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Abelardo Martinez, Jr. filed a civil lawsuit against Cot’n Wash, Inc. (CW) alleging a single violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). He alleged CW violated the Unruh Act by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software.

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state . . . no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

CW “owns, operates and provides to the public” a website that “provides access to [CW’s] array of products and services, including descriptions of its products, . . . [and an] online shop.” CW is not alleged to offer any products and services at any physical location, or in any manner other than through its website.

Martinez is “permanently blind and uses screen readers in order to access the internet and read website content.” There are “well-established, industry standard guidelines for ensuring websites are accessible to blind and visually-impaired people” using screen reading software.

The trial court sustained a demurrer to the complaint without leave to amend. The Court of Appeal affirmed the dismissal in the published case of Martinez v Cot’n Wash, Inc. – B314476 (August 2022).

On appeal, Martinez argues that the trial court erred in concluding (1) the alleged inaccessibility of CW’s website did not violate the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.) (the ADA), specifically Title III of the ADA (42 U.S.C. §§ 12181−12189) (Title III) and (2) the complaint did not allege sufficient facts to establish CW’s discriminatory intent, which the Unruh Act requires in the absence of an ADA violation.

The Court of Appeal held that the trial court was correct on both points.The key issue was whether CW’s website constitutes a “place of public accommodation” for the purposes of Title III. (42 U.S.C. § 12182(a).)

“The ADA defines the phrase ‘. . . public accommodation’ by enumerating 12 categories of covered ‘places’ and ‘establishments,’ giving nonexclusive examples of types of enterprises falling into each category. [Citations.] The listed examples mainly reference physical locations. The implementing regulations similarly define a public accommodation by referring to a ‘facility,’ which is in turn defined as ‘all or any portion of buildings, structures, sites, complexes, equipment, rolling stock . . . or other real or personal property, including the site where the building, property, structure, or equipment is located.’ ‘

This is not surprising as there were no commercial websites when the ADA was enacted in 1990.

Martinez argued that the plain meaning of “place of public accommodation” is alone sufficient for the Court of Appeal to adopt the broader view taken by several federal courts – namely, that a physical place is not a necessary component of the ADA’s definition of a place of public accommodation.

However the opinion disagreed “that the plain language of the statute is alone sufficient to decide the issue – let alone sufficient to decide the issue in Martinez’s favor.” Dictionaries “overwhelmingly” define “place” as involving a physical location.

The opinion when on to note that “Congress and the DOJ have long been aware of the confusion in the courts regarding whether and when a website can be considered a ‘place of public accommodation,’ but have chosen not to clarify the issue through amendments to the statute or additional rulemaking. The federal circuit split began in the 1990’s, and resolving it – be it through judicial or legislative means – has been the topic of legal scholarship ever since then.”

“It thus appears that, no later than 2010, Congress and the DOJ (1) both recognized the need to clarify whether and under what circumstances a website might constitute a ‘place of public accommodation,’ and (2) agreed that such clarification should take a broad and inclusive approach. The only conclusion we can draw from their failure in the 12 years that followed to provide any such clarification through regulation or statute is that neither officially endorses this approach.