I’ve posted about Emotional Support Animals (“ESA”) before, see my posts here , here and here.   I keep coming back to this topic because emotional support chickens, peacocks on planes and little dogs at the grocery store (a common sight in Florida during the winter season) fascinate me.   Now comes news that Florida Governor Ron DeSantis has signed into law a bill that may end up limiting ESAs at your local condo complex.

SB 1084 , was signed by Gov. DeSantis on June 23, 2020, and provides for the following changes to Florida Housing Law:

  • Section 817.265 of the Florida Statutes is amended to provide that a person who falsifies information or written documentation or who knowingly provides fraudulent information or written documentation to obtain an ESA or otherwise knowingly and willfully misrepresents himself or herself as having a disability or a disability related need for an ESA commits a misdemeanor of the second degree.
  • Section 456.072 of the Florida Statues is amended to provide that  a health professional who provides information, including written documentation, indicating that a person has a disability or which documentation supports a person’s need for an ESA without personal knowledge of the person’s disability is subject to disciplinary action.
  • SB 1084 further amends Section 760.27 of the Florida Statutes to defines an ESA as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.”
  • SB 1084 also provides cover for home owner or condo associations to deny a reasonable accommodation request for an ESA if the animal being requested poses a “direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others which threat cannot be reduced or eliminated by another reasonable accommodation.”
  • SB 1084 permits home owner or condo associations to request supporting information for the ESA if a person’s disability is not readily apparent.
  • Additionally, the practitioner or provider of the supporting information for the ESA must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice.
  • If a resident requests more than one ESA, he or she must provide supporting information for each animal.
  • The association may also require proof that each ESA is properly licensed and vaccinated.
  • Persons with ESAs are liable for any damage done to the premises or to another person by the ESA.
  • No fee will be required for ESAs under SB 1084.

This new law was mainly the result of many years of efforts from  the Florida Realtors group.  Realtors have been concerned about the continued use of ESA Certificates that can simply be downloaded after a purchase from on-line providers who have no relationship with the resident seeking the ESA.  Additionally, the recent explosion of ESAs  requested by condo or apartment residents has basically nullified the ability for landlords or residents (who may have allergies or other issues) to designate a housing complex as pet or animal free.

It will be interesting to see the litigation that will likely spin off as a result of this new law as the issue of ESAs is certainly not yet settled.  And, this new law doesn’t address ESAs in restaurants or stores (which are already not permitted, but often confused for service dogs or animals).

 


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.

With talk about allowing some businesses to reopen, employers will need to plan for employees to return to in-person work.   Some of those employees will likely be those who have previously tested positive for COVID19.

See this post from Fox’s  Randall C. Schauer, explaining the guidance for how and whether to bring COVID19 positive employees back to work.

 

Fox Rothschild LLP has established a coronavirus resource center.  If you have questions regarding new paid sick leave obligations, whether your business is essential or not, or how to address data protection obligations while you work from home, please check our resource center.

The resource page will be updated frequently with links to free webinars, alerts and blog posts. Bookmark this page and visit regularly for new and updated information.

According to the American Hotel & Lodging Association, Florida has more than 440,000 hotel rooms and more than 3700 hotel properties.  Those numbers are not surprising considering Florida is number 2 for tourists visits in America.  Yet, among the sunny beaches and palm trees there lurks a dark side of Florida’s tourism industry – human trafficking.   For example, while Miami recently hosted the SuperBowl , officials, volunteers and law enforcement were on the alert for human trafficking.

While the  Federal Trafficking Victims Protection Act (“TVPA”),  was established in 2000, it has only been recently utilized to successfully hold hotels and motels liable for damages related to sex trafficking.   Accordingly, more hotels and motels, including those in Florida, are receiving lawsuits based on the TVPA.   Hotels and motels need to be aware of this law and must develop robust policies, procedures and training programs for their management and front line associates.

Pursuant to the TVPA, companies that profit financially from sex trafficking or forced labor can be held responsible under this law.  Accordingly, a hotel renting out rooms to people forcing human trafficking victims into prostitution may profit financially from that activity.  Of course, hotel management and staff members are not always aware of what goes on in guests’ lodging rooms.  But, if a hotel ignores obvious signs of trafficking, hotel companies may be held liable by survivors of trafficking and/or prosecuted criminally for sex trafficking by the government.

Below are some suggestions for best practices related to prevention of human trafficking at hotels and motels.

  • Develop a formal policy against trafficking.
  • Develop a protocol for response to possible trafficking.
  • Conduct regular training on trafficking signs and the protocol for response. Train all new associates and provide regular training on a periodic basis and before high profile events.
  • Require vehicle information and photo ID at check-in for guests.
  • Do not rent lodging rooms by the hour and be alert when lodging rooms are paid for by cash or pre-paid cards.
  • Consider security camera placement.  Verify that all guests and visitors who enter a hotel or motel are captured and recorded.  Use cameras at the front desk and in parking areas.
  • Establish law enforcement contacts trained on human trafficking.  Many agencies are providing training related to this issue.
  • Monitor online advertisements for your hotel or motel name and pictures of your lodging rooms.
  • Change public wi-fi passwords regularly.
  • Limit hotel entrance to one staffed area at night.  Require that associates actively greet and speak with all guests and visitors.  Require that all visitors are logged.
  • Be alert if a guest requests a lodging room with view of parking lot.
  • Be alert to heavy foot traffic in and out of a lodging room.
  • Be alert to guests dressed inappropriately for the climate or age.
  • Be alert to frequent requests for new linens and towels.
  • Be alert to guests with signs of physical or sexual abuse.
  • Be alert to guests with signs of poor hygiene, malnourishment, or fatigue.
  • Be alert to guests with limited or no freedom of movement or monitored movement.

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.

Via Odia Kagan, writing for our Privacy Compliance & Data Security blog:

A Florida privacy bill, resembling one passed last year in Nevada, would introduce significant new privacy notice requirements for Florida operators similar to the California Consumer Privacy Act, and require giving consumers the ability to opt out of a sale of information.

The privacy “notice” would need to include several items.  Most importantly, the operator would have to disclose “the categories of covered information that the operator collects through its website or online service about consumers who use [them] … and the categories of third parties with whom the operator may share such covered information.”

“The draft legislation obligates operators to stop selling data of a consumer who submits a verified request to do so..a ‘sale’ is defined as an exchange of covered information ‘for monetary consideration,’ which is narrower than its CCPA counterpart, and contains exceptions for disclosures to an entity that merely processes information for the operator. ”

Details in the National Law Review.

Happy New Year!  Notwithstanding that Cannabidiol (“CBD”), in various forms, has been for sale in Florida for years, 2020 is bringing new Florida rules and regulation to that marketplace.

Starting in January 2020, Florida’s Department of Agriculture now has the power to regulate and inspect CBD  products and wholesale and retail facilities that prepare and/or sell prepackaged food consisting of or containing hemp extract, which includes CBD or other cannabinoids, to the end consumer or that sell that product to other businesses.

As explained by Florida’s Department of Agriculture:

“Prior to these rules being adopted and taking effect, we didn’t have regulatory authority. Now we do, and we have that up and going so that we can make sure consumers are protected.”

The new Florida regulations cover issues such as “pesticides, how packages are labeled and the inspection of products sold or produced in the state.”

Any business, online or brick and mortar, that sells CBD for ingestion must have a license and are subject to inspection and testing of their products.  CBD products, under the regulations, must limit cannabinoids to total delta-9 tetrahydrocannabinol concentration of less than 0.3% on a dry weight basis.

There is a “three-strike rule” for non-compliance:  first offense – written notice; second offense – $10,000 fine; 3rd offense your business will be prohibited from selling CBD.


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.

I was listening to NPR this morning, and they had a news story about more and more employers telling smokers that they “need not apply.”    These nicotine based employment hiring bans include government employers and private employers.

I posted about this topic all the way back in 2013.  Listening to the news this morning peaked my interest, so I went back to check my prior blog post and to determine if its still legal to not hire smokers in Florida.   This is what I found in 2013.

So, is the ban on hiring smokers a legal one?  First, there is no Federal law that protects smokers or entitled them to equal protections in hiring. Second, state laws vary as to whether an employer can restrict off duty use of tobacco. But, here in the Sunshine State, there is no state law that provides protection for candidates applying at smoker free workplaces.

In fact, all the way back in 1995 the Florida Supreme Court upheld a City of North Miami policy requiring job applicants to swear they have not smoked cigarettes within the past year (see The City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995).

In Kurtz, Arlene Kurtz applied for a clerk-typist position and said she could not sign the affidavit, required by the City as part of its application process, that she was a nonsmoker.  The City interviewer told her that if she was not smoke-free for at least a year before applying with the city, then she would not be considered for the job.

A lower court had ruled that the policy was unconstitutional.  But, by a 5-2 split, the Florida Supreme Court disagreed.  Justice Ben Overton wrote in the opinion of the court that smokers do not have a reasonable expectation of privacy about their smoking, as they are “constantly required to reveal whether they smoke.”

However, Overton cautioned that the ruling does not apply to whether employers can require employees to stop smoking once hired, and does not apply to whether employees who signed the affidavit could start smoking or resume smoking.

And, Kurtz remains good law in Florida as of 2019.


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.

Florida statute, F.S. §542.335, governs the enforcement of noncompete agreements that are subject to Florida law. While a “reasonableness” standard is employed throughout the statute, Florida’s noncompete statute is generally considered one of the most employer friendly noncompete statutes in existence. 542.335(1)(g)(1) provides that  “[i]n determining the enforceability of a restrictive covenant, a court shall not consider any individualized economic or hardship that might be caused to the person against whom enforcement is sought.” Additionally,  542.335(1)(h) prohibits a court from employing any rule of contract construction that “requires the court to construe a restrictive covenant narrowly, against the restraint, or the drafter of the contract.” Both of these provisions overwhelmingly favor an employer. 

Because of the lopsided nature of the noncompete statute, courts in several states have refused to enforce it because it is contrary to public policy. See Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364, 34 N.E.3d 357, 12 N.Y.S.3d 606, 2015 N.Y. Slip Op. 4876 (N.Y. 2015) (holding that Florida’s noncompete statute [Fla. Stat. § 542.335] is unenforceable and contrary to public policy in New York because the court cannot consider hardship to the employee and may not construe the statute narrowly against the employer); Unisource Worldwide v. South Central Ala. Supply, 199 F.Supp.2d 1194 (M.D. Ala. 2001) (holding that Section 542.335, Florida Statutes is contrary to public policy in Alabama and consequently unenforceable because court cannot consider hardship to employee); Brown and Brown, Inc. v. Mudron, 887 N.E.2d 437, 379 Ill. App.3d 724, 320 Ill.Dec. 293 (Ill. App. 2008) (holding that Section 542.335, Florida Statutes is contrary to public policy in Illinois for similar reasons); Carson v. Obor Holding Co., 318 Ga.App. 645, 734 S.E.2d 477 (Ga. App. 2012) (holding that choice of law provision in contract in favor of Florida law is unenforceable in Georgia because Section 542.335, Florida Statutes forbids the court from balancing interests of employer and employee when determining enforcement).

In light of the enforcement issues that can arise in foreign jurisdictions, care should be taken when drafting a choice of law provision in favor of Florida in an employment agreement containing restrictive covenants that might be litigated in a foreign court.


W Mason is an partner with the law firm Fox Rothschild LLP.  W focuses his practice on litigating restrictive covenants and general business litigation matters. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

Pleased to announce that Fox Rothschild has published  a “National Survey on Marijuana in the Workplace and Drug Testing Laws,” this state-by-state guide will help businesses navigate complex and sometimes thorny issues regarding medical marijuana use by employees and employee drug testing issues. This survey was prepared by myself and Joseph A. McNelis III.   Joe and I will be working hard to keep this survey updated as the laws change.

See the Survey which is posted at Fox’s In the Weeds.


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.