Terry Lewis, former circuit judge, recently participated as a faculty member at the Florida Bar’s Civil Trial Certification and Review Seminar. Judge Lewis presented on the topic of Evidence during the seminar, which was held on February 1-2, 2024, in Fort Myers, Florida. Judge Lewis is a member of the Firm’s mediation and arbitration team.
Supreme Court “punts” in ADA “tester” case
by James J. Dean
If you are a place of public accommodation under the ADA – such as a hotel, restaurant, school, college, doctor’s office, accountant, realtor, store, car dealership or other business open to the public – you may be sued by an ADA “tester” for disability discrimination even though that person has no plans to visit your establishment or do business with you.
In Acheson Hotels, LLC v. Lauffer, the U.S. Supreme Court had an opportunity to change that. Unfortunately, on December 5, 2023, the Court “punted” the case because the “tester” who filed the lawsuit voluntarily dismissed her case during the appeal. That is unfortunate. Serial ADA “tester” litigation has become a cottage industry. As the United States Chamber of Commerce pointed out in its amicus brief in the case:
Litigation under Title III of the ADA (which prohibits discrimination on the basis of disability in places of public accommodation) has exploded over the past several years. Case filings have more than tripled since 2013 and now count more than 10,000 filings annually. These cases are unique not only in their explosive growth, but also in their geographic distribution. More than half of ADA Title III cases are filed in just three states: California, New York, and Florida.
In the Acheson Hotels case, the plaintiff, Deborah Laufer, used a wheelchair and lived in Florida. She sued Acheson Hotels after viewing its website and claiming that the website lacked information required by ADA regulations. Ms. Laufer sued Acheson Hotels even though she had no intention of going there. Ms. Laufer had sued hundreds of hotels that she had no intention of visiting (she sued over 600 hotels in the five years leading up to this case). She often offered to settle immediately for $10,000 in attorney’s fees and corrective action. Significantly, Ms. Laufer dropped her case against Acheson Hotels after one of her lawyers was sanctioned for lying about his attorney’s fees in court fee petitions and in settlement negotiations. The attorney was demanding $10,000 in attorney’s fees per case even though he was using “boilerplate” complaints.
When faced with an ADA accessibility lawsuit, many commercial establishments, especially smaller businesses, feel pressured to settle quickly to avoid the costs of litigation – even when they do not believe they violated the ADA. This is especially true in ADA “tester” litigation, which will continue to be filed in large numbers in Florida. However, there are defenses to ADA claims, and not all “testers” can satisfy the legal requirements to bring a lawsuit.
So, what should businesses do? First, check your websites and facilities to ensure compliance with the accessibility requirements of the ADA. Second, if an ADA claim is made against you, check your insurance policies to see if the claim is covered by insurance. And third, consider consulting legal counsel about your rights and defenses.
Best Lawyers, the oldest and most respected peer-review publication in the legal profession, names Messer Caparello, P.A. a Best Law Firm in its 2024 rankings. Best Lawyers’ ranking highlights Messer Caparello’s Ethics and Professional Responsibility and Mediation practice areas. With nearly 50 years of experience in Ethics and Professional Responsibility, Messer Caparello is unrivaled in its representation of public officials in Florida. The Firm’s mediation professionals are likewise uniquely skilled in alternative dispute resolution, having handled thousands of mediations or arbitrations involving a wide variety of legal issues. More information about Messer Caparello’s professionals in these areas can be found here:
Richard “Rick” Miller recently conducted a mediation-skills workshop for Florida’s Second Judicial Circuit. Entitled “Mediation Training: Mediation Survival,” the interactive presentation (which was recorded and posted on the Circuit’s YouTube channel) highlights techniques to avoid impasse and foster resolution. Rick became of counsel with the firm last year and specializes in mediation.
Tallahassee law firm, Messer Caparello, P.A., established in 1970, is pleased to announce that retired circuit judge Thomas H. Bateman III, Monica Freeland and Cameron Carstens have been named as shareholders with the firm.
Thomas H. Bateman III joined the firm following his retirement from Leon County Circuit Court and offers mediation, arbitration, special magistrate, appraisal umpire and other alternative dispute resolution services.
Monica Freeland has a broad range of experience representing various institutional lenders, businesses and individuals in real estate transactions, including purchase and sale, construction, financing and leasing. Ms. Freeland is also well versed in ad valorem taxation and advises businesses and county property appraisers across the state concerning taxation matters.
Cameron Carstens focuses his practice on civil litigation in state and federal court, with an emphasis on employment and tort defense, as well as breach of contract and other business disputes. Mr. Carstens also advises public K-12 educational institutions on a wide range of risk management issues and represents clients before state and administrative agencies in licensure matters, disciplinary proceedings and administrative litigation.
When may a school discipline a student for social media postings? Student speech is protected by the First Amendment. And when a student engages in “pure speech” on political or social issues, the student is entitled to extra protection. The law is clear that schools have authority to discipline students for things they say on social media while at school or at school-sponsored events, provided the speech disrupts classwork or invades the rights of others. But what about something a student posts on social media while the student is not at school or at a school-sponsored event?
The United States Supreme Court addressed this issue on June 23, 2021, in the case of Mahanoy Area School District v. B.L. In this case, BL had tried out for the varsity cheerleading squad at the end of her freshman year, but she wasn’t selected. Although B.L. was offered a spot on the JV squad, she wasn’t happy. During the weekend, while at a convenience store, she and a friend used B.L.’s smartphone to post some images on snapchat. According to the Supreme Court’s opinion, one of the images “showed B.L. and a friend with middle fingers raised” and included the caption, “Fuck school, fuck cheer, fuck everything.” The image was seen by the cheerleaders, other students and the cheerleading coaches.
What should the cheerleading coaches do in this situation? After talking it over with the school principal, the coaches decided to suspend B.L. from the JV cheerleading squad for the upcoming year based on her use of profanity and violation of team rules. The Supreme Court ruled against the School District, holding that the suspension violated B.L.’s First Amendment free speech rights (meaning B.L.’s suspension from the JV squad was expunged and she was also entitled to a judgment against the School District for her attorney’s fees).
The Court noted that although some members of the cheerleading team were upset, the school district had not shown that B.L.’s snapchat post had caused “substantial disruption” in the classroom or within the cheerleading program. The Court also explained that a school has less authority to discipline students for social media postings when the posting is not done while the student is at school or at a school-sponsored event.
The lesson here is that schools should not be too quick to discipline students for off-campus speech. Student discipline is more likely to be constitutional when it relates to: (a) perceived threats to school administrators, teachers, other staff or students; (b) speech that criticizes or derides school administrators, teachers or other staff and (c) clear instances of bullying and severe harassment of other students. Otherwise, schools should exercise great caution when considering discipline for off-campus speech.
Case Information: Mahanoy Area School District v. B.L., 141 S.Ct. 2038 (June 23, 2021).
The law firm of Messer Caparello, PA, is pleased to announce that Terry Lewis, who recently retired after 30 years as a trial judge, has become of counsel with the firm and will focus on mediation and arbitration.
Mr. Lewis was a general practitioner for 12 years before his election to the county court in 1988. He was appointed to the circuit court in 1997 where he served until 2019, handling countless cases of every variety in all divisions of the court. During his judicial career, Mr. Lewis was heavily involved in judicial education. He served as faculty for numerous courses, as chair of the education committees for both the County and Circuit Court Conferences, and as dean of the Florida College of Advanced Judicial Studies. He has also been an adjunct professor at the F.S.U. College of Law for several years, teaching Evidence, Florida Civil Practice, and Professional Responsibility.
Mr. Lewis was named Judge of the Year by the Florida Law Related Education Association in 1993 and 2013 and Trial Judge of the Year by the American Board of Trial Advocates, Tallahassee Chapter, in 2000.
We’re excited to have Terry join us at the firm where he will use his extensive experience and knowledge to help parties resolve their disputes.
It is now a violation of federal law for an employer to fire an employee because the employee is homosexual or transgender.
The United States Supreme Court, issued its ruling, in a 6 to 3 decision, on June 15, 2020, in the case of Bostock v. Clayton County, Georgia. Under the Court’s ruling, Title VII of the Civil Rights Act of 1964 now prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBT) status.
The Court’s decision changes the law of Florida. The federal Eleventh Circuit Court of Appeals (which encompasses Florida, Georgia and Alabama) had previously held that sexual orientation was not protected under Title VII.
In the opinion for the majority, Justice Neil Gorsuch stated:
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Chief Justice John Roberts Jr. and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined the majority. Justices Samuel Alito Jr., Brett Kavanaugh and Clarence Thomas dissented.
Significantly, the Court did not address the effect of today’s ruling on sex-segregated bathrooms, locker rooms, and dress codes. These other issues will continue to be hotly litigated.
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On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. Here are some highlights of the Act for employers:
- takes effect: April 1, 2020
- three major provisions for employers:
- amends FMLA
- establishes paid sick leave requirement
- provides for tax credits for employers
Emergency Family and Medical Leave Expansion Act
- Employers covered:
- if have less than 500 employees
- Employees covered:
- if employed at least 30 days
- Triggering Event for Benefit:
- unable to work or telework due to need to care for employee’s child (under 18 years old) because child’s school or place of care is closed due to a public health emergency
- 12 weeks of job-protected leave
- 1st 10 days of leave may be unpaid
- remainder of leave must be paid at two-thirds the employee’s regular rate
- however, paid leave is capped at $200/day and $10,000 aggregate per employee
- job restoration entitlement may not apply to small employers (less than 25 employees) under some circumstances
Emergency Paid Sick Leave Act
- Employers covered:
- if have less than 500 employees
- Employees covered:
- all full-time and part-time employees (regardless of length of employment)
- Triggering events:
- Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
- Employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
- Employee is caring for an individual subject to a quarantine or isolation order or who was advised by a health care provider to self-quarantine due to COVID-19 concerns;
- Employee is caring for a son or daughter because the child’s school or place of care is closed or unavailable due to COVID-19; or
- Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
- Full time employees entitled to:
- 80 hours of paid sick leave at employee’s regular rate – for reasons 1, 2 and 3
- 80 hours of paid sick leave at two-thirds of the regular rate – for reasons 4, 5 and 6
- Part-time employees entitled to:
- Paid sick leave based on average number of hours worked during the prior 6 months
- Full time employees entitled to:
- Caps on paid sick leave:
- Capped at $511/day and $5,110 total per employee for reasons 1, 2 and 3
- Capped at $200/day and $2,000 total per employee for reasons 4, 5 and 6
- Other provisions:
- Sick leave does not carry over to following year
Tax Credits for Paid Sick and Paid Family and Medical Leave
- Employers entitled to payroll tax credits for payments made to employees
The foregoing is merely a summary of some of the primary provisions of the Act which apply to employers generally. There are many other detailed provisions that are not set forth here. If you have a particular question regarding how the FFCRA applies to you and your employees in particular, you should contact your legal counsel for advice.
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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).
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