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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.:

JAMES WATSON

Plaintiff,

v. 

PHAT BOY SUSHI, INC., 

d/b/a Phat Boy Sushi, Kitchen & Bar 

Defendant. 

 / 

COMPLAINT FOR INJUNCTIVE RELIEF

Plaintiff James Watson (“Plaintiff”) hereby sues Defendant, Phat Boy Sushi, Inc. 

(“Defendant”) doing business as Phat Boy Sushi, Kitchen & Bar, 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

of a protected class under the ADA, 42 U.S.C. §§ 12102(1)-(2), the regulations implementing the

ADA set forth at 28 CFR §§ 36.101 et seq. and in 42 U.S.C. 3602, §802(h). Plaintiff is substantially

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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, Phat Boy Sushi, Inc., is a Florida Profit Corporation which owns and 

operates a place of public accommodation, a restaurant with a modern twist on Japanese food, for 

a memorable dining experience in a hip, inviting atmosphere, surrounded by creative Japanese art, 

branded as “Phat Boy Sushi, Kitchen & Bar” Defendant’s restaurant is located at 4100 N Federal 

Hwy, Ft. Lauderdale, Florida 33308, and is open to the public. As such, it is a Place of Public 

Accommodation subject to the requirements of Title III of the ADA and 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 

Phat Boy Sushi, Inc. restaurant is also referenced herein as “place of public accommodation,” 

“Phat Boy Sushi” or “restaurant.”

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

because Defendant is a private entity which owns and/or operates “[A] restaurant, bar, or other

establishment serving food or drink,” 42 U.S.C. §12181(7)(B) and 28 C.F.R. §36.104(2). 

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

be constructed, and/or became a beneficiary of the https://phatboysushi.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, “Phat Boy Sushi”. The mobile website 

delineates the goods, services, accommodations, privileges, benefits and facilities available to 

patrons at “Phat Boy Sushi” restaurant. 

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

Boy Sushi’s menu selections, hours of operation, restaurant locations, special events menus, place 

an order online, and provides other information Defendant seeks to communicate to the public.

The mobile website provides a link to reserve a table for dining within the Oakland Park, 

Downtown, and Coral Springs restaurant location (including Defendant’s restaurant) and allows 

the public to obtain information about private dining and catering and has a link for the public to 

inquire about such reservation for events. The mobile website also links to the “Phat Boy Sushi”

Facebook and Instagram pages. By the provision of menu selection, reservation services, and the 

ability to inquire about private dining and catering online, the mobile website is an integral part of 

the goods and services offered by Defendant at its “Phat Boy Sushi” restaurants. By this nexus, 

the mobile website is characterized as a Place of Public Accommodation to Title III of the ADA1

, 

42 U.S.C. § 12181(7)(B) 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 

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10. The mobile website allows mobile device users to use a mobile platform through a 

connection to Wi-Fi or cellular data so that users can manage their dining choice from their mobile 

device. As such, the mobile website is subject to the ADA because it is offered as a tool to promote, 

advertise and sell products and services from Defendant’s restaurant, which is a place of public 

accommodation. As a result, the mobile website must interact with the public, and in doing so must 

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

and may not deny full and equal enjoyment of the goods and services afforded to the general 

public2. 

11. The mobile website does not properly interact with the VoiceOver screen reader 

software technology in a manner that allows blind and visually impaired individuals to 

comprehend the mobile website and does not provide other means to accommodate blind and 

visually impaired individuals.

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

the https://phatboysushi.com/ mobile website to test whether he can comprehend the “Phat Boy 

Sushi” restaurant menu selections, test for the ability to make reservations or test for the ability to 

order food. However, unless Defendant is required to eliminate the barriers to Plaintiff’s ability to 

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 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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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.

13. 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 unless he is willing to suffer additional discrimination.

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

to all visitors to the mobile website as such barriers result in discriminatory and unequal treatment

of individuals with disabilities who are visually impaired and result in punishment and isolation

of blind and low vision individuals from the rest of society.

15. 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

discriminatory practice.

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

violations. Enforcement of the rights of Plaintiff is right and just pursuant to 28 U.S.C. §§ 2201,

2202. 

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

Cunningham, PLLC and has agreed to pay a reasonable fee for services in the prosecution of this

cause, including costs and expenses incurred. Plaintiff is entitled to recover those attorney’s fees,

costs and expenses from Defendant pursuant to 42 U.S.C. §12205 and 28 CFR 36.505. 

COUNT I – VIOLATIONS OF TITLE III OF THE ADA

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

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

provision of auxiliary aids and services for such purpose.

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

“voice, text, and video-based telecommunications products and systems.” 28 C.F.R. Section

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

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

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

must furnish appropriate auxiliary aids and services where necessary to ensure effective

communication with individuals with disabilities. “In order to be effective, auxiliary aids and

services must be provided in accessible formats, in a timely manner, and in such a way as to protect

the privacy and independence of the individual with a disability.”

21. Part 36 of Title 28 of the C.F.R. was designed and is implemented to effectuate

subtitle A of Title III of the ADA, which prohibits discrimination on the basis of disability by

public accommodations and requires places of public accommodation to be designed, constructed,

and altered in compliance with the accessibility standards established by Part 36.

22. The “Phat Boy Sushi” mobile website has been designed to integrate with Phat Boy 

Sushi Kitchen & Bar restaurants through the provision of a reservation service and the ability to 

inquire about private events online. Defendant has extended its “Phat Boy Sushi” restaurants into 

individual persons' homes and portable devices wherever located through a mobile website which 

is a service, facility, privilege, advantage, benefit and accommodation of its restaurant. Because 

the mobile website is integrated with, and is a nexus to, Defendant’s brick-and-mortar restaurants, 

it is governed by the following provisions:

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

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

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privileges, advantages, or accommodations of any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public accommodation.”

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

subject an individual or class of individuals on the basis of a disability or disabilities of such

individual or class, directly, or through contractual, licensing, or other arrangements, to a denial

of the opportunity of the individual or class to participate in or benefit from the goods, services,

facilities, privileges, advantages, or accommodations of an entity[.]”

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

to afford an individual or class of individuals, on the basis of a disability or disabilities of such

individual or class, directly, or through contractual, licensing, or other arrangements with the

opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or

accommodation that is not equal to that afforded to other individuals[.]”

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

to provide an individual or class of individuals, on the basis of a disability or disabilities of such

individual or class, directly, or through contractual, licensing, or other arrangements with a good,

service, facility, privilege, advantage, or accommodation that is different or separate from that

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

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

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

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

privileges, advantages, and accommodations shall be afforded to an individual with a disability in

the most integrated setting appropriate to the needs of the individual.”

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

of separate or different programs or activities provided in accordance with this section, an

individual with a disability shall not be denied the opportunity to participate in such programs or

activities that are not separate or different.”

g. 42 U.S.C. Section 12182(b)(2)(ii) describes as discrimination: “a failure to

make reasonable modifications in policies, practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to

individuals with disabilities, unless the entity can demonstrate that making such modifications 

would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or 

accommodations[.]” 

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

take such steps as may be necessary to ensure that no individual with a disability is excluded, 

denied services, segregated or otherwise treated differently than other individuals because of the 

absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps 

would fundamentally alter the nature of the good, service, facility, privilege, advantage, or 

accommodation being offered or would result in an undue burden[.]” 

23. Plaintiff attempted to access and/or utilize the https://phatboysushi.com/ mobile 

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

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

website do not interface with VoiceOver screen reader software. Specifically, features of the 

mobile website that are inaccessible to VoiceOver screen reader software users include, but are 

not limited to, the following (citing the WCAG 2.1 Level A and AA Guidelines): 

i. Guideline 1.1.1. Non-Text Content is violated. Vegan dishes are identified by a leaf icon, 

but none of these icons are announced for any dishes so users do not hear the multiple 

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vegan options available. Note - an accessibility widget is present, but it only has options to 

high sighted users such as contrast and text size.

ii. Guideline 2.4.1 – Bypass Blocks is violated. Mobile SRUs cannot select a date in the Event 

field on the catering form. After the date picker popup is displayed, then focus moves to 

the form fields below the popup instead of the popup. Although the date picker was 

displayed in the screen capture, the Start Time and then the End Time fields were 

announced.

iii. Guideline 2.4.3 – Focus Order is violated. Focus doesn't move to the main menu popup 

when it's displayed. Instead of hearing the menu and submenu links displayed in this 

popup, focus remains on the underlying page and that content is announced.

iv. Guideline 2.4.4 – Link Purpose (In Context) is violated. After the five labeled links on the 

Locations page are announced, such as the Davie location link, then two additional 

unlabeled links are announced as only "location link." These are the two social media icons 

which are each incorrectly announced as "location link."

v. Guideline 4.1.2 – Name, Role, Value is violated. The Date and Time fields in the Private 

Events request form are incorrectly announced as 'combo boxes' when they are text fields. 

This will make it difficult for users to understand how to enter the required information.

24. In this instant case, the mobile website’s reservation system is linked to a thirdparty vendor. The fact that a portion of the WCAG 2.1 Level A and AA Guideline violations may 

be related to the third-party vendor’s reservation platform does not absolve Defendant of 

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

the requirements of Title III as well. 42 U.S.C. § 12181(7)(b). Those requirements include a

prohibition against subjecting patrons with disabilities to discrimination “through contractual,

licensing, or other arrangements,” such as use of third-party vendors’ inaccessible platforms for

making reservations. 42 U.S.C. § 12182(b)(1)(A); See Kohler v Bed Bath & Beyond of Cal., LLC,

780 F.3d 1260, 1264-66 (9th Cir. 2015) (Pre-existing obligations under Title III of the ADA may

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

compliance is under control of another party); Robles v. Yum! Brands, Inc., 2018 WL 566781, *4

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(C.D. Cal. January 24, 2018) (restaurant operators are liable for website and mobile app

accessibility where there is a nexus to the restaurants themselves).

25. As a beneficiary of the mobile website which serves as a gateway to Defendant’s

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

Plaintiff feeling excluded and rejected because he is disabled. As a result, Plaintiff has suffered

(and continues to suffer) frustration and humiliation as the result of the discriminatory conditions

present within the mobile website. By continuing to operate and/or be the beneficiary of a mobile 

website with discriminatory conditions, Defendant has contributed (and continues to contribute) 

to Plaintiff's sense of isolation and segregation and deprives Plaintiff the full and equal enjoyment 

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

By encountering the discriminatory conditions within the mobile website and knowing that it 

would be a futile gesture to attempt to utilize the mobile website unless he is willing to endure 

additional discrimination, Plaintiff is (and has been) deprived of the meaningful choice of freely 

visiting and utilizing the same accommodations readily available to the general public and is 

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

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

public.

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 24) either directly 

or through contractual, licensing or other arrangements. Defendant’s violations have resulted in 

Defendant denying Plaintiff accommodation on the basis of his disability:

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a. by depriving Plaintiff of the full and equal enjoyment of the goods, services, 

facilities, privileges, advantages, or accommodations of its place of public accommodation (42 

U.S.C. § 12182(a));

b. in the denial of providing Plaintiff the opportunity to participate in or benefit from 

the goods, services, facilities, privileges, advantages, or accommodations (42 U.S.C. § 

12182(b)(1)(A)(i));

c. in failing to afford Plaintiff the opportunity to participate in or benefit from a good, 

service, facility, privilege, advantage, or accommodation that is equal to that afforded to other 

individuals (42 U.S.C. § 12182(b)(1)(A)(ii));

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

accommodation that is different or separate from that provided to other individuals (unless such 

action is necessary to provide the individual or class of individuals with a good, service, facility, 

privilege, advantage, or accommodation, or other opportunity that is as effective as that provided 

to others) (42 U.S.C. § 12182(b)(1)(A)(iii));

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

accommodations in the most integrated setting appropriate to the needs of the disabled individual 

(42 U.S.C. § 12182(b)(1)(B));

f. notwithstanding the existence of separate or different programs or activities 

provided in accordance with this section, by denying Plaintiff the opportunity to participate in such 

programs or activities that are not separate or different. (42 U.S.C. § 12182(b)(1)(C));

g. by a failure to make reasonable modifications in policies, practices, or procedures, 

when such modifications are necessary to afford such goods, services, facilities, privileges, 

advantages, or accommodations to individuals with disabilities (unless the entity can demonstrate 

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that making such modifications would fundamentally alter the nature of such goods, services, 

facilities, privileges, advantages, or accommodations) (42 U.S.C. § 12182(b)(2)(ii)); and, 

h. by a failure to take such steps as necessary to ensure that disabled individuals are 

not excluded, denied services, segregated or otherwise treated differently than other individuals 

because of the absence of auxiliary aids and services (unless the entity can demonstrate that taking 

such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, 

or accommodation being offered or would result in an undue burden) (42 U.S.C. § 

12182(b)(2)(iii)).

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

https://phatboysushi.com/ and is aware that it would be a futile gesture to attempt to utilize the 

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

discrimination.

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

long after the required date of compliance, many public accommodations refuse to comply leaving

Plaintiff feeling excluded and rejected because he is disabled. As a result, Plaintiff has suffered 

(and continues to suffer) frustration and humiliation as the result of the discriminatory conditions 

present within the mobile website. By continuing to operate and/or be the beneficiary of a mobile 

website with discriminatory conditions, Defendant has contributed (and continues to contribute) 

to Plaintiff's sense of isolation and segregation and deprives Plaintiff the full and equal enjoyment 

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

By encountering the discriminatory conditions within the mobile website and knowing that it 

would be a futile gesture to attempt to utilize the mobile website unless he is willing to endure 

additional discrimination, Plaintiff is (and has been) deprived of the meaningful choice of freely 

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visiting and utilizing the same accommodations readily available to the general public and is 

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

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

public. 

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

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

of the ADA and conform the https://phatboysushi.com/ 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 the https://phatboysushi.com/

mobile website. Plaintiff has reasonable grounds to believe that he will continue to be subjected to

discrimination in violation of the ADA when he visits the 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 himself that this mobile website is in compliance with 

the ADA so that he and others similarly situated will have full and equal enjoyment of the mobile

website without fear of discrimination. 

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

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

discrimination, injury and damage without the immediate relief provided by the ADA 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 so 

that it is readily accessible to and usable by Plaintiff and other persons with vision impairments. 

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WHEREFORE, Plaintiff, James Watson hereby demands judgment against Defendant,

Phat Boy Sushi, Inc., d/b/a Phat Boy Sushi, Kitchen & Bar 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, 42 U.S.C. § 12181

et seq.;

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

failing to monitor and maintain 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 make

it accessible to, and useable by, individuals with disabilities to the full extent

required by Title III of the ADA;

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

such that Plaintiff (a visually impaired person) will be able to effectively

communicate with the mobile website for purposes of comprehending “Phat Boy 

Sushi” menu selections, for making reservations to dine within Defendant’s 

restaurant, and for inquiring about space for private dining events, 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.

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

and procedures towards persons with disabilities for such reasonable time so as to

allow Defendant to undertake and complete corrective procedures;

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

the mobile website to ensure that it remains fully accessible to and usable by

visually impaired individuals;

g. The Court award attorney’s fees, costs and litigation expenses pursuant to 42 U.S.C.

§ 12205; and, 

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

allowable under Title III of the Americans with Disabilities Act.

Respectfully submitted this December 8, 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

 

 Counsel for Plaintiff

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