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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 22-81367-CIV-CANNON

NELSON FERNANDEZ,

Plaintiff,

v.

KOKO ATLANTIC LLC,

Defendant.

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DEFENDANT’S MOTION TO DISMISS COMPLAINT

Defendant Koko Atlantic LLC (“Defendant”), by and through its undersigned counsel and 

pursuant to Fed. R. Civ. P. 12(b)(6), moves this Court to dismiss the Plaintiff’s Complaint seeking 

declaratory and injunctive relief for failure to state a claim upon which relief can be granted. In 

support of this motion, Defendant states as follows: 

BACKGROUND

The Americans with Disabilities Act, 42 U.S.C. §§ 12181 – 12189 (“ADA”) is supposed to 

protect people with disabilities from discrimination in all areas of public life. Unfortunately, some 

law firms and unscrupulous clients find ways to exploit the ADA and target small businesses with 

excessive ADA lawsuits. These abusive website accessibility shakedown lawsuits prioritize 

forcing small businesses to settle for millions of dollars, not improving accessibility, as the law 

intended.

Plaintiff and his attorneys are habitual litigators and serial filers who for many years have

brought dozens, perhaps several hundred, disability discrimination actions, including website 

accessibility lawsuits, against Florida’s small business owners, many already struggling with 

inflation and supply chain and labor shortages. Unfortunately, Defendant is the latest target of an 

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abusive ADA lawsuit. The boilerplate1complaint alleges that Plaintiff, a visually impaired 

individual, is unable to access certain portions of Defendant’s limited use website, and therefore is 

not in compliance with the ADA and the Palm Beach County Code of Ordinances, § 15-57 (the 

“Palm Beach Code”).

Defendant operates a retail store selling beach and swimwear apparel under the name 

“Kokonuts” in Delray Beach, Florida as well as an adjunct website with the name 

“https://www.kokodelray.com” (the “Website”). Plaintiff claims that the Website violates the 

ADA and Palm Beach Code as it does not allow him to view all sections of the Website’s content.

Plaintiff claims that certain sections of the Website are inaccessible to him as a blind person

using screen reader software. Specifically, Plaintiff alleges that on the Website: (a) home page 

logo is not properly labeled; (b) store address and telephone number are inaccessible when 

navigating with a keyboard; (c) text information is not labeled; the cursor skips the information and 

navigates to the nearest available link, button, or header; (d) size options not properly labeled; and

(e) phone number is not properly labeled. See Complaint, ¶ 21.

PRELIMINARY STATEMENT

The Complaint fails to state a claim upon which relief can be granted because websites are 

not places of public accommodation under Title III of the ADA and the Palm Beach Code. See Gil 

v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277 (11th Cir.)(reasoning that, “pursuant to the plain 

language of ADA, Title III, public accommodations are limited to actual, physical places,” and 

websites do not qualify), vacated on reh’g as moot, 21 F.4th 775 (11th Cir. 2021) (“Gil”). Even if 

this Court does not follow Gil in applying a strict constructionist statutory analysis of the ADA, 

Plaintiff still failed to establish that the Website operates as an intangible barrier to Defendant’s 

1 Plaintiff forgot to update his boilerplate complaint, ¶ 11, by citing the Miami-Dade Code instead of the 

Palm Beach Code. He also requests an award for “her reasonable attorney’s fees ....” See Complaint, p. 24.

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physical store. While Plaintiff alleges that he “attempted” to utilize the Website to browse 

merchandise and acquire information about the brick-and-mortar store (see Complaint, ¶ 20), 

critically he never explains that he was unable to (i) visit the store, (ii) make an online purchase, or 

(iii) acquire pertinent store or merchandise information from the Website. Indeed, the only item 

that Plaintiff alleges he was unable to access or locate on the Website was an “accessibility” notice

(see Complaint, ¶ 22) – and that alone is insufficient to state a claim.

ARGUMENT

The Complaint should be dismissed in its entirety because Plaintiff’s allegations fail to 

plausibly state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure. Both Counts of the Complaint should be dismissed consistent with the 

Eleventh Circuit’s reasoning in Gil and Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th 

Cir. 2002) (“Rendon”). 

A. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” This pleading standard “does

not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading that asserts mere “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555. And “on the assumption that all the allegations are true (even if doubtful in

fact),” the factual allegations pleaded “must be enough to raise a right to relief above the

speculative level.” Id. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. This plausibility determination is “a context-specific task

that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

“But where the well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is entitled to

relief.’” Id. (brackets in original) (quoting Fed. R. Civ. P. 8(a)(2)). “The Supreme Court has

employed a ‘two-pronged approach’ in applying the foregoing principles: first, a reviewing court

should eliminate any allegations in the complaint that are merely legal conclusions; and second,

where there are well-pleaded factual allegations, ‘assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.”” Boyd v. Warden, Holman

Correctional Facility, 856 F.3d 853, 864 (11th Cir. 2017) (quoting Iqbal, 556 U.S. at 679).

B. Plaintiff cannot show the Website is a place of public accommodation.

The ADA and Palm Beach Code do not address accessibility requirements for websites. 

Nor does the ADA and Palm Beach Code address whether websites offered for or by places of 

public accommodation must be fully accessible to persons covered by the ADA. See Gomez v. 

Bang & Olufsen Am., Inc., No. 1:16-CV-23801, 2017 WL 1957182, at *4 (S.D. Fla. Feb. 2, 2017). 

Congress passed the ADA in 1990 and amended it in 2008. “[T]he ADA forbids discrimination 

against disabled individuals in major areas of public life, among them employment (Title I of the 

Act), public services (Title II), and public accommodations (Title III).” PGA Tour, Inc. v. Martin, 

532 U.S. 661, 675 (2001). Under Title III, “[n]o individual shall be discriminated against on the 

basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 

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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)

(emphasis added).

In the 12 subparagraphs in Section 12181(7) of Title III of the ADA, Congress provided an 

expansive list of physical locations, which are “public accommodations.” The list covers most 

types of physical locations where individuals may find themselves. Notably, the list does not 

include websites. Only two circuit courts have been presented with the issue of whether a website 

is a place of public accommodation under Title III of the ADA. In Robles v. Domino’s Pizza, 

LLC, 913 F.3d 898 (9th Cir.), cert. denied, ––– U.S. ––––, 140 S. Ct. 122, 205 L.Ed.2d 41 (2019), 

the Ninth Circuit expressly avoided the issue of whether a website was itself a public 

accommodation (id. at 905 n.6), and instead embraced a “nexus” standard; holding that the ADA 

applied to Domino’s website and smartphone app only because they “connected customers to the 

goods and services of Domino’s physical restaurants.” Id. at 905. In contrast, in Gil, the Eleventh 

Circuit directly addressed the issue and held that the statutory language defining “public 

accommodations” was unambiguous and clear - it describes 12 types of locations, all of which 

were tangible, physical places. No intangible places or spaces, such as websites, are listed. 

The Gil court thus concluded that “pursuant to the plain language of Title III of the ADA, public 

accommodations are limited to actual, physical places,” and websites did not qualify. Id. at 1277.2 

Thus, as a matter of law Plaintiff cannot state a claim for relief on the grounds that the Website 

has a nexus to Defendant’s physical store and therefore must comply with all ADA and the Palm 

Beach Code requirements.

2 Gil certainly holds more authoritative weight than a Ninth Circuit decision which was decided pre-Gil. 

Further, Robles is distinguishable because Gil expressly rejected Robles’ application in favor of following 

its own precedent in Rendon. Id. at 1283-84(“In sum, we do not find Robles persuasive, either factually or 

legally. Instead, we apply the statute, 42 U.S.C. §§ 12182(a) and (b)(2)(A)(iii), and our precedent, see

Rendon, 294 F.3d at 1283, to the facts before us.”). Thus, Robles should not guide this Court’s analysis.

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C. Plaintiff failed to state a claim upon which relief can be granted by failing to show 

how the Website restricted his access to Defendant’s physical location.

District courts in this Circuit are split on the applicability of Gil and Rendon to ADA claims 

based on website accessibility. Undoubtedly, Plaintiff will cite to Fernandez v. Mattress Xperts 

Broward, Inc., No. 21-80573-CIV, 2021 WL 3931243 (S.D. Fla. Sept. 2, 2021) and Fernandez v. 

Bruno Northfleet, Inc., No. 21-80609-CIV, 2021 WL 48513787 (S.D. Fla. Oct. 18, 2021)3for 

application of the Ninth Circuit’s “nexus” standard, which was rejected by Gil. The better reasoned 

approach was reached by the courts in Mahlberg v. Pinch-A-Penny Inc., No. 6:21-CV-143-GAPDCI, 2021 WL 2942675, *4 (M.D. Fla. Apr. 20, 2021) (concluding that not being able to access 

information about store locations and services does not provide an intangible barrier under Rendon) 

and Poschmann v. Tradewinds of Sanibel, LLC, No. 2:21-CV-303-JES-MRM, 2021 WL 3190557 

(M.D. Fla. July 28, 2021). The divergence in case law indicates there is no uniform approach to 

determining the plausibility of Plaintiff’s claims. The success of Plaintiff’s website accessibility 

claim requires an analysis of his specific allegations and whether they show that Defendant’s 

Website is an intangible barrier under Rendon.

Considering the split in our district courts, this Court should be guided primarily by the 

Eleventh Circuit’s decision in Gil, as this case would be binding precedent if it had not been 

vacated on procedural mootness grounds. Indeed, the Eleventh Circuit has applied the reasoning of 

vacated opinions to subsequent cases if the opinion was vacated on different grounds. See, e.g., 

U.S. v. Mejia-Duarte, 780 F.App’x 730, 737 (11th Cir. 2019) (“Because the opinion was vacated 

on grounds apart from legal questions before us today ... we see no reason not to apply [the vacated 

3

In support of its liberal expansive interpretation of website accessibility under the ADA, Plaintiff may 

also cite to Haynes v. Dunkin Donuts LLC, 741 F. App’x 752 (11th Cir. 2018) (unpublished case) and 

Gomez v. General Nutrition Corp., 323 F. Supp. 3d 1368 (S.D. Fla. 2018). Both cases are readily 

distinguishable as they were decided before Gil, and Haynes’ reasoning was rejected by Gil.

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decision]”); Jackson v. Georgia Dep’t of Transp., 16 F.3d 1573, 1578 n.7 (11th Cir. 1994) 

(affording persuasive value to an opinion that “was vacated on unrelated grounds”). 

In Gil’s application of Rendon, the Eleventh Circuit stated the following:

Because the phone system in Rendon provided the sole access point for individuals 

to compete for the privilege of being a contestant on a game show and that same 

phone system was inaccessible by individuals with certain disabilities, it necessarily 

acts as an “intangible barrier” that prevented plaintiffs from ‘accessing a privilege’ 

of a physical space of public accommodation (the game show).

Gil, 993 F.3d at 1270 (emphasis added). The Eleventh Circuit then applied Rendon to the facts at 

issue in Gil, noting that defendant’s limited use website that required all purchases to be made in 

store did not meet the definition of an intangible barrier. Id. at 1290.

Gil established that the facts at issue in Rendon (sole access point) are an intangible barrier. 

On the other hand, the facts at issue in Gil (limited use website) are not an intangible barrier. What 

falls in between remains an open issue in this Circuit. However, applying Gil, Rendon, and their 

progeny to the facts alleged in the Complaint, Plaintiff has failed to allege sufficient facts to 

establish the Website is an intangible barrier and the Complaint should be dismissed.

To deny this Motion to Dismiss, the Court will have to adopt a broad reading of the Gil

holding and rule that a complaint merely alleging an inaccessible website with an ecommerce 

component acting as a point of sale is alone sufficient to allege an ADA claim. At most, case law 

interpreting the ADA requires that websites offered by places of public accommodation must not 

impede a disabled person’s use and enjoyment of the place of public accommodation. While 

Plaintiff alleges that the Website limits his online access to merchandise that is also offered in the 

physical store and is inconvenient to him, the Complaint fails to plausibly allege how the Website 

prevents Plaintiff’s use and enjoyment of the goods and service offered at Defendant’s physical 

location.

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The Eleventh Circuit has ruled that websites are not public accommodations under Title III 

of the ADA. Gil, 993 F.3d at 1275. In Gil, the plaintiff challenged the accessibility of Winn 

Dixie’s limited use website, which offered customers the ability to refill prescriptions for in-store 

pickup, and to link digital coupons to Winn Dixie’s rewards card for discounts. Id. at 1270. The 

website did not allow for purchases of prescriptions on the website itself – all purchases had to be 

made in the store. Prior to using the website at issue, plaintiff visited the physical Winn Dixie store 

to refill his prescriptions. Id. When he learned that Winn Dixie had a website, the plaintiff 

preferred to use the website to refill his prescriptions instead of visiting the store and explaining 

what he needed to the pharmacist. Id. at 1272. After being unable to use the website in the way he 

wanted to, the plaintiff stopped going to Winn Dixie stores not because of the change in the 

physical access available to him but because of his frustration with the functionality of the website. 

Id. After a bench trial finding in favor of plaintiff, Winn Dixie appealed to the Eleventh Circuit. Id

at 1272-73.

The Eleventh Circuit held that websites are not public accommodations for purposes of the 

ADA and thus a disabled person’s inability to access and communicate with a website itself is not a 

violation of Title III. Id. The Court also held that Winn Dixie’s website did not provide an 

intangible barrier because despite the inconveniences of the website, nothing prevented the plaintiff 

from refilling his prescriptions at a physical Winn Dixie store. Id. at 1279-80. Gil was 

subsequently vacated on hearing as moot because of a procedural issue: the injunction upon which 

the litigation was based expired and the Eleventh Circuit lacked the jurisdiction to decide the 

appeal. See Gil v. Winn-Dixie Stores, Inc., 21 F.4th 775, 776 (11th Cir. 2021). Significantly, the 

opinion was not vacated because of any change in law that would invalidate the reasoning 

underlying the Court’s conclusions therein. Thus, this Court should adopt the Gil reasoning as 

persuasive authority in deciding the case issues, as it forecasts how the Eleventh Circuit would 

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evaluate Plaintiff’s disability claims. See Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 

F.3d 1210, 1218 (11th Cir. 2009) (“We are free to give statements in a vacated opinion persuasive 

value if we think they deserve it.”); Mejia-Duarte, 780 F.App’x at 737 (11th Cir. 2019) (giving a 

vacated opinion persuasive effect when it was vacated on a wholly separate issue). Yet even 

beyond Gil, the Eleventh Circuit’s decision in Rendon supports dismissal of Plaintiff’s disability 

claims because Plaintiff has failed to plead sufficient facts to demonstrate that Defendant’s Website 

is an intangible barrier to Plaintiff’s use and enjoyment of Defendant’s physical store, as is required 

by Rendon to bring a claim based on a violation of Title III of the ADA.

1. The Eleventh Circuit’s Reasoning in Gil Warrants Dismissal of 

Plaintiff’s Claims

Based on the ADA’s text and other Eleventh Circuit precedent, Gil established a clear twostep analysis to decide whether a website’s alleged inaccessibility violates Title III of the ADA: (1) 

whether the website is a place of public accommodation in and of itself, such that its inaccessibility 

violates Title III; and (2) if the website is not a public accommodation, whether it otherwise 

violates Title III as an “intangible barrier” under Rendon. Gil, 993 F.3d at 1274-78. Gil concluded 

that websites are not public accommodations under Title III of the ADA based on a plain reading of 

Title III’s text. Title III defines “public accommodation” by providing “an expansive list of 

physical locations.” Id. at 1276. As noted by the court, this list “does not include websites.” Id. 

Rather, all twelve types of locations are “tangible, physical places. No intangible places or spaces, 

such as websites, are listed.” Id. at 1277. Accordingly, the plain and unambiguous language of 

Title III of the ADA limits public accommodations to “actual, physical places” and does not 

include websites. Id. As such, a plaintiff’s inability to access and communicate with a website itself 

is not a violation of Title III. Id. Thus, Plaintiff cannot support his ADA claim based on the alleged 

inaccessibility of the Website itself as a public accommodation under Title III.

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The Eleventh Circuit’s conclusion that Title III’s definition of “public accommodation” 

does not include websites is based on a straightforward analysis of the plain statutory language of 

the ADA. The ADA is clear on its face that “public accommodations” are limited to tangible, 

physical locations. See 42 U.S.C. § 12181(7). If the legislature wishes to broaden the scope of Title 

III, it may do so. But it is not the judiciary’s role to broaden the scope of an otherwise 

unambiguous statute. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[I]n 

interpreting a statute a court should always turn first to one, cardinal canon before all others. We 

have stated time and again that courts must presume that a legislature says in a statute what it 

means and means in a statute what it says there. When the words of a statute are unambiguous, 

then, this first canon is also the last: judicial inquiry is complete.” (internal citation omitted)). 

Thus, Gil’s persuasive authority interpreting the ADA’s plain language directs that Plaintiff cannot 

base his ADA and Palm Beach Code claims on the alleged inaccessibility of Defendant’s Website 

itself.

2. Plaintiff Failed to Allege That Defendant’s Website is an “Intangible 

Barrier” under Rendon

Whether Plaintiff can allege an ADA or Palm Beach Code claim at all turns on whether, 

under Rendon, the allegedly inaccessible Website serves as an “intangible barrier” to his full and 

equal enjoyment of the goods, services, and privileges offered at Defendant’s physical store. 

Rendon, 294 F.3d at 1283. Rendon did not involve the alleged inaccessibility of a website, but 

rather an automated hotline used by the gameshow “Who Wants To Be A Millionaire.” Gil is an 

instructive analysis of Rendon’s application to a website. Under both Rendon, generally, and Gil, 

for websites specifically, an “intangible barrier” exists when that barrier operates as a sole access 

point/point-of-sale to a person’s use and enjoyment of the goods, services, and privileges offered at 

a place of public accommodation. If an individual cannot fully access a website and it is the sole 

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access point for a good or service, then it acts as a barrier to the place of public accommodation. 

However, when a website is not a sole access point and only acts to augment the services offered at 

a place of public accommodation, then Rendon and Gil instruct that an intangible barrier does not 

exist and the ADA claim is subject to dismissal.

3. Complaint Does Not Establish that Website Was the Sole Point of Access

The Complaint does not show that the Website is a sole access point as applicable in 

Rendon and reaffirmed by the Eleventh Circuit in Gil. Rendon is essential to deciding this Motion 

because it establishes the “intangible barrier” framework, and it is the only published decision of 

the Eleventh Circuit with full precedential effect on this issue. The “sole access point” language is 

a direct quote from Gil, where the Eleventh Circuit relied upon Rendon in reaching its decision. 

Gil, 993 F.3d at 1290. Notably, the “sole access point” language has been repeated in other cases 

in this district, including Bruno Northfleet, 2021 WL 4851378, at *3 (S.D. Fla. Oct. 18, 2021).

In Rendon, the automated hotline was the sole point of access for contestant selection and, 

therefore, enjoying the privileges offered by the defendant’s gameshow. Rendon, 294 F.3d at 1280-

81. The Rendon plaintiffs challenged the automated hotline that was used to select contestants for 

the gameshow. Id. at 1280. The hotline was inaccessible to persons who were deaf or had upperbody mobility impairments. Id. Thus, the hotline’s inaccessibility was a complete barrier to 

contestant’s ability to be considered for the show. Id. Therefore, the use of the hotline prevented 

deaf individuals from the use and enjoyment of the defendant’s public accommodation (the game 

show). Id. at 1286.

The Eleventh Circuit in Gil and its progeny have clarified that an “intangible barrier 

violates Title III where it impedes a physical venue’s sole access point and prevents a plaintiff from 

accessing a privilege of a physical place of public accommodation.” Mahlberg v. Pinch-A-Penny 

Inc., No. 6:21-CV-143, 2021 WL 2942675, at *4 (M.D. Fla. Apr. 20, 2021) (emphasis added). 

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This is precisely how the Court viewed Rendon in Gil, where the Eleventh Circuit expressly 

rejected the trial court’s reasoning that a website was so “heavily integrated” with a physical store 

just because certain activities could be done online to assist in the customer’s physical store 

experience. Gil, 993 F.3d at 1279. Under its Rendon analysis, the Eleventh Circuit in Gil focused 

on whether the website was a “point of sale” for Winn Dixie’s physical stores. There, the website 

was not a point of sale – all purchases had to occur in-store. Id. Even services initiated online (like 

prescription pick-ups) still had to be completed in-store. Id. The court reasoned, therefore, that 

website inaccessibility did not prevent plaintiff from enjoying the goods, services, and privileges 

offered at physical Winn Dixie locations. Id. Accordingly, the court held that the website was not 

an “intangible barrier” to accessibility. Id. at 1280. The plaintiff’s ADA claim, therefore, was 

dismissed. Id. at 1284.

In the instant case, Plaintiff does not allege that the Website was the sole access point to the 

use and enjoyment of Defendant’s store or any component therein. Rather, Plaintiff merely alleges 

that the Website “acts as a critical point of sale for merchandise available in, from, and through 

Defendant’s physical store.” See Complaint, ¶ 12. Plaintiff does not allege that any goods or 

services offered on the Website are Plaintiff’s only access to those goods or services; rather, he 

alleges that the Website augments the physical store “by providing the public information about the 

store and by educating the public as to Defendant’s available merchandise sold through the Website 

and in the physical store.” See Complaint, ¶ 49. In fact, Plaintiff specifically alleges that the 

Website allows customers to purchase Defendant’s merchandise that is “also available for purchase 

in and from the physical store.” See Complaint, ¶ 14 (emphasis added). 

Far from the facts in Rendon, Plaintiff’s allegations paint the picture that a customer has 

multiple access points to use and enjoy the goods, services, and privileges offered by Defendant. 

Indeed, Plaintiff’s Complaint is notable for what it does not allege: it does not allege that any of the 

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goods, services, or privileges offered on the Website are only available on the Website. Cf. 

Fernandez v. Bruno Fleet Northfleet, Inc., No. 21-80609-CIV, 2021 WL 4851378, at *3 (S.D. Fla. 

Oct. 18, 2021) (finding plaintiff sufficiently alleged a Title III violation where defendant’s website 

enabled customer to purchase merchandise not available in store). Notably, “nothing prevents 

[Plaintiff] from shopping at the physical store” and being entitled to all the goods, services, and 

privileges offered by Defendant there. Gil, 993 F.3d at 1279. In contrast to the contestants who 

were fully deprived of participating in the gameshow in Rendon by the hotline’s barrier, nothing 

about the Website bars Plaintiff from accessing the goods and services available in Defendant’s 

physical store.

In Gil, the Eleventh Circuit also considered the significance of whether the website at issue 

was a point of sale. Here, Plaintiff presents a broad interpretation that a website that offers an 

ecommerce component and acts as a point of sale for merchandise necessarily presents an 

intangible barrier when a plaintiff’s screen reader software is incompatible with the website. But 

the analysis of whether a plaintiff sufficiently alleges an intangible barrier depends on whether he 

can effectively communicate with, or access the services offered in, the physical store – not the 

website itself. As the Eleventh Circuit explained in Gil,

Gil’s mere inability to communicate with and access the services available on the 

website does not mean that Winn-Dixie is necessarily in violation of the [ADA]. 

Rather, in order for there to be a violation of the [ADA], the inaccessibility of the 

website must serve an ‘intangible barrier’ to Gil’s ability to communicate with 

Winn-Dixie’s physical stores, which results in Gil being excluded, denied services, 

segregated, or otherwise treated differently from other individuals in the physical 

stores.

Gil, 993 F.3d at 1290 (emphasis added). Similarly in the Complaint, Plaintiff focuses on his 

inability to communicate with the Website itself. For example, the Complaint alleges, “[t]he fact 

that Plaintiff could not communicate with or within the Website left him feeling excluded, as he is 

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unable to participate in the same shopping experience....,4(see Complaint, ¶ 23), but he does not 

allege any facts demonstrating his inability to communicate with the physical store.5 Plaintiff has 

not alleged that there are any goods or services available only online that are inaccessible to him in 

the physical store. Similarly, Plaintiff alleges that he intends to patronize Defendant’s physical 

store once the Website’s access barriers are removed. See Complaint, ¶ 24. If there are other 

avenues for Plaintiff to access goods and services on the Website that may be available at the 

physical store, then he has failed to establish an intangible barrier. Plaintiff has not alleged any 

component of the Website that bars Plaintiff from accessing something at Defendant’s place of 

public accommodation (its brick-and-mortar store). Nor has Plaintiff alleged that some products or 

services are solely accessible online and unavailable in the physical store. Plaintiff’s disability 

claims, therefore, fail.

4. Allegations in the Complaint Do Not Establish that the Website Impedes 

Access to the Physical Store

Importantly, the “intangible barrier” must be a barrier to the use and enjoyment of 

Defendant’s physical store, not a barrier to the use and enjoyment of Defendant’s Website. Title III 

provides that “no individual shall be discriminated against on the basis of disability in the full and 

equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 

any place of public accommodation.” 42 U.S.C. § 12182(a) (emphasis added). The preposition 

“of” here connects “full and equal enjoyment” to “public accommodation[.]” It is this statutory 

language that the Rendon court framed the issue before it as whether the automated hotline 

4 Plaintiff is not guaranteed an identical shopping experience as the non-visually disabled public under the 

ADA. See Gil, 993 F.3d 1281 n. 20.

5 Plaintiff alleges that he intends to visit Defendant’s physical store but is unable to do so because he cannot 

communicate with Defendant due to his severe blindness and the Website’s access barriers. See Complaint, 

¶ 24. However, the only fact allegations Plaintiff made to support this conclusory allegation relate to the 

Website itself, not any attempted communication with the physical store.

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“screened out disabled persons from participation in a competition held in a tangible public 

accommodation.” Id. (emphasis added). 

Here, the Complaint’s allegations do not establish that Plaintiff cannot fully use and enjoy 

the goods and services at Defendant’s physical location. The Complaint does not allege that 

Plaintiff has visited Defendant’s store or has actual plans to use Defendant’s physical store. The 

Complaint certainly makes conclusory allegations that Plaintiff has been denied “full and equal 

access to, and enjoyment of, the goods, services, facilities, privileges, advantages, and 

accommodations provided by and through the Website and in the physical store,” but these 

boilerplate statements are not plausible without factual support. See Complaint, ¶¶ 37, 54, 74. At 

best, the Complaint alleges that Plaintiff is unable to participate in the same shopping experience, 

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

and in the physical store. See Complaint, ¶ 23. 

Like the Gil plaintiff, Plaintiff focuses on (1) services on the Website that are also available 

in the store and (2) conveniences of the Website that are unavailable to him, like the ability to preshop and educate himself on merchandise and to avoid the inconveniences of traveling outside of 

his home.6See Complaint, ¶¶ 18-20. But the ADA and Palm Beach Code do not guarantee the 

identical shopping experience, see Gomez, No. 1:16-CV-23801, 2017 WL 1957182, at *4; they 

guarantee that the Website not serve as an impediment to the physical shopping experience, and 

Plaintiff does not allege that he has been prevented from accessing the physical store’s services. 

Similarly, in the Declaration, attached as Exhibit B to the Complaint, Mr. Moody concludes that the 

Website’s “defects act as a barrier to the effective use and enjoyment of the site for persons with 

6 Plaintiff alleges that traveling outside of his home is a difficult and frightening experience and that he was 

left feeling excluded because he was unable to participate in the same shopping experience. (Complaint, ¶¶

18,23). Yet Judge Lenard rejected the same argument from the plaintiff in Gomez, 2017 WL 1957182, at 

*4, noting that his general grievances were unconnected to any harm that he suffered at the actual place of 

public accommodation and were, therefore, insufficient to survive a motion to dismiss.

Case 9:22-cv-81367-AMC Document 14 Entered on FLSD Docket 12/06/2022 Page 15 of 17
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low to no vision,” but he does not discuss how the Website impedes the full use and enjoyment of 

the physical store. See Complaint, Exhibit B, p. 3 (emphasis added). This misdirected allegation is 

not sufficient to make a claim under the ADA or Palm Beach Code.

Accordingly, the Website does not constitute an “intangible barrier” to Plaintiff’s ability to 

access and enjoy fully and equally Defendant’s physical store and, consequently, Plaintiff’s alleged 

inability to access the Website does not violate Title III of the ADA or the Palm Beach Code. The 

Complaint is devoid of a single allegation concerning Plaintiff’s use of Defendant’s physical store 

or how his experience on the Website impeded his actual experience at Defendant’s store. Rather, 

Plaintiff alleges that he “is and has been a customer who is interested in patronizing, and intends to 

patronize in the near future,” but he has not alleged definitive plans to visit Defendant’s only 

physical store and has not, in fact, visited such store.7See Complaint, ¶ 17. Plaintiff alleges that he 

plans to visit Defendant’s physical store “once the Website’s access barriers are removed or 

remedied,” (see Complaint, ¶ 24), but he does not allege that the absence of these auxiliary aids 

prevent him from accessing goods or services of Plaintiff’s physical store.

CONCLUSION

When Plaintiff’s allegations are analyzed under the plausibility analysis, they fail in several 

respects: Plaintiff alleges accessibility deficiencies with the Website, but fails to connect those 

deficiencies to his use and enjoyment of Defendant’s physical store; Plaintiff alleges that the 

Website is a point of sale, but fails to allege that any goods or services offered on the Website are 

Plaintiff’s only access to those goods or services; and Plaintiff alleges that he wants to patronize 

Defendant’s physical store once the accessibility barriers are removed, but fails to allege how he is 

prevented now from shopping at Defendant’s store. These pleading defects, upon review of 

7 Even the Declaration of Robert D. Moody submitted in support of the Complaint is limited to Mr. 

Moody’s audit of the Website and does not address how the alleged limitation on the Website affects 

Plaintiff’s ability to use Defendant’s physical store. See Complaint, Exhibit B. The Moody Declaration is 

limited to the alleged barriers associated with the use of the Website alone. 

Case 9:22-cv-81367-AMC Document 14 Entered on FLSD Docket 12/06/2022 Page 16 of 17
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Rendon and Gil, demonstrate that Plaintiff falls short of plausibly pleading a claim under Title III 

of the ADA and the Palm Beach Code. For the foregoing reasons, the Court should dismiss this 

action in its entirety, because Plaintiff has failed to state a claim upon which relief may be granted 

as to Count I and Count II.

Dated: December 6, 2022 Respectfully submitted,

MCMICHAEL TAYLOR GRAY, LLC

/s/ Ashley Elmore Drew

Ashley Elmore Drew FL Bar No. 87236

Andrew Kamensky FL Bar No. 0127575

Attorneys for Defendant Koko Atlantic LLC

3275 W. Hillsboro Blvd., Suite 312

Deerfield Beach, FL 33442

Phone: (404) 474-7149

Fax: (404) 745-8121

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on December 6, 2022, the foregoing document was filed with 

the Clerk of Court using CM/ECF. We also certify that a true and correct copy of the foregoing 

document is being served on this day upon: Roderick V. Hannah, Esquire, 4800 North Hiatus Road, 

Sunrise, Florida 33351-7919; kflynn@rhannahlaw.com; rhannah@rhannahlaw.com, either via 

transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized 

manner for those counsel or parties who are not authorized to receive electronic Notices of Filing.

MCMICHAEL TAYLOR GRAY, LLC

/s/ Ashley Elmore Drew

Ashley Elmore Drew FL Bar No. 87236

Andrew Kamensky FL Bar No. 0127575

Attorneys for Defendant Koko Atlantic LLC

3275 W. Hillsboro Blvd., Suite 312

Deerfield Beach, FL 33442

Phone: (404) 474-7149

Fax: (404) 745-8121

Case 9:22-cv-81367-AMC Document 14 Entered on FLSD Docket 12/06/2022 Page 17 of 17