CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 1 of 22 SUMMONS DISTRICT COURT STAT]E OF MINNESOTA F'IFTH JUDICIAL DISTRICT COUNTY OF BLUE EARTH LILY Case No POSS, Case TVpe: Pla,intiff, 14 (Other Civil) v SUMMONS EAGLE LAKE FAMILY DENTISTRY, P.4., a Minnesota business corporation, Defendant. THIS SUMMONS IS DIRECTED TO EAGLE LAKE F-AMIJ.YDENTISTRY. P.A. 1. YOU ARE BEING SUED. The Plaintiff has started a lawsuit against you. The Plaintiffs Complaint against you is attached to this summons. Do not throw these papers av¡ay. They are ofücial papers that affect your rights, You must respond to this lawsuit even though it may not yet be filed with the Court and there may be no court file number on this summons, 2. YOU MUST REPLY WITHIN 20 DAYS TO PROTECT YOUR RIGHTS. You must give or mail to the person who signed this summons a written response called. an Answer within 20 days of the date on which you received this Summons, You must send a copy of your Answer to the person who signed this Summons located at: Paul R. Hansmeier (MN Bar #387795) CLASS JUSTICE PLLC 100 South Fifth Street, Suite 1900 Minneapolis, MN 56402 -1 Exmnrr 1 CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 2 of 22 3. You MUST RESPOND To EACH CLAIM. The Answe'is your written l'esponse to the Piaintiffs Complaint. In you:: Answer you must state whether yolr âgl'ee or disagree with each par.agraph olthu Complaint. If you Seheve the Plaintiff should not be given everything ashed fol in the Complain! you must say so in your.Answet. 4, YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS SUMMONS. if you do not Answer within 20 days, you will lose this case. You will not get to tell your side of the story, ancl the Couri may clecicle against you and awald the Plaintiff everything asked for in the Complaint. If you do not want to contest the claims stated in the Complaint, you d.o not neecl to respond. A default judgrnent can then be entered against you for the r.elíef requesteci in the Complaint. 5. LtrGAL ASSISTANCE. You may wish to get legal herp from 6. ALTERNATIVE DISPUTE RESOLUTION. The parries a lawAclministr,atol rnay have inform¿rtion ¿rbottt places where you cân get iegal assistance. Even if you cannot get legal help, you rnust still provide a written Answer to protect your rights or you may lose the case. yer. If you clo not have a Lawyer, the Court m¿ìy agl'eo to or be olderect to participate in an alternative ùispute resolution pr.ocess under Rul.e 1L4 of the Minnesota General Ru-les of Practice. Yorr must still send your wlitten r'esponse to the Cornplaint even if you expect to use aiternative means of le- soivirrg this dispute. \ Plaintiffs a (ç signal,ure Dated Paul R. I{ansrneier (MN Bar' # 38779rò) CLASS JUSTICE PLLC 100 South Fifth Street, Suil;e Minneapolis, MN 55402 1900 E-mail: mail@classjustice,org Phone: (612) 254-5744 -2- Ll, CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 3 of 22 DISTRICT COURT STATE OF MINNESOTA FIFTH JUDICIAL DISTRICT COUNTY OF BLUE EARTH LILY Case No. POSS, Pla,intiff, Case þpe : l¿t lother Civil) v COMPLAINT EAGLE LAKE FAMILY DENTISTRY, P,.A.., a Minnesota Injunctive Relief Sought business cotporation, Defendarut Plaintiff, Lily Poss, by and through the undersigned counsel, brings this ac- tion against Defendant Eagle Lake Family Dentistry, P,4., a Minnesota business corporation, for violations of the Americans With Disabilities Act, 42 U.S.C. S 12181, et seq. (the "ADA") and its implementing regulations, and for violations of the Minnesota Human Rights Act, Minn. Stat. Chapter 3634 (the "MHRA"), and alleges as follows: INTRODUCTION 1. Defendant operates a website that is not accessible to pel'sons who are visually impaired, Despite receiving multiple notices that its website was not accessj.ble, Defendant has failed to take the simple, inexpeirsive, but necessary steps to ensure that its website is accessible to persons with disabilities. Due to Defendant's failure to take corrective action, Ptaintiff is teft with no choice but to seek relief -1 CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 4 of 22 from this Court. Unless restrained from doing so, Defendant wili continue to violate the law. 2. Plaintiff is a person with a disability. She brings this civil rights action against Defendant for failing to provide full and equal access to the goods, setvices, facilities, privileges, advantages or other things offered by Defendant to its nondisabled customers. Specifically, the Internet website operated by Defendant, located at httB://wwW.eaglel.akeclentigtly.com, provides to the public a wide alray of services, price discounts, service information and contact information. Yet, Defendant's website contains significant and pervasive access barriers that make it difficult if not impossible for users with visual impairments, Iike Plaintiff, to use, Defendant thus excludes the visually impaired from full anrÌ equal âccess to the opportunities, features, benefits, privileges and advantages provided by Defendant. 3. Despite having been repeatedly notified of the existence of accessibility barriers on its website, Defendant has failed to remove or remedy such barriers preventing or limiting fult and equal use of http://www.eaglelakedentistr)'.corq by persons with disabilities like Plaintiff, notwithstanding that such modifications are r.eadily achievable. Such barriers bar persons with visual impairments, like Plain- tiff, fi.om enjoying the opportunities and advantages provided by the website to oth- ers, increasing the sense of isolation and stigma that the Americans with Disabilities Act (.ADA') and the Minnesota Human Rights Act ("MI-IRA") were meant to redress. 4. The failure of Defendant to provide equal access to http:i/www.eaglelakedentistry.com to visually impaired users li-ke Plaintiff violates the mandate of the ADA and the MHRA to provide "full and equal enjoyment" of a public accommodation's goods, services, facilities, privileges, and advantages. Rem- -2 CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 5 of 22 edying such access baniers is mitical to the statutory goal of the ADA and MI{RA of providing people with disabilities the same access that others take for granted. õ, Defendant's conduct constitutes an ongoing and continuous violation of the law. Defendant received advance notice that its website contained accessibility barriers through a letter sent on August 15, 2013, and a telephone call on August 29,2013, prior to the initiation of the instant petition for relief. Despite these notices, Defendant has failed to take any plompt and equitable steps to lemedy the dis- criminatory barliers contained on its website. 6. Accordingly, Plaintiff seeks a declaration that Defendant's website-its features, its design, and its content, as presently constituted at the outset of this lit' igation-violates federal law, and an injunction requiring Defendant to make reasonable mod.ifications to its website so that it is fully ind.ependently usable by, individuals accessible with disabitities. Plaintiff further to, and requests that, given Defendant's historical failure to comply with the mandate of the ADA and the MHRA, the Court retain jurisdiction over this matter for a period to be de' termined to ensure that Defendant comes into compliance with the relevant acces' sibility requirements and to ensure that Defendant has adopted measures that will, in fact, cause it to remain in compliance wÍth the law. JURISDICTION AND VENUE 7 III . This is an action for declaratory and injunctive relief pursuant to Title of the Af)A, and for damages, civil penalties, and injunctive relief pursuant to the MHRA, This Court has concurrent jurisdiction over the federal cause of action, and has original jurisdiction over.the state cause of action pursuant to Minn. Stat' 363Á".33. 8. Venue in this judicial district is proper because Defendant is located within this judicial d.istrict, because Defendant transacts business within this judi' -3- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 6 of 22 cial district, and because this is the judicial district in which a substantial part of the acts and omissions giving lise to the claims occurred. Defendant has suffrcient contacts with this judiciai district to be subject to personal jurisdiction. PARTIES 9. Plaintiff, Lily Poss, is, and at all times relevant hereto \¡vas, a U.S. citi- zen and resident of the state of Minnesota. Plaintiff suffers from, and at all times relevant hereto has suffered from, a legal disabiiity as defined by the ADA, U.S.C. S 42 12102(2), and as defined by the MHRA, Minn. Stat. 3634.03, Subd. 12. Plaintiff is therefore a member of a protected class under the ADA, under the regulations implementing the A-DA set forth at 28 C.F.R. $ 36.101 et seq., and under the MHRA. 10. Ms. Poss suffers from legal blindness. She was born with cataracts on her lefL eye. She had surgery to remove those cataracts at age five, but has nevel been able to see out of her left eye except to distinguish light from dark. She was diagnosed with glaucoma at age six, which can and has caused her significant pain. In June 2006, she lost the remainder of her sight. She can see nothing out of her right eye, and only can distinguish light fi'om dark with her left eye. She primariiy uses the screen-reading software "JAWS," or "Job Access With Speech," produced by Freedom Scientific, Inc., in order to access and view Internet webpages. She has also used the screen-reading software "Windows-eyes," produced by GW Micro, Inc. These software plograms constitute the only way that she can access and view In- ternet webpages, or read any type of print whatsoever. Hel condition is shared by as many as 10 million Americans who are blind or visually impaired, including 5.5 mil- lion seniors, and this figure is predicted to double ovel the next 30 years as the baby-boomer population ages. See Blindness and Low Vision Fact Sheet, National Federation of the Blind, http://nfb.org/fact-sheet-blindness-and-low-vision. As a per- -4- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 7 of 22 son with a disability, she has a personal interest in having fuII and equal access to publically-accessible Internet websites, and to the opportunities, features, benefits, privileges and advantages provided to the public on such websites, 11. access Separate and apart flom her personal interest in having full and equal to public Internet websites, Plaintiff also has served as a "tester," and in that capacity visits Internet websites in order to detelmine whether they are accessible by persons with visual impairments like herself. Testers have historically been used to uncover housing ancl employment discrimination, and act in the role of a private attorney general to enforce compliance, Plaintiff receives no t'emuneration for her activities as a "tester," w[ich she undertakes for the public benefi.t of other individ' uals with disabil.ities and in order to ensure that entities are complying with legal accessibility requirements, Plaintiffs role as a "tester" plovides her with a separate and independent motivation to return and attempt to access httn://www.eaelelakedentistry.cQrq again in the future, wholly apart from her personal interest in accessibility. t2. Defendant Eagle Lake Family Dentistry, P.A. is a Minnesota business corporation with its principal place of business located in Eagle Lake, Minnesota' Defendant is the owner., lessee, lessor and/or operator of the real property and im' provements commonly referred to as "Eagle Lake Family Dentistry" a place of pub- lic accommodation within the meaning of the ADA, Iocated at 104 Plainview St., Eagle Lake, MN 56024. As also described above, Defendant is the owner, Iessee, Iessor and/or operator of the publicly-accessible Internet website located' at http@istry.com'Amongotherthings,thiswebsiteprovidesto the public a wide array of services, price discounts, service information and contact information. -D CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 8 of 22 13. Defendant received advance notice that its website, ,containedaccessibilitybarriersthroughaIetter sent via U,S. Mail, Filst Class, on August 1õ, 2013 and a telephone call on August 29, 20L3, prior to the initiation of the instant petition for relief. Despite being or1 no- tice of the fact that its website contained accessibility barriers, Defendant has failed to make its website accessible. Because Defendant has failed to take any steps to remedy the discriminatory barriers contained on its website despite having been given multiple notices of such issues, the instant petition for relief is necessary. THE ADA AND ITS IMPLEMENTING REGULATIONS 14. On July 26, 1990, President George H.W. Bush signed into law the ADA, 42 U.S,C. $ L2101, et seq., a comprehensive civil rights law prohibiting discrimination on the basis of disability. In its findings, Congress determined that, among other things: à. Some 43 million Americans have one or more physical or mental disa- bilities, and this number is increasing as the population as a whole grows older; b. Historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, discrimination against individuals with disabilities continues to be a serious and pervasive social problem; c. Discrimination against individuals with disabilities persists in such critical areas as employment, public housing accommodations, educa- tion, transportation, communication, recreation, institutionalization, health services, voting, and access to public services; d. Individuals with disabilities continually encounter various forms of discrimination; and -6- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 9 of 22 e. The continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equai basis and to pursue those opportunities for which our society is justly famous, and costs the United States billions of dollars in un- necessary expenses tesulting fi'om dependency and nonproductivity. 42 U.S.C. $ 12101(a)(1)-(3), (õ), (e). 1õ. Congress explicitly stated that the pu{pose of the ADA was to: a. Provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities; b. Provide clear, strong, consistent, enforceable standards addressing dis- crimination against individuals with disabilities; and c. Invoke the sweep of congressional authority, including the power to enfbrce the Fourteenth Amendment and to reguiate commet'ce, in order to ad.dress the major. aleas of discrimination faced day-to-day by individuals with disabilities. 42 U.S.C. $ 12101&)(1), (2), (4) 16. Title III of the ADA prohibits discrimination in the activities and facili' ties of places of public accommodation, ancl requires places of public accommodation to comply with ADA standards and to be readily accessible to, and independently usable by, individuals with disabilities. 42 U.S.C, $ 12181-89. FACTUAL BACKGROUND 17. On or about September 2073, Plaintiff used her personal computet, and the scr.een.teading software program "JAWS," to access the Internet website ht_tp:/UfUfwæaglqlakedentistr]¡.com, for the purpose of taking advantage of the opn I CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 10 of 22 portunities, features, benefits, privileges and advantages provided to the public through the websíte. 18. Plaintiff was unable to fully and equally access the website http://vll]Lw.çapJel.akedentistrl'.com, and was therefore unable to fully utilize the website, due to Defendant's use of inaccessible web design features. 19. Some persons with visual impairments, Iike Plaintiff, access websites by using keyboards in conjunction with scleen-reading sofbware which vocalizes visual information on a computer scleen. Such screen-reading sofüware provides the only method by which blind persons can independently access the Internet. Unless websites are designed to allow for use in this manner', blind persons are unable to fully access Internet websites and the opportunities, information, ploducts and services contained therein. 20. The Internet has become a significant soulce of information, for con- ducting business and for doing everyday activities such as shopping, banking, etc., both for fully-sighted persons and for persons with visual impairments. 2L. However, significant barliers to access make it difficult for persons with disabilities to ful.Iy and equally access the Intelnet and the benefits it provides. A June 20LB study by the U.S. Department of Commerce found that a decrease in the amount of householders with a disabilify who reported no need to use the Internet "may point to a developing trend of increased home Internet use by persons with disabilities," but also found that only 48% of householders with a disability used the Internet at home, as opposed ro 76% for those with no disability, U.S. Dept. of Commerce, Exploling the Digital Nation: America's Emerging Online Experience, at 26, 37 (June 7, 20L3), auailable øt htüp://www.ntja.dotgqv/filqs/qtia/Bubljcations/ exploring the d.iqital. .nation - americas -exlelgir.rg-online -8 -exneli.ence.pd.f. This CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 11 of 22 large disparity, despite an increasing trend of use, points to a lack of accessible online content. 22. There are well-estabtished guidelines for making websites accessible to persons with visual impairments. These guidelines have been in place for at least several years and have been followed successfully by other business entities in mak- ing their websites accessible, The Web Accessibility Initiative ("WAI"), a project of the World Wide Web Consortium which is the leading standards olganization of the Web, has developed guidelines for website accessibility, including the Web Content Accessibility Guideiines, version 2.0 ("WCAG 2.0"). The federal government has also promulgated website accessibility standards under Section 508 of the Rehabilitation Act. These guidelines are readily availabie via the Internet, so that a business de' signing a website can easily access them. These guidelines recommend several basic components for making websites accessible, including, but not limited to: a. Providing a minimum leve} of contrast for text (for example, a mini- mum contr.ast level of 4.ó to L for standard text) to ensute readability by persons with moderately low vision who do not use assistive technology; b. Using standard HTML text and not images of text, to ensure readabil' ity by users with low vision who use magnifi.cation and to ensule compatibility with screen-reading c. sofbware ; Providing text alternatives such as, for example, providing form labels to ensure the navigability and accessibility of fillable-text form fields (which, for example, might include search fields or fields to filI out personal information), and providing alternatives to "Captcha"-style visu- al challenge response tests used to determine whether users human; -9- are CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 12 of 22 d. Using distinctions other than simply color to identifr links; e. Adding invisible alternative text ("alt-text") descriptions to graphics, which is invisible code embedded with a graphical image on a website that does not a-lter the visual presentation of the image but allows a screen reader to detect and vocaiize the alt-text in order to describe the image that a sighted user would see; f. Ensuring that all functions can be performed using a keyboard and not just a mouse (because manipulating a mouse is a visual activity of moving the mouse pointer from one visual spot on a page to another) and that no "keyboard traps" exist which prevent keyboard navigation; g. Ensuring that image maps-a combination of multiple words and "hot spot" links into one single image which, when clicked on, allow the user to jump to many different destinations within the website-are acces- sible by adding alternative text ("alt-text") for the various hot spots; and h. Ensuring that alternative forms of accessible navigation are available, such as a site map, a table of contents, or an effective search function, in order to aid usels whose visual impairments or assistive technolog¡' prevents them fì'om accessing the main site, and also ensuring that the website uses headings and a clear heading structure so that persons with visual impairments can easily navigate the site. Without these very basic components, a website will be inaccessible to persons with visual impairments. 23. Plaintiff has attempted to, and has to the extent possible, accessed full and equal basis be- htùIl://www.eaB'lelakedentjstr)¡.corp_, but could not do so on a -10. CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 13 of 22 cause of her disability. As a result of Defendant's non-compliance with basic web ac- cessibiiity stand.ard.s such as the WCAG 2.0 as described above, Plaintiff, unlike peïsons without disabilities, is excluded from futl and equal enjoyment of the oppor' tunities, features, benefits, privileges and advantages provided to the public by http ://www.eaglelakedentistry.com. 24. Both in her personal capacity as an individual interested in having fuII and equal access to the Internet website http://¡¡ww.eaglel.akedentistr]¡.co{n, and also in her capacity âs a "tester," Plaintiff intends to access the website http://www.eaqlelakedentistrv.com again in the near future, both to attempt to en- joy the opportunities, features, benefîts, privileges and advantages provided there' in, and to ascertain whether the website remains inaccessible to persons with visual impairments. Because of the "always-on" natul'e of the Internet, Plaintiff can access nt@4tistr]¡'cclmagainatanytimewithoutsignificantburdenor expense. Without a grant of the relief requested. in this action, Plaintiff is therefore at risl< of actual and imminent future injury. FACTUAL ALLEGATIONS 26. cess baryiers Defendant's website, httB://r¡rww.eaglql-akecle¡listly.e9lq., contains ac- that prevent fi'ee and fuII use by persons with visual impairments, like Plaintiff. These barriers aïe pervasive and include, but are not limited to: it difficult or with impaired vision to read, either with or' a.. Images of text are used instead of standard text, making impossible for persons without the aid of magnification ol screen-reading sofLware. For example, the website offers a "get acquainted offer" of $50 off any dental service for new p atients, at httn ://www-e aglelakeùntist¿v. com/spqgtal: offertl, which is not visible to persons who use sct'een-reading sofbware like Plaintiff; - L1 - CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 14 of 22 b. The website uses visually-based, tests to determine "Captcha"-style challenge response if users are humans, making it difficult or impossi- ble for persons with visual impairments to fully use certain features of the site; and c. Important pictures on the website lack alternative text ("alt-text") de- scriptions, making it difficult ol impossible for someone using scleen- reading software to interpret the picture content, 26, The above-listed barriers to access, and any further barriers to access not specifically iisted here but present on htl;n://www.easlelakedentistry.com can be remedied without great difficulty or expense, and such remediation is therefore readily achievable by Defendant. Remediating such barriers to access would not fundamentally alter the nature of -lrtjBlÁy¡uw.gaglglAkgde-nûsEy.qq¡l, nor would it pose an undue burden to Defendant. 27. Defendant's conduct constitutes an ongoing and continuous violation of the law. Defendant received advance notice that its website contained accessibility barriers through a letter sent on August Lõ, 20L3, and a telephone cail on August 29, 20L3, prior to the initiation of the instant petition for relief. Despite multipLe no- tices, Defendant failed to take steps to remedy the discriminatoly barriers contained on its website. Unless restrained flom doing so, Defendant will continue to violate the law. 28. Without injunctive relief, Defendant's failure to remove accessibility barriersfromitswebsite,hf.!u/1wy¿w-ç¿e;@,wilIcontinuetocause injury to Plaintiff and others like her, who will continue to be unable to access the website on a full and equal basis, and/or to enjoy the opportunities, featutes, bene- fits, privileges and advantages provided therein. -12- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 15 of 22 FIRST CAUSE OF ACTION Violations of the Americans with Disabilities Act, 42 U.S.C. $$ 12101 et seq. oo Plaintiff incorporates and realleges the above paraglaphs. 30. Section 302(a) of Tit1e III of the ADA, 42 U.S.C. $$ 12101 et seq., pto- vides No individual shall be discriminated against on the basis of disabiUty in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, Ieases (or leases to), or operates a place of public accommodation. 31. Title III of the ADA has been ruled as being applicable to websites, and is applicable to htlpJfv¡ryg¿C.Aglrlakgde4ligtÐLqA!Ê., for at least one of the following reasons: (1) Ptaces of public accommodation under the ADA are not confined to physical locations, and the Internet website http://www.eaglelakedentislEl¡.co!ß therefore constitutes a "place of public accommodation" under the meaning of the ADA; or (2) Defendant owns and/ol operates a physical place of public accommoda- tion at 104 Plainview St., Eagle Lake, MN 66024, and the Internet http://www,eaglelakedentistrlLcom constitutes website a setvice, privilege, advantage, or accommodation of such physical place of public accommodation. 92. Under Section 302(bX1) of Title III of the ADA, it is unlawful discrimi- nation to deny individuals with disabilities an oppot'tunity to participate in or bene- fit fr.om the goods, set'vices, facilities, privileges, advantages, or accommodations that is equal to the opportunities afforded to other individuals' 33. Under Section 302(b)(2) of Title III of the ADA, unlawful discrimina- tion also includes, among other things: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are -L3- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 16 of 22 necessary to afford such goods, setvices, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that mak' ing such modifi.cations would fundamentally alter the nature of such goods, seLvices, facilities, privileges, advantages, or accommodations; and [A] failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, seg]'egated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, priviiege, advantage, or accom' modation being offered or would result in an undue burden 34. Defendant has discriminated against Plaintiff and others in that it has failed to make http/lw:uw.eaBlelakedentistry,com fully accessible to persons with disabiliti.es on a full and equai basis. The acts herein constitute violations of Title III of the ADA, 42 U,S.C. S 12101 et seq., and the regulations promulgated thereunder. Plaintiff has been denied full and equal access to the website, has not been pro- vided services that are equal to the services provided to other usels who do not have disabilities, and/or has been provided services that are inferior to the services provided to other users who do not have disabilities. 35. Defendant has failed to take any prompt and equitable steps to remedy its discliminatory conduct, despite having been on notice of the fact that its website contained accessibility barriers since at least August L6, 20L3. These violations are ongoing. 36. Plaintiff specifically plans to access hüu1¡w:gw-gaglelakedentistty.c again in the i.mmediate future, both in her personal capacity to attempt to enjoy the website and its features, and in her capacity as a "tester'." Plaintiff reasonably anticipates that she will continue to suffer irreparable harm upon her planned future access of hllBJlw¡u¡¿eael€lake.dggüEtry-ealq, unless and -14- until Def'endant is required CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 17 of 22 to remove the barriers to access that exist at its website, including those set forth specifrcally herein. 37. This Court has authority under 42 U.S.C. S 12188 to grant Plaintiffin- junctive relief, including an order requiring Defendant to take all readily achievable steps to make its website readily accessible to and independently usable by individ- uais with disabilities to the extent required by law and/or to disable its website un- til such time as Defendant cures its access barriels. 38. Plaintiff has retained the undersigned counsel for the fiIing and prose- cution of this action, and is entitled to recover reasonable attorneys' fees, Iitigation expenses and costs from Defendant, pursuant to 42 U.S.C. $$ 12205, c.F,R. t2Ll7, and 28 S 36.50õ. SECOND CAUSE OF ACTION Violations of the Minnesota ÏIuman Rights Act, Minn. Stat. Chapter 3634 39. Plaintiff incorporates and realleges the al¡ove paragraphs, 40. Minn. Stat. 3634.11. provides: It is an unfair discriminatory practice: (1) to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of [,..] disability [...]; or (2) 41. for a place of public accommodation not to make reasonable accommodation to the known physical, sensory, or mental disability of a disabled person. The MHRA is applicable to brt-tdilüwy¿eael€lakedc4lis!,rycqnq for at Ieast one of the following leasons: (1) Places of public accommodation under the MHRA are not confined to physical locations, and the Internet website bttp://www.eaeþlaledga!¡stJy.aqn therefore constitutes a "place of public accom- ,15- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 18 of 22 modation" under the meaning of the MHRA; or (2) Defendant owns and"ior operates a physical place of public accommodation 66024, and the Internet website at l-04 Plainview St Eagle Lake MN hftd¡www.eaelef,akede constitutes a service, privilege, advantage, or accommodation of such physical place of public accommodation. 42. Under the general prohibitions established by the MHRA, Minn. Stat. 3634.11, Subd. 2, it is unlawful discrimination to deny individuals with disabilities an opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, ol accommodations that is equal to the opportunities afforded to other individuals. 43, Under the specific prohibitions established by the MHRA, Minn. Stat. 3634.11, Subd. 3, unlawful discrimination also includes, among other things: [A] failure to make reason.able modifications in policies, practices, or procedures when the modifications are necessaly to afford the goods, services, facilities, privileges, advantages, ol accommodations to individuals with disabilities, unless the entity can demonstr:ate that making the modifrcations would fundamentally alter the nature of the goods, selvices, facilities, privileges, advantages, or' accommodations; [and] [A] failure to take all necessary steps to ensure that no individual with a disability is excluded, denied services, seglegated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered and would result in an undue burden 44. Defendant has engaged in an unfair discriminatory practice against Plaintif'f and others in that it has failed to make http://www.eagh]akgdentjstr.y.cgm fully accessible to persons with disabilities on a full and equal basis. The acts herein -16. CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 19 of 22 constitute violations of the MHRA, 3634.11. Plaintiffhas been denied full and equal access to http://www.eaglelakedentistrv.cor-n, has not been provided services that are equal to the services provided to other users who do not have disabilities, and"/ot has been provided services that are inferior to the services provided to other users who do not have disabilities, 46. Defendant has failed to take any prompt and equitable steps to remedy its discriminatory conduct, despite having been on notice of the fact that its website contained accessibility barriers since at least August Lõ, 2013. These violations are ongoing. 46. Plaintiff specifically plans to access http://www.-gaelelakedentistrv.com again in the immediate future, both in her personal capacity to attempt to enjoy the website and its features, and in her capacity as a "tester." Plaintiff reasonably anticipates that she will continue to suffer irreparable harm upon her planned future ac' cess of http://www,eaelelakedentistry.com, unless and unúil Defendant is required to remove the barriers to access that exist at its website, includ.ing those set forth specifi.cally herein. 47, This court has authority under Minn. stat. 3634.33, Subd. 6, and Minn. Stat. 3634.29, Subd. 3-4, to issue an order directing Defendant to cease and desist from its unfair discriminatory practices and to take affirmative action to make its website readily accessible to and independently usable by individuals with disabitities. The Court furthermore has authority under these statutory provisions of the MHRA to ord.er Defendant to pay a civil penalty to the state and to pay damages to Plaintiff. 48. Ptaintiff has retained the undersigned counsel for the filing and prose' cution of this action, and is entitled to recover reasonable attorneys' fees from De' fend.ant as part of the costs, pulsuant to Minn. stat. 3634.33, Subd. 7. -t7 - CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 20 of 22 WHE RE FOR E, Plaintiff respectfully requests: a.. That the Court issue a Declaration that Defendant is owning, main- taining, and,/or operating http:i/www.eaglelakede_ntistr)¡.com in a manner which discriminates against persons with visual impairments and which fails to provide access for persons with disabilities as required by law; b. That the Court issue a permanent injunction, pursuant to 42 U.S.C. S 12188(a)(2), 28 C.F.R. $ 36.õ0a(a), Minn. Stat. 3634.33, Subd. 6, and Minn. Stat. 3634.29, Subd. 3, enjoining Defendant from continuing its discriminatory practices; including an order directing Defendant to make all readily achievable alterations to its website so as to remove barriers to access and make its website fully accessible to and independently usable by individuals with disabilities to the extent required by the ADA and the MHRA; and also including an order requiling De- fendant to make all reasonable modifrcations in policies, practices or procedures necessary to affold all offered goods, services, facilities, privileges, advantages or accommodations to individuals with disabi[ties on a full and equal basis; c. That the Court order Defendant to pay a civil penalty to the state pursuant to Minn. Stat. 3634.33, Subd. 6 and Minn. Stat. 3094.29, Subd. 4. d. That the Court award Plaintiff damages, to be paid by Defendant pursuant to Minn. Stat. 3634.33, Subd. 6 and Minn. Stat. 3634. 29, Subd. 4. e. That the Court award Plaintiff her reasonable attorneys' fees, Iitigation expenses, and costs of suit pursuant to 42 U,S.C. _18_ S L220ó, 28 CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 21 of 22 C.F.R. $ 36.õ05, and Minn. Stat. 868A.B8, Subd. 7, or as otherwise pro- vided by law; and f. That the Coult iesue such other relief as and/or is allowable under Title DATED: o 1 3 III it deems just and pïoper, of the ADA or the MHRA. Respectfully submitted, ul R. eier ([{N Bar # 38779õ) CLASS JUSTICE PLLC 100 South Fifth Street, Suite 1900 Minneapolis, MN 55402 E "mail: mail@classjustice.otg Phone: (612) 234-5744 -19- CASE 0:13-cv-02951-RHK-SER Document 1-1 Filed 10/28/13 Page 22 of 22 ACKNOWLEDGMENT Pursuant to Minn. Stat. $ 549.2IL, the undersigned hereby acknowledges that monetary and other sanctions may be imposed for plesenting a position to the Court that ie unwarranted or for an impropet'put'pose, as more fu-lly defrned in that statute. DATED: l5 By PauI R. Hansmeier (À4N Bar #387795) -20-