Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`CASE NO.:
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`WINDY LUCIUS,
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`Plaintiff,
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`v.
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`GENERAL WIRELESS OPERATIONS INC.
`d/b/a RADIOSHACK,
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`Defendant.
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`COMPLAINT FOR INJUNCTIVE RELIEF
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`Plaintiff, WINDY LUCIUS, (“Plaintiff”), hereby sues the Defendant, GENERAL
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`WIRELESS OPERATIONS INC. d/b/a RADIOSHACK (“Defendant”), a foreign limited liability
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`company doing business in Florida, for Injunctive Relief, and attorney’s fees, litigation expenses,
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`and costs pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”).
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`1.
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`Plaintiff is a Florida resident, lives in Miami-Dade County, is sui juris, and qualifies
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`as an individual with disabilities as defined by the ADA. Plaintiff is blind and therefore unable to
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`fully engage in and enjoy the major life activity of seeing.
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`2.
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`Plaintiff also utilizes the internet. Plaintiff is unable to read computer materials
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`and/or access and comprehend internet website information without software specially designed
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`for the visually impaired. Specifically, Plaintiff utilizes the JAWS Screen Reader software, which is
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`one of the most popular reader Screen Reader Software ("SRS") utilized worldwide.
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`3.
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`Plaintiff is also an advocate of the rights of similarly situated disabled persons and
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`is a “tester” for the purpose of asserting her civil rights and monitoring, ensuring, and determining
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 2 of 10
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`whether places of public accommodation and/or their websites are in compliance with the ADA.
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`4.
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`Defendant owns, leases, leases to, or operates a place of public accommodation as
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`defined by the ADA and the regulations implementing the ADA, 28 CFR 36.201(a) and 36.104. The
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`place of public accommodation that the Defendant owns, operates, or leases is located in Miami-
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`Dade County.
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`5.
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`Subsequent to the effective date of the ADA, Defendant constructed, or caused to be
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`constructed, a website located at https://radioshack.com (hereinafter “website”). Defendant is the
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`owner, operator, lessor and/or lessee of the website. This website supports, is an extension of, is
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`in conjunction with, is complementary and supplemental to, the above-referenced public
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`accommodation. This website provides information about Defendant's public accommodation,
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`including information about the special sales, goods, services, accommodations, privileges, benefits
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`and facilities available to patrons at physical locations. The website also allows customers to view
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`pricing, order products, locate stores and more. On information and belief, Defendant also
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`continually and/or periodically updates and maintains the website.
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`VENUE AND JURISDICTION
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`6.
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`Venue lies in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b), and
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`Local Rule 3.1, in that the original transaction or occurrence giving rise to this cause of action
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`occurred in this District.
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`7.
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`This Court has personal jurisdiction over GENERAL WIRELESS OPERATIONS
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`INC. d/b/a RADIOSHACK, pursuant to, inter alia, Florida’s long arm statute F.S. § 48.193, in
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`that Defendant: (a) operates, conducts, engages in, and/or carries on a business or business
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`ventures (s) in Florida and/or has an office or agency in Florida; (b) has committed one or more
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`tortious acts within Florida; (c) was and/or is engaged in substantial and not isolated activity within
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 3 of 10
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`Florida; and/or (d) has purposely availed itself of Florida’s laws, services and/or benefits and
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`therefore should reasonably anticipate being hailed into one or more of the courts within the State
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`of Florida.
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`8.
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`Pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343, this Court has been given
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`original jurisdiction over actions which arise from the Defendant’s violations of Title III of the
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`Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. See also 28 U.S.C. § 2201 and § 2202
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`and supplemental jurisdiction of Plaintiff’s state law claims under 28 U.S.C. § 1367.
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`COUNT ONE - VIOLATION OF
`TITLE III OF THE AMERICANS WITH DISABILTITIES ACT
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`The website is an extension of Defendant's place of public accommodation. By and
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`9.
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`through this website, Defendant extends its public accommodation into individual persons' homes,
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`portable devices and personal computers wherever located. The website is a service, facility,
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`privilege, advantage, benefit and accommodation of Defendant's place of accommodation. The
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`website also provides access to the goods, services, facilities, privileges, advantages or
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`accommodations of the place of public accommodation. For example, the website provides a store
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`locator, a list of items available for sale in the brick and mortar stores and the ability to purchase
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`items to be shipped. Like many people during this pandemic, Plaintiff would like to pre-shop the
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`Defendant’s stores to determine whether certain items are available at the store before she leaves
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`home. Defendant’s website provides access to benefits of Defendant’s physical stores and Plaintiff
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`was denied those benefits when she could not access Defendant’s website. For example, the
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`website allows customers to order products online, sign up for exclusive discounts and news by
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`email, get information about the store’s return policy and product warranties. As such, the website
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`has integrated with and is a nexus to the brick and mortar location. Therefore, it is governed by
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`the following provisions:
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 4 of 10
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`a.
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`42 U.S.C. Section 12182(a) provides: “No individual shall be discriminated
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`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
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`who owns, leases (or leases to), or operates a place of public accommodation.”
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`b.
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`42 U.S.C. Section 12182(b)(1)(A)(i) provides: “It shall be discriminatory to
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`subject an individual or class of individuals on the basis of a disability or disabilities of such
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`individual or class, directly, or through contractual, licensing, or other arrangements, to a denial
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`of the opportunity of the individual or class to participate in or benefit from the goods, services,
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`facilities, privileges, advantages, or accommodations of an entity[.]”
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`c.
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`42 U.S.C. Section 12182(b)(1)(A)(ii) provides: “It shall be discriminatory to
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`afford an individual or class of individuals, on the basis of a disability or disabilities of such
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`individual or class, directly, or through contractual, licensing, or other arrangements with the
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`opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or
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`accommodation that is not equal to that afforded to other individuals[.]”
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`d.
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`42 U.S.C. Section 12182(b)(1)(A)(ii) provides: “It shall be discriminatory to
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`provide an individual or class of individuals, on the basis of a disability or disabilities of such
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`individual or class, directly, or through contractual, licensing, or other arrangements with a good,
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`service, facility, privilege, advantage, or accommodation that is different or separate from that
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`provided to other individuals, unless such action is necessary to provide the individual or class of
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`individuals with a good, service, facility, privilege, advantage, or accommodation, or other
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`opportunity that is as effective as that provided to others[.]”
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`e.
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`42 U.S.C. Section 12182(b)(1)(B) provides: “Goods, services, facilities,
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`privileges, advantages, and accommodations shall be afforded to an individual with a disability in
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 5 of 10
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`the most integrated setting appropriate to the needs of the individual.”
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`f.
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`42 U.S.C. Section 12182(b)(1)(C) provides: “Notwithstanding the existence
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`of separate or different programs or activities provided in accordance with this section, an
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`individual with a disability shall not be denied the opportunity to participate in such programs or
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`activities that are not separate or different.”
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`g.
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`42 U.S.C. Section 12182(b)(2)(ii) describes as discrimination: “a failure to
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`make reasonable modifications in policies, practices, or procedures, when such modifications are
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`necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to
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`individuals with disabilities, unless the entity can demonstrate that making such modifications
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`would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or
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`accommodations[.]”
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`h.
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`42 U.S.C. Section 12182(b)(2)(iii) describes as discrimination: “a failure to
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`take such steps as may be necessary to ensure that no individual with a disability is excluded,
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`denied services, segregated or otherwise treated differently than other individuals because of the
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`absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps
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`would fundamentally alter the nature of the good, service, facility, privilege, advantage, or
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`accommodation being offered or would result in an undue burden[.]”
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`10.
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`As the owner or operator of the subject website, Defendant is required to comply
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`with the ADA and the provisions cited above. This includes an obligation to create and maintain a
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`website that is accessible to and usable by visually impaired persons so that they can enjoy full and
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`equal access to the website and the content therein, including the ability to place orders through
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`the website for pickup at a designated location.
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`11.
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`Plaintiff attempted to access and/or utilize Defendant's website, but was unable to,
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 6 of 10
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`and she continues to be unable to enjoy full and equal access to the website and/or understand the
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`content therein because numerous portions of the website do not interface with and are not
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`readable by SRS. More specifically, features of the website that are inaccessible to the visually
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`impaired include, but are not limited to, the following: screen reader users cannot create an account
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`because the input fields do not have accessible labels. The visible labels are not programmatically
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`associated with the input fields so screen reader users hear "edit blank" for each of the Create
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`Account fields. Screen reader users cannot hear the locations results. After entering their ZIP code,
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`the search results are displayed, but the section is skipped so the results are not announced. There
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`is no skip to content link. Keyboard focus order is not working sequentially. The focus order does
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`not go to the sub links of the header so these items are not announced. The "Filter by store type"
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`is shown onscreen but is not announced. After searching for a location, users are taken into this
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`unlabeled section and hear radio button options but it's not clear why since the label is not
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`announced. The Search button is not labeled. Users only hear "button."
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`12.
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`Plaintiff continues to attempt to utilize the website and/or plans to continue to
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`attempt to utilize the website in the near future. In the alternative, Plaintiff intends to monitor the
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`website in the near future, as a tester, to ascertain whether it has been updated to interact properly
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`with screen reader software.
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`13.
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`As more specifically set forth above, Defendant has violated the above cited
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`provisions of the ADA by failing to interface its website with software utilized by visually
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`impaired individuals. Thus, Defendant has violated the following provisions either directly or
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`through contractual, licensing or other arrangements with respect to Plaintiff and other similarly
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`situated individuals on the basis of their disability:
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`a.
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`by depriving them of the full and equal enjoyment of the goods, services,
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`facilities, privileges, advantages, or accommodations of its place of public accommodation (42
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`U.S.C. § 12182(a));
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`b.
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`in the denial of the opportunity to participate in or benefit from the goods,
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`services, facilities, privileges, advantages, or accommodations (42 U.S.C. § 12182(b)(1)(A)(i));
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`c.
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`in affording them the opportunity to participate in or benefit from a good,
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`service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other
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`individuals (42 U.S.C. § 12182(b)(1)(A)(ii));
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`d.
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`by providing them a good, service, facility, privilege, advantage, or
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`accommodation that is different or separate from that provided to other individuals, unless such
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`action is necessary to provide the individual or class of individuals with a good, service, facility,
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`privilege, advantage, or accommodation, or other opportunity that is as effective as that provided
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`to others (42 U.S.C. § 12182(b)(1)(A)(iii));
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`e.
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`by failing to afford them goods, services, facilities, privileges, advantages,
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`and accommodations in the most integrated setting appropriate to the needs of the individual (42
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`U.S.C. § 12182(b)(1)(B));
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`f.
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`notwithstanding the existence of separate or different programs or activities
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`provided in accordance with this section, by denying them the opportunity to participate in such
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`programs or activities that are not separate or different. (42 U.S.C. § 12182(b)(1)(C));
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`g.
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`by a failure to make reasonable modifications in policies, practices, or
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`procedures, when such modifications are necessary to afford such goods, services, facilities,
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`privileges, advantages, or accommodations to individuals with disabilities, unless the entity can
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`demonstrate that making such modifications would fundamentally alter the nature of such goods,
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`services, facilities, privileges, advantages, or accommodations (42 U.S.C. § 12182(b)(2)(ii)); and,
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`h.
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`by a failure to take such steps as may be necessary to ensure that they are not
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`excluded, denied services, segregated or otherwise treated differently than other individuals
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`because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking
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`such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage,
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`or accommodation being offered or would result in an undue burden (42 U.S.C. § 12182(b)(2)(iii)).
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`14.
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`Plaintiff would like to be a customer at Defendant’s brick and mortar location but
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`before she goes to the store, she would like to determine what is available for her purchasing, what
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`promotions are being offered and what new items are currently available. In that regard, Plaintiff
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`continues to attempt to utilize the website and/or plans to continue to attempt to utilize the website
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`on a monthly basis to make selections for purchasing online or in the store.
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`15.
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`Plaintiff is continuously aware of the violations at Defendant's website and is aware
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`that it would be a futile gesture to attempt to utilize the website as long as those violations exist
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`unless she is willing to suffer additional discrimination.
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`16.
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`Plaintiff has suffered, and continues to suffer, frustration and humiliation as the result
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`of the discriminatory conditions present at Defendant's website. By continuing to operate its
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`website with discriminatory conditions, Defendant contributes to Plaintiff's sense of isolation and
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`segregation and deprives Plaintiff the full and equal enjoyment of the goods, services, facilities,
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`privileges and/or accommodations available to the general public. By encountering the
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`discriminatory conditions at Defendant's website, and knowing that it would be a futile gesture to
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`attempt to utilize the website unless she is willing to endure additional discrimination, Plaintiff is
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`deprived of the meaningful choice of freely visiting and utilizing the same accommodations readily
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`available to the general public and is deterred and discouraged from doing so. By maintaining a
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`website with violations, Defendant deprives plaintiff the equality of opportunity offered to the
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 9 of 10
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`general public.
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`17.
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`Plaintiff has suffered and will continue to suffer direct and indirect injury as a result
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`of the Defendant’s discrimination until the Defendant is compelled to comply with the
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`requirements of the ADA.
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`18.
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`Plaintiff has a realistic, credible, existing and continuing threat of discrimination
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`from the Defendant’s non-compliance with the ADA with respect to this website as described
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`above. Plaintiff has reasonable grounds to believe that she will continue to be subjected to
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`discrimination in violation of the ADA by the Defendant. Plaintiff desires to access the website to
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`avail herself of the benefits, advantages, goods and services therein, and/or to assure herself that
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`this website is in compliance with the ADA so that she and others similarly situated will have full
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`and equal enjoyment of the website without fear of discrimination.
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`19.
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`The Plaintiff and all others similarly situated will continue to suffer such
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`discrimination, injury and damage without the immediate relief provided by the ADA as requested
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`herein.
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`20.
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`Plaintiff is without adequate remedy at law and is suffering irreparable harm.
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`Plaintiff has retained the undersigned counsel and is entitled to recover attorney’s fees, costs and
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`litigation expenses from the Defendant pursuant to 42 U.S.C. § 12205 and 28 CFR 36.505.
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`21.
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`Pursuant to 42 U.S.C. § 12188, this Court is provided with authority to grant Plaintiff
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`Injunctive Relief, including an order to require the Defendant to alter its website to make it readily
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`accessible to and usable by Plaintiff and other persons with vision impairment.
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`22.
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`As a result of the foregoing, Plaintiff has been obligated to retain the undersigned
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`counsel for the filing and prosecution of this action. Plaintiff is entitled to have her reasonable
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`attorneys' fees, costs and litigation expenses paid by Defendant pursuant to 42 U.S.C. § 12205.
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`Case 1:20-cv-23872-CMA Document 1 Entered on FLSD Docket 09/21/2020 Page 10 of 10
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`WHEREFORE, Plaintiff respectfully requests:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`The Court issue a Declaratory Judgment that determines that the Defendant's website
`at the commencement of the subject lawsuit is in violation of Title III of the
`Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.;
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`The Court issue a Declaratory Judgment that determines that the Defendant's website
`is in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181
`et seq.;
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`The Court issue a Declaratory Judgment that Defendant has violated the ADA by
`failing to monitor and maintain its website to ensure that it is readily accessible to
`and usable by persons with vision impairment;
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`That this Court issue an Order directing Defendant to alter its website to make it
`accessible to, and useable by, individuals with disabilities to the full extent required
`by Title III of the ADA within 45 days of the Court entering an order;
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`That this 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;
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`That this Court enter an Order directing Defendant to continually update and
`maintain its website to ensure that it remains fully accessible to and usable by
`visually impaired individuals;
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`An award of attorney’s fees, costs and litigation expenses pursuant to 42 U.S.C. §
`12205; and,
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`Such other relief as the Court deems just and proper, and/or is allowable under Title
`III of the Americans with Disabilities Act.
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`Dated: September 21, 2020
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`Respectfully submitted,
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`/s/ J. Courtney Cunningham
`J. Courtney Cunningham, Esq.
`J. COURTNEY CUNNINGHAM, PLLC
`FBN: 628166
`8950 SW 74th Court, Suite 2201
`Miami, FL 33156
`T: 305-351-2014
`cc@cunninghampllc.com
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