A California appellate court last week joined courtsacross the country that have found the Americans withDisabilities Act applies to the websites of brick-and-mortarbusinesses.

In a 33-page published decision written by Justice MariaStratton, the Second District Court of Appeal affirmed a lowercourt judgment finding that the owner of the Los Angeles restaurantThe Whisper Lounge had violated the ADA—and, therefore, thestate's anti-discrimination law—by failing torender its website accessible to blind customers.

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Plaintiff Cheryl Thurston, who is blind, is representedby a team from Pacific Trial Attorneys in her claim thatthe restaurant website, www.whisperloungela.com, could not beaccessed with screen reader technology, which thevisually impaired use to browse the internet and read websites.

Lawyers for the restaurant's owner, Midvale Corp., had asked thecourt to adopt the position of a 1998 decision from the U.S. Courtof Appeals for the Third Circuit, Ford v.Schering-Plough. That ruling held that theADA applies only to physical barriers and physicalplaces.

But the Second District turned back Midvale's request and issuedan opinion that fell closer in line with opinions from a number ofcourts that have considered questions of website accessibilitysince the Ford decision, including a decisioninvolving the Domino's Pizza website handed down by the U.S. Court of Appeals for theNinth Circuit earlier this year.

"We hold that including websites connected to a physical placeof public accommodation is not only consistent with the plainlanguage of Title III [of the Americans with Disabilities Act], butit is also consistent with Congress's mandate that the ADA keeppace with changing technology to effectuate the intent of thestatute," Stratton wrote.

The restaurant's lawyer on appeal, Marc Poster of Greines,Martin, Stein & Richland, said he and his client had "nocomment at this time."

But Scott Ferrell of Pacific Trial Attorneys said that heexpects the defense to ask the California Supreme Court to reviewthe case and added that he would welcome the court'sreview of the case.

Ferrell noted that the Second District opinion cited theCalifornia Supreme Court's recent decision in  White v.Square, which involved a lawyer's claims that the paymentplatform discriminates against bankruptcy professionals. There thestate's high court found that "visiting a website with intent touse its services is, for purposes of standing, equivalent topresenting oneself for services at a brick-and-mortar store" underCalifornia's Unruh Civil Rights Act.

"Do you really think that the California Supreme Court wouldconclude that the Unruh Act protects a bankruptcy lawyer fromdiscrimination by an online-only business but does not protect thedisabled community?" Ferrell said. "Logically, the answer is anemphatic 'Not a chance.'"

Said Ferrell: "Be clear: If you do business in California, yoursales platform must be accessible to the disabled. It makes nodifference whether that platform is brick-and-mortar, web-only, orsome combination."