 

balances, and sign up for an electronic emailer to receive offers, benefits, exclusive invitations, 

and discounts for use in the physical stores 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 mobile 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.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 5 of 20
6

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

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

as to the merchandise, sales, discounts, and promotions being offered, and with the intent of

making a purchase through the Mobile Website or at one of the Defendant’s stores.

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

visually disabled to communicate with mobile websites. However, Defendant’s Mobile 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. Does not describe drop down button;

b. Does not describe map or icons on map; and

c. Does not describe image or product.

22. The Mobile 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 Mobile Website.

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

Mobile Website that would direct him to a webpage with content and contact information for 

disabled individuals who have questions or concerns, or who are having difficulties 

communicating with the Mobile Website. However, Plaintiff was unable to do so because no such 

link or notice, statement or policy was on the Mobile Website at the time of his visit. 

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

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

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 6 of 20
7

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

Mobile Website and for use in the physical stores, as the non-visually disabled public.

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

barriers are removed or remedied, to patronize Defendant’s physical stores and to use the Mobile 

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 retail stores and the Mobile Website, 

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

retail stores for its operation and use, the Mobile Website is an intangible service, privilege and an

advantage of Defendant’s brick and mortar store 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.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 7 of 20
8

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.

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

Accessibility Testing Group to ensure full and equal use of the Mobile 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 Mobile 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 Mobile 

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 Mobile 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 Mobile Website to visually disabled 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 8 of 20
9

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

the Mobile Website online from their homes.

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

facilities, privileges, advantages, and accommodations provided by and through the Mobile 

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 Mobile 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 Mobile 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 mobile website access and operation. Indeed, the current novel coronavirus 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 9 of 20
10

pandemic and the forced temoprorary lockdowns of physical stores, including those of Defedant, 

have made the threat of Plaintiff suffering irreparable harm by not being able to fully access and 

navigate the Mobile Website more immediate and imminent. 

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

violations. 

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 mobile websites such as Defendant’s 

Website.

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

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

50. Throughout the Mobile Website, Defendant has placed forms of software to collect 

non-public information on the Website’s user’s preferences and internet browsing habits.

51. Defendant informs the Mobile 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 Mobile 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.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 10 of 20
11

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

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 Mobile Website, Defendant has committed a trespass against 

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

without Plaintiff’s knowledge or consent.

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 Mobile Website, as defined within §12181(7) (E) 

and is subject to the ADA.

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

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

purchase merchandise that is available in the physicals stores, purchase gift cards, check gift 

balance for use in the physical stores, and sign up for an electronic emailer to receive offers, 

benefits, exclusive invitations, and discounts for use at the physical stores. The Mobile Website

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

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

by providing the public information on the various physical locations of the stores and by educating 

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

physical stores.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 11 of 20
12

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, 

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 Mobile Website must comply with the ADA, but it is not, as 

specifically alleged hereinabove and below.

62. Because of the inaccessibility of the Mobile 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 stores, in violation

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

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 12 of 20
13

63. The Mobile Website was subsequently visited by Plaintiff’s expert in April 2020,

and the expert determination was that the same access barriers that Plaintiff had initially 

encountered, as well as numerous additional access barriers, existed. Despite Defendant being a 

defendant in at least (3) three prior ADA accessibility lawsuits involving Defednant ‘s associated 

website (but not the Mobile Webiste), which likely resulted confidential settlements that obligated 

Defendant to remediate the website (and possibly the Mobile Website), Defendant has made no 

material changes or improvements to the Mobile Website to enable its full use, enjoyment and 

accessibility for 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 Mobile Website 

to visually disabled individuals, nor has it implemented an effective “accessibility” notice, policy, 

or statement on the Mobile Website as a viable atlernative fo blind and viduallya diable3d users to 

access and navigate the Mobile Webiste. 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.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 13 of 20
14

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

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

and accessibility facts.

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

Mobile Websites accessible to the blind and visually disabled. These guidelines have been 

followed by other large business entities in making their Mobile 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 

Mobile Website accessible 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 Mobile Website by individuals, such as Plaintiff, with visual disabilities who requires

the assistance of interface with screen reader software to comprehend and access internet Mobile 

Websites. These violations within the Mobile 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 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 14 of 20
15

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.

72. As alleged hereinabove, the Mobile 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 Mobile Website, with a nexus to its brick and mortar physical stores locations, Plaintiff 

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

Website and physical stores. Indeed, Plaintiff’s injury injury in fact is more imminent and is 

exacerbated in light of the novel coronavirus pandemic and the resultant forced temporary 

lockdowns of physical stores such as those operated by Defendant. 

74. Because of the inadequate development and administration of the Mobile 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 Mobile Website to a statement as to the 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 15 of 20
16

Defendant’s policy to ensure persons with disabilities have full and equal enjoyment of the 

services, facilities, privileges, advantages, and accommodations through the Mobile Website.

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

accessible to and usable by visually disabled users, and during that time period prior to the Mobile 

Website’s being readily accessible, to provide an alternative method for individuals with visual 

disabilities to access the information available on the Mobile 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 Mobile Website for purposes 

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

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

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 Mobile 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 Mobile Website is in violation of the ADA;

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

continue to monitor and update the Mobile Website on an ongoing basis, to remove 

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 16 of 20
17

barriers in order that individuals with visual disabilities can access, and continue to 

access, the Mobile Website and effectively communicate with the Mobile 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 Mobile Website, wherein the logo1 would lead to a page which 

would state Defendant’s accessibility information, facts, policies, and 

accommodations. Such 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 Mobile 

Website;

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

accessibility by implementing a Mobile 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 Mobile Website;

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

accessibility and accessibility features for the Mobile 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 Mobile Website to be fully accessible to the visually disabled;

 

1 or similar.

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 17 of 20
18

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 Mobile 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 Mobile Website to identify 

any instances where the Mobile Website is no longer in conformance with the 

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

further 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 Mobile Website homepage, a statement of Defendant’s Accessibility 

Policy to ensure the persons with disabilities have full and equal enjoyment of the

Mobile 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 Mobile Website, due to Defendant’s

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 18 of 20
19

employment of software analytics which are present on and through the Mobile Website, which 

the Plaintiff has navigated.

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

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

and fully view and access the Mobile 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.

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 Mobile 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 Mobile 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);

Case 1:20-cv-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 19 of 20
20

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.

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 1 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-22260-XXXX Document 1 Entered on FLSD Docket 06/01/2020 Page 20 of 20