On Aug. 23, a federal judge in Miami turned the tables on a plaintiff and lawyer who were suing a South Florida gas station for failure to provide closed captioning on the TV screens embedded in gas pumps that provide entertainment as customers fill their tanks.
The judge, Paul C. Huck of the U.S. District Court, Southern District of Florida, described the plaintiff and lawyer’s behavior as “unethical and sanctionable … conducted in bad faith,” and said he would impose “additional sanctions on both.”
The federal judge’s actions will no doubt bring a sigh of relief to many Keys residents. For months now, there have been rumblings about hush-hush settlements from not only businesses, but also municipalities, which have been charged with flouting the Americans with Disabilities Act because content on websites isn’t completely accessible to hearing- or vision-impaired users. Complaints ranged from the lack of closed captioning on videos posted to websites, to pdf documents that are incompatible with screen-reading technology. In many cases, a plaintiff-lawyer team will file dozens of cases at once.
Monroe County has settled two such cases.
‘The third one was so vague, so lacking in any type of detail, that I refused to settle,” said Monroe County Assistant Attorney Cynthia Hall. “I refused to settle and was prepared to litigate the case. I was in the process of telling the plaintiff’s attorney when he voluntarily dismissed with prejudice, which means he can never re-file.”
She said the tide is starting to turn.
“Federal courts are beginning to show a healthy degree of skepticism about the legitimacy of these sorts of cases,” Hall said.
Of the three cases against Monroe County, two involved the same lawyer, Scott Dinin, mentioned in the federal court order here.
The reason the cases haven’t disappeared completely is because there is not a set of rules for how to make a website accessible. A lot has changed since President George H.W. Bush signed the Americans with Disabilities Act during a ceremony at the White House on July 26, 1990. Just look at the rapid technological developments in those nearly 30 years with the Internet and websites and phones and tablets.
Websites play a vital role in the modern commercial world. Amazon and eBay are the go-to for many to purchase goods. People are now their own travel agents, booking their stays and cruises online. With smartphone applications, people can order their pizza from Domino’s or a sandwich from Subway.
Maneuvering through a website isn’t easy for everybody, however, especially those who can’t see, hear or handle a mouse or phone. And it’s led to waves of ADA lawsuits in recent years against websites across the country, including here in the Keys where visitors often outnumber residents.
One Middle Keys businessman, who declined to be identified for the story, said since the ADA does not explicitly address online compliance, it is up to the courts to determine how standards apply to websites. He said he wanted to remain anonymous for fear of calling attention to the business, and opening it up to future lawsuits.
“This type of lawsuit affects every type of business; it’s a serious problem,” he said. “Anybody with a website is exposed to this and that’s a reality.”
Not only have businesses been hit with ADA lawsuits, but governmental entities have been subject to them as well. Monroe County has fielded two, settling for $10,000 and $15,000. In February 2017, the city of Marathon settled with Eddie Sierra, who is deaf, after he filed a complaint regarding the lack of closed captioning on videos posted to the web by the city. A settlement was reached in the amount of $8,117.50 and included providing captioned videos to Sierra, who also filed lawsuits in Lauderdale by the Sea, Doral and Flagler Beach.
Just recently, Islamorada settled with Juan Carlos Gil, who alleged that he couldn’t educate himself about the quality of life and governmental functions since the village didn’t have electronic documents accessible for the blind and visually impaired.
Village Attorney Roget Bryan said settlements like Gil’s are the direct result of technology evolving and national laws failing to keep up.
“We’ll do our best to maintain the best practices and standards because there’s a lack of regulation in this area nationwide that a lot of corporations and local governments are struggling to keep up with,” he said. “Talking to colleagues at the state level, they all come and ask how we’re coping and managing.”
Hall said it’s imperative that the federal government issue rules.
“They have been invited to do so … but haven’t taken up the responsibility. I think we will see legislation at the federal or state level, or regulations issued by a state or federal agency, and that’s what needs to happen,” she said. “There’s an opportunity for legislation.”
Bryan says Islamorada is in better compliance than others around the state, with a gold standard recognition for closed captioning and a fully accessible website. Bryan said the village is now getting ADA compliant in electronic document publishing.
A cottage industry is springing up around website compliance in regard to the ADA.
Marc Dubin is a Big Pine Key resident who’s founder of ADA Expertise Consulting. A former Justice Department attorney responsible for nationwide enforcement of the ADA for over a decade, he’s now working and assisting businesses, as well as state and local governments, in understanding and complying with the ADA.
Lawsuits pertaining to the ADA and the web come in waves with the same, general language against businesses, Dubin said. And while the ADA was written before the Internet was so widely used, he said, the Justice Department still applies the regulations that require effective communication and nondiscrimination by a business.
“Efforts were made by the Clinton administration to write regulations, but they withdrew them,” he said. “The current administration doesn’t have any proposed. That’s why businesses are saying that they don’t have to do anything because there are no regulations. That’s certainly an argument and one made in federal court in other parts of the country. In South Florida, that’s failed.”
Dubin said the Justice Department has adopted an international standard when addressing the accessibility of websites. It’s known as Web Content Accessibility Guidelines, or WCAG 2.0, and it’s used to determine whether there’s an ADA violation.
One of the major issues that Dubin noted is the web designer’s knowledge of the ADA and international standard that the Justice Department uses for the standard of accessibility.
Read more about the ADA and the web at www.keysweely.com
“The web developer’s goal is to get more clicks and more views on the website,” he said. “They have expertise in getting butts in the seats or views on the web, but they don’t have the expertise in ADA. The business community usually says ‘how are we supposed to know what to do? We’re not experts. That’s our contract with the web developer.’”
While he doesn’t develop websites, Dubin and his team of experts conduct a thorough review of the website. And they don’t use an automated tool.
“We have our experts go page by page, manually testing each page used by communities of the deaf, blind or those who can’t use the website other than (with a) keyboard,” Dubin said. “We tell them what’s in compliance and what’s not.”
Dubin said he doesn’t assist plaintiffs bringing ADA lawsuits in the Keys. More, he helps local businesses in defense of the suits.
“I made that commitment when I started this business,” Dubin said. “I am trying to be helpful and I’m trying to educate the business community.”
— Sara Matthis contributed to this report