OSCAR HERRERA v. APQ COCONUT GROVE FL LLC (2025)

ORDER GRANTING MOTION FOR DEFAULT FINAL JUDGMENT

THIS CAUSE is before the Court upon the Plaintiff's Motion for Default Final Judgment. ECF No. [10]. Plaintiff filed his Complaint against Defendant on March 19, 2025. ECF No. [1]. On March 21, 2025, Plaintiff served the Complaint and Summons on Defendant by serving Corporation Service Company, the Registered Agent, pursuant to F.S. § 48.062. ECF No. [5]. Defendant's response to the Complaint was due by April 11, 2025. To date, however, Defendant has failed to timely respond to the Complaint and, as a result, a Clerk's Default was entered on April 17, 2025. ECF No. [7]. For the reasons stated herein, Plaintiff's Motion for Default Final Judgment, ECF No. [10], is GRANTED.

I. BACKGROUND

1. Plaintiff OSCAR HERRERA is a resident of Miami, Florida, is sui juris, and is disabled as defined by the ADA and ADA Amendments Act of 2008, 42 U.S.C. § 12101 (“ADAAA”). ECF No. [1] at ¶ 4.

2. Plaintiff is and at all relevant times has been a blind and visually disabled person who has been medically diagnosed with “complete blindness” as a result of trauma to both eyes. Id. at ¶ 5. Because of his condition, Plaintiff is completely blind and is substantially limited in performing one or more major life activities, including, but not limited to, seeing, accurately visualizing his world, and adequately traversing obstacles. Id. As such, he is a member of a protected class under the ADA, 42 U.S.C. § 12102(1)-(2), the regulations implementing the ADA set forth at 28 CFR §§ 36.101, et seq., and 42 U.S.C. § 3602(h). Id. Plaintiff also is an advocate of the rights of similarly situated disabled persons and is a “tester” for the purposes of asserting his civil rights and monitoring, ensuring, and determining whether places of public accommodation and/or their respective and associated websites are in compliance with the ADA and any other applicable disability laws, regulations, and ordinances. Id.

3. Plaintiff's visual disability limits him in the performance of major life activities, including seeing, and he requires assistive technologies, auxiliary aids, and services for effective communication, including communication in connection with his use of a computer. Id. at ¶ 8.

4. Because he is blind, Plaintiff cannot use his computer without the assistance of appropriate and available auxiliary aids, screen reader software, and other technology and assistance. Id. at ¶ 6. At a rapid pace, the software reads the content of a webpage to the user. Id. “The screen reading software uses auditory cues to allow a visually impaired user to effectively use websites. For example, when using the visual internet, a seeing user learns that a link may be ‘clicked,’ which will bring her to another webpage, through visual cues, such as a change in the color of the text (often text is turned from black to blue). When the sighted user's cursor hovers over the link, it changes from an arrow symbol to a hand. The screen reading software uses auditory – rather than visual – cues to relay this same information. When a sight impaired individual reaches a link that may be ‘clicked on,’ the software reads the link to the user, and after reading the text of the link says the word ‘clickable.’ ․ Through a series of auditory cues read aloud by the screen reader, the visually impaired user can navigate a website by listening and responding with her keyboard.” Id. (quoting Andrews v. Blick Art Materials, LLC, 286 F. Supp. 3d 365, 374 (E.D.N.Y. 2017)).

5. Defendant is a foreign limited liability company authorized to do business and doing business in the State of Florida. ECF No. [1] at ¶ 7. Defendant owns, operates, and/or controls, either directly or through franchise agreements, a chain of over 40 U.S.-based restaurants selling food and beverage products, including the restaurant that Plaintiff intended to patronize in the near future located at 3425 Main Highway, Coconut Grove, Florida. Id.

6. At all times material hereto, Defendant was and still is an organization that owns, operates, and/or controls, either directly or through franchise agreements, a chain of over 40 U.S.-based restaurants under the name “Le Pain Quotidien”. Id. at ¶ 10. Each “Le Pain Quotidien” restaurant is open to the public. Id. As the owner, operator, and or controller of these restaurants, Defendant is defined as a place of “public accommodation” within meaning of the ADA because Defendant is a private entity which owns, operates, and/or controls, “a restaurant, bar, or other establishment serving food or drink,” per 42 U.S.C. § 12181(7)(B) and 28 C.F.R. § 36.104(2). Id.

7. Because Defendant is a restaurant open to the public, each of Defendant's physical restaurants is a place of public accommodation subject to the requirements of the ADA, 42 U.S.C. § 12182, § 12181(7)(B), and its implementing regulations, 28 C.F.R. Part 36. ECF No. [1] at ¶ 11.

8. Defendant also owns, controls, maintains, and/or operates the Website. Id. at ¶ 12. One of the functions of the Website is to provide the public information on the locations of Defendant's physical restaurants. Id. Defendant also sells to the public its food and beverage products through the Website, which acts as a critical point of sale and ordering for Defendant's food and beverage products that are made in and also available for order and purchase in, from, and through Defendant's physical restaurants. Id. In addition, the Website allows users to arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products, purchase physical and electronic gift cards for use online and in the physical restaurants, and sign up for a Website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants. Id. The Website also services Defendant's physical restaurants by providing information on available food and beverage products, services, tips and advice, editorials, sales campaigns, events, and other information that Defendant is interested in communicating to its customers. Id. at ¶ 13.

9. Because the Website allows the public the ability to secure information about the locations of Defendant's physical restaurants, order and purchase food and beverage products made in and also available for order and purchase in, from, and through the physical restaurants, arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products, purchase physical and electronic gift cards for use online and in the physical restaurants, and sign up for a Website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants, the Website has a nexus to, and is an extension of and gateway to, the goods, services, privileges, and advantages of Defendant's physical restaurants, which are places of public accommodation under the ADA. Id. at ¶ 14. As an extension of and service, privilege, and advantage provided by a place of public accommodation as defined under the ADA, the Website is an extension of the services, privileges, and advantages made available to the general public by Defendant at and through its brick-and-mortar locations and businesses. Id.

10. Because the public can view, order, and purchase Defendant's food and beverage products through the Website that are also offered for sale in, from, and through Defendant's physical restaurants, thus having the Website act as a critical point of sale and ordering for Defendant's food and beverage products made in and also sold in, from, and through the physical restaurants, arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products, purchase physical and electronic gift cards for use online and in the physical restaurants, and sign up for a Website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants, the Website is an extension of, and gateway to the physical restaurants, which are places of public accommodation pursuant to the ADA, 42 U.S.C. § 12181(7)(B). ECF No. [1] at ¶ 15. As such, the Website is a necessary service, privilege, and advantage of Defendant's brick-and-mortar restaurants that must comply with all requirements of the ADA, must not discriminate against individuals with visual disabilities, and must not deny those individuals the same full and equal access to and enjoyment of the goods, services, privileges, and advantages afforded the non-visually disabled public both online and in the physical restaurants. Id.

11. At all times material hereto, Defendant was and still is an organization owning, operating, and/or controlling the Website. Id. at ¶ 16. Since the Website is open to the public through the internet, by this nexus the Website is an intangible service, privilege, and advantage of Defendant's brick-and-mortar restaurants that must comply with all requirements of the ADA, must not discriminate against individuals with visual disabilities, and must not deny those individuals the same full and equal access to and enjoyment of the goods, services, privileges, and advantages as afforded the non-visually disabled public both online and in the physical restaurants. Id. As such, Defendant has subjected itself and the Website to the requirements of the ADA. Id.

12. Plaintiff is and/or has been a customer who is interested in patronizing, and intends to patronize in the near future once the Website's access barriers are removed or remedied, Defendant's physical restaurant located in Coconut Grove, and to check restaurant hours and food and beverage product pricing, order and purchase food and beverage products, arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products, purchase physical and electronic gift cards for use online and in the physical restaurants, and sign up for a Website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants. Id. at ¶ 17. Plaintiff also intends to monitor the Website in the near future as a tester to ascertain whether it has been updated to interact properly with screen reader software. Id.

13. The opportunity to shop and pre-shop Defendant's food and beverage products, arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products, purchase physical and electronic gift cards for use online and in the physical restaurants, and sign up for a Website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants from his home are important and necessary accommodations for Plaintiff because traveling outside of his home as a blind individual is often a difficult, hazardous, frightening, frustrating, and confusing experience. Id. at ¶ 18. Defendant has not provided its business information in any other digital format that is accessible for use by blind and visually disabled individuals using screen reader software. Id.

14. Like many consumers, Plaintiff accesses a number of websites at a time to help plan his restaurant visits and to compare food and beverage products, prices, services, sales, discounts, and promotions. Id. at ¶ 19. Plaintiff may look at several dozen websites to compare features, discounts, services, promotions, and prices. Id.

15. Beginning in February 2025, Plaintiff attempted on a number of occasions to utilize the Website to browse through the food and beverage product offerings and online offers to educate himself as to the food and beverage products, sales, services, discounts, and promotions being offered, learn about the brick-and-mortar restaurants, check restaurant hours, and check food and beverage product pricing with the intent to place an order and make a purchase through the Website or in, from, and through the physical restaurant located in Coconut Grove. Id. at ¶ 20. Plaintiff also attempted to access and utilize the Website in his capacity as a tester to determine whether it was accessible to blind and visually disabled persons, such as himself, who use screen reader software to access and navigate company websites. Id. However, Defendant's Website contains access barriers that prevent free and full use by blind and visually disabled individuals using keyboards and available screen reader software. Id. at ¶ 21. These access barriers, one or more of which were experienced by Plaintiff, are pervasive and, as confirmed by Plaintiff's expert, include the following:

a) Keyboard focus that does not shift in an expected manner. When an in-page link is selected on the catering webpage, the page visibly scrolls to reveal the selected menu section to sighted users; however, keyboard focus for screen reader users does not follow accordingly. For example, when the “Sandwiches” link is selected, the page visibly scrolls to display the “Sandwiches” section. At this point, the screen reader software announces, “Visited”. Then, pressing either the tab or arrow key continues focus to the next in-page link above instead of to the content in the selected section. Id. at ¶21(a).

b) On the home page, clickable “Shop Locator” and “Explore our menu” buttons that are inaccessible with tab key navigation. For example, tab focus moves to the “Order Now” link above these buttons and then jumps immediately to the “Open Stores” link below them. (Note: these buttons are accessible with a mouse and can be clicked on to open new webpages.) Id. at ¶21(b).

c) The preventing of screen reader users from being able to purchase gift cards on the Website. This is due to the fact that none of the denomination buttons for the gift card options are accessible; tab focus moves from the “Check Balance” link in the navigation region immediately to the “Add Selection to Cart” button below the options displayed on the gift card webpage. As none of the denomination buttons are accessible with the tab key, the screen reader user cannot make the selections required that would allow him to add gift cards to the cart and thus is prevented from purchasing them. Id. at ¶ 21(c).

d) On the online ordering webpage, in-page links that are inaccessible. For example, tab focus moves to the currently selected in-page link (i.e., first link) only, which receives announcement. Then, pressing the tab key skips all the remaining in-page links below and jumps immediately to the first menu item displayed on the page to the right. Sighted users can click an in-page link to quickly access the related section on the page, however, this option is not available to non-sighted users, such as the screen reader user. Id. at ¶ 21(d).

e) On the catering webpage, menu items that cannot be added to the cart. For example, the required salad options on the “Large Baguette & Salad Tray” customization pop-up are inaccessible. Tab focus moves from the last option in the section above “Select Salad” immediately to the first option in the section below, thus skipping over the “Select Salad” section and its clickable options in the process. As this is a required field, the screen reader user cannot add this item to the cart. Id. at ¶ 21€.

f) The lack of “Skip to Content” link on the Website; the screen reader user must press the tab key 10 times to get through the navigation region. Focus moves through some of the navigation links twice, however, the focus indicator is not visible on the page the second time around. Id. at ¶ 21(f).

g) On the online ordering webpage, once a menu item is selected, the appearance of a customization pop-up that does not receive announcement nor focus. Instead, after the pop-up is displayed, tab focus continues on the webpage behind it. The screen reader user must tab through the remainder of the menu items on the current page and then through the footer links before focus finally moves to the pop-up. For this test, it took 284 tab key presses after the item was selected to reach its customization pop-up. Id. at ¶ 21(g).

h) When a menu item is added to the cart, the lack of verbal notification given to indicate to the screen reader user that this action occurred; further, the cart pop-up is inaccessible. For example, after an item is added to the cart on the catering webpage, a cart pop-up appears, which is not announced nor given focus. Instead, after the “Add to Cart” button is selected for an item, the screen reader software announces, “blank”, and then, “dialog”, as focus automatically returns to the same item on the menu webpage that was just added to the cart, which then receives announcement. From this, it is unclear to the screen reader user if the item was successfully added to the cart or that a cart pop-up is displayed on the page. Pressing the tab key just shifts focus to the next menu item on the page. Thus, the screen reader user must tab through the remainder of the menu, footer links, and then back through the navigation banner before focus finally moves to the cart pop-up. Id. at ¶ 21(h).

i) On the online ordering webpage, a cart pop-up that is inaccessible. Once an item is added to the cart, a confirmation dialog appears on the page and verbal notification is provided for non-sighted users. Tab focus then returns to the toolbar. At this point, the screen reader user can tab to and select the “My Bag” link in the navigation region to open the cart pop-up, however, it is not accessible; once the cart pop-up is displayed, pressing the tab key does not move focus into the pop-up and instead resumes focus on the menu page behind it. Thus, the screen reader user must tab through the entirety of the webpage and footer links before focus moves to the expanded cart pop-up. Id. at ¶ 21(i).

j) When either of the “Add Contact Info” buttons are selected on the checkout page, a pop-up appears that is not announced nor given focus; the screen reader user must first finish tabbing through the remainder of the webpage and footer links before focus moves to the pop-up. Further, when the first “Add Contact Info” button is selected and the pop-up is displayed, it takes 12 tab key presses before focus finally reaches the pop-up. Id. at ¶ 21(j).

k) On the gift card webpage, unlabeled social media links; all four are announced only as “(letter) link”, which prevents the screen reader user from knowing their purpose and destination. Id. at ¶ 21(k).

l) On a customization pop-up, “plus” and “minus” buttons used for adjusting quantity that are unlabeled; these are both announced only as “button”, which prevents the screen reader user from knowing their purpose. Id. at ¶ 21(l). All of these access barriers were independently confirmed by Plaintiff's expert in February 2025. Id. at ¶ 55.

16. Plaintiff attempted to locate an “accessibility” notice, statement, or policy on the Website that would direct him to a webpage with contact information for disabled individuals who have questions or concerns about, or who are having difficulties accessing, navigating, and communicating with, the Website. Id. at ¶ 22. Although the Website appeared to have an “accessibility” statement linked from its home page, that “accessibility” statement still could not be effectively accessed by, continued to be a barrier to, and did not provide a viable alternative means to fully and equally access and navigate the Website for blind and visually disabled persons, including Plaintiff. Id. Plaintiff, thus, was unable to receive any meaningful or prompt assistance through the “accessibility” statement to enable him to equally, quickly, fully, and effectively navigate the Website. Id.

17. The fact that Plaintiff could not communicate with or within the Website left him feeling excluded, as he is unable to participate in the same dining experience, with the same access to the food and beverage products, sales, services, discounts, and promotions, as provided at the Website and in the physical restaurants as the non-visually disabled public. Id. at ¶ 23.

18. Plaintiff desires and intends in the near future once the Website's access barriers are removed or remedied to patronize Defendant's physical restaurant located in Coconut Grove and to use the Website, but he is presently unable to do so as he is unable to effectively communicate with Defendant due to his blindness and the Website's access barriers. Id. at ¶ 24. Also, as a tester using screen reader software, Plaintiff is unable to fully and equally access, navigate, and communicate with Defendant through the Website due to his blindness and the Website's access barriers. Id. Thus, Plaintiff and others who are blind and with visual disabilities will suffer continuous and ongoing harm from Defendant's intentional acts, omissions, policies, and practices as set forth herein unless properly enjoined by this Court. Id.

19. Because of the nexus between Defendant's physical restaurants and the Website, and the fact that the Website clearly provides support for and is connected to Defendant's physical restaurants for its operation and use, the Website is an intangible service, privilege, and advantage of Defendant's brick-and-mortar restaurants that must comply with all requirements of the ADA, must not discriminate against individuals with disabilities, and must not deny those individuals the same full and equal access to and enjoyment of the goods, services, privileges, and advantages as afforded the non-visually disabled public both online and in the physical restaurants, which are places of public accommodation subject to the requirements of the ADA. Id. at ¶ 25.

20. Defendant thus has not provided full and equal access to, and enjoyment of, the goods, services, facilities, privileges, advantages, and accommodations provided by and through the Website and the physical restaurants in contravention of the ADA. Id. at ¶ 37.

21. The Website does not meet the Web Content Accessibility Guidelines (“WCAG”) 2.1 or higher versions of web accessibility. Id. at ¶ 35.

22. Defendant is, and at all relevant times has been, aware of the barriers to effective communication within the Website that prevent individuals with visual disabilities from the means to comprehend information presented therein. Id. at ¶ 40. Defendant is, and at all relevant times has been, aware of the need to provide full access to all visitors to the Website. Id. at ¶ 41.

23. The barriers that exist on the Website result in discriminatory and unequal treatment of individuals with visual disabilities, including Plaintiff. Id. at ¶ 42.

24. Plaintiff has no plain, adequate, or complete remedy at law to redress the wrongs alleged hereinabove, and this suit for declaratory judgment and injunctive relief is his only means to secure adequate and complete redress from Defendant's unlawful and discriminatory practices in connection with the Website's access and operation. Id. at ¶ 43.

25. Notice to Defendant is not required because of Defendant's failure to cure the violations. Id. at ¶ 44.

26. Enforcement of Plaintiff's rights under the ADA is right and just pursuant to 28 U.S.C. §§ 2201 and 2202. Id. at ¶ 45.

27. Plaintiff retained his attorneys, Roderick V. Hannah, Esq. and Pelayo M. Duran, Esq., to represent him in this case, and has agreed to pay them a reasonable fee for their services. Id. at ¶ 46.

 LEGAL ANALYSIS

I. The ADA Claim

The ADA covers both tangible and “intangible barriers”, which would include company websites, that restrict a disabled person's ability to access and enjoy the defendant entity's goods, services, and privileges. See 42 U.S.C. § 12182(b)(2)(A)(i)–(ii); Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002). See also Fernandez v. Flanigan's Enters., Inc., No. 23-80073, 2023 WL 4285317, at *3 (S.D. Fla. June 29, 2023) (denying motion to dismiss website ADA claim where website acted as “intangible barrier” to purchase of the defendant's food and beverages sold through the website); Ariza v. The Coffee Beanery, Ltd., 643 F. Supp. 3d 1334, 1338–39 (S. D. Fla. 2022) (denying motion to dismiss website ADA claim where website acted as “intangible barrier” to purchase of the defendant's merchandise sold through the website); Ariza v. Walters & Mason Retail, Inc., 561 F. Supp. 3d 1350, 1354–55 (S.D. Fla. 2021) (same); Fernandez v. Bruno Northfleet, Inc., 568 F. Supp. 3d 1294, 1298–99 (S.D. Fla. 2021) (same); Fernandez v. Mattress Xperts Broward, Inc., No. 21-80573, 2021 WL 3931243 at *2 (S.D. Fla. Sep. 2, 2021) (same). In this regard, a company's website violates the ADA in situations where its serves as an “intangible barrier” to disabled persons to communicate with the company's physical stores and to thereby access the goods, services, and privileges that are otherwise available in the company's physical locations, which are places of public accommodation under the ADA. Flanigan's Enters., 2023 WL 4285317, at *3; Coffee Beanery, 643 F. Supp. 3d at 1339; Walters & Mason, 561 F. Supp. 3d at 1355; Bruno Northflleet, 568 F. Supp. 3d at 1298–99; Mattress Xperts, 2021 WL 3931243 at *2. In addition, judges within the District have concluded that where a company's website acts as a point of sale for the company's merchandise that is also available in and from the company's physical stores, then the website is covered under the ADA to the extent it acts as an intangible barrier to access the company's goods and services. Bruno Northflleet, 568 F. Supp. 3d at 1298–99; Mattress Xperts, 2021 WL 3931243 at *2.

Similar to the websites that were at issue in Flanigan's Enters., Coffee Beanery, Walters & Mason, Bruno Northfleet, and Mattress Xperts, Defendant's Website, as established by the uncontested facts in the Complaint, acts as a point of sale and ordering for Defendant's products that are made in and also available for purchase in and from its physical locations and allows users to purchase gift cards to use online and in the physical locations. ECF No. [1] at ¶¶ 12, 13, 14, 15, 49. The uncontested facts also demonstrate additional nexuses between the Website and the physical restaurants in that the Website allows users to arrange in-restaurant pickup and from-restaurant delivery of Defendant's food and beverage products ordered online and sign up for a website account to receive exclusive offers, benefits, invitations, and discounts for use online and in the physical restaurants. Id. The uncontested facts further demonstrate that Defendant's Website is inaccessible to blind and visually disabled individuals such as Plaintiff who must use screen reader software to successfully access and navigate the Website. Id. at ¶¶ 19–22, 24, 26–33, 35–37).

Moreover, the uncontested facts demonstrate that Plaintiff suffered both past injury in fact as well as the imminent threat of future injury entitling him to seek and obtain injunctive relief, both individually as a customer of Defendant and as a tester of company websites. Id. at ¶¶ 17, 18, 20, 21, 23, 24, 65, 66. In the Eleventh Circuit, a plaintiff's allegation that he or she intends to visit the subject premises “in the near future” is sufficient to establish standing to seek injunctive relief under the ADA. See Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000) (holding that plaintiff's allegation that he would take another cruise aboard the defendant's ship in the near future was sufficient to properly plead standing to seek injunctive relief under the ADA); Seco v. NCL (Bahamas), Ltd., 588 F. App'x 863, 866 (11th Cir. 2014) (noting that future injury requirement “satisfied” where plaintiff alleged that she would utilize defendant's services “in the near future”); Walters & Mason, 561 F. Supp. 3d at 1356. As alleged in the Complaint here, and are uncontested facts for purposes of this Motion, Plaintiff is and has been a customer of Defendant who is interested in patronizing and intends to patronize, in the near future once the Website's access barriers are removed or remedied, Defendant's physical store located in North Miami Beach, Florida. ECF No. [1] at ¶¶ 7, 17. The uncontested facts also demonstrate that Plaintiff intends to monitor the Website in the near future as a tester to ascertain whether it has been updated to interact properly with screen reader software. Id. at ¶ 17.

The uncontested facts further demonstrate that Plaintiff encountered one or more access barriers on the Website that prevented his access to and enjoyment of the services, goods, benefits and privileges available to the sighted public both on the Website and in the physical stores. Id. at ¶¶ 21(a)–21(l), 22, 24, 65, 66. Also uncontested, and as alleged in the Complaint, is the fact that Defendant's accessibility statement still could not be effectively accessed by, continued to be a barrier to, and did not provide a viable alternative means to fully and equally access and navigate the Website for blind and visually disabled persons, including Plaintiff. Id. at ¶¶ 22, 55). Further uncontested is the fact that Plaintiff could not communicate with or within the Website, which left him feeling excluded, frustrated, and humiliated, and gave him a sense of isolation and segregation, as he was unable to participate in the same dining experience, with the same access to the reservation capabilities, sales, services, discounts, and promotions, as provided at the Website and in the physical restaurant as the non-visually disabled public. Id. at ¶ 23. The uncontested facts thus cumulatively support Plaintiff's standing to seek, and entitlement to obtain, injunctive relief against Defendant in his capacity both as a customer of Defendant's physical restaurant and as a tester of company websites.

Accordingly, Defendant has violated the ADA because the undisputed inaccessibility of the Website has created an “intangible barrier” to Plaintiff, as a visually disabled person, to full and equal access to and enjoyment of the goods, services, facilities, privileges, and advantages that Defendant offers its sighted customers in and through its physical stores. It is also undisputed based on the uncontested facts in the Complaint that Plaintiff is entitled to seek and obtain injunctive relief as he has requested in his prayer for relief in the Complaint.

II. Plaintiff's Attorney's Fees, Costs, and Expert Expense

A. Entitlement

Pursuant to the ADA, prevailing parties may be entitled to attorney's fees, litigation expenses, and costs. Specifically, 42 U.S.C. § 12205 states in pertinent part:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.

42 U.S.C. § 12205 (emphasis supplied); Ass'n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006) (quoting 42 U.S.C. § 12205). For purposes of the ADA, a “prevailing party” is one that “[r]eceive[s] at least some relief on the merits of his claim ․” Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Hum. Res., 532 U.S. 598, 603-04 (2001) (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987) (internal quotation marks omitted)).

While the award of attorney's fees and costs are within the sound discretion of the trial court, the standards established for determining when a court should exercise that discretion to award fees to a prevailing party are those set forth by the U.S. Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Bruce v. City of Gainesville, 177 F.3d 949, 951–52 (11th Cir. 1999) (applying Christiansburg standard in ADA suit); Daniel-River v. Everglades College, No. 16-60044, 2017 WL 5197509 at *2 (S.D. Fla. June 16, 2017). Per Christiansburg, a prevailing plaintiff “should ordinarily be awarded attorney's fees in all but special circumstances.” Bruce, 177 F.3d at 951.

There are no “special circumstances” present here under which this Court should not award Plaintiff his fees and costs in light of his entitlement to the full requested injunctive relief for his ADA claim against Defendant. Plaintiff thus should be awarded his litigation costs and reasonable attorney's fees as the prevailing party under both his ADA claim. To this end, Plaintiff requests that the Court find that he is entitled to an award of his reasonable attorney's fees and taxable costs.

In addition, Plaintiff should be awarded his expert expense incurred in connection with bringing this case. While expert witness fees are ordinarily not taxable costs, pursuant to 42 U.S.C. § 12205 such fees may be taxed as a litigation expense in ADA cases. Fox v. Marquis Corp., 2010 WL 1010871 at *7 (S.D. Fla. Mar. 15, 2010) (citing Lovell v. Chandler, 303 F.3d 1039, 1058-59 (9th Cir. 2002)); Hansen v. Deercreek Plaza, LLC, 420 F. Supp. 2d 1346, 1353 (S.D. Fla. 2006) (“A prevailing ADA plaintiff may recover expert fees as a litigation expense.”) (internal citation omitted); Ariza v. Limonada Group, LLC, No. 23-cv-20542, 2023 WL 2799127, at *4 (S.D. Fla. Apr. 5, 2023) (same).

B. Amount of Attorney's Fees Sought is Reasonable

1. The lodestar method.

The Eleventh Circuit follows the “lodestar” method described in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), which held that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” since this computation “[p]rovides an objective basis on which to make an initial estimate of the value of a lawyer's services.” Id. at 433; see generally Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988). Once the Court calculates this amount—the “lodestar”—it must consider whether any adjustments are warranted based on the results obtained by counsel. Norman, 836 F.2d at 1302.

The party seeking an award of fees bears the burden of documenting and substantiating both the number of hours and the hourly rate. ACLU of Georgia v. Barnes, 168 F.3d. 423, 427 (11th Cir. 1999). In determining reasonable hourly rates in South Florida, the Court may also consider certain factors, including “the attorney's customary fee, the skill required to perform the legal services, the attorney's experience, reputation and ability, the time constraints involved, preclusion of other employment, contingency, the undesirability of the case, the attorney's relationship to the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996) (citing factors articulated in Johnson v. Ga. High. Express, Inc., 488 F.2d 14, 717-19 (5th Cir. 1974)). Each of these factors will be discussed below.

a) Results Obtained.

Civil rights laws in general depend heavily upon private enforcement. Hensley v. Eckerhart, 461 U.S. 424, 445 (1983). Where the ADA is concerned, “private enforcement suits are the primary method of obtaining compliance with the Act,” D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2007). Because of the importance of the federal rights private enforcement actions vindicate, such actions are, as the Supreme Court noted, “private in form only.” Guardian Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983). In Villano v. Boynton Beach, 254 F.3d 1302, 1306 (11th Cir. 2001), the Eleventh Circuit held that “successful civil rights actions vindicate a public interest ․ [and] [p]ublic benefit is a distinct measure of success in civil rights actions and ․ a court must account for that distinct measure of success when calculating an award of fees and costs.”

As the result of this lawsuit, Plaintiff shall obtain significant beneficial results which substantially increase the accessibility of Defendant's website not only to him but also to all blind and visually disabled consumers.

b) Experience, Reputation, and Ability of the Attorneys.

Plaintiff's attorneys have significant litigation experience in both Federal and state court and have significant experience in civil rights cases, including ADA Title III litigation. Roderick Hannah has more than 40 years of litigation and trial experience in South Florida, including handling a wide array of cases in the Southern District of Florida. As lead or sole counsel, he has handled many federal cases involving discrimination matters, including cases arising under the ADA in both the employment and public accommodation contexts. He currently devotes a large portion of his practice to ADA Title III accessibility issues, particularly to issues involving company website accessibility. See Affidavit of Roderick V. Hannah, Esq., attached as Exhibit “C”.

Pelayo Duran, Mr. Hannah's co-counsel, has over 25 years of litigation experience in South Florida and has handled and been involved in numerous cases in the Southern District of Florida, including cases arising under the ADA involving public accommodation discrimination. He, like Mr. Hannah, also devotes a substantial portion of his practice to ADA Title III website accessibility issues. See Affidavit of Pelayo M. Duran, Esq., attached as Exhibit “D”.

c) Time and Labor Required.

Appended to Messrs. Hannah and Duran's respective supporting Affidavits as Exhibits “1” are copies of their respective time records documenting the time and effort which was required to obtain the resolution of this case. The time expended by Plaintiff's counsel in drafting this motion is also included. In general, time incurred by Plaintiff's counsel in filing, preparing, and litigating this fee application and any fee hearings thereon is and/or would be compensable. See Martin v. University of South Alabama, 911 F.2d 604, 610 (11th Cir. 1990); Guerrero v. Commings, 70 F.3d 1111 (9th Cir. 1995); Davis v. City and County Of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992); Valley Disposal, Inc. v. Cent. Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053 (2nd Cir. 1995); Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978); Johnson v. State of Mississippi, 606 F.2d 635 (5th Cir. 1979); Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979).

As set forth in Messrs. Hannah and Duran's attached affidavits with their respective time records, Plaintiff's counsel spent a total of 13.4 combined hours working on this case. In addition, the time amounts in the proffered time records do not account for any attorney time and costs which shall be expended on post-judgment efforts such as continuing to check on Defendant's website compliance. The time spent was reasonably necessary to vet, prepare, and file the case and secure the final default judgment obtaining the complete injunctive relief requested in the Complaint and to making Defendant's website fully accessible to visually disabled persons, including Plaintiff, nationwide.

d) Novelty and Difficulty of the Questions Presented and the Skill Requisite to Perform the Legal Services Properly.

It is estimated that there are very few firms nationwide that litigate ADA Title III claims, especially in the burgeoning and yet developing area of company website accessibility to blind and visually disabled persons. Effective representation of plaintiffs in ADA actions requires not only sophisticated general litigation skills, such as familiarity with the rules of evidence and procedure, but, in addition, presents numerous issues regarding entitlement to injunctive relief, including Article III Constitutional standing, the nature of barriers to access, the concept of undue burden, the applicability of exemptions, issues of new construction and alterations versus pre-ADA construction, and extensive knowledge of the ADA, the applicable Web Content Accessibility Guidelines (also known as the “WCAG”, the “gold standard” in ADA website accessibility guidelines followed by the U.S. government's agencies), the Technical Assistance Manual, a multitude of other guides issued by the Department of Justice, the developing body of case law issued by the courts nationwide, and, finally, whether remedial measures are “readily achievable” and “technically feasible”. In addition, it is not unusual for Plaintiff's attorneys to find themselves opposed by the substantial financial and legal resources of corporate defendants.

For those reasons, Plaintiff submits that the novelty and difficulty of the issues presented in ADA Title III actions and the skill requisite to properly address such issues justify a higher rate than many other areas of practice.

e) Preclusion of Other Employment due to Acceptance of the Case and the Undesirability of the Case.

As noted above, the United States Supreme Court has recognized that civil rights advocates act as “private attorney generals.” See e.g., Hensley, 461 U.S. at 445. The primary, and perhaps singular, reason public places are beginning to comply with the more than twenty-year-old obligations of the ADA is because of private enforcement suits. See Antoninetti v. Chipotle Mexican Grill, Inc., 613 F. 3d 971, 980 (9th Cir. 2010), cert. denied, Chipotle Mexican Grill, Inc. v. Antoninetti, 563 U.S. 956, 131 S.Ct. 213 (2011). That notwithstanding, the efforts of individuals such as the Plaintiff and the attorneys who represent the disabled are “not pleasantly received,” Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 719 (5th Cir. 1974). Indeed, another court in this District was far blunter in describing the reaction against such lawsuits as one of “vitriolic hostility.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996).

Because of the negative publicity and attitude that many have toward Title III ADA actions, Plaintiffs’ counsel have predictably been precluded from other employment based on acceptance of the case. For instance, it is highly unlikely that plaintiffs’ lawyers would attract business clientele who would pay hourly rates. It has been recognized that civil rights plaintiffs’ work is oftentimes undesirable, and that plaintiffs’ attorneys are economically impacted by their decision to help the civil rights litigant. As explained in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974):

“Civil rights attorneys face hardships in their communities because of their desire to help the civil rights litigant․ Oftentimes his decision to help eradicate discrimination is not pleasantly received by the community or his contemporaries. This can have an economic impact on his practice which can be considered by the Court.”

488 F.2d at 719.

Additionally, in the instant case, the Plaintiff's rights, and those of all blind and visually disabled individuals, were vindicated by counsel working on this case, the time which could have been spent on other matters.

f) Reasonable Hourly Rate, Customary Fee, and Fees Awarded in Similar Cases.

A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonable, comparable skills, experience, and reputation. See Marisol A. v. Giuliani, 111 F. Supp. 2d 381 (S.D.N.Y. 2000). The relevant community to which the Court should look is the district in which the case was brought. Patrolmen's Benevolent Assn. of the City of New York, Inc. v. The City of New York, 2003 WL 21782675 (S.D.N.Y. July 31, 2003); AR v. New York City Department of Education, 407 F.3d 65 (2d Cir. 2005); Access 4 All, Inc. v. Park Lane Hotel, Inc., 2005 WL 3338555 (S.D.N.Y. Dec. 7, 2005). Here, that is the Southern District of Florida.

In determining the reasonableness of the fees and hourly rates, it is appropriate to consider rates awarded in other cases. Because the attorneys’ compensation is based on contingency, and payment has not been made, courts award the current prevailing market rate. The current market rate is the rate at the time of the fee petition, not the rate at the time the services were performed. This takes into account the delay in payment. Lanni v. State of New Jersey, 259 F.3d 146, 149–50 (3d Cir. 2001). Additionally, in considering the rates awarded in prior cases, courts adjust rates upward to account for inflation. It is especially important in this case, which has been in litigation for months, without the Plaintiff's counsel having received any payment to date.

In a number of prior ADA website cases, judges within this District have ruled that a $425.00 hourly rate being charged by Plaintiff's counsel, Messrs. Hannah and Duran, was not excessive and was fair, reasonable, and recoverable. See Ariza v. Diatrade LLC, No. 21-cv-21137, ECF No. 20 at pp. 3–4 (S.D. Fla. Apr. 6, 2022); Ariza v. Limonada Group, LLC, 2023 WL 2799127, at *3–4 (S.D. Fla. April 5, 2023); Ariza v. Wolf Fashion LLC, No. 22-cv-21944, 2022 WL 3591294, at *2 (S.D. Fla. Aug. 22, 2022); Ariza v. Untuckit, LLC, Case No. 19-cv-24291, 2020 WL 408241 (S.D. Fla. Jan. 24, 2020); Fernandez v. Sunday State LLC, No. 22-cv-80653, 2022 WL 12256263, at *8 (S.D. Fla. Oct. 19, 2022); Ariza v. South Moon Sales, Inc., No. 21-cv-23604, 2022 WL 4345136, at *8 (S.D. Fla. Sept. 7, 2022), report and recommendation adopted, 2022 WL 4310972 (S.D. Fla. Sept. 19, 2022); Fuller v. Things Remembered, Inc., Case No. 19-62034-CIV-GAYLES/STRAUSS, 2020 WL 1316509 (S.D. Fla. Feb. 11, 2020); Moncada v. Intrigue Couture, Inc., No. 19-cv-61496, ECF No. 22 (S.D. Fla. Oct. 18, 2019).

Plaintiff and his counsel herein seek an hourly rate for the work of Messrs. Hannah and Duran of $450.00, which, given current inflationary and market conditions, should be viewed by this Court as reasonable and recoverable. Indeed, in entering final default judgments in other, recently decided ADA website cases in which Messrs. Hannah and Duran were counsel for the plaintiff, Southern District Judges Singhal, Middlebrooks, Dimitrouleas, and Bloom have each recognized that Messrs. Hannah and Duran's claims of an hourly rate of $450.00 were reasonable and recoverable and awarded fees based on that rate. See Ariza v. Robinson Sports, Inc., No. 24-cv-61206, ECF No. 16 at 3 (S.D. Fla. May 2, 2025); Fernandez v. Elevate Entertainment Group LLC, No. 24-81060, 2024 WL 5152159 at *10 (S.D. Fla. Dec. 17, 2024); Herrera v. Gas Bijoux USA Corp., No. 24-cv-22343, ECF No. 13 (S.D. Fla. Oct. 10, 2024); Fernandez v. GS Aventura LLC, No. 23-cv-24643, 2024 WL 1044972 at *9 (S.D. Fla. Mar. 7, 2024).

In addition to the fee awards issued Plaintiff's counsel in prior ADA website cases, the reasonableness of a $450.00 hourly rate being requested here is supported by other Southern District of Florida ADA decisions. For example, in the case of Access 4 All, Inc. v. The TJX Companies, Inc., No. 11-cv-80109 (S.D. Fla. 2011)—a case decided over twelve years ago—counsel for the defendant represented to the Court that $450.00 per hour was the rate for “senior” attorneys. See ECF No. [30] at 11–12. In Houston v. South Bay Investors, No. 13-CV-80193 (S.D. Fla. July 25, 2013)—a case decided ten years ago—the Court found that the Plaintiff's requested hourly rate of $420.00 was “reasonable in light of counsels’ experience and citation to other cases in this district wherein the courts approved an identical rate.” In Kennedy v. 5096 Forest Hill Investments, LLC, No. 15-cv-81001, at ECF No. 21 (S.D. Fla. Oct. 21, 2015)—a more than eight-year-old case—the Court found an hourly rate of $420.00 to be reasonable. See also James v. Wash Depot Holdings, Inc., 489 F. Supp. 2d 1341, 1350 (S.D. Fla. 2007), (finding $450 per hour fee rate was reasonable for two lawyers with 10 and 25 years of experience, less than what Plaintiff's counsel have here); Maldonado v. Green Explosion, Inc., No. 21-cv-21024, 2022 WL 1025102 at *4 (S.D. Fla. Mar. 1, 2022) (finding as reasonable a $450.00 per hour rate for an attorney with over 20 years of experience).

In addition to being a reasonable hourly rate in this District, the $450.00 hourly rate for Plaintiff's counsel's work in this case was specifically agreed to between Plaintiff and his counsel per their retainer agreement, attached to Plaintiff's Motion for Final Default Judgment as Exhibit “E”. Based on Plaintiff's counsel's experience in this field, the contingent nature of the case, the terms of the retainer agreement, prior cases finding the rates charged to be reasonable, and the rate being in line with the prevailing market rate in this District, Plaintiff's counsel's $450.00 hourly rate is reasonable and recoverable.

g) Whether the Fee is Fixed or Contingent.

The fee in the instant action was and is contingent. In fact, Plaintiff's counsel has incurred significant expenses in bringing and pursuing this case, including the filing and service of process fees, copying charges, and an expert witness fee totaling $900.00. See Michael McCaffrey of ADASure's invoice for services attached as Exhibit “F”, Mr. McCaffrey's C.V. as to his expert qualifications attached as Exhibit “G”, and Bill of Costs attached as Exhibit “H”. Moreover, there is no certainty that Plaintiff's counsel will receive any compensation at all. Therefore, in setting a reasonable hourly rate, Plaintiff submits that this Court should award the higher range of rates to account for the length of time and uncertainty that counsel will be paid at all.

h) Time Limitations Imposed by the Client or Circumstances.

Because the barriers to access complained of by Plaintiff restricted and/or limited Plaintiff's access to the subject website, time was of the essence. Every day that passed while the undersigned did not work on the case and made every effort to expedite its resolution, by pursuing litigation, was another day that the website would remain inaccessible.

i) Nature and Length of the Professional Relationship with the Client

Messrs. Hannah and Duran have represented similarly disabled plaintiffs in many other actions, and have a continuing relationship with their clients, including Plaintiff in this particular action. Plaintiff has been represented by Messrs. Hannah and Duran for more than one year. This has led to increased efficiency in the prosecution of this litigation.

Based on these relevant factors, Plaintiff and his counsel submit that the total amount of $6,030.00 in attorneys’ fees incurred to date and through the preparation of this Motion and its supporting documents, based on 13.4 combined hours of attorney time at $450.00 per hour, are reasonable and should be awarded.

C. Costs and litigation expenses.

1. Taxable costs.

Plaintiff seeks reimbursement of his statutory costs from Defendant, pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. Pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920, the Court shall award costs to the prevailing party in a lawsuit. Rule 54(d) creates a presumption in favor of awarding costs, which the opposing party must overcome. Manor Healthcare Corp. v. Lomelo, 929 F.3d 633, 639 (11th Cir. 1991). Recovery of costs incurred in the case are also available under the Miami-Dade Code, § 11A-24(2).

The award of costs in favor of the prevailing party in federal court is governed by 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54. 28 U.S.C. § 1920 specifies the following as costs that a court may tax: (1) fees of the clerk and marshal; (2) fees of the court reporter for all of any part of the stenographic transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under section 1923 of this title; (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. See 28 U.S.C. § 1920; Barberi v. PDVSOL, Ltd. Liab. Co., No. 16-23243, 2017 U.S. Dist. LEXIS 81267, at *27–28 (S.D. Fla. May 24, 2017).

The decision to award costs is discretionary with the Court, but the Court may tax items specifically enumerated in 28 U.S.C. § 1920, absent alternative contractual or statutory authority. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). In the instant case, Plaintiff's Counsel incurred taxable costs in the amount of $593.90, consisting of the case filing fee of $405.00, the cost for service of process of the Complaint on Defendant for $80.00, and the costs for copies of papers that were necessarily obtained for use in this case for $108.90. The allowable taxable costs per 28 U.S.C. § 1920(1) and (4) thus total $593.90.

2. Expert witness expenses (non-taxable costs).

As mentioned above, expert witness fees are ordinarily not taxable costs; however, pursuant to 42 U.S.C. § 12205 such fees may be taxed as litigation expenses in ADA cases. Fox, 2010 WL 1010871, at *7 (citing Lovell v. Chandler, 303 F.3d 1039, 1058–59 (9th Cir. 2002)); Hansen, 420 F. Supp. 2d at 1353 (“A prevailing ADA plaintiff may recover expert fees as a litigation expense.”) (internal citation omitted); Ariza v. Limonada Group, LLC, 2023 WL 2799127, at *4.

As set forth on the detailed invoice for services of Plaintiff's expert, Michael McCaffrey of ADASure, attached as Exhibit “F”, Mr. McCaffrey spent considerable time and effort, totaling two (2) hours, to interview Plaintiff and then to analyze Defendant's website prior to the filing of the lawsuit. Thus, Plaintiff's expert performed valuable services at the rate of $450.00 per hour for the progress and outcome of the case, and Plaintiff is entitled to expert witness fees as non-taxable costs in the total amount of $900.00. See Herrera v. Gas Bijoux USA Corp., No. 24-cv-22343, ECF No. 13 (S.D. Fla. Oct. 10, 2024) (awarding Mr. McCaffrey expert fee of $900.00 in ADA Title III website case based on hourly rate of $450.00 as being “reasonable and recoverable”); Ariza v. Robinson Sports, Inc., No. 24-cv-61206, ECF No. 16 at 3 (awarding plaintiff's expert fees in ADA website case of $4,275.00 at rate of $450 per hour); Ariza v. Limonada Group, LLC, 2023 WL 2799127, at *4 (same); Ariza v. Wolf Fashion LLC, 2022 WL 3591294, at *2-3 (same); Fernandez v. Sunday State LLC, 2022 WL 12256263, at *9 (same); Ariza v. South Moon Sales, Inc., 2022 WL 4345136, at *9 (same); Ariza v. Diatrade LLC, Case No. 21-cv-21137, ECF No. 20 at pp. 3–4 (same).

III. Conclusion.

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion is GRANTED. The Court will separately enter final judgment in favor of Plaintiff and against Defendant in the amount of $7,523.90, comprised of: $6,030.00 in attorney's fees and costs; $593.90 in taxable costs; and $900.00 in expert fees.

DONE AND ORDERED in Miami, Florida, this 29th day of July, 2025.

JACQUELINE BECERRA, UNITED STATES DISTRICT JUDGE