The American Society for Pharmacy Law (ASPL) is an organization of attorneys, pharmacists, pharmacist-attorneys and students of pharmacy or law who are interested in the law as it applies to
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April 14, 2021

ADA
11th Circuit: Websites are not places of public accommodation; they are intangible barriers if they are an essential portal to an entity’s services
A divided panel of the 11th Circuit held on April 7 that Winn-Dixie’s website, provided as a convenience for consumers, and which includes the opportunity to request prescription refills online, among other services, is not a “public accommodation” under the Americans with Disability Act.

Winn-Dixie is a grocery chain that operates pharmacies in its stores. Among its customer services is a website that allows users to link digital manufacturer coupons to the customer’s Winn-Dixie rewards card, so that they are applied automatically at checkout, and to request refills for existing prescriptions online. These particular functions are at issue in a lawsuit filed by the legally blind plaintiff who was a customer of the chain for over 15 years who visited the store physically to shop and occasionally fill prescriptions. Upon learning of the website, he discovered it was not compatible with screen reader software, which vocalizes website content.

In 2016, he filed suit under Title III of the ADA, alleging that he was a Winn-Dixie customer who was “interested in filling/refilling pharmacy prescriptions on-line,” but could not do so on the website. He alleged that the website itself was “a place of public accommodation under the ADA,” and that Winn-Dixie “ha[d] not provided full and equal enjoyment of the services, facilities, privileges, advantages and accommodations provided by and through its website www.winndixie.com.” Following a bench trial, the district court granted an injunction requiring Winn-Dixie to conform its website to Web Content Accessibility Guidelines 2.0, and to implement a Web Accessibility Policy.

On appeal, Winn-Dixie asserts three issues: (1) the plaintiff’s standing; (2) whether websites are places of public accommodation under Title III of the ADA; and (3) whether the district court erred. The Court found that the plaintiff had standing.

The ADA prohibits discrimination in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ... [emphasis in original]” The ADA in Title III lists private entities that are considered public accommodations, including grocery stores. As noted by the Court, this “expansive list ... does not include websites.” Similarly, the Court said, DOJ regulations “echo[] the language of the statute, listing a plethora of physical spaces... not including websites.” The Court held that the statutory language “is unambiguous and clear ... All of the[] listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. ... We hold that websites are not a place of public accommodation under Title III of the ADA.”

The analysis was not complete, because it is possible that Winn-Dixie had created “intangible barriers” to access that might violate the ADA. It is a violation for an entity “refuses to provide a reasonable auxiliary service that would permit the disabled to gain access to or use its goods and services,” citing Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002). The Court distinguished Rendon, because in that case the defendants provided only a single access point that excluded disabled persons. In the present case, Winn-Dixie’s website has “only limited functionality. More importantly, it is not a point of sale; all purchases must occur at the store.  Further, all interactions with Winn-Dixie which can be (although need not be) initiated on the website must be completed in-store: prescription pick-ups and redemption of coupons.”

The Court distinguished its holding in the instant case from Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), because Domino’s website was in fact a portal for ordering pizzas, including requesting deliveries. The limitations of the website did provide intangible barriers to disabled persons from fully utilizing Domino’s services; this, according to the Court, makes Robles unpersuasive, “either factually or legally.” [Gil v. Winn-Dixie Stores, Inc., No. 17-13467, 11th Cir., April 7, 2021]