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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.:

JAMES WATSON

Plaintiff,

v. 

LUCKY SEA CORP., 

d/b/a Viva Brazil Signature

Defendant.

 / 

COMPLAINT FOR INJUNCTIVE RELIEF

Plaintiff, James Watson (“Plaintiff”) hereby sues Defendant, LUCKY SEA CORP 

(“Defendant”) doing business as Viva Brazil Signature, for Injunctive Relief, attorney’s 

fees, litigation expenses and costs pursuant to Title III of the Americans with Disabilities 

Act of 1990, as amended, 42 U.S.C. §§ 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 the Defendant’s violations of 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 

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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 him navigate a world 

of goods, products and services like the sighted. The internet, websites and mobile 

applications provide him a window into the world that he would not otherwise have. He

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 his civil rights. As such, he 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, LUCKY SEA CORP., is a Florida Profit Corporation which owns 

and operates a place of public accommodation which is restaurant branded as “Viva 

Brazil”, Defendant’s restaurant is located at 3933 NE 163rd St., North Miami Beach, FL 

33160. Authentic Brazilian cuisine in a rustic steakhouse setting with a waterfront view 

open to the public. As such, it is a Place of Public Accommodation subject to the 

requirements of Title III of the ADA and it’s implementing regulation as defined by 42 

U.S.C. §12181(7)(B), §12182, and 28 C.F.R. §36.104(2). Defendant’s restaurant is also 

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referenced as “place of public accommodation”, “Viva Brazil” 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” and as “a place of entertainment” pursuant 

to §§12181(7)(B) &(C), §12182, and 28 C.F.R. §§36.104(2) & (3).

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

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

“mobile website”) which is designed for the general public to access on their mobile 

devices (phones, tablets). This mobile website supports, is an extension of, is in 

conjunction with, is complementary and supplemental to Defendant, “Viva Brazil”. The 

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

facilities available to patrons at “Viva Brazil” restaurant. 

9. The mobile website is offered as a way for the public to become familiar 

with “Viva Brazil”, menu selections, hours of operation, special 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 for special/private events as well as a link to contact the restaurant 

to inquire, as well as other information “Viva Brazil” restaurants seek to communicate to 

the public.

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

information about “Viva Brazil” menu selections, hours of operation and learn the location 

of the restaurant. 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. The 

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mobile website provides a link to make reservations for dining at the restaurant location 

and offers the public the ability to send messages to restaurant management. The website 

also allows the public to obtain information about private events dining and catering, and 

for the public to inquire about such reservation for events as well as a link to request a 

quote and contact the restaurant. 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 on behalf of “Viva Brazil” restaurant. By this nexus, 

the mobile website is characterized as a Place of Public Accommodation subject to Title 

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

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

information about “Viva Brazil” menu selections, hours of operation and learn the location

of the restaurant. The mobile website also provides a link to the “Viva Brazil” Facebook 

and Instagram pages and provides other information Defendant seeks to communicate 

to the public. The mobile website also provides the public the ability to send messages

and contact the restaurant. By the provision of menu selection, the ability to make 

reservations, and information for any inquires, the mobile website is an integral part of the 

goods and services offered by Defendant on behalf of “Viva Brazil” restaurant. By this 

nexus, the mobile website is characterized as a Place of Public Accommodation subject 

to Title III of the ADA1, 42 U.S.C. § 12181(7)(B) and 28 C.F.R. § 36.104(2). 

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 

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 

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12. 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. Defendant has subjected itself to the ADA because 

its mobile website is offered as a tool to promote, advertise and sell products and services 

of the restaurant. As a result, Defendant’s mobile website must interact with the public, 

which includes Plaintiff (a visually impaired person). Therefore, Defendant’s mobile 

website 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

13. Defendant’s mobile website does not properly interact with VoiceOver 

screen reader software technology in a manner that allows Plaintiff (a visually impaired 

person) to comprehend the mobile website and does not provide other means of 

accommodation.

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

use the https://vivabrazilmiami.com mobile website to test whether he can comprehend 

the “Viva Brazil” restaurant menu selections or make reservations and to test for the ability 

to order food for pick up at the restaurant location. However, unless Defendant is required 

to eliminate the barriers to Plaintiff’s ability to communicate with Defendant through the 

mobile website, Plaintiff will continue to deny full and equal access to the mobile website 

and will be deterred from fully using that mobile website.

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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15. Plaintiff is continuously aware of the violations on the mobile website and is 

aware that it would be a futile gesture to attempt to utilize that mobile website as long as 

those violations exist. 

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

wrongs alleged herein and this action is his only means to secure adequate redress from 

Defendant’s practice.

17. 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. 

18. 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

19. 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.

20. 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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21. 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.” 

22. 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 requires places of public 

accommodation to be designed, constructed, and altered in compliance with the 

accessibility standards established by Part 36. 

23. The mobile website has been designed to integrate with the “Viva Brazil” 

through the provision of menus, food order and delivery service, the ability to make a 

reservation and the ability to inquire about private events online. Defendant has extended 

“Viva Brazil” restaurant into individual persons' homes and portable devices wherever 

located through the mobile website which is a service, facility, privilege, advantage, 

benefit and accommodation of its restaurant. 

24. Plaintiff attempted to access and test the mobile website, but was unable to 

do so because the mobile website contains barriers to effective communication for 

visually impaired individuals such as himself. Plaintiff continues to be unable to effectively 

communicate with Defendant through the mobile website and 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 Plaintiff (a VoiceOver screen reader software user) include, but are not 

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limited to, the following (citing the WCAG 2.1 Level A and AA Guidelines): 

i. Guideline 2.4.3. Focus order is violated. The main menu button is announced 

only as "a end banner." Mobile SRUs will not be aware that they're on a button 

and the label of "a" is meaningless.

iv. Guideline 2.4.4. - Link Purpose (In Context) is violated. The first link announced 

on the website is not labeled and it does not inform users that a new browser 

will open, and they will be taken to a third-party website. 

iii. Guideline 1.4.5. - Website doesn't use images of text (screen readers are 

unable to read). None of the content in the menu is announced. Each page is 

announced only as "image."

25. As the owner and/or operator and/or beneficiary of a mobile website which 

serves as a gateway to Defendant’s “Viva Brazil” restaurant (for purchasing food for pick 

up at that restaurant) Defendant is required to comply with the ADA and the provisions 

cited above. This includes Defendant’s obligation to create, maintain and operate a 

mobile website that is accessible to Plaintiff so that he (as a visually impaired person) can 

enjoy full and equal access to the mobile website and the content therein, including the 

ability comprehend menu selections and to test for his ability to purchase food online. 

26. Defendant has violated the ADA by failing to interface the mobile website 

which is directly linked to its restaurant with VoiceOver screen reader software utilized by 

Plaintiff (a visually impaired individual) (reference violations delineated within paragraph 

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

violations have resulted in Defendant denying Plaintiff effective communication on the 

basis of his disability in accordance with 28 C.F.R. Section 36.303 et seq.

27. Plaintiff is continuously aware of the violations within the mobile website and

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

as long as those violations exist.

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28. As the result of the barriers to communication which are present within the 

mobile website and by continuing to operate and/or benefit from the mobile website with 

such barriers, Defendant has contributed to Plaintiff's frustration, humiliation, sense of 

isolation and segregation and has deprived Plaintiff the full and equal enjoyment of the 

goods, services, facilities, privileges and/or accommodations available to the general 

public. By encountering the barriers to effective communication within the mobile website 

and knowing that it would be a futile gesture to attempt to utilize the mobile website, 

Plaintiff has been deprived of the meaningful choice of freely visiting and utilizing the 

same accommodations readily available to the general public and has been deterred and 

discouraged from doing so. By benefiting from and/or maintaining a mobile website with 

barriers to effective communication, Defendant has deprived Plaintiff the equality of 

opportunity which it offers to the general public.

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

a result of Defendant’s violations until Defendant is compelled to comply with the 

requirements of the ADA and conform the 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 he will continue to be subjected 

to discrimination in violation of the ADA by Defendant when he visits the mobile website 

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

himself of the benefits, advantages, goods and services therein, and/or to assure herself 

that the mobile website is in compliance with the ADA so that she and others similarly 

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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 will continue to suffer 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 the mobile 

website to make it readily accessible to and usable by usable by Plaintiff (a visually 

impaired person).

WHEREFORE, Plaintiff, James Watson hereby demands judgment against 

Defendant, LUCKY SEA CORP., d/b/a Viva Brazil, and requests the following injunctive 

and declaratory relief: 

a. The Court issue a Declaratory Judgment that determines that the mobile

website is in violation of Title III of the Americans with Disabilities Act and 28

C.F.R. Section 36.303 et seq.;

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

by failing to monitor and maintain the mobile website which serves as a 

gateway to its restaurant to ensure that it is readily accessible to and usable by 

Plaintiff, a visually impaired person;

c. The Court issue an Order directing Defendant to alter the mobile website 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 Plaintiff (a visually impaired person) will be able to effectively 

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communicate with the mobile website for purposes of comprehending “Viva 

Brazil” restaurant menu selections, and for ordering prepared food for pickup 

at Defendant, “Viva Brazil” restaurant, and during that time period prior to the 

mobile website’s being designed to permit Plaintiff to effectively communicate, 

requiring Defendant to provide an alternative method for Plaintiff to effectively 

communicate so that he is not impeded from obtaining the goods and services 

which Defendant has made available to the public through the mobile website.

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

policies and procedures towards Plaintiff (a visually impaired person) for such 

reasonable time so as to allow Defendant to undertake and complete corrective 

procedures;

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

maintain the mobile website to ensure that it remains fully accessible and 

usable pursuant to Title III of the ADA;

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 December 2, 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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