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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISON

CASE NO.:

WINDY LUCIUS,

Plaintiff, 

v. 

ZUMA JAPANESE RESTAURANT 

MIAMI LLC., d/b/a Zuma

Defendant.

___________________________________/

COMPLAINT FOR INJUNCTIVE RELIEF

Plaintiff, Windy Lucius (“Plaintiff”) hereby sues Defendant, Zuma Japanese 

Restaurant Miami, LLC. (“Defendant”), a Florida Limited Liability Company 

authorized to transact business in the state of Florida, doing business as Zuma

restaurant forInjunctiveRelief, attorney’sfees,litigation expenses and costs pursuant 

to Title III of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 

§§s 12181-12189 (“ADA”), 28 C.F.R. Part 36, et seq. 

1. Venue lies in the Southern District of Florida pursuant to 28 U.S.C. § 

1391(b) and Local Rule 3.1, in that the original transaction or occurrence giving rise 

to this cause of action occurred in this District.

2. Pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, this Court has been 

given original jurisdiction over actions which arise from Defendant’s violations of

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Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See also 

28 U.S.C. § 2201 and § 2202.

3. Plaintiff is a Florida resident, lives in Miami-Dade County, is sui juris, 

and qualifies as an individual with disabilities as defined by the ADA. Plaintiff is 

legally blind and 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, §802(h). Plaintiff is substantially limited in the major 

life activity of seeing. Plaintiff’s disability is defined in 28 C.F.R. §36.105(b)(2). 

4. Plaintiff uses the internet and a mobile device 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 website (software that is intended to run on mobile devises 

such as phones or tablet computers) that is not fully accessible and independently 

usable by visually impaired consumers. Plaintiff utilizes the Apple Screen Reader 

VoiceOver software to read computer materials and/or access and comprehend 

internet mobile website information which is specifically designed for the visually

impaired. 

5. Plaintiff is also an advocate of the rights of similarly situated disabled 

persons and is a “tester” for the purpose of asserting her civil rights. As such, she 

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monitors mobile websites to ensure and determine whether places of public 

accommodation and/or their mobile websites are in compliance with the ADA.

6. Defendant, Zuma Japanese Restaurant Miami, LLC., (also referenced 

as “Defendant Restaurant” or collectively with Defendant, “Zuma”, as 

“Defendants”) is a Florida Limited Liability Company authorized to transact 

business in the state of Florida. Defendant, Zuma Japanese Restaurant Miami, LLC, 

owns and operates “Zuma” restaurant, a place of public accommodation. Zuma

restaurant is located in the Kimpton EPIC Hotel within Miami Dade County 270

Biscayne Blvd Way, Miami, FL 33131 and is open to the public. As such, it is a 

Place of Public Accommodation subject to the requirements of Title III of the ADA 

and its implementing regulation as defined by 42 U.S.C. §12181(7)(B), §12182, and 

28 C.F.R. §36.104(2). The Zuma restaurant is also referenced throughout as “place 

of public accommodation,” “Zuma,” or “restaurant.”

7. Defendant is defined as a “Public Accommodation" within meaning of 

Title III because Defendant is a private entity which owns and/or operates “[A] 

restaurant, bar, or other establishment serving food or drink,” 42 U.S.C. 

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

8. Subsequent to the effective date of the ADA, Defendant constructed, or

caused to be constructed, the https://zumarestaurant.com mobile website (hereinafter 

“mobile website”) for the general public to access on their mobile devices (phones, 

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tablets). This mobile website supports, is an extension of, is in conjunction with, is 

complementary and supplemental to, Defendant’s The Zuma restaurant. The mobile 

website delineates the goods, services, accommodations, privileges, benefits and 

facilities available to patrons at the restaurant’s physical location. 

9. The mobile website is offered by Defendant as a way for the public to 

become familiar with Zuma (Miami) menu selections, hours of operation, special 

happy hours and festival events, restaurant location, provides a link to reserve a table 

for dining within the restaurant, and provides other information Defendant seeks to 

communicate to the public. The mobile website also provides information about 

catering and provides a full-service catering menu as well as a link to call the 

restaurant to inquire and book special/private events. The mobile website also links 

to “Zuma” Facebook, Twitter and Instagram pages in order to learn about pop-ups 

and specials. Through the mobile website, the public can also place an order online 

and have the order ready for pick up at the restaurant or schedule a food delivery. 

By the provision of menu selection, reservation services, and to-go order selection, 

the mobile website is an integral part of the goods and services offered by Defendant. 

By this nexus, the mobile website is characterized as a Place of Public 

Accommodation to Title III of the ADA1

, 42 U.S.C. §§ 12181(7)(B) & (E) and 28 

1 Ensuring Web Accessibility for people with disabilities has become a priority for the Department 

of Justice. The Department of Justice Civil Rights Division has taken the position that both State 

and local government websites (Title II) and the websites of private entities that are public 

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C.F.R. §§ 36.104(2) & (5). characterized as a Place of Public Accommodation to 

Title III of the ADA, 42 U.S.C. §§ 12181(7)(B) & (E) and 28 C.F.R. §36.104(2) and 

(5). 

10. Defendant’s mobile website allows mobile device users to use a mobile 

platform through a connection to Wi-Fi or cellular data so that users can manage 

their dining choice from their mobile device. As such, it has subjected itself to the 

ADA because its mobile website is offered as a tool to promote, advertise and sell 

its products and services from its brick-and-mortar restaurant location, which is a 

place of public accommodation. As a result, Defendant’s mobile website must 

interact with its restaurant 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 of the goods and services afforded to the 

general public.2

11. Defendant’s mobile website does not properly interact with the 

VoiceOver screen reader software technology in a manner that allows blind and 

accommodations (Title III) are covered by the ADA. On March 18, 2022, the DOJ issued guidance 

on Web Accessibility, see https://beta.ada.gov/resources/web-guidance. The guidance states that 

individuals with disabilities should not be denied equal access to information, and inaccessible 

websites are as excluding as are access barriers to physical locations. DOJ guidance requires that 

website barriers must be identified, prevented, and removed so that all Title II and Title III entities 

offer websites that are accessible to people with disabilities.

2 According to Statista, almost half of web traffic in the United States originated form mobile 

devices in 2021. Therefore, Defendant knew or should have known that potential customers would 

be using the mobile version of its website and provided accessibility for blind users. 

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visually impaired individuals to comprehend the mobile website and does not 

provide other means to accommodate blind and visually impaired individuals.

12. Like the seeing community, Plaintiff would like the opportunity to be 

able to test whether she can use Defendant’s mobile website to comprehend the 

restaurant menu selections, test for the ability to make reservations to dine in “Zuma” 

restaurant, and test for the ability to purchase gift cards online. 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, Plaintiff will continue to be denied 

full and equal access to the mobile website as described and will be deterred from 

fully using Defendant’s mobile website or dining at Defendant’s restaurant in 

Downtown Miami, Florida.

13. Plaintiff is continuously aware of the violations on Defendant’s mobile 

website and is aware that it would be a futile gesture to attempt to utilize the mobile 

website as long as those violations exist unless she is willing to suffer additional 

discrimination.

14. Defendant and alike restaurants are fully aware of the need to provide 

full access to all visitors to its mobile website as such barriers result in discriminatory 

and unequal treatment of individuals with disabilities who are visually impaired and 

result in punishment and isolation of blind and low vision individuals from the rest 

of society. 

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15. Plaintiff has no plain, adequate, or complete remedy at law to redress 

the wrongs alleged herein and this action is her only means to secure adequate 

redress from Defendant’s discriminatory practice.

16. Notice to Defendant is not required as a result of Defendant’s failure to 

cure the violations. Enforcement of the rights of Plaintiff is right and just pursuant 

to 28 U.S.C. §§ 2201, 2202. 

17. Plaintiff has been obligated to retain the civil rights law office of J. 

Courtney Cunningham, PLLC and has agreed to pay a reasonable fee for services in 

the prosecution of this cause, including costs and expenses incurred. Plaintiff is 

entitled to recover those attorney’s fees, costs and expenses from Defendant pursuant 

to 42 U.S.C. §12205 and 28 CFR §36.505. 

COUNT I – VIOLATIONS OF TITLE III OF THE ADA

18. The ADA requires that Public Accommodations (and Places of Public 

Accommodation) are required to ensure that communication is effective, which 

includes the provision of auxiliary aids and services for such purpose. 

19. According to 28 C.F.R. Section 36.303(b)(1), auxiliary aids and 

services includes “voice, text, and video-based telecommunications products and 

systems.” 28 C.F.R. Section 36.303(b)(2) specifically states that (VoiceOver) screen 

reader software is an effective method of making visually delivered material 

available to individuals who are blind or have low vision.

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20. 28 C.F.R. Section 36.303(c)(1)(ii) specifically states that 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.” 

21. 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. 

22. Defendant’s mobile website has been designed to integrate with its 

brick-and-mortar restaurant through the provision of a reservation service, the ability 

to book private dining events, as well as to purchase gift cards online for exclusive 

use when dining at “Zuma” restaurant. By and through its mobile website, Defendant 

extends its restaurant into individual persons' homes and portable devices wherever 

located, therefore the mobile website is a service, facility, privilege, advantage, 

benefit and accommodation of Defendant's restaurant and is a nexus to its brick-andmortar restaurant location. Therefore, it is governed by the following provisions:

a. U.S.C. Section 12182(a) provides: “No individual shall be 

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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.”

b. 42 U.S.C. Section 12182(b)(1)(A)(i) provides: “It shall be 

discriminatory to subject an individual or class of individuals on the basis of a 

disability or disabilities of such individual or class, directly, or through contractual, 

licensing, or other arrangements, to a denial of the opportunity of the individual or 

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

advantages, or accommodations of an entity[.]”

c. 42 U.S.C. Section 12182(b)(1)(A)(ii) provides: “It shall be 

discriminatory to afford an individual or class of individuals, on the basis of a 

disability or disabilities of such individual or class, directly, or through contractual, 

licensing, or other arrangements with the opportunity to participate in or benefit from 

a good, service, facility, privilege, advantage, or accommodation that is not equal to 

that afforded to other individuals[.]”

d. 42 U.S.C. Section 12182(b)(1)(A)(ii) provides: “It shall be 

discriminatory to provide an individual or class of individuals, on the basis of a 

disability or disabilities of such individual or class, directly, or through contractual, 

licensing, or other arrangements with a good, service, facility, privilege, advantage, 

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or accommodation that is different or separate from that provided to other 

individuals, unless such action is necessary to provide the individual or class of 

individuals with a good, service, facility, privilege, advantage, or accommodation, 

or other opportunity that is as effective as that provided to others[.]”

e. 42 U.S.C. Section 12182(b)(1)(B) provides: “Goods, services, 

facilities, privileges, advantages, and accommodations shall be afforded to an 

individual with a disability in the most integrated setting appropriate to the needs of 

the individual.”

f. 42 U.S.C. Section 12182(b)(1)(C) provides: “Notwithstanding 

the existence of separate or different programs or activities provided in accordance 

with this section, an individual with a disability shall not be denied the opportunity 

to participate in such programs or activities that are not separate or different.”

g. 42 U.S.C. Section 12182(b)(2)(ii) describes as discrimination: “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[.]”

h. 42 U.S.C. Section 12182(b)(2)(iii) describes as discrimination: 

“a failure to take such steps as may be necessary to ensure that no individual with a 

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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[.]”

23. Plaintiff attempted to access and/or utilize Defendant's mobile website, 

but was unable to, and continues to be unable to enjoy full and equal access to the 

mobile website and/or understand the content therein because numerous portions of 

the mobile website do not interface with mobile VoiceOver screen reader software. 

Specifically, features of the mobile website that are inaccessible to VoiceOver screen 

reader software users include, but are not limited to, the following (citing the WCAG 

2.1 Level A and AA Guidelines): 

i. Guideline 1.3.1 - Information, structure, and relationships conveyed through 

presentation can be programmatically determined or are also available in text. 

The 'Dietary Restrictions' and 'Special Occasion' fields on the reservation 

form each have a "+ add" button for users to enter their information. Both 

buttons are announced as just plain text (e.g., "plus add") so users don't hear 

that these are buttons, and no actions occur when a user presses either button 

while Voice Over is active.

ii. Guideline 1.3.2 - Meaningful Sequence is violated. Content must be presented 

in a meaningful order, and the mobile website fails to meet this requirement. 

Four 'I' buttons are on the reservation form. One is at the top of the form, next 

to the dress code and the other three are at the bottom of the form next to the 

consent checkboxes. None of these buttons receive focus nor are they 

announced, but they each reveal a popup when VoiceOver is turned off.

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iii. Guideline 2.4.3 - Focus order is violated as the mobile website is required to 

provide focus in a logical order and this is not the case. For example, Focus 

moves to hidden, unlabeled elements which causes confusion. For example, 

on the Zuma Miami Menu page, a hidden element is announced as "checkbox 

unchecked collapsed." The first issue is that the 'state' is incorrect because a 

checkbox can be 'unchecked' but it cannot also be 'collapsed.' Additionally, a 

label isn't present so the purpose of this checkbox or the second hidden 

checkbox announced after this one isn't clear.

iv. Guideline 4.1.2. - Name, Role, Value is violated. Mobile SRUs are unable to 

submit a reservation form because the three consent checkboxes at the bottom 

of the reservation form, which are required, do not work when VoiceOver is 

active.

24. In this instant case, Defendant’s mobile website reservation, gift card 

(purchase store), and food delivery systems are linked to third party vendors. The 

fact that a portion of the WCAG 2.1 Level A and AA Guideline violations may be 

related to various third-party vendor platforms does not absolve Defendant of 

culpability. Because restaurants are places of public accommodation, their operators 

are subject to the requirements of Title III as well. 42 U.S.C. § 12181(7)(b). Those 

requirements include a prohibition against subjecting patrons with disabilities to 

discrimination “through contractual, licensing, or other arrangements,” such as use 

of third-party vendors’ inaccessible platforms for making reservations. 42 U.S.C. § 

12182(b)(1)(A); See Kohler v Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260, 

1264-66 (9th Cir. 2015) (Pre-existing obligations under Title III of the ADA may 

not be avoided through contractual arrangements, and those obligations remain even 

where compliance is under control of another party); Robles v. Yum! Brands, Inc., 

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2018 WL 566781, *4 (C.D. Cal. January 24, 2018) (restaurant operators are liable 

for website and mobile app accessibility where there is a nexus to the restaurants 

themselves).

25. As the owner and/or operator of “Zuma” restaurant mobile website, 

Defendant is required to comply with the ADA and the provisions cited above. This 

includes Defendant’s obligation to create and maintain a mobile website that is

accessible to and usable by visually impaired persons so that they can enjoy full and 

equal access to the mobile website and the content therein, including the ability to 

make a reservation to dine within the “Zuma” restaurant, and order food online.

26. With respect to its mobile website, Defendant has violated the ADA by 

failing to interface its mobile website with VoiceOver screen reader software utilized 

by visually impaired individuals (as specifically delineated within paragraph 23) 

either directly or through contractual, licensing, or other arrangements. Defendant’s 

violations have resulted in Defendant denying Plaintiff accommodation on the basis 

of her disability:

a. by depriving Plaintiff of the full and equal enjoyment of the 

goods, services, facilities, privileges, advantages, or accommodations of its place of 

public accommodation (42 U.S.C. § 12182(a));

b. in the denial of providing Plaintiff the opportunity to participate 

in or benefit from the goods, services, facilities, privileges, advantages, or 

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accommodations (42 U.S.C. § 12182(b)(1)(A)(i));

c. in failing to afford Plaintiff the opportunity to participate in or 

benefit from a good, service, facility, privilege, advantage, or accommodation that 

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

d. by providing Plaintiff a good, service, facility, privilege, 

advantage, or accommodation that is different or separate from that provided to other 

individuals (unless such action is necessary to provide the individual or class of 

individuals with a good, service, facility, privilege, advantage, or accommodation, 

or other opportunity that is as effective as that provided to others) (42 U.S.C. §

12182(b)(1)(A)(iii));

e. by failing to afford Plaintiff goods, services, facilities, privileges, 

advantages, and accommodations in the most integrated setting appropriate to the 

needs of the disabled individual (42 U.S.C. § 12182(b)(1)(B));

f. notwithstanding the existence of separate or different programs 

or activities provided in accordance with this section, by denying Plaintiff the 

opportunity to participate in such programs or activities that are not separate or 

different. (42 U.S.C. § 12182(b)(1)(C));

g. by 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 

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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) (42 U.S.C. § 12182(b)(2)(ii)); and,

h. by a failure to take such steps as may be necessary to ensure that 

disabled individuals are not 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)(iii)).

27. Plaintiff is continuously aware of the violations within Defendant's

mobile website and is aware that it would be a futile gesture to attempt to utilize the 

mobile website as long as those violations exist unless she is willing to suffer 

additional discrimination.

28. Plaintiff is well aware that the ADA requires effective communications. 

However, long after the required date of compliance, many public accommodations 

refuse to comply leaving Plaintiff feeling excluded and rejected because she is 

disabled. As a result, Plaintiff has suffered (and continues to suffer) frustration and 

humiliation as the result of the discriminatory conditions present within Defendant's 

mobile website. By continuing to operate its mobile website with discriminatory 

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conditions, Defendant contributes to Plaintiff's 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 within Defendant's mobile website and knowing that 

it would be a futile gesture to attempt to utilize the mobile website unless she is 

willing to endure additional discrimination, Plaintiff is deprived of the meaningful 

choice of freely visiting and utilizing the same accommodations readily available to 

the general public and is deterred and discouraged from doing so. By maintaining a 

mobile website with violations, Defendant deprives Plaintiff the equality of 

opportunity offered to the general public.

29. Plaintiff has suffered (and will continue to suffer) direct and indirect 

injury as a result of Defendant’s discrimination until Defendant is compelled to 

comply with the requirements of the ADA and conform its mobile website to WCAG 

2.1 Level A and AA Guidelines.

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

discrimination from Defendant’s non-compliance with the ADA with respect to its 

mobile website. Plaintiff has reasonable grounds to believe that she will continue to 

be subjected to discrimination in violation of the ADA by Defendant when she visits 

the mobile website to test for compliance with the ADA. Plaintiff desires to access 

the mobile website to avail herself of the benefits, advantages, goods and services 

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therein, and/or to assure herself that the mobile website is in compliance with the 

ADA so that she and others similarly situated will have full and equal enjoyment of 

the mobile website without fear of discrimination.

31. Plaintiff is without adequate remedy at law and has suffered (and will 

continue to suffer) irreparable harm. The Plaintiff and all others similarly situated 

will continue to suffer such discrimination, injury and damage without the 

immediate relief as requested herein.

32. Pursuant to 42 U.S.C. § 12188, this Court is provided with authority to

grant Plaintiff Injunctive Relief, including an order to require Defendant to alter its

mobile website to make it readily accessible to and usable by Plaintiff and other 

persons with vision impairments.

WHEREFORE, Plaintiff, Windy Lucius hereby demands judgment against 

Defendant, Zuma Japanese Restaurant Miami, LLC., d/b/a Zuma, and requests the 

following injunctive and declaratory relief: 

a. The Court issue a Declaratory Judgment that determines that 

Defendant's mobile website is in violation of Title III of the Americans 

with Disabilities Act, 42 U.S.C. § 12181 et seq.;

b. The Court issue a Declaratory Judgment that Defendant has violated 

the ADA by failing to monitor and maintain its mobile website to 

ensure that it is readily accessible to and usable by persons with vision 

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impairment;

c. The Court issue an Order directing Defendant to alter its mobile website

to make it accessible to, and useable by, individuals with disabilities to 

the full extent required by Title III of the ADA;

d. The Court issue an Order directing Defendant provide the appropriate 

auxiliary aids such that individuals with visual impairments will be able 

to effectively communicate with the https://zumarestaurant.com/ 

mobile website for purposes of comprehending Defendant’s “Zuma” 

menu selections, ordering food, making reservations for dining within 

the restaurant, and during that time period prior to the mobile website’s 

being designed to permit individuals with visual impairments to 

effectively communicate, requiring Defendant to provide an alternative 

method for individuals with visual impairments to effectively 

communicate so that disabled individuals are not impeded from 

obtaining the goods and services made available to the public through 

Defendant’s mobile website. 

e. The Court enter an Order directing Defendant to evaluate and neutralize 

its policies and procedures towards persons with disabilities for such 

reasonable time so as to allow Defendant to undertake and complete 

corrective procedures;

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f. The Court enter an Order directing Defendant to continually update and 

maintain its mobile website to ensure that it remains fully accessible to 

and usable by visually impaired individuals;

g. The Court award attorney’s fees, costs and litigation expenses pursuant 

to 42 U.S.C. § 12205; and,

h. The Court provide such other relief as the Court deems just and proper, 

and/or is allowable under Title III of the Americans with Disabilities 

Act.

Respectfully submitted this October 25, 2022.

 By: /s/ J. Courtney Cunningham

 J. Courtney Cunningham, Esq.

 FBN: 628166

 J. COURTNEY CUNNINGHAM, PLLC

 8950 SW 74th Court, Suite 2201

 Miami, Florida 33156

 Telephone: 305-351-2014

 cc@cunninghampllc.com 

 legal@cunninghampllc.com 

 

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