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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 

NELSON FERNANDEZ, 

Plaintiff,

vs.

THE FRESH MARKET, INC.,

a foreign for-profit corporation,

Defendant.

____________________________/

COMPLAINT

Plaintiff NELSON FERNANDEZ, through undersigned counsel, sues Defendant THE 

FRESH MARKET, INC., a foreign for-profit corporation, and alleges as follows:

1. This is an action for declaratory and injunctive relief, attorney’s fees, costs, and 

litigation expenses for unlawful disability discrimination in violation of Title III of the Americans 

with Disabilities Act, 42 U.S.C. §§12181-12189 (“ADA”), as amended, and 28 C.F.R. Part 36. 

This is also an action for declaratory and injunctive relief to prevent the continuing act of trespass 

against the Plaintiff’s personal property (his personal computer and its hard drive), and for 

compensatory damages to Plaintiff for such trespass. Remedies provided under common law for 

trespass are not exclusive and may be sought in connection with suits brought under the ADA.

 2. This Court has jurisdiction over this case based on federal question jurisdiction, 28 

U.S.C. §1331, and the provisions of the ADA. Plaintiff seeks declaratory and injunctive relief 

pursuant to 28 U.S.C. §§2201 and 2202. In addition, this Court has supplementary jurisdiction 

over Plaintiff’s common law tort claim pursuant to 28 U.S.C. §1367.

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3. Venue is proper in this Court as all actions complained of herein and injuries and 

damages suffered occurred in the Southern District of Florida.

4. Plaintiff NELSON FERNANDEZ is a resident of Palm Beach County, Florida, is 

sui juris, and is disabled as defined by the ADA and ADA Amendments Act of 2008, 42 U.S.C. 

§12101 (“ADAAA”).

5. Plaintiff is and at all relevant times has been a visually impaired and physically 

disabled person who has been diagnosed with Relapsing-Remitting Multiple Sclerosis (“RRMS”). 

As a result of his disease, Plaintiff is currently paralyzed in approximately 80% to 90% of his body 

as a whole and only has very limited use of his left hand. Further as a consequence of his disease, 

Plaintiff has developed optic neuritis and is visually disabled, with complete blindness in one eye 

and very limited vision in the other eye. Plaintiff thus is substantially limited in performing one 

or more major life activities, including, but not limited to, seeing and accurately visualizing his 

world and adequately traversing obstacles. As such, he is a member of a protected class under the 

ADA, 42 U.S.C. §12102(1)-(2), the regulations implementing the ADA set forth at 28 CFR 

§§36.101, et seq., and 42 U.S.C. §3602(h). Plaintiff further is an advocate of the rights of similarly 

situated disabled persons and is a “tester” for the purposes of asserting his civil rights and 

monitoring, ensuring, and determining whether places of public accommodation and/or their 

respective and associated websites are in compliance with the ADA, the Rehab Act, and any other 

applicable disability laws, regulations, and ordinances. 

6. Because he is visually disabled, Plaintiff cannot use his computer without the 

assistance of appropriate and available auxiliary aids, screen reader software, and other technology 

and assistance. Screen reader software translates the visual internet into an auditory equivalent. 

At a rapid pace, the software reads the content of a webpage to the user. “The screen reading 

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software uses auditory cues to allow a visually impaired user to effectively use websites. For 

example, when using the visual internet, a seeing user learns that a link may be ‘clicked,’ which 

will bring him to another webpage, through visual cues, such as a change in the color of the text 

(often text is turned from black to blue). When the sighted user's cursor hovers over the link, it 

changes from an arrow symbol to a hand. The screen reading software uses auditory -- rather than 

visual -- cues to relay this same information. When a sight impaired individual reaches a link that 

may be ‘clicked on,’ the software reads the link to the user, and after reading the text of the link 

says the word ‘clickable.’...Through a series of auditory cues read aloud by the screen reader, the 

visually impaired user can navigate a website by listening and responding with his keyboard.” 

Andrews v. Blick Art Materials, LLC, 17-CV-767, 2017 WL 6542466, at *6-7 (E.D.N.Y. Dec. 21, 

2017).

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

business in the State of Florida. Defendant owns, operates, and/or controls a chain of 159 grocery

stores, including one of the stores Plaintiff intended to patronize in the near future located at 1727 

S. Federal Highway, Delray Beach, Florida. 

8. Plaintiff’s visual disability limits him in the performance of major life activities, 

including sight, and he requires assistive technologies, auxiliary aids, and services for effective 

communication, including communication in connection with his use of a computer. 

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

permanently visually disabled, to effectively communicate and comprehend information available 

on the internet and thereby access and comprehend websites, Plaintiff uses commercially available 

screen reader software to interface with the various websites.

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

operates, and/or controls a chain of grocery stores under the name “The Fresh Market”. Each The 

Fresh Market store is open to the public. As the owner and operator of these stores, Defendant is 

defined as a place of “public accommodation" within meaning of the ADA because Defendant is 

a private entity which owns and/or operates “a bakery, grocery store, clothing store, hardware 

store, shopping center, or other sales or rental establishment,” per 42 U.S.C. §12181(7)(E) and 28 

C.F.R. §36.104(2).

11. Because Defendant is a store open to the public, each of Defendant’s physical stores 

is a place of public accommodation subject to the requirements of the ADA, 42 U.S.C. §12182, 

§12181(7)(E), and its implementing regulations, 28 C.F.R. Part 36. 

12. Defendant also controls, maintains, and/or operates an adjunct website, 

https://www.thefreshmarket.com (the “Website”). One of the functions of the Website is to 

provide the public information on the locations of Defendant’s stores through a “store locator” 

feature. Defendant also sells to the public its food products and merchandise through the Website, 

which acts as a point of sale for food products and merchandise available in, from, and through 

Defendant’s physical stores (but not necessarily the physical store Plaintiff intended to patronize). 

13. The Website also services Defendant’s physical stores by providing information on 

available products, services, tips and advice, editorials, sales campaigns, events, and other 

information that Defendant is interested in communicating to its customers.

14. Because the Website allows the public the ability to secure information about the 

locations of Defendant’s physical stores, purchase food products and merchandise also available 

for purchase in and from the physical stores, purchase gift cards for use online and in the physical 

stores, arrange in-store and curbside pickups of food products and merchandise purchased online, 

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

for use online and in the physical stores, the Website has a nexus to, and is an extension of and 

gateway to, the goods, services, privileges, and advantages of Defendant’s physical stores, which 

are places of public accommodation under the ADA. As an extension of and service, privilege, 

and advantage provided by a place of public accommodation as defined under the ADA, the 

Website is an extension of the services, privileges, and advantages made available to the general 

public by Defendant at and through its brick-and-mortar locations and businesses. Furthermore, 

the Website is a necessary service and privilege of Defendant’s physical stores in that, as a point 

of sale for the stores, it enables users of the Website to make online purchases of Defendant’s 

merchandise that is available from and in its physical stores (but not necessarily the physical store 

Plaintiff intended to patronize).

15. Because the public can view and purchase Defendant’s goods through the Website 

that are also offered for sale in Defendant’s physical stores, thus having the Website act as a point 

of sale for Defendant’s products also sold in the physical stores, purchase gift cards to make 

purchases both online and in the physical stores, arrange in-store and curbside pickups of 

merchandise purchased online, and sign up for an emailer to receive exclusive online offers, 

benefits, invitations, and discounts for use online and in the physical stores, the Website is an 

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

pursuant to the ADA, 42 U.S.C. §12181(7)(E). As such, the Website is a necessary service, 

privilege, and advantage of Defendant’s brick-and-mortar stores that must comply with all 

requirements of the ADA, must not discriminate against individuals with visual disabilities, and 

must not deny those individuals the same full and equal access to and enjoyment of the goods, 

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services, privileges, and advantages afforded the non-visually disabled public both online and in 

the physical stores.

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

operating, and/or controlling the Website. Since the Website is open to the public through the 

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

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

against individuals with visual disabilities, and must not deny those individuals the same full and 

equal access to and enjoyment of the goods, services, privileges, and advantages as afforded the 

non-visually disabled public both online and in the physical stores. As such, Defendant has 

subjected itself and the Website to the requirements of the ADA.

17. Plaintiff is and has been a customer who is interested in patronizing, and intends to 

patronize in the near future once the Website’s access barriers are removed or remedied, 

Defendant’s physical stores (including the store located at 1727 S. Federal Highway, Delray 

Beach, Florida), and to search for the brick-and-mortar stores, check store hours, check food 

product and merchandise pricing, purchase food products and merchandise, purchase gift cards, 

arrange in-store and curbside pickups of food products and merchandise purchased online, and 

sign up for an emailer to receive exclusive offers, benefits, invitations, and discounts for use at the 

Website or in Defendant’s physical stores. In the alternative, Plaintiff intends to monitor the 

Website in the near future as a tester to ascertain whether it has been remedied and updated to 

interact properly with screen reader software. 

18. The opportunity to shop and pre-shop Defendant’s food products and merchandise, 

purchase gift cards online, arrange in-store and curbside pickups, and sign up for an emailer to 

receive exclusive online offers, benefits, invitations, and discounts for use both online and in the 

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physical stores from his home are important and necessary accommodations for Plaintiff because 

traveling outside of his home as a visually disabled individual is often a difficult, hazardous, 

frightening, frustrating, and confusing experience. Defendant has not provided its business 

information in any other digital format that is accessible for use by blind and visually disabled 

individuals using screen reader software.

19. Like many consumers, Plaintiff accesses a number of websites at a time to help plan 

his store visits and compare merchandise, prices, sales, discounts, and promotions. Plaintiff may 

look at several dozens of sites to compare features, discounts, promotions, and prices.

20. During the month of September 2022, Plaintiff attempted on a number of occasions 

to utilize the Website to browse through the food products, merchandise, and online offers to 

educate himself as to the products, merchandise, services, sales, discounts, and promotions being 

offered, learn about the brick-and-mortar stores, check store hours, and check product pricing with 

the intent to make a purchase through the Website or in one of the physical stores. Plaintiff also 

attempted to access and utilize the Website in his capacity as a tester to determine whether it was 

accessible to blind and visually disabled persons such as himself who use screen reader software 

to access and navigate company websites.

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

blind and visually disabled to communicate with websites. However, Defendant’s Website 

contains access barriers that prevent free and full use by blind and visually disabled individuals 

using keyboards and available screen reader software. These barriers are pervasive and include, 

but are not limited to: 

a. The basket also known as the shopping cart is inaccessible;

b. Set up the filter to all and the product pictures, price, and information is inaccessible 

when using a keyboard;

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c. Product prices are mislabeled and read both regular price, sale price, and price per pound 

without any description as to what each price represents; and

d. Abbreviation such as "ea" which represents "each" is read by the screen reader as letters 

"e" and "a" rather than the word it is to represent.

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

Website that would direct him to a webpage with contact information for disabled individuals who

have questions or concerns about, or who are having difficulties communicating with, the

Website. Although the Website appeared to have an “accessibility” statement displayed, that

“accessibility” statement, when tested, still could not be effectively accessed by, and continued to

be a barrier to, blind and visually disabled persons, including Plaintiff. Plaintiff, thus, was unable

to receive any meaningful or prompt assistance through the “accessibility” statement to enable him

to quickly, fully, and effectively navigate the Website.

23. The fact that Plaintiff could not communicate with or within the Website left him 

feeling excluded, as he is unable to participate in the same shopping experience, with the same 

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

physical stores as the non-visually disabled public.

24. Plaintiff desires and intends, in the near future once the Website’s access barriers 

are removed or remedied, to patronize Defendant’s physical stores and to use the Website, but he 

is presently unable to do so as he is unable to effectively communicate with Defendant due to his 

severe visual disability and the Website’s access barriers. Alternatively, as a tester using screen

reader software, Plaintiff is unable to effectively access, navigate, and communicate with 

Defendant through the Website due to his severe visual disability and the Website’s access barriers. 

Thus, Plaintiff, as well as others who are blind and with visual disabilities, will suffer continuous 

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and ongoing harm from Defendant’s intentional acts, omissions, policies, and practices as set forth 

herein unless properly enjoined by this Court.

25. Because of the nexus between Defendant’s retail stores and the Website, and the 

fact that the Website clearly provides support for and is connected to Defendant’s retail stores for 

its operation and use, the Website is an intangible service, privilege, and advantage of Defendant’s 

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

against individuals with disabilities, and must not deny those individuals the same full and equal 

access to and enjoyment of the goods, services, privileges, and advantages as afforded the nonvisually disabled public both online and in the physical stores, which are places of public 

accommodations subject to the requirements of the ADA.

26. On information and belief, Defendant has not initiated a Web Accessibility Policy 

to ensure full and equal use of the Website by individuals with disabilities.

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

Committee to ensure full and equal use of Website by individuals with disabilities.

28. On information and belief, Defendant has not designated an employee as a Web 

Accessibility Coordinator to ensure full and equal use of the Website by individuals with 

disabilities.

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

Accessibility Testing Group to ensure full and equal use of the Website by individuals with 

disabilities.

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

Testing Group to ensure full and equal use of the Website by individuals with disabilities.

31. On information and belief, Defendant has not instituted a Bug Fix Priority Policy.

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32. On information and belief, Defendant has not instituted an Automated Web 

Accessibility Testing program. 

33. Defendant has not created and instituted an effective Specialized Customer 

Assistance line or service or email contact mode for customer assistance for the visually disabled.

34. Defendant has not created and instituted on the Website a useable and effective 

page for individuals with disabilities, nor displayed a link and information hotline, nor created an 

information portal explaining when and how Defendant will have the Website, applications, and 

digital assets accessible to the visually disabled or blind community.

35. The Website does not meet the Web Content Accessibility Guidelines (“WCAG”) 

2.0 Level AA or higher versions of web accessibility.

36. Defendant has not disclosed to the public any intended audits, changes, or lawsuits 

to correct the inaccessibility of the Website to visually disabled individuals who want the safety 

and privacy of purchasing Defendant’s merchandise offered on the Website online from their 

homes.

37. Defendant thus has not provided full and equal access to, and enjoyment of, the 

goods, services, facilities, privileges, advantages, and accommodations provided by and through 

the Website and the physical stores in contravention of the ADA.

38. Public accommodations under the ADA must ensure that their places of public 

accommodation provide effective communication for all members of the general public, including 

individuals with visual disabilities such as Plaintiff.

39. The broad mandate of the ADA is to provide an equal opportunity for individuals 

with disabilities to participate in and benefit from all aspects of American civic and economic life. 

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That mandate extends to internet shopping Websites, such as the Website at issue in the instant 

action.

40. Defendant is, and at all relevant times has been, aware of the barriers to effective 

communication within the Website which prevent individuals with visual disabilities from the 

means to comprehend information presented therein.

41. Defendant is, and at all relevant times has been, aware of the need to provide full 

access to all visitors to the Website.

42. The barriers that exist on the Website result in discriminatory and unequal 

treatment of individuals with visual disabilities, including Plaintiff.

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

alleged hereinabove, and this suit for declaratory judgment and injunctive relief is his only means 

to secure adequate and complete redress from Defendant’s unlawful and discriminatory practices 

in connection with its website access and operation.

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

violations. 

45. Enforcement of Plaintiff’s rights under the ADA is right and just pursuant to 28 

U.S.C. §§2201 and 2202.

46. Plaintiff has retained the undersigned attorneys to represent him in this case and 

has agreed to pay them a reasonable fee for their services.

Trespass Violations

47. Plaintiff utilizes his computer to access websites such as the Website. 

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

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

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49. When a user accesses the Website, Defendant places information tracking and 

gathering software on the user’s personal computer and hard drive without the user’s advance 

consent or knowledge. Defendant also plants browser cookies on a user’s computer and hard drive 

to identify websites that the user has previously visited by accessing the user’s web browser 

history.

50. Defendant informs the Website user that the user’s personal information and 

browsing history is collected and is used for targeted marketing and advertising. However, 

because of his blindness, Plaintiff was unable to comprehend the Website; therefore, Plaintiff had 

no choice, and likewise no knowledge, of Defendant’s installation of data and information tracking 

and gathering software on his computer and the collection of Plaintiff’s browsing history and 

analytics.

51. Thus, through the Website, Defendant has committed a trespass against Plaintiff, 

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

without Plaintiff’s knowledge or consent.

COUNT I – VIOLATION OF THE ADA

52. Plaintiff re-alleges paragraphs 1 through 46 as if set forth fully herein.

53. Pursuant to 42 U.S.C. §12181(7)(E), Defendant is a public accommodation under 

the ADA and thus is subject to the ADA.

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

because it provides the general public with the ability to locate and learn about Defendant’s stores, 

purchase food products and merchandise that is also available for purchase from and in the physical 

stores, purchase gift cards for use both online and in the physical stores, arrange in-store and 

curbside pickups of food products and merchandise purchased online, and sign up for an emailer 

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to receive exclusive online offers, benefits, invitations, and discounts for use both online and in 

the physical stores. The Website thus is an extension of, gateway to, and intangible service, 

privilege, and advantage of Defendant’s physical stores. Further, the Website also serves to 

augment Defendant’s physical stores by providing the public information about the stores and by 

educating the public as to Defendant’s available food products and merchandise sold through the 

Website and in the physical stores.

55. Under Title III of the ADA, 42 U.S.C. §12182(b)(1)(A)(II), it is unlawful 

discrimination to deny individuals with disabilities or a class of individuals with disabilities an 

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

or accommodation, which is equal to the opportunities afforded to other individuals.

56. Specifically, under Title III of the ADA, 42 U.S.C. §12182(b)(2)(A)(II), unlawful 

discrimination includes, among other things, “a failure to make reasonable modifications in 

policies, practices, or procedures, when such modifications are necessary to afford such goods, 

services, facilities, privileges, advantages, or accommodations to individuals with disabilities, 

unless the entity can demonstrate that making such modifications would fundamentally alter the 

nature of such goods, services, facilities, privileges, advantages or accommodations.”

57. In addition, under Title III of the ADA, 42 U.S.C. §12182(b)(2)(A)(III), unlawful 

discrimination includes, among other things, “a failure to take such steps, as may be necessary to 

ensure that no individual with a disability is excluded, denied services, segregated or otherwise 

treated differently than other individuals because of the absence of auxiliary aids and services, 

unless the entity can demonstrate that taking such steps would fundamentally alter the nature of 

the good, service, facility, privilege, advantage, or accommodation being offered or would result 

in an undue burden.”

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58. Defendant’s Website must comply with the ADA, but it does not as specifically 

alleged hereinabove and below.

59. Because of the inaccessibility of the Website, individuals with visual disabilities

are denied full and equal access to and enjoyment of the goods, information, and services that 

Defendant has made available to the public on the Website and in the physical stores in violation 

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

60. The Website was subsequently visited by Plaintiff’s expert in September 2022

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

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

several prior ADA accessibility lawsuits, which likely resulted in confidential settlement

agreements that obligated Defendant to fully remediate the Website, Defendant has made

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

by, and accessibility to, blind and visually disabled persons such as Plaintiff. Also, when the

Website was visited by the expert, although the Website appeared to have an “accessibility”

statement linked from its home page, that “accessibility” statement, when tested, still could not be

effectively used or accessed by, and continued to be a barrier to, blind and visually disabled persons

such as Plaintiff. Defendant thus has not disclosed to the public any intended audits, changes, or

lawsuits to correct the inaccessibility of the Website to visually disabled individuals, nor has it

posted on the Website an effective and useful “accessibility” notice, statement, or policy to provide

blind and visually disabled person such as Plaintiff with a viable alternative means to access and

navigate the Website. Defendant thus has failed to make reasonable modifications in its policies,

practices, or procedures when such modifications are necessary to afford goods, services, facilities,

privileges, advantages, or accommodations to individuals with disabilities, in violation of 28

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C.F.R. §36.302. The lack of a viable and effective “accessibility” notice, policy, or statement and

the numerous access barriers as set forth in the Declaration of Plaintiff’s expert, Robert D. Moody,

attached hereto as Composite Exhibit “A” and the contents of which are incorporated herein by

reference, continue to render the Website not fully accessible to users who are blind and visually

disabled, including Plaintiff.

61. More violations may be present on other pages of the Website, which can and will 

be determined and proven through the discovery process in this case.

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

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

accessibility facts.

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

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

other large business entities in making their websites accessible. Examples of such guidelines 

include, but are not limited to, adding alt-text to graphics and ensuring that all functions can be 

performed using a keyboard. Incorporating such basic components to make the Website accessible 

would neither fundamentally alter the nature of Defendant’s business nor would it result in an 

undue burden to Defendant.

64. Defendant has violated the ADA -- and continues to violate the ADA -- by denying 

access to the Website by individuals such as Plaintiff with visual disabilities who require the 

assistance of interface with screen reader software to comprehend and access internet websites. 

These violations within the Website are ongoing.

65. The ADA requires that public accommodations and places of public 

accommodation ensure that communication is effective. 

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66. According to 28 C.F.R. §36.303(b)(1), auxiliary aids and services include “voice, 

text, and video-based telecommunications products and systems”. Indeed, 28 C.F.R. 

§36.303(b)(2) specifically states that screen reader software is an effective method of making 

visually delivered material available to individuals who are blind or have low vision.

67. According to 28 C.F.R. §36.303(c), public accommodations must furnish 

appropriate auxiliary aids and services where necessary to ensure effective communication with 

individuals with disabilities: “In order to be effective, auxiliary aids and services must be provided 

in accessible formats, in a timely manner, and in such a way as to protect the privacy and 

independence of the individual with a disability,” 28 C.F.R. §36.303(c)(1)(ii).

68. 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.

69. As alleged hereinabove, the Website has not been designed to interface with the 

widely and readily available technologies that can be used to ensure effective communication, and 

thus violates the ADA.

70. As a direct and proximate result of Defendant’s failure to provide an ADA 

compliant Website, with a nexus to its brick-and-mortar stores, Plaintiff has suffered an injury in 

fact by being denied full access to, enjoyment of, and communication with Defendant’s Website 

and its physical stores. 

71. Because of the inadequate development and administration of the Website, Plaintiff 

is entitled to injunctive relief pursuant to 42 U.S.C. §12133 and 28 C.F.R. §36.303, to remedy the 

ongoing disability discrimination. 

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72. Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to grant 

Plaintiff appropriate and necessary injunctive relief, including an order to: 

a) Require Defendant to adopt and implement a web accessibility policy to make publicly 

available and directly link from the homepage of the Website to a functional statement as to the 

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

of the goods, services, facilities, privileges, advantages, and accommodations through the Website

and its physical stores.

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

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

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

disabilities to access the information available on the Website until such time that the requisite 

modifications are made, and 

c) Require Defendant to provide the appropriate auxiliary aids such that individuals with 

visual disabilities will be able to effectively communicate with the Website for purposes of 

viewing and locating Defendant’s physical stores and becoming informed of and purchasing 

Defendant’s food products and merchandise, and during that time period prior to the Website’s 

being designed to permit individuals with visual disabilities to effectively communicate, to provide 

an alternative method for individuals with visual disabilities to effectively communicate for such 

goods and services made available to the general public through the Website and the physical 

stores. 

73. Plaintiff is entitled to recover his reasonable attorney’s fees, costs, and expenses 

pursuant to the ADA. To that end, Plaintiff has been obligated to retain the undersigned counsel 

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for the filing and prosecution of this action and has agreed to pay them a reasonable fee for their 

services. 

WHEREFORE, Plaintiff requests entry of judgment in his favor and against Defendant for 

the following relief:

A. A declaration that Defendant’s Website is in violation of the ADA;

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

to monitor and update the Website on an ongoing basis, to remove barriers in order that 

individuals with visual disabilities can access, and continue to access, the Website and 

effectively communicate with the Website to the full extent required by Title III of the 

ADA; 

C. An Order requiring Defendant, by a date certain, to clearly display the universal 

disabled logo within the Website, wherein the logo1 would lead to a page which would 

state Defendant’s accessibility information, facts, policies, and accommodations. Such 

a clear display of the disabled logo is to ensure that individuals who are disabled are 

aware of the availability of the accessible features of the Website;

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

accessibility by implementing a website accessibility coordinator, a website application 

accessibility policy, and providing for website accessibility feedback to ensure 

compliance thereto;

1 or similar.

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E. An Order directing Defendant, by a date certain, to evaluate its policies, practices and 

procedures toward persons with disabilities, for such reasonable time to allow 

Defendant to undertake and complete corrective procedures to its Website;

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

accessibility and accessibility features for the Website to ensure effective 

communication for individuals who are visually disabled;

G. An Order requiring, by a date certain, that any third-party vendors who participate on 

Defendant’s Website to be fully accessible to the visually disabled;

H. An Order directing Defendant, by a date certain and at least once yearly thereafter, to 

provide mandatory web accessibility training to all employees who write or develop 

programs or code for, or who publish final content to, the Website on how to conform 

all web content and services with ADA accessibility requirements and applicable 

accessibility guidelines;

I. An Order directing Defendant, by a date certain and at least once every three months 

thereafter, to conduct automated accessibility tests of the Website to identify any 

instances where the Website is no longer in conformance with the accessibility 

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

directing Defendant to send a copy of the twelve (12) quarterly reports to Plaintiff’s 

counsel for review;

J. An Order directing Defendant, by a date certain, to make publicly available and directly 

link from the Website homepage, a statement of Defendant’s Accessibility Policy to 

ensure the persons with disabilities have full and equal enjoyment of the Website and 

Case 9:22-cv-81564-XXXX Document 1 Entered on FLSD Docket 10/11/2022 Page 19 of 22
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shall accompany the public policy statement with an accessible means of submitting 

accessibility questions and problems; 

K. An award to Plaintiff of her reasonable attorney’s fees, costs and expenses; and

L. Such other and further relief as the Court deems just and equitable. 

COUNT II – TRESPASS

74. Plaintiff re-alleges paragraphs 1 through 51 as if set forth fully herein.

75. Plaintiff’s tangible personal property, being his computer and the personal 

information and browsing history stored therein, has suffered a trespass by Defendant on each and 

every date that the Plaintiff has accessed Defendant’s Website, due to Defendant’s employment of 

information tracking and gathering software and analytics which are present on and through the 

Website.

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

was placing the information tracking and gathering software on his computer and its hard drive 

due to his visual disability and his inability to effectively communicate with and fully view and 

access the Website.

77. Plaintiff did not consent to the placement of information tracking and gathering 

software on his computer and its hard drive; therefore, Defendant has committed a trespass against 

Plaintiff by placing such software on his computer and its hard drive without his knowledge or 

consent.

78. By the acts described hereinabove, Defendant has repeatedly and persistently 

engaged in trespass of Plaintiff’s personal property in violation of Florida common law against 

trespass to chattel.

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79. Defendant’s installation, operation, and execution of information tracking and 

gathering software on Plaintiff’s computer have directly and proximately impaired the condition 

and value of the Plaintiff’s computer, thereby causing Plaintiff damages.

80. The Website has a “Privacy Policy” that discusses the automatic gathering of 

information from and the automatic placement of cookies and other information gathering software 

on, computers of users of the Website such as Plaintiff. A copy of that “Privacy Policy” is attached 

hereto as Exhibit “B” and its contents are incorporated herein by reference.

81. Defendant’s trespass to chattel, nuisance, and interference has caused real and 

substantial damage to Plaintiff as follows:

a) By consuming the resources of and/or degrading the performance of Plaintiff’s 

computer (including space, memory, processing cycles, and internet connectivity);

b) By infringing on Plaintiff’s right to exclude others from his computer;

c) By infringing on Plaintiff’s right to determine, as the owner of his computer , which 

programs should be installed and operated on his computer;

d) By compromising the integrity, security, and ownership of Plaintiff’s computer ; and

e) By forcing Plaintiff to expend money, time, and resources in order to remove the 

programs that had been installed on his computer without notice or consent.

82. Defendant’s actions were taken knowingly, willfully, intentionally, and in reckless 

disregard for Plaintiff’s rights under the law.

WHEREFORE, Plaintiff demands a judgment be entered against Defendant for all of 

Plaintiff’s compensatory damages, interest, costs, and such further relief as the Court deems just 

and equitable.

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DATED: October 11, 2022.

RODERICK V. HANNAH, ESQ., P.A. LAW OFFICE OF PELAYO

Counsel for Plaintiff DURAN, P.A.

4800 N. Hiatus Road Co-Counsel for Plaintiff

Sunrise, FL 33351 4640 N.W. 7th Street

T. 954/362-3800 Miami, FL 33126-2309

954/362-3779 (Facsimile) T. 305/266-9780 

Email: rhannah@rhannahlaw.com 305/269-8311 (Facsimile)

Email: duranandassociates@gmail.com 

By: s/ Roderick V. Hannah By: s/ Pelayo M. Duran 

RODERICK V. HANNAH PELAYO M. DURAN

Fla. Bar No. 435384 Fla. Bar No. 0146595

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