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Associations Being Threatened with Website Litigation

If your association currently has a website (one you own or one which has been provided to you by your management company) or you are in the planning stages of creating an association website, please read this CALL Alert thoroughly as it contains important information for you. If you don’t have a website, feel free to skip to the last two paragraphs in this alert!

In the last month, CALL has received numerous reports that a growing number of community associations across Florida are being threatened with litigation because their websites are allegedly not friendly to visually impaired users.

The genesis for these association website suits may lie with the holding in the recent Domino’s Pizza v. Guillermo Robles case. That case was originally brought by a visually impaired man named Guillermo Robles who sued the pizza chain after he was unable to order food on Domino’s website and its mobile app despite using screen-reading software. Robles argued that the Americans with Disabilities Act of 1990 (“ADA”) requires businesses with physical locations to make their websites and other online platforms accessible to those with disabilities. A panel of the 9th U.S. Circuit Court of Appeals sided with Robles, writing that the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Domino’s sought review by the United States Supreme Court but the Court declined to hear the appeal.

So what does pizza have to do with your association website?

Frankly, not a darn thing. It appears that the lawyers and firms threatening these specious lawsuits are conveniently conflating the obligations found under Title III of the ADA for places of public accommodation with the different set of obligations found in the Fair Housing Amendments Act (“FHA”) for housing providers. Or, these lawyers are simply trying to avoid application of the ADA altogether since most private residential communities are not considered places of public accommodation. The ADA requires that every owner, lessor, or operator of a “place of public accommodation” provides equal access to users who meet ADA standards for disability. These lawsuits are attempting to apply the ADA standards for websites to housing providers impacted by the FHA.

These threatened website lawsuits are uniform in style (mostly forms sent in mass) and generally allege that a “tester” was unable to navigate an association’s website, resulting in a discriminatory impact on those who are visually impaired. The suits allege that community association websites were not accessible to visually impaired persons thus violating the FHA.Community associations are considered housing providers under the FHA and, as such, must make reasonable accommodations for residents and guests with verifiable disabilities. This is true in the realm of service and support animal requests and these new website lawsuits attempt to expand that obligation to include visually impaired visitors to an association website. It is curious that these testers did not reach out first and request that the allegedly deficient websites be modified for a visually impaired person to more easily navigate the site. Instead, demands are being summarily sent to community associations statewide who have websites in an attempt to reach a quick settlement. The demand letters offer a conditional release for payment of “reasonable attorney fees” because the attorney sending the letter claims the firm is entitled to compensation for work completed to investigate, research, and determine the community association’s non-compliance.

Of course one cottage industry begets another. In addition to a handful of law firms who believe they can generate some revenue with these tester lawsuits, we now also have a number of companies advising communities that they can make their websites compliant for fees ranging anywhere from $2,000-$5,000 and annual hosting around $300-1,000/year. In actuality, the cost depends on the content and functionality of the website including the number of features which must be optimized for the visually impaired. There are also some solutions which are free depending on the website platform.

We believe that many of the demands and threatened lawsuits are without merit and are merely an attempt to obtain a quick settlement payment from community associations and/or their insurers. We have also received feedback from some CALL Members that the website features complained about are password-protected, accessible only to owners, or simply nonexistent so the allegations appear to be specious. While we can debate the merits of these tester lawsuits and even seek legislative clarification in the upcoming 2020 Legislative Session, in the interim, you should speak with your Becker attorney to confirm whether or not your association’s website must have the necessary software for disabled users. This confirmation is particularly important if your community uses its website to list properties for sale or lease.

Lastly, I want to take a moment and introduce you to the CALL team that will be working on your behalf in the upcoming 2020 Legislative Session. Our team will be monitoring the community association legislation as it emerges, preparing easy to understand bill summaries for your convenience and engaging in outreach to your public policymakers in order to craft the most positive legislation for Florida’s communities. Click here to view the CALL team now.

Donna DiMaggio Berger

Donna DiMaggio Berger

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.