Author Archives: cbrinker

Are Opening Prayers at School Board Meetings Constitutional?

It is common in Florida for School Boards to open their meetings with a prayer or invocation. The practice lends a sense of solemnity to the meeting and can help to engender a positive atmosphere for discussion and decision-making. However, the practice of opening meetings with a prayer is being increasingly challenged in the courts as a violation of the Establishment Clause of the federal constitution.

On July 8, 2019, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) issued a decision which will have important implications for School Boards and Superintendents in Florida. In Williamson v. Brevard County, a case filed by a group of Secular Humanists and atheists, the court held that Brevard County’s practice of opening its county commission meetings with prayer violated the Establishment Clause. The court made clear in its decision, however, that not all opening prayer practices are invalid. Much depends on the process used to select the persons who will offer the invocation.

In the Brevard County case, the individual commissioners took turns selecting the person to give the invocation. There were no clear guidelines to follow. Instead, each individual commissioner had broad discretion regarding who they would select. In practice, the commissioners selected representatives from only mainstream, monotheistic, faiths. They excluded other religious groups from consideration. For example, they categorically excluded deists, Wiccans, Rastafarians and polytheists, and they would likely exclude Hindus, Sikhs or followers of Native American religion. The court held that this violated the Establishment Clause because the commissioners were excluding certain religious groups based on the content of the groups’ religious beliefs.

Although the court held that Brevard County’s practice was a violation, the court also clarified that not all opening invocations are invalid. The court explained that just because an opening invocation is religious, or even sectarian, does not mean there is a violation – provided the selection process is neutral and does not discriminate against certain religious groups based on their beliefs.

School Boards and local governmental agencies that open their meetings with prayer should review their policies to ensure that their criteria and selection process is compliant with the principles set forth in the Williamson v. Brevard County decision.

Case Information: Williamson v. Brevard County, Case No. 17-15769, 2019 WL 2910807 (11th Cir. July 8, 2019).

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Employee Medical Leave Requests: Balancing the FMLA and ADA

When employees request a leave of absence due to medical issues, the Family and Medical Leave Act (FMLA) requires covered employers, those with 50 or more employees, to provide employees twelve weeks of unpaid leave for qualifying medical reasons. However, what if an employee needs more than twelve weeks of leave? Or, what if an employee has already used all of the employee’s FMLA leave for the year but needs more time off? Is the employer required to grant long periods of medical leave to employees in these circumstances? That question was recently addressed by two federal courts of appeal.Continue Reading Employee Medical Leave Requests: Balancing the FMLA and ADA

2017 In Review: Amendment 7 and the End of Peer Review Protection

Amendment 7 to the Florida Constitution provides patients “a right to have access to any records made or received in the course of business by a health care facility or provider relating any adverse medical incident.” Under Amendment 7, an adverse medical incident includes “any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient . . . .” Continue Reading 2017 In Review: Amendment 7 and the End of Peer Review Protection

Credit Balances – It’s Not Yours to Keep

Most health care providers are familiar with the concept of a “credit balance”. A credit balance can occur when a health care provider is overpaid for a service that was provided. Sometimes the credit balance can occur when a patient or the patient’s third-party insurer pays too much for the service provided. Other times a credit balance may occur when there is more than one insurer and both insurers pay for the same service. For a variety of innocent reasons credit balances are not uncommon in a health care practice.Continue Reading Credit Balances – It’s Not Yours to Keep

Home Health Care Referral Sources Can be Legitimate Business Interests Under Florida’s Non-Compete Statute

It has long been established that non-compete agreements are enforceable only when justified by a “legitimate business interest.” A recent decision of the Florida Supreme Court held that home health care referral sources can be a protected legitimate business interest for purposes of this requirement of Florida law.Continue Reading Home Health Care Referral Sources Can be Legitimate Business Interests Under Florida’s Non-Compete Statute

Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

In August, 2017, the Centers for Medicare & Medicaid Services (“CMS”) announced a major change in how it will approach the selection of Medicare claims for improper payment review.Continue Reading Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

Cameron Carstens Selected to Participate in Advanced International Advocacy Course in Oxford, England

Messer Caparello, P.A. is pleased to announce that attorney Cameron Carstens will be participating in the Advanced International Advocacy Course at Keble College, Oxford, England on August 28, 2017 through September 2, 2017. The course is run by England’s South Eastern Circuit Bar.

 Mr. Carstens is one of four lawyers from the state of Florida to receive a Bennett Scholarship from the Trial Lawyers Section of the Florida Bar to participate in the course, which is internationally recognized as one of the most intensive advocacy courses in the world. The course helps participants refine their trial and appellate advocacy skills by performing simulated exercises involving all aspects of trial. Participants are critiqued on their performances by highly-experienced English lawyers and judges after each exercise. The course will conclude with each lawyer participating in a trial of an assigned case before an English High Court Judge.

 Mr. Carstens focuses his practice at the firm on defending claims brought under federal and state employment statutes, constitutional claims, as well as litigating claims involving breach of contract, restrictive covenants and other business disputes. Mr. Carstens also advises public K-12 educational institutions on a wide range of matters unique to the educational setting.

 

IMMIGRATION NEWS FLASH: U.S. Supreme Court Lifts Injunction on President Trump’s Travel Ban 2.0, Executive Order 13780

On Monday, June 26, 2017, the U.S. Supreme Court issued a decision on the two infamous “Travel Ban” cases, each of which involve challenges to President Trump’s Executive Order No. 13780, Protecting the Nation From Foreign Terrorists Entry into the United States.Continue Reading IMMIGRATION NEWS FLASH: U.S. Supreme Court Lifts Injunction on President Trump’s Travel Ban 2.0, Executive Order 13780

Effective Communication With Hearing Impaired Persons in Conjunction With the Provision of Medical Services – Silva v. Baptist Health South Florida, Inc.

On May 8, 2017, the Eleventh Circuit Court of Appeals issued its opinion in the case of Silva v. Baptist Health South Florida, Inc. This decision is of importance to the health care industry as it establishes the standard under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”) for the sufficiency of communication with hearing impaired persons in conjunction with the provision of medical services.Continue Reading Effective Communication With Hearing Impaired Persons in Conjunction With the Provision of Medical Services – Silva v. Baptist Health South Florida, Inc.

The Individuals with Disabilities Education Act – Endrew F. v. Douglas County School District

On March 22, 2017, the Supreme Court of the United States issued a much-anticipated opinion regarding the appropriate standard to be used to determine whether a free appropriate public education (“FAPE”) has been provided under the Individuals with Disabilities Education Act (20 U.S.C. §1400, et. seq.). This decision is of extreme importance to both school districts and the parents of children with disabilities, as it will significantly impact the provision of special education and related services to children with disabilities.Continue Reading The Individuals with Disabilities Education Act – Endrew F. v. Douglas County School District