“Grow First, Compliance Second”: Caliva Site Hit with ADA Suit

By Hilary Corrigan
Jul 28, 2020

A blind California man has sued several businesses this year, including two cannabis companies, seeking to ensure the visually impaired can use their web sites.

“It’s an issue with web sites everywhere,” said Marcus Zelman attorney Yitzchak Zelman, who represents plaintiff Bruce Begg. Clients like Begg “just want to be able to use the Internet like the rest of us.”

Begg filed one of his 20 class-action suits against NC3 Systems, which operates as Caliva, earlier this month in U.S. District Court in California’s Northern District. He also sued the parent company of The Apothecarium Dispensary earlier this year. In that case, the parties have been in discussions to resolve the matter without judicial intervention, according to court records. Caliva didn’t respond to requests for comment.

Other cases filed by Begg involve e-commerce sites for shoes, jewelry and pet food.

All of the cases involve the same issue—an incompatibility with screen-reader software used by the visually impaired to browse web sites. The software vocalizes the visual information on screens, or displays the content on a refreshable Braille display. 

The suits allege violations of rights under the federal Americans with Disabilities Act and California’s Unruh Civil Rights Act. The suits seek to ensure defendants comply within a reasonable time without having to shut down their web sites, Zelman said.

‘No one’s getting rich off these cases’

While it’s not a problem unique to the cannabis world, Zelman said that in the new and rapidly-growing industry, companies may be jumping in head-first without thinking of compliance issues.

“Grow first, compliance second,” Zelman said. He suspects companies with a lot of investors need to monetize quickly. Consequently, he said they’re “barreling forward” in a more “helter skelter” way without much thought to some compliance issues.

Often, private citizens must spend the time, money and effort involved in lawsuits to ensure web sites comply, Zelman said. “Otherwise, it’s not going to happen.”

With all of the cases, Begg seeks a declaratory judgement that the companies are in violation of ADA, an injunction to prevent continued violation, statutory damages and attorney fees. California allows for $4,000 in statutory damages and the attorney expenses tend to be small unless companies fight compliance, Zelman said.

No one’s getting rich off the cases, Zelman said, noting that they usually end with plans to repair websites. “There’s not a whole lot of money here,” he said. “We’re not trying to shake people down.”

‘A changing world’

According to the lawsuit, Begg was not able to fully access Caliva’s web site, which in turn denied him equal access to Caliva’s physical stores.

Unless web sites are designed to be compatible with screen-reading software, blind and visually impaired people can’t fully access them, the suit states.

“Due to defendant’s failure and refusal to remove access barriers to its website, Plaintiff and visually impaired persons have been and are still being denied equal access to defendant’s stores and the numerous goods, services and benefits offered to the public,” the suit states.

The suit alleges various problems with the web site: They include that it lacks a code embedded beneath images which would help Begg differentiate products on the screen. It says the site also lacks label or title information that lets the screen reader communicate the purpose of that page element. Furthermore, “a host of broken links” prevent the visually impaired from navigating or determining where they are on the web site.

According to the suit, courts have recognized the viability of ADA claims over commercial web site accessibility. Begg says he couldn’t learn about store locations, hours and contact information or make online purchases and determine the prices and availability of products.

“If the website were equally accessible to all, Plaintiff could independently navigate the website and complete a desired transaction as sighted individuals do,” the suit states, adding that Begg plans to return when he can access it.

Zelman wants cannabis companies to think of disabled people who want to be their customers. “Consider the market that you’re inadvertently cutting out,” he said.

He also noted the ADA’s 30th anniversary and pointed to a recent CNN news story. It describes how disabled protesters crawled up the steps of the U.S. Capitol—otherwise inaccessible to them—to advocate for that legislation.

Accessing web sites may not be exactly the same as accessing the U.S. Capitol, Zelman said, but “we’re in a changing world” that increasingly relies on electronic transactions.

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