Please find another update on Florida medical marijuana over on Fox’s In the Weeds.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

See my post over on Fox’s In the Weeds, regarding the Florida Legislature’s failure to pass regulations implementing Amendment 2 (medical marijuana).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

See my post over on Fox’s In the Weeds, regarding the Florida Senate passing its version of regulations for Amendment 2 (medical marijuana).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month I posted Part I on this topic which covered the state of federal statutes and regulations regarding web site access as well as the most recent Florida Federal case law on the topic.

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This time I around, I want to talk about reality for companies.

Plaintiffs are bringing these website cases here, and elsewhere, and many have already figured out how to plead the claims to survive the motion to dismiss phase.  So, if your company has an inaccessible website and a physical location and the two are physically linked then you are eventually going to face a Title III ADA website case.

Physically linked can mean situations such as:

  1. you offer coupons on your website that people can use in your store or restaurant;
  2. you advertise specials on your website that apply in your store or restaurant;
  3. customers can order merchandise on your website and pick it up at your store;
  4. customers can return merchandise ordered online to your store;
  5. you post your menus on your website for your restaurant; and
  6. you have an online reservation system for your hotel or your restaurant, etc.

If you want to get your website accessible, what should you do?  Head back to the DOJ guidance and consider working towards moving your website to WCAG 2.0 AA or higher level of accessibility.  Since websites are always changing and being updated, you can ask your ecommerce teams (internal and external) to begin moving content or updating content so it meets these standards over time.

The WCAG standards include such things as making content Screen Reader Software (“SRS”) compatible, adding captions to video, photos, etc.  But, there are many other issues that come with meeting the WCAG 2.0 AA standards that involve organization of website, navigation between pages, checkout for ordering, etc. that may require expert guidance.

While the ADA Title III regulations and standards have not caught up with technology, the plaintiffs’ bar has gone beyond.  If you want to avoid litigation regarding your website (and it has a nexus to your companies’ physical locations), you need to think about moving forward with redesign of your website or at least a retrofit that includes SRS compliance until regulations are in place.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

See my post over on Fox’s In the Weeds regarding the Florida House of Representatives passing HB 1397 which is a bill to legislate Amendment 2 (medical marijuana).

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

See my post, over on Fox’s “In the Weeds” blog, regarding Florida fraudsters taking advantage of the delay in Florida’s implementation of Amendment 2 (medical marijuana).

Also, if you are interested in cannabis business in Florida and nationally, follow Fox’s In the Weeds.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

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Copyright: iqoncept / 123RF Stock Photo

Punitive damages may be awarded in civil actions as a form of punishment to deter others from engaging in conduct similar to the defendant.  Punitive damages are only available for certain claims, such as intentional torts, and only if the defendant is personally guilty of the misconduct.  Actions for tortious interference, conversion, and other business torts may give rise to an award of punitive damages.

 

Before a claim for punitive damages may be asserted, Section 768.72 of the Florida Statutes requires “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”  In other words, a defendant cannot be subject to a claim for punitive damages, and financial worth discovery, unless and until the trial court determines that there is a reasonable evidentiary basis to recover punitive damages. The plaintiff must seek leave to amend the complaint and proffer a reasonable evidentiary basis for punitive damages before the court.

The Fourth DCA recently confirmed that the Florida statute requires more than mere allegations and stated:

an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true.

Instead, trial courts must determine whether the plaintiff established a reasonable evidentiary basis to recover punitive damages and to show that the misconduct rises to a level of culpability that supports punishment.  Without such a showing, a claim for punitive damages is precluded.

Defendants faced with claims for punitive damages should closely scrutinize whether the plaintiff has established the necessary evidentiary basis and be prepared to challenge any unsupported claims.

 

Florida, and particularly South Florida, has always been on the leading edge of legal trends that involve mandatory attorneys’ fees for plaintiffs.  For many years, the United District Court in and for the Southern District led the pack in the number of Title III cases filed under the Americans with Disabilities Act (“ADA”).  In 2013, one in every five ADA Title III case was filed right here in the Southern District.  In fact, the Southern District has a 435-page list of all the addresses where ADA Title III cases have been filed in an effort to prevent plaintiffs from suing a property location that was previously sued.

Perhaps because that the address list includes just about every physical location in the Southern District of Florida, the plaintiffs’ bar has now gone virtual and the hot new trend in ADA Title III litigation is website access.

The Feds

Starting with the basics, Title III of the ADA prohibits discrimination in public accommodation:

No individual shall be discriminated against on the basis of disability 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, leases or operates a place of public accommodation.

A location is a place of public accommodation if its operations “affect commerce” and it falls within one of the twelve categories described in the statute.  The twelve categories cover just about everyplace one might go during a day except for your own private residence.  The types of places covered include places of lodging, restaurants, bars, movie theaters, stadiums, concert halls, auditoriums, stores, banks, gas-stations, professional offices (i.e. doctor’s and lawyer’s offices), transportation facilities, all types of recreational facilities (i.e. zoos, libraries, galleries), and all types of schools and colleges, etc.

If you review the twelve categories in detail, you will likely notice that “website” and ” internet” and “online” are not listed anywhere.  On the other hand, the Department of Justice (“DOJ”), as evidenced by its enforcement and litigation activity, interprets places of public accommodation to include companies’ online websites.

In fact, the DOJ issued a Notice of Proposed Rulemaking directed to entities governed by Title II of the ADA (i.e. government agencies) which identified the barriers disabled people encounter when using the internet and best practices for removing or reducing those barriers.   The DOJ (and some Courts) propose utilizing Web Content Accessibility Guidelines (“WCAG”) 2.0 as the standard (and the regulations) to judge whether a web site is accessible or not.

It is unclear when the Federal government, under the new administration, will complete its rulemaking under Title II and then move on to Title III (commercial entities).  As such, unlike physical locations, there are presently no governing regulations for website accessibility.

 

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The Courts

Alternatively, maybe the Courts will give us some more definite guidelines.  Back in 2002, the United States Court of Appeals for the Eleventh Circuit Court of Appeals (which has jurisdiction over federal cases originating in the State of Florida) was on the front edge of this topic when it analyzed similar issues regarding the once popular “Who Wants to Be a Millionaire” gameshow in the Rendon v. Vallycrest case.    In Rendon, the issue wasn’t focused on the internet but on an “automated fast finger telephone” selection process.  The Rendon Court determined that the show, since it was held in a theater, was a place of public accommodation.  The Renden Court went on to rule that since the telephone screening process imposed significant barriers to disabled people who wanted to be on the show, ADA Title III applied to the telephonic application process because it restricted access to the place of public accommodation (i.e. the studio).

Since 2002, the case law in the Eleventh Circuit and throughout the Florida Federal district courts has been somewhat muddy.  The most recent case related to this website accessibility is Gomez v. Bank & Olufsen America.  In Gomez, Mr. Gomez alleged that he could not utilize the defendant’s website because it is not compatible with his screen reader software (“SRS”).  While Mr. Gomez’s Complaint linked the defendant’s website with its physical locations the focus of his Complaint, in this instance, was his reliance on using the internet to shop because of his visual impairment (he is legally blind).  Judge Joan Leonard ruled his claim failed because the ADA does not require a place of public accommodation to have a web site at all.  However, she also ruled that if a place of public accommodation does have a web site it cannot impede a disabled person’s full use and enjoyment of the brick and mortar locations.  Mr. Gomez did not replead his claims, as he had the right to do under this recent order, so the case law remains unsettled in the Southern District.

Check back soon for my Part II post on this topic.  

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month, I posted about one Florida House proposal to implement Amendment 2 (which legalized medical marijuana this past November).

Thereafter, several other bills have been put forward and one in the House, HB 1397, has now passed the House Health Quality Subcommittee.  HB 1397, written by House Majority Leader Ray Rodrigues, is quite restrictive and basically the opposite of SB 614 (the topic of my last post).  Specifically it provides the following:

  • A requirement that non-terminal patients must have a doctor at least 90 days before they can get a cannabis recommendation.
  • Bans the smoking of medical marijuana.
  • Also bans edibles like brownies and “vaping.”
  • Slow expansion of the number of licensed growers and dispensaries.  HB 1397 grants licenses to the seven existing growers (previously licensed under Haleigh’s Hope law).  In addition, five applicants denied last year by the Department of Health would obtain licenses after 150,000 patients have registered.  New licenses would be allowed once there are 200,000 patients registered.

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Heading back to the Florida Senate, Rob Bradley, has proposed SB 406 which has also made it past a key committee (the Senate Health Policy Commitee).  SB 406 is a more “in the middle” bill and proposes the following:

  • The proposal does not include any language that would restrict doctors’ ability to decide for themselves if patients qualify for marijuana treatment.
  • Nonresidents would be allowed to apply to receive medical marijuana in Florida as long as they are able to get medical marijuana in their home state and qualify in Florida.
  •  The Department of Health would be required to have computer software system to track marijuana from “seed to sale”.
  • Patients would also be allowed to increase their supply from 45 to 90 days or even more than 90 days with a doctor’s approval.
  • The Bill would increase the number of marijuana dispensaries, expanding the number of businesses by five more when the state has 250,000 patients, 350,000 patients, 400,000 patients and then every 100,000 thereafter.
  • At least one of the five dispensaries would have to be a black-owned company.
  • The Bill also proposes a new medical marijuana research group at the Moffitt Cancer Center in Tampa.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

How do you respond when someone tells you they practice voodoo?  How about Santeria or Rastafari?   Do you laugh or scoff in response, do you start singing Sublime??  Here in South Florida, a multicultural and multi-ethnic area, there are a plethora of minor religions being practiced by thousands of people.  As a result, laughing or kidding about someone’s religion, even if seems like a joke to you, is the wrong move in an employment setting.

As an example, news of a recent employment lawsuit filed by a follower of the Yoruba religion, the African ancestor to voodoo and Santeria, who claims discrimination because her employer was making fun of her religion and allegedly restricting her ability to wear her religious garb.  Specifically, Jenessys Gomez, alleges that her bosses and co-workers made fun of her after she started wearing Yoruba-mandated white from head to toe, including a white cover over her shaved head.

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This latest lawsuit is a good reminder to employers that Title VII covers all kinds of religions and even non-theistic beliefs.  The EEOC guidance on religious observance provides the following:

Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers.  For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.  An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.  Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

When it comes to religious garb or grooming, employers should tread carefully and only limit an employee’s right to wear their religions garb or abide by their religions grooming requirements if, and only if, it creates a real workplace safety, security, or health concerns.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.