Let’s face it, we do almost everything online – from shopping to paying bills. Following that trend, many community associations also conduct a lot of activity through a website, including; paying assessments, advertising sales or rentals, or posting documents, notices, minutes, and social calendars for members to easily access. In fact, the Florida legislature passed a law that requires condominium associations governing 150 or more units to create websites and publish certain information. Recently, these websites have become a source for claims against community associations for discriminatory practices. So, what’s going on?
The United States Supreme Court allows people called “Testers” to pose as a customer, purchaser, or renter, and file a lawsuit against the entities if their website is not accessible to blind and visually impaired people. The Tester never has to have the intent to actually visit the property, or rent or purchase a dwelling advertised on the website, for a claim to arise under the Americans With Disability Act (“ADA”), or, potentially, the Fair Housing Act (“FHA”).
Americans With Disability Act
The ADA was enacted to prohibit discrimination against individuals with disabilities in all areas of public life, including private places that are open to the public. Title III of the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment” of goods, services, privileges, facilities or accommodations. Private businesses must make reasonable accommodations for disabled persons so they can fully participate if the businesses are places of public accommodations. For example, businesses are required to be wheelchair accessible.
Recent case law has expanded accessibility requirements to some websites, resulting in a wave of “website accessibility” claims. Last year, there were 2,285 ADA website lawsuits filed in federal courts across the nation, an increase of a 181 percent from 2017. The majority of lawsuits originate in Florida and New York, with municipalities and for-profit businesses the main targets.
Website ADA Cases
Federal courts with jurisdiction over Florida have held that a place of public accommodation’s website must be ADA compliant if the website is a “nexus” to its physical locations. In other words, the website is so integrated with the entity’s physical location in the delivery of goods, services, and privileges, that not being accessible to the visually impaired denies those individuals the full and equal enjoyment of the goods, services, or privileges. See Gomez v. J. Lindeberg USA, LLC, No. 16-22966 (S.D. Fla. 2016)(finding inaccessibility of the defendant’s website prevented plaintiff from purchasing the defendant’s clothing online and searching for physical store locations); Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017) (finding Winn Dixie’s website was subject to the ADA because it was integrated with its physical store locations by allowing customers to locate physical Winn-Dixie store locations and fill and refill prescriptions) citing Rendon v. Valleycrest Prods., Inc., 294 F.3d 1279 (11th Cir. 2002) (“Title III of the ADA covers both tangible, physical barriers that prevent a disabled person from accessing a public accommodation, as well as “intangible barriers, such as eligibility requirements and screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy the defendant entity’s goods, services and privileges …”).
However, the ADA does not apply to a website that is wholly unconnected to a physical location. See Gomez v. Bang & Olufsen Am., Inc., No. 16-23801, 2017 WL 1957182 (S.D. Fla. 2017) (holding that a website that is wholly unconnected to a physical location is generally not a place of public accommodation under the ADA); Haynes v. Pollo Ops., Inc., No. 17-cv-61003-GAYLES, 2018 U.S. Dist. LEXIS 51748, (S.D. Fla. Mar. 28, 2018) (holding a website is not subjected to ADA requirements if the inability to use the website does not impede a disabled person’s access to the physical locations of the business).
The Domino’s Pizza Case
The U.S. Supreme Court recently rejected to hear an appeal out of the 9th U.S. Circuit Court of Appeals by Domino’s Pizza regarding whether a blind man’s failure to be able to order a pizza from its website violated the Americans with Disabilities Act (“ADA”). In Robles v. Domino’s Pizza, LLC, No. 17-55504 (9th Cir. 2019), the 9th U.S. Circuit Court of Appeals held the ADA’s language specified it applied to services offered of a public accommodation, not in a public accommodation, so since its website and mobile app connected customers to the physical restaurants the ADA applied to them, too.
The decision has far-reaching implications for all entities with websites, including community associations, because depending on their content and functionality, the websites and mobile apps may need to be accessible to the visually impaired. However, there is uncertainty as to what technology is necessary to meet ADA accessibility standards on websites. The result is creating a cottage industry for website accessibility claims.
Community Associations as Targets
In Florida, community associations have now fallen into the crosshairs. If the community’s website has features creating a “nexus” to its physical location, the website could be subject to accessibility requirements. For example, if the website advertises units for sale or rent, or allows forms of payment online, it may need to be ADA complaint. Similarly, compliance may be required if the community association owns, operates or has control over the descriptions of individually rented units. See Dunn v. Phoenix West II, LLC, 2016 WL 740294 (S.D. AL 2016).
However, of greater concern, in just the past few months condos and HOAs across the state whose website does not advertise units for sale or rent, does not provide forms of payment online, or otherwise only provides information regarding the community, have received a wave of demands alleging Fair Housing Act violations – as opposed to ADA violations – alleging the association’s website is inaccessible to those with visual impairments. These demands seem to conflate the requirements of the ADA and FHA by attempting to apply the ADA standards for websites to community associations.
Some “advocacy groups” are scouring the internet for community association websites that do not provide accessibility to the visually impaired and are sending demands in mass. Many of the demands we reviewed are made without regard to whether the community association is a place of public accommodation or without a prior request for a reasonable accommodation, as is usually required under the FHA. Indeed, many of these demands are entirely without merit and appear designed to intimidate community associations into quick settlements, usually with thousands of dollars paid to the attorneys making the demands.
What Should Your Community Association Do?
Community associations should consult competent counsel to analyze whether their website requires accessibility modifications. If your community website meets the nexus test articulated in the above cases by, for example, advertising units for sale or rent, it may want to consider taking down the website until it is ADA complaint because even immediate compliance after demand may not avoid monetary liability.
While the law is still developing as to what constitutes ADA complaint accessibility, courts and the Department of Justice have recognized The World Wide Web Consortium’s (“W3C”) Web Content Accessibility Guidelines (“WCAG”) 2.0 as a baseline. WCAG 2.0 outlines four main principles:
- Perceivable – Information and user interface components must be presentable to users in ways they can perceive.
- Operable – User interface components and navigation must be operable.
- Understandable – Information and the operation of user interface must be understandable.
- Robust – Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.
As described in the WCAG, accessibility involves employing several different components of web development and interaction, including content, user agents, assistive technology, and authorizing and evaluation tools, all working together in order for the website to be accessible to people with a wide range of disabilities, including visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities.
If you have already received a website accessibility demand, you should immediately consult competent legal counsel to determine whether it has merit and how best to address the demand.