UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Civil Action Number: 1:15-cv-22657-Ungaro
ANDRES GOMEZ, On His Own Behalf, and On
Behalf of All Other Individuals Similarly Situated
Plaintiffs,
vs.
PEI WEI ASIAN DINER, LLC d/b/a Pei Wei Asian Diner
Defendant.
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO
STATE A CLAIM AND MEMORANDUM OF LAW
Plaintiff, Andres Gomez (on his own behalf, and on behalf of all other individuals
similarly situated) by and through his undersigned counsel, files this Response Opposition to
Defendant‟s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a
Claim and Memorandum of Law [DE 18] (Motion) in support thereof, and states:
SUMMARY OF THE ARGUEMENT
Through its Motion to Dismiss, the Movant is seeking this Court‟s endorsement of a new
system of Apartheid at the Soda Fountain. The Movant intends for this court to approve the
segregation of the Visually Impaired Community from all other peoples at the soda fountain by
allowing the Defendant to operate new technology that is (on its design and operation)
discriminatory toward the visually impaired. Should the court grant Movant‟s Motion, the Court
will have effectively endorsed discrimination, which will result in further discrimination against
the visually impaired. The court has a function to fully inquire and investigate the facts and
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circumstances of the use and placement of self-service touch screen soda fountain machines in
the Defendant‟s places of public accommodation.
The Amended Complaint [DE 8] plainly states that the Plaintiff went to the Defendant‟s
restaurant and was unable to utilize the Defendant‟s Coke Cola Freestyle machine to obtain the
beverage which he had purchased. As such, the Plaintiff was put in the position of asking other
people to help him dispense a drink.
The Plaintiff was unable to readily and easily obtain help or accommodation because
(contrary to the rhetoric within Movant‟s Motion), the Defendant does not (and did not
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) have a
policy, a plan, or a procedure to easily and efficiently assist those members of the visually
impaired community to obtain beverage(s) using its [Defendant‟s] self-service soda machines
without encountering resistance from unorganized, untrained, and uninformed (to the needs of
the disabled community) staff.
STATEMENT OF THE CASE
1. The Amended Complaint [DE 8] pleads for injunctive relief pursuant to Title II of
the Americans with Disabilities Act (“ADA”) as amended 42 U.S.C. 12131(1) and 28 C.F.R.
35.104 and regulations thereto, and for compensatory and punitive damages pursuant to the
Florida Civil Rights Act as codified in Florida Statutes Chapter §760.
2. The Defendant has moved to dismiss Plaintiffs‟ Amended Complaint, stating that:
i) it should be dismissed for lack of subject matter jurisdiction because the Plaintiff lacks
standing because alleging that the Plaintiff (1) did not suffer any injury-in-fact, (2) can not
establish a genuine threat of imminent or future injury, (3) did not claim that he [Plaintiff] was
unable to use the Freestyle dispenser but claimed that he [Plaintiff] was unable to independently
use the Freestyle dispenser, and (4) that the Plaintiff did not place the Defendant on notice of his
1
at the time of the Plaintiff‟s visit to Defendant‟s place of public accommodation
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need for auxiliary aids or services due to his disability; see Defendant’s Motion to Dismiss [DE
18].
STATEMENT OF THE FACTS
Defendant‟s Motion seeks to dismiss Plaintiff‟s Amended Complaint. Cogent facts
which establish Plaintiff‟s claim are delineated herein below and paragraph references are to the
Amended Complaint [DE 8]:
a) ¶ 14 establishes that the Plaintiff is legally blind, and that his disability is defined
in 42 U.S.C. §12012 (1)(A) and in 42 U.S.C. 3602, §802(h);
b) ¶¶s 3 & 4 identify the Defendant Pei Wei Asian Diner, LLC (“Defendant”), as the
owner and operator of a chain of restaurants “Pei Wei Asian Diner”;
c) ¶ 29 establishes that the Defendant is the owner, operator, and (at times) lessee to
others of a public accommodation (restaurant(s)). As such, the Defendant is itself
a “Public Accommodation" within meaning of Title III because the Defendant is a
private entity which owns, leases, leases to others, or operates a restaurant, bar, or
other establishment serving food or drink; according to 42 U.S.C.
§12182, §12181(7)(A); 28 C.F.R. §36.104;
d) ¶ 30 establishes that the Defendant‟s restaurants are “places of public
accommodation” subject to the requirements of Title III of the ADA and its
implementing regulation; 42 U.S.C. §12182, §12181(7)(B); 28 C.F.R. Part 36;
e) ¶ 32 establishes that the Plaintiff went to one of the Defendant‟s restaurants on
May 24, 2015 to purchase a meal and a drink and that the Plaintiff was directed to
the Defendant‟s [Freestyle] self-serve soda fountain machine in order to obtain a
beverage or water
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;
f) ¶ 36 alleges that the Plaintiff questioned the Defendant‟s Representative
(restaurant staff) regarding the Freestyle self-serve soda fountain machine;
g) ¶ 37 alleges that the Defendant‟s Representative failed in an assist the Plaintiff
and that the Plaintiff‟s mother had to help the Plaintiff in selecting, mixing, and
retrieving a drink;
h) footnote 2 supports ¶ 32, which describes the non-ADA compliant self-serve soda
fountain machine (the “Freestyle”), which the Defendant has chosen to provide in
its restaurants This footnote describes the Freestyle as a touchscreen type self-
serve soda fountain machine which provides Defendant‟s customers the ability to
2
The water dispenser is also located within the Freestyle beverage dispenser
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independent of the restaurant staff to select, mix and serve a large number of soda
flavor options to restaurant customers;
i) ¶¶s 30-39, and 42-43 of the Amended Complaint detail how the Defendant had
full knowledge of its actions, and how the Plaintiff has been harmed by those
actions;
j) ¶¶s 40-41, 46, & 50 of the Amended Complaint state specifically that the Plaintiff
has been harmed by the Defendant‟s discriminatory action, in that the Plaintiff has
been denied the ability to independently operate the self-service soda fountain
machine and suffered loss of dignity, mental anguish and other tangible injuries as
a result;
k) ¶¶s 21-25 of the Amended Complaint establish that there is a class of other
plaintiffs similarly situated to the Plaintiff who have suffered and who will
continue to suffer discrimination due to the Defendant‟s employment and
utilization of the Freestyle self-serve soda fountain machines in its restaurants
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;
l) ¶¶s 56-72 of the Amended Complaint delineate Class Action Allegations, which
establish the Defendant‟s discrimination against the visually impaired, which are
the class of other plaintiffs similarly situated.
m) ¶ 73 of the Amended Complaint requests declaratory and injunctive relief to
correct the Defendant‟s policies and practices.
STANDARD OF REVIEW
The question before this court is whether the Amended Complaint meets the minimum
requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure to withstand Defendant‟s
Motion to Dismiss.
In accordance with F.R.C.P Rule 8(a)(2), a complaint need only contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.”
A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle plaintiff to relief. Conley v.
Gibson, 355 U.S. 41 (1957). In considering a motion to dismiss, the complaint should be
3
The United States currently has over eight million visually disabled people, approximately 2.6% of the population.
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construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff
are accepted as true. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).
MEMORANDUM OF LAW
A. The Plaintiff has adequately Stated Injury-in-fact
The Movant‟s argument that the Plaintiff has failed to establish an injury-in-fact and
lacks standing pursuant to Fed R. Civ. P. Rule 12(b)(1) is without basis.
As delineated in Sierakowski v. Ryan, 223 F.3d 440, 442-43 (7th Cir. 2000), the Plaintiff
has demonstrated three elements necessary to prove standing within the Amended Complaint:
(1) the Plaintiff has suffered an „injury in fact‟; the suffering of loss of dignity and mental
anguish due to the Defendant‟s employment of a self-service soda fountain machine
with a touch screen which is/was not equipped with auxiliary aids for the visually
impaired (¶ 50 of the Amended Complaint);
(2) the Plaintiff has plead a causal link between that injury and the Defendant's action the
(the Defendant‟s employment of a self-service soda fountain machine with a touch
screen which is/was not equipped with auxiliary aids for the visually impaired) (¶51
of the Amended Complaint);
(3) the Plaintiff has shown that a favorable decision by the court; ie: a ruling that the
Defendant cease and desist its discriminatory practice, by adopting and implementing
self-serve soda fountain machine(s) that include software and hardware functions for
accessibility by individuals who are visually impaired and to adapt and implement an
accessibility policy to ensure persons with disabilities have full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and accommodations, and
requiring the Defendant to discriminatory practices and if necessary to cease and desist
operation until the requested modifications of its self-serve soda fountain machine(s)
are made (¶ 90 of the Amended Complaint).
The Plaintiff has provided specific facts and a description of the events on the date of his
visit to the Defendant‟s place of public accommodation and the date when the action occurred
which effect the cause of actions delineated within the Amended Complaint, and that such
actions resulted in injury to the Plaintiff, as within the facts delineated herein above.
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In any lawsuit, the plaintiff has to show that he/she has "standing," or the legal right to
sue. In the instant case, the Plaintiff has standing because the Plaintiff is a bona fide patron.
Another element of "standing" is the concept of "redressability" – the doctrine that the court must
have the authority to implement whatever remedies that the plaintiff seeks.
A plaintiff seeking to invoke a federal court's jurisdiction must establish standing.
Koziara v. City of Casselberry, 392 F.3d 1302, 1304 (11th Cir. 2004) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992)). Standing has three constitutional elements (as delineated
above), which the Plaintiff in this action has adequately plead. Further, while an injury in fact
cannot be an abstract injury, Koziara, Id. at 1305 (citing City of Los Angeles v. Lyons, 461 U.S.
95, 101 (1983)), the test is satisfied if the party seeking review is himself among the injured, i.e.
it affects the plaintiff in a personal and individual way. Id.
The gravamen of the instant action is that the Plaintiff has been prohibited from
independently accessing the Freestyle drink dispenser and thus has been denied equal enjoyment
of the accommodations at Defendant‟s place of public accommodation, in violation of the ADA.
The Movant‟s citation of Panzica v. Mas-Maza, Inc. No. 05-2595 (ARL), 2007 U.S. Dist.
LEXIS 42171 (E.D.N.Y. June 2007) is not relevant because the facts in Panzica are dissimilar.
In Panzica, the Plaintiff could have used an alternate entrance to enter the Defendant‟s restaurant
and in the instant case, Plaintiff Gomez could not in any instance independently use the Freestyle
drink dispenser since it is not equipped with auxiliary aids in order that he can enjoy the same
access to self-serve drink mixing (experience) as the (sighted) general public
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.
In the instant case, the Plaintiff has met the burden for each element of standing. The
Plaintiff stated that he suffered an injury-in fact, that the injury is related to the actions of the
4
Every other type of disabled class can utilize this machine (including hearing impaired and mobility impaired
individuals) by the use of the tactile button and on-screen messaging. However note, that the tactile button is NOT
embossed with braille
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Defendant, that the injury was prior to the filing of this lawsuit, and that the injury can be
redressed by a favorable decision.
B. The Plaintiff has established a genuine threat of imminent future injury
The Movant incorrectly argues that the Plaintiff has not established a genuine threat of
imminent future injury. The Amended Complaint succinctly states that Plaintiff (and other
individuals similarly situated) will be discriminated against by Defendant in the future.
The Plaintiff has alleged that he personally visited Defendant‟s restaurant and purchased
a drink and was unable to independently use the Freestyle drink dispenser within the Defendant‟s
restaurant. Thus, the Plaintiff was denied equal enjoyment of the services and facilities, and
suffered an injury in fact.
The Plaintiff further alleged that he continues to desire to visit the Defendant‟s restaurant
in the future, but continues to be injured in that he is unable to and continues to be discriminated
against due to his inability to independently use the Freestyle drink dispenser which remains at
Defendant‟s facility, all in violation of the ADA. The Plaintiff is not required to state with
specificity dates of intended future visits as a matter of course, but his desire and intent to so
visit. Further, the Plaintiff‟s residence is within a few miles of the Plaintiff‟s residence therefore
the possibility of the Plaintiff‟s return to Defendant‟s restaurant is feasible.
Accordingly, Plaintiff has alleged a threat of future injury, which is factual and not
speculative, and has pled his desire to return to the subject facility in the future, but such a repeat
visit would be futile until the alleged ADA violations have been remedied by the Defendant.
By the Movant‟s statement that “proactive steps have been taken by Pei Wei to re-instruct
its employees on ensuring guests are given proper assistance” (see, Motion [DE 18] at page 12),
is not sufficient to insure that visually impaired individuals will obtain proper assistance. The
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Movant has not proffered that the Defendant has: i) a written plan to assist visually impaired
individuals, ii) a training manual which includes instructions on how to assist visually impaired
individuals, iii) signs or visual/auditory aids advising visually impaired individuals that
assistance is available.
Therefore, the Movant‟s simplistic statement that the Defendant‟s representative have
been re-instructed” is insufficient to ensure that the Plaintiff will not be injured in the future.
Further, the Movant‟s statement (in its Exhibit A) that its „floor person‟ is in essence a bus-
person (table cleaner and general assistance), with no training to address this specific issue, ie:
assist the disabled with the Freestyle drink dispenser.
Furthermore, the Defendant has not addressed the fact that the Freestyle drink dispenser
is not equipped with any auxiliary aid or devise for the visually impaired in order that visually
impaired individuals can independently operate the Freestyle, now or in the future.
In its Motion, the Movant did not deny that the Plaintiff was unable to independently use
the Freestyle drink dispenser and did not refute that the Plaintiff was (and will continue to be) a
bona fide patron. Therefore the Plaintiff has standing and has imminent threat to future injury.
C. The Plaintiff is unable to use the Freestyle dispenser due to the absence of auxiliary
aids and services
The Movant does not deny that the Plaintiff was unable to independently use the
Freestyle drink dispenser, but argues that the Plaintiff is not entitled to injunctive relief.
In its Motion, the Movant focuses on the fact that the staff at its restaurant was (and is)
available to assist the Plaintiff (and others who are visually impaired) in obtaining a drink from
the Freestyle drink dispenser. Assuming arguendo that this is true, the Movant has not denied the
fact that the Plaintiff is unable to independently utilize the Freestyle drink dispenser and
therefore enjoy the same experience as other sighted customers.
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The gravamen of this lawsuit is that the Plaintiff was unable to use the Freestyle drink
dispenser due to his visual impairment, and that the Defendant has failed to provide auxiliary
aids in order to permit the Plaintiff to independently comprehend and use the Freestyle drink
dispenser.
The Movant has not provided a scintilla of evidence that the Defendant has provided
auxiliary aids in order to permit the Plaintiff to independently comprehend and use the Freestyle
drink dispenser such that the Plaintiff would not continue to be discriminated against on
Plaintiff‟s future visits to the Defendant‟s restaurant(s).
The fact that the Freestyle drink dispenser is not specifically addressed in the current
Title III regulations and ADA standards does not change the Defendant‟s obligations under the
ADA to ensure effective communication to individuals with visual disabilities, 42 U.S.C. §12182
(b)(2)(A)(iii); 28 C.F.R. §36.303.
Title III regulation requires that “[a] public accommodation shall furnish appropriate
auxiliary aids and services where necessary to ensure effective communication with individuals
with disabilities.” 28 C.F.R. §36.303(c)(1). The regulation sets forth numbers‟ examples of
“auxiliary aids and services” including “Braille materials and displays, screen reader software;
… accessible electronic and information technology; or other effective methods of making
visually deliver materials available to individuals who are blind or have low vision.” 28 C.F.R.
§36.303(b). The term “auxiliary aids and services” also includes the “[a]cquisiton or
modifications of equipment or devices and [o]ther similar services and actions.” Id. Particularly
significant here is that title III regulation requires that, “[i]n order to be effective, auxiliary aids
and services must be provide in acceptable format, in a timely manner. Id.
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In its Motion, the Movant has stated that the Defendant provides the service of a “Service
Team Member” who is available to select and pour soft drinks for its visually impaired
customers.
However, the Movant has admitted that the Defendant does not provided its visually
impaired customers with auxiliary aids with which to independently obtain a soda drink from the
Freestyle drink dispenser, thus furthering the segregation of the visually impaired from all other
patrons.
D. Notice Requirement
The Movant incorrectly states that the Plaintiff is required to put the Defendant on notice
of his need for assistance with Defendant‟s Freestyle drink dispenser. The Plaintiff respectfully
disagrees with this premise.
The ADA does not provide guidance for new technologies such as the Defendant‟s
Freestyle drink dispenser. The new technology of touch-screen self-service drink dispenser
(Freestyle) should have been designed with auxiliary aids within the devise such that the
individuals who are visually impaired need not seek independent assistance for obtaining and
mixing a drink. By failing to provide assistive technologies, the Plaintiff should not be obligated
to request assistance, as the new technology should be designed and built to accommodate
individuals with disabilities, such as the Plaintiff and others similarly situated.
The Defendant rushed to bring the Freestyle drink dispensers into its places of public
accommodation in order to increase drink sales and profitability. In its rush to bring new
technologies within its places of public accommodation, the Defendant failed to consider the lack
of accessibility and the lack of effective communication inherent with the touch screen Freestyle
drink dispenser. The fact is, that by installing the Freestyle drink dispenser without auxiliary
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aids for the visually impaired, the Defendant failed to take any measures to ensure effective
communication, or equality of the experience for the visually impaired, and thus is in violation of
the ADA.
In Camarillo v Carrols Corp., 2010 U.S. Dist., LEXIS (N.D.N.Y. 2010), the court held
that the visually impaired plaintiff suffered an injury-in-fact even though she requested
assistance. In Camarillo, the court held that the effectiveness of the assistance created the issues
of fact, in order to survive a Motion to Dismiss. The failure of Plaintiff Gomez to request a
specific type of assistance from the Defendant‟s restaurant staff should not be held as a
requirement for filing this instant complaint.
For, even if adequate assistance was provided to the effect of satisfying effective
communication, the Plaintiff would still need to request assistance for subsequent refills, which
puts the burden on the Plaintiff and other visually impaired persons, subjecting him to mental
distress and humiliation and further isolation or harassment.
Camarillo facts are similar to the instant case and must be considered by the court. As
with Camarillo, the only way for the Plaintiff to have full and equal enjoyment of the
Defendant‟s Freestyle drink dispenser is through modification of the Freestyle machine so that it
can be independently operated by visually impaired individuals, such as the Plaintiff. See 42
U.S.C. §12103(1)(C).
The Plaintiff has adequately pleaded that he was unable to independently operate and the
experience the joy of obtaining his custom beverage as other patrons at Defendant‟s restaurant.
There is nothing within the ADA regulations which requires that the plaintiff must notify a
public accommodation or place of public accommodation of his/her need for auxiliary aid or
service and then be denied prior to bringing a claim under the ADA.
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The Amended Complaint establishes liability under the ADA in that the Defendant (a
public accommodation) failed to provide in its place of public accommodation effective
communication and access with respect to patrons obtaining drinks from its Freestyle drink
dispenser as said machine only has a touch screen interface, with no tactile buttons or audio
interface system, or interactive screen reader software. Thus, the Plaintiff has established
liability under Title III.
E. Florida Civil Rights Act
The Plaintiff has filed his Notice of Withdrawal of Count II, Violation of Florida Civil
Rights Act, Florida Statutes §509 and §760. As such, the Movant‟s Motion to Dismiss count II
becomes moot.
CONCLUSION
The Defendant‟s attempt to dismiss the Amended Complaint fails as a matter of fact and
law, as the Complaint is facially apparent in its allegations. In the event that this Honorable
Court should rule that the Amended Complaint fails to show on its face that it meets the
jurisdictional requirements of this Court, the Plaintiff would request leave of court to file a
Second Amended Complaint to allege more specifically the facts and points of law, as Fed. R.
Civ. Proc. 15 grants that the Court should freely give leave when justice so requires.
WHEREFORE, Plaintiff Andres Gomez (on his own behalf, and on behalf of all other
individuals similarly situated) requests that this Honorable Court deny Defendant‟s Motion to
Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, or in the
alternative, grant Plaintiff leave court to file a Second Amended Complaint to more specifically
allege more specifically the facts and points of law.
Respectfully Submitted,
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/s/ Scott R. Dinin
Scott R. Dinin, Esq.
Fla. Bar No. 97780
SCOTT R. DININ, P.A.
4200 NW 7
th
Avenue
Miami, Florida 33127
Office: 786-431-1333
Fax: 786-513-7700
inbox@dininlaw.com
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 8, 2015 I have caused the following to be
electronically filed with the Clerk of the Court using CM/ECF system which will send notification
of such filing to the following email address:
Brett Coburn, Esq.
Alston & Bird
1201 W Peachtree St NE
One Atlantic Center
Atlanta, GA 30309-3424
Telephone (404)881-7700
Fax: (404)-253-8898
Email:brett.coburn@alston.com
Charlie Morgan, Esq.
Alston & Bird
1201 W Peachtree St NE
One Atlantic Center
Atlanta, GA 30309-3424
Telephone (404)881-7700
Fax: (404)-253-8898
Email: charlie.morgan@alston.com
Michael R. Tein
Lewis Tein, P.L.
3059 Grand Avenue, Suite 340
Coconut Grove, Florida 33133
Telephone (305) 442-1101
Fax: (305) 442-6744
Email: mtein@lewistein.com
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Attorneys for Defendant
PEI WEI ASIAN DINER, LLC.
/s/ Scott R. Dinin
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