A recent lawsuit filed in California federal court serves as a good reminder to all our readers that it’s so important to be mindful of Title III of the Americans with Disabilities Act (the “ADA”). For the past several years, we’ve seen a steady flow of cases filed against cannabis companies for their alleged failures to run websites and point-of-sale terminals that interfere with a disabled person’s ability to access their products or services online. Under the ADA, “a business may have discriminated against handicapped individuals when they construct and maintain quote on quote architectural barriers which prevent disabled people from enjoying the business as any other person.”
The Complaint and allegations
Plaintiff Steven Moore (“Moore”) filed his Complaint in the Central District of California on February 26, 2023. The defendant is 1 Vertical Inc., who owns and operates a retail cannabis store named 420 Central in Santa Ana, California and website at www.420central.com. Moore has claimed that he, as a blind person, cannot use a computer without the assistance of screen-reading software, and that he has tried to visit the 420 Central website with a screen-reader to no avail. Moore claims he has “been denied the full enjoyment of the facilities, goods, and services of www.420central.com, as well as to the facilities, goods, and services of Defendant’s location in California” due to laundry list of “accessibility barriers” on the 420 Central website.
As a reminder, the World Wide Web Consortium’s Web Content Accessibility Guidelines (“WCAG”) is a set of well-established guidelines created to make sure websites are accessible. Moore claims 420 Central is in clear violation of the WCAG.
The ADA and UCRA causes of action
Moore alleged causes of action under the ADA and California’s Unruh Civil Rights Act (“UCRA”), which is California’s state-version of the ADA. The UCRA also guarantees every person in California “full and equal” access to “all business establishments of every kind whatsoever” and imposes a duty on business establishments to serve all persons without arbitrary discrimination. Like the ADA, a “business establishment” is defined to include nonphysical places like internet websites.
It’s important to note the UCRA provides standing on “any person aggrieved” by conduct that violates the UCRA. This is a narrower definition than is provided by the ADA – a private plaintiff can sue only if they are an actual victim of the discriminatory act. A person who visits a company’s website with intent to use its services, but encounters terms and conditions which allegedly deny that full and equal access, has standing. There’s no requirement that the person also perform some kind of transaction or enter into an agreement.
Between the ADA and UCRA, the damages that can awarded are severe:
- Statutory penalty: a plaintiff is entitled to recover statutory damages of at least $4,000 and up to three times actual damages per violation – even if no actual damages are suffered or proved. Again, the plaintiff must show the violation denied them “full and equal access to the place of public accommodation on a particular occasion,” meaning, they were denied access by encountering the violation or being deterred by the violation.
- Injunctive relief: including permanent injunctions, preliminary injunctions and restraining orders.
- Compensatory damages: a plaintiff may recover their actual damages.
- Attorneys’ fees and costs.
What you need to know
These lawsuits have typically been brought by groups of visually-impaired consumers who claim that a certain website fails to accommodate their disability. If a claim is successful, the defendant can be required to perform all sorts of actions. These include things like incurring the cost of redesigning its website or point-of-sale system to comply, and pay the plaintiff’s attorneys’ fees and costs. And in California, plaintiffs can additionally ask for statutory damages. All in all, these lawsuits also can become very costly, very fast.
Ultimately, it really is important to make sure your business is staying apprised of ADA/UCRA requirements and maintaining practices to ensure their systems are updated. Compliance is key here. And, if your business does find itself on the receiving end of a demand letter or complaint, the allegations should be taken seriously and dealt with quickly.
For other relevant articles to cannabis and the ADA and UCRA, check out: