14299262v1

EXHIBIT B 

TO 

DEFENDANT’S THIRD PARTY COMPLAINT 

CASE NO.: 1:20-cv-22977 

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-cvWINDY LUCIUS,

Plaintiff,

v.

CICI ENTERPRISES, LP,

Defendant.

rOMPT ATNT FOR IN.TTTNrTTVF RFIIFF

Windy Lucius, (“Plaintiff’) by and through her undersigned counsel, hereby files this

complaint and sues Defendant, CICI ENTERPRISES, LP, a foreign limited partnership doing

business in Florida, and alleges as follows:

INTROPTTPTTON

1. Plaintiff Windy Lucius brings this action individually against CICI

ENTERPRISES, LP, (“Defendant”), alleging violations of Title III of the Americans with

Disabilities Act, 42 U.S.C. § 12101 etseq., (hereinafter, “ADA”).

2. Plaintiff is blind. She uses the internet to help her navigate a world of goods,

products and services like the sighted. The internet, websites and mobile applications provide her

a window into the world that she would not otherwise have. She brings this action against

Defendant for offering and maintaining a mobile application (software that is intended to run on

mobile devises such as phones or table computers) that is not fully accessible and independently

usable by visually impaired consumers. The mobile application (“app”) at issue is available

through the Apple “app store” for download and installation on Apple devices. Defendant

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developed the app and made it available to millions of phone and tablet users in the Apple app

store.

Plaintiff is also an advocate ofthe rights ofsimilarly situated disabled persons and

is a “tester” for the purpose of asserting her civil rights and monitoring, ensuring, and determining

whether places ofpublic accommodation and/or their websites are in compliance with the ADA.

4. Defendant offers its app to the general public from which it sells food; provides a

menu of items served in the restaurant; restaurant location(s) and amenities at the restaurant.

Defendant’s app allows mobile device users to order on a mobile platform through a connection

to Wi-Fi or cellular data so that users explore nutritional information, locate stores, and order food

to go for curbside pickup at the physical locations of the restaurants or purchase gift cards. As

such, it has subjected itself to the ADA because Defendant’s app is offered as a tool to promote,

advertise and sell its food from its brick and mortar locations, which are places of public

accommodation. As a result, the app must interact with Defendant’s stores and the public, and in

doing so must comply with the ADA, which means it must not discriminate against individuals

with disabilities and may not deny full and equal enjoyment ofthe goods and services afforded to

the general public.

5. Blind and visually impaired consumers must use the assistive technology on the

iPhone to access app content. The app must be designed and programmed to work with the assistive

technology available on the iPhone. Defendant’s app, however, contains digital barriers which

limit the ability of blind and visually impaired consumers to access it, even with Apple’s assistive

technology.

6. Defendant’s app does not properly interact with Apple’s assistive technology in a

manner that will allow the blind and visually impaired to enjoy the app, nor does it provide other

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means to accommodate the blind and visually impaired.

7. Plaintiff has also downloaded and attempted to patronize Defendant’s app in the

past and intends to continue to make further attempts to patronize Defendant’s app. She would

like to be able to learn about Defendant’s menu items online, explore nutritional information as

well as be able to learn about and take advantage of, any specials or discounts offered by Defendant

and order food for curbside pickup, delivery or in-store dining at Defendant’s physical locations.

However, unless Defendant is required to eliminate the access barriers at issue and is required to

change its policies,so that access barriers do not reoccur on Defendant’s app, Plaintiffwill continue

to be denied full and equal access to the app as described and will be deterred from fully using

Defendant’s app or making purchases at the physical locations.

8. Plaintiff continues to attempt to utilize the app and/or plans to continue to attempt

to utilize the app in the near future. In the alternative, Plaintiff intends to monitor the app in the

near future, as a tester, to ascertain whether it has been updated to interact properly with screen.

reader software.

9. Plaintiff is continuously aware of the violations at Defendant’s app and is aware

that it would be a futile gesture to attempt to utilize the app as long as those violations exist unless

. she is willing to suffer additional discrimination.

10. Plaintiff has suffered, and continues to suffer, frustration and humiliation as the

result ofthe discriminatory conditions present at Defendant’s app. By continuing to operate its app

with discriminatory conditions, Defendant contributes to Plaintiffs sense of isolation and

segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities,

privileges and/or accommodations available to the general public. By encountering the

discriminatory conditions at Defendant’s app, and knowing that it would be a futile gesture to

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attempt to utilize the app unless she is willing to endure additional discrimination, Plaintiff is

deprived ofthe meaningful choice offreely visiting and utilizing the same accommodations readily

available to the general public and is deterred and discouraged from doing so. By maintaining an

app with violations, Defendant deprives Plaintiffthe equality of opportunity offered to the general

public.

11. Plaintiffhas suffered and will continue to suffer direct and indirect injury as a result

of the Defendant’s discrimination until the Defendant is compelled to comply with the

requirements ofthe ADA.

12. Plaintiff has a realistic, credible, existing and continuing threat of discrimination

from the Defendant’s non-compliance with the ADA with respect to this app as described above.

Plaintiff has reasonable grounds to believe that she will continue to be subjected to discrimination

in violation ofthe ADA by the Defendant. Plaintiff desires to access the app to avail herselfofthe

benefits, advantages, goods and services therein, and/or to assure herself that this app is in

compliance with the ADA so that she and others similarly situated will have full and equal

enjoyment ofthe app without fear of discrimination.

13. The ADA expressly contemplates the type ofinjunctive reliefthat Plaintiffseeks in

this action. The ADA provides, in part:

[i]n the case of violations of. . . this title, injunctive reliefshall include an

order to alter facilities to make such facilities readily accessible to and

usable by individuals with disabilities . . . Where appropriate, injunctive

reliefshall also include requiring the . . . modification of a policy . . .

42 U.S.C. § 12188(a)(2).

14. Therefore, Plaintiff seeks a declaration that Defendant’s app violates federal law

as described and an injunction requiring Defendant to modify its app so that it is fully accessible

to, and independently usable by, blind or visually impaired individuals. Plaintifffurther requests

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that the Court retain jurisdiction of this matter for a period to be determined to ensure that

Defendant comes into compliance with the requirements of the ADA and to ensure that

Defendant has adopted and is following an institutional policy that will, in fact, cause

Defendant’s app to remain in compliance with the law.

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

U.S.C. § 12188.

16. Plaintiffs claims asserted herein arose in this judicial district and Defendant does

substantial business in thisjudicial district where it has multiple physical locations.

17. Venue in thisjudicial district is proper under 28 U.S.C. § 1391(b)(1) and (2) in that

this is the judicial district in which Defendant resides, and in which a substantial part of the acts

and omissions giving rise to the claims occurred.

18. This Court has personal jurisdiction over CICI ENTERPRISES, LP pursuant to

inter alia, Florida’s long arm statute F.S. § 48.193, in that Defendant: (a) operates, conducts.

engages in, and/or carries on a business or business ventures (s) in Florida and/or has an office or

agency in Florida; (b) has committed one or more tortious acts within Florida; (c) was and/or is

engaged in substantial and not isolated activity within Florida; and/or (d) has purposely availed

itself of Florida’s laws, services and/or benefits and therefore should reasonably anticipate being

hailed into one or more ofthe courts within the State ofFlorida.

PAKTTFS

19. Plaintiff, Windy Lucius, is and, at all times relevant hereto, was a resident ofthe

State ofFlorida, Miami-Dade County. Plaintiffis 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

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regulations implementing the ADA set forth at 28 CFR §§ 36.101 etseq.

20. Defendant CICI ENTERPRISES, LP owns, operates and maintains a restaurant

called CICPS PIZZA, in the Southern District of Florida either through franchisees, affiliates,

partners or other entities. Defendant’s restaurant sells food and other goods to the public.

Defendant also offers those items to the public through its app. Defendant’s store and

accompanying app work collectively and are public accommodations pursuant to 42 U.S.C. §

12181 (7)(E).

FACTS

21. Defendant owns, operates and controls an app from which it sells food. The app

allows customers to order ahead and take advantage of certain specials only available through the

app. The Plaintiffmust go to corresponding brick and mortar restaurants, to pick up the food she

can pre-order from the app or she can order food for delivery. Defendant’s app also helps users

locate stores, view pricing and specials, shop for food, and a variety of other functions.

22. Defendant’s app is a nexus to a place of public accommodation pursuant to 42

U.S.C. § 12181 (7)(E). Therefore, under the ADA, Defendant must ensure that individuals with

disabilities have access to full and equal enjoyment ofthe goods and services offered on its app.

23. Blind and visually impaired individuals may access apps by using accessibility

features in conjunction with screen reader software that converts text to audio. Screen reader

software provides the primary method by which a visually impaired person may independently use

the internet. Unless the app is designed to be accessed with screen reader software, visually

impaired individuals are unable to fully access app and the information, products, and services

available through the app.

24. The international app standards organization, W3C, has published WCAG 2.1 A

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(Version 2.0 of the Web Content Accessibility Guidelines). WCAG 2.1 A provides widely

accepted guidelines for making apps accessible to individuals with disabilities and compatible with

screen reader software. These guidelines have been endorsed by the United States Department of

Justice and numerous U.S. District Courts.

25. Plaintiff is legally blind and uses VoiceOver screen reader software (hereinafter,

“Plaintiffs software”) in order to access app content. Plaintiffs software is the most popular screen

reader software utilized worldwide by visually impaired individuals for Apple tablets and phones.

26. Despite Plaintiffs attempts, Defendant’s app did not integrate with Plaintiffs

software, nor was there any function within the app to permit access for visually impaired

individuals through other means. Her dining attempts were rendered futile because the app was

inaccessible. Therefore, Plaintiffwas denied the full use and enjoyment ofthe goods and services

available on Defendant’s app as a result of access barriers on the app.

27. Defendant’s app does not meet the WCAG 2.1 A level of accessibility. As to

WCAG guideline 4.1.2 - Name, Role, Value, all elements should be built for accessibility. Here,

multiple labels are missing or incorrect. The Facebook icon is roughly announced as "FBI

"clearlift?" one button" and the Touch ID button sounds like "B 1 touch eye button." The

hamburger menu (the menu on the app that is represented as three horizontal lines) is announced

as "icon close side drawer" when a user accesses it on this page.

28. By failing to adequately design and program its app to accurately and sufficiently

integrate with VoiceOver, Defendant has discriminated against Plaintiff and others with visual

impairments on the basis of a disability by denying them full and equal enjoyment of the app, in

violation of 42 U.S.C. § 12182(a) and C.F.R. § 36.201.

29. As a result of Defendant’s discrimination, Plaintiff was unable to use Defendant’s

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app and suffered an injury in fact including loss of dignity, mental anguish and other tangible

injuries.

30. The barriers on the app have caused a denial of Plaintiffs full and equal access in

the past, and now deter Plaintifffrom attempting to use Defendant’s app.

31. If Defendant’s app were accessible, Plaintiff could independently navigate, review

and purchase food and other products from Defendant’s stores online, as well as utilize the other

functions on the app.

-32. Plaintiff believes that although Defendant may have centralized policies regarding

the maintenance and operation of its app, Defendant has never had a plan or policy that is

reasonably calculated to make its app fully accessible to, and independently usable by, people with

visual impairments.

33. Without injunctive relief, Plaintiff and other visually impaired individuals will

continue to be unable to independently use Defendant’s app in violation of their rights under the

ADA.

STIRSTANTTVF VTOT ATION

(Title TIT of Hip ADA, 42 TI-SC. § 17181 ot spq.)

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

35. 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 a disability in the full and equal enjoyment

the goods, 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).

36. Defendant’s stores and accompanying app are public accommodations within the

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definition ofTitle III ofthe ADA, 42 U.S.C. § 12181(7)(E).

37. Under Section 302(b)(2) 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).

38. Under Section 302(b)(2) 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, which is equal to the opportunities

afforded to other individuals. 42 U.S.C. § 12182(b)( 1 )(A)(ii).

39. 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 ofsuch 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 ofthe absence of auxiliary aids and services,

unless the entity can demonstrate that taking such steps would

fundamentally alter the nature of 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).

40. 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 regulations set forth numerous examples of “auxiliary

aids and services,” including “...accessible electronic and information technology; or other

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effective methods of making visually delivered materials available to individuals who are blind or

have low vision.” 28 C.F.R. § 36.303(b).

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

regulations promulgated thereunder. Plaintiff, who is legally blind and has a disability that

substantially limits 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 app. Plaintiff has

not been afforded the goods, services, privileges and advantages that are provided to other patrons

who are not disabledrand/or has been provided goods, services, privileges and advantages that are

inferior to those provided to non-disabled persons. These violations are ongoing as Defendant has

failed to make any prompt and equitable changes to its app and policies in order to remedy its

discriminatory conduct.

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

incorporated therein, Plaintiff, on behalf of herself and on behalf of others similarly situated •-

requests relief as set forth below.

PRAVF.R FOR RFTTFF

WHEREFORE, Plaintiff, on behalfof herself and others similarly situated prays for:

A Declaratory Judgment that at the commencement ofthis action Defendant was in

violation ofthe specific requirements ofTitle III ofthe ADA described above, and

the relevant implementing regulations ofthe ADA, in that Defendant took no action

that was reasonably calculated to ensure that its app is fully accessible to, and

independently usable by, blind individuals;

a.

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 brings its app into full

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

regulations, so that its app 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;

b.

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c. Payment of costs ofsuit;

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

§ 36.505; and,

d.

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

appropriate.

e.

Respectfully submitted,

A/./ C.nurtnpy Cunningham_____________

J. Courtney Cunningham, Esq.

J. COURTNEY CUNNINGHAM, PLLC

FBN: 628166

8950 SW 74th Court, Suite 2201

Miami, FL 33156

T: 305-351-2014

Dated: July 20, 2020

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