While post-Tiarathe Economic Loss Rule (“ELR”) is limited to products liability cases, the Tiara progeny firmly establish that the independent tort doctrine (“ITD”) is alive and well. In a nutshell, the IDT “is a prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So.2d 532, 536-537 (Fla. 2004).

What happens, however, when an employee of a company who is not a party to the contract between the company and a third-party, is alleged by the third party to have made misrepresentations in the performance of the contract? Does the employee have personal liability for those misrepresentations?

Prior to Tiara, the Fifth DCA answered in the negative and held that “when an aggrieved party is barred by the contractual privity economic loss rule from suing a corporation in tort, it cannot avoid the rule by suing a non-professional employee for their alleged negligence in performing the contract on behalf of the corporation.” Vesta Const. v. Lotpeich, 974 So. 2d 1176, 1181 (Fla. 5th DCA 2008)

Flash forward to 2017, and the Third DCA in Peebles came to the same conclusion in the context of the ITD. Peebles v. Puig, 223 So.3d 1065 (Fla. 3d DCA 2017)(holding that in the context of a misrepresentation claim against an officer/principal of a company that had breached a contract “Florida does not allow a party damaged by a breach of contract to recover the exact same contract damages via a fraud claim”).

There are some pre-Tiara some cases that seem to indicate the contrary result. For instance in Output, Inc. v. Danka Business Systems, Inc., 991 So. 2d 941, 944 (Fla. 4th 2008), the Court stated “Key to this court’s opinion is the fact that [defendant] was not a party to the contract…Had [defendant] been a party to the contract, then [plaintiff’s] claim…would not have constituted a claim for fraud in the inducement, but rather a claim for fraud in the performance. Under those circumstances, the economic loss rule would have barred the claim.” However, Output predates Tiara and contains other distinguishing facts. Specifically, Output concerns a statement made by an employee prior to the execution of the contract that induced the party to enter into the contract. Peebles concerns a statement made by an officer/owner during execution of the contract and is thus a misrepresentation regarding performance.

In 2016, Florida voters passed Amendment 2 which legalized medical marijuana in Florida.  Two years later, employers are adapting to the idea of employees who use medical marijuana under the care of a doctor. 

I recently spoke with Florida Weekly about drug testing policies for Florida employees.  See the article for more information.

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.
As the laws involving cannabis use – for both medicinal and recreational purposes – evolve, businesses must figure out how to operate in a changing environment.  I was happy to share my thoughts on managing cannabis use by employees with Area Development.  See the article for more information on this rapidly changing area of the law.

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 finally legalizes smokable medical marijuana.  See my post 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.

I was happy to speak with I was happy to speak with Jeff Ostrowski at The Palm Beach Post regarding how to manage Employee medical marijuana use and drug testing trends two years into Florida’s legalized medical marijuana program.   See his helpful article on this topic.

 


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As I posted last year, the next wave of Americans with Disabilities Act (“ADA”) Title III litigation was going to focus on hotels and motels and their reservation systems.  And, I was right.

These cases are primarily focused on the hotel’s reservation system and how detailed the hotel’s web site describes the ADA accessible rooms and the facility.

As previously explained,  these cases are being brought pursuant to 28 CFR 36.302(e) which provides:

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2) Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3) Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

These regulations really focus on three parts of the hotel room booking process.

First, if a hotel operates a web site it must describe ADA accessible rooms and the facility in enough detail that the potential customer/visitor can determine if the room and facility are suitable for them.  The case law on what level of description is necessary remains in flux.  However, the more detail a hotel owner can provide the better.  Describe the general facility, including:  ADA accessible parking; ramp into the hotel; elevators access, etc.  Also describe the parts of the common areas, meeting areas, and event areas that are ADA accessible.  Be mindful that ADA accessibility goes beyond mobility/wheelchair issues.  Similarly, provide as much detail as possible regarding your ADA accessible hotel rooms, often these details can be included under room descriptions for your ADA accessible rooms.  Describe the guest room bathroom, path of travel within the guest room, describe any available aids for those with visual or auditory impairments, etc.

And, if a hotel does not have accessible features or only has limited accessible features due to its age or historic status, the hotel owner should alert potential customers to the fact as well.  Advise potential guests that doorways are narrow, that there is no elevator, etc.

Second, make sure your reservation system, online or by telephone, provides guests with the ability to reserve ADA accessible guest rooms during the same hours and in the same manner as individuals who make reservations for non-accessible rooms.  See Poschmann v. Coral Reef of Key Biscayne Developers, Inc., 2018 WL 3387679 (S.D. Fla., May 23, 2018).  Said another way, if an individual can reserve a regular room on-line via your web site (24 hours a day), an individual who wants to reserve an ADA accessible guest room must be able to reserve an ADA accessible room on-line via your web site 24 hours a day.

Third, an ADA accessible guest room reserved by a guest must be held for the guest that has reserved the ADA accessible guest room.

Here in Florida there are many smaller “mom and pop” hotels that are being targeted by plaintiffs related to these issues.  As a result, now is the time to either update your web site and reservation system or consider removing your reservation system from your on-line platform.


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.

In a recent case out of the Southern District of Florida, the Court outlined the standard for dismissal of an individual’s Chapter 7 case based on the Debtor’s pre-petition bad faith behavior.

The statutory language of § 707(a) outlines the three nonexclusive bases a chapter 7 case may be dismissed for “cause,” including unreasonable delay by the debtor that is prejudicial to creditors, nonpayment of any fees or charges required under chapter 123 of title 28, and, upon motion by the United States Trustee, failure of a debtor in a voluntary case to timely file the information required under § 521(a)(1).

In the event that those three examples do not apply, the court must consider whether “cause” exists based on record evidence introduced in the case.  The controlling authority in the Eleventh Circuit as to what constitutes “cause” for dismissal  is In re Piazza, 719 F.3d 1253 (11th Cir. 2013).  In Piazza, the Eleventh Circuit held that “the power to dismiss a bankruptcy case ‘for cause’ in § 707(a) includes the power to involuntarily dismiss a Chapter 7 case based on prepetition bad faith” and “a totality-of-the-circumstances approach is the correct legal standard for determining bad faith under § 707(a).  Id. at 1261, 1271.  The Piazza court explained that “[t]he totality-of-the-circumstances inquiry looks for ‘atypical’ conduct . . . that falls short of the ‘honest and forthright invocation of the Bankruptcy Code’s protections.’” Id.  A court evaluating whether bad faith has occurred is required to examine whether a debtor’s intentional acts or omissions to act “constitute a misuse or abuse of the provisions, purpose, or spirit of the Bankruptcy Code.” Id. at 1272.

The most important takeaway from this recent case is to be prepared and present evidence at the evidentiary hearing supporting your motion for dismissal based on “cause”.  Lack of record evidence establishing the bases outlined in § 707(a) or prepetition bad faith rising to the level of “cause” will certainly result in denial of your motion to dismiss.


 

The new Florida Governor, Ron De Santis, has made some bold statements regarding medical marijuana in Florida, including the legality of smoking medical marijuana and Florida’s vertical license structure with limited licensees.    See my post 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.

I’ve written another new post for Fox’s In the Weeds blog.  See my post which provided an update regarding oral argument in the appeallate case involving Florida medical marijuana smoking litigation.


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.

Sometimes its hard to tell that its the holidays in Florida with no snow on the ground or chill in the air.  But the end of the year means its time for Florida employers to pay attention to the new 2019 Florida minimum wage. As of January 1, 2019, Florida’s minimum wage will rise from the current rate of $8.25 per hour to $8.46.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region. Based upon this year’s calculation, Florida’s new minimum wage for 2019 is $8.46 per hour.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage. However, the employer must pay tipped employees a direct wage. The direct wage is calculated as equal to the minimum wage, $8.46 minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.44 as of January 1, 2019.

The photo in this post is of the Royal Poinciana Surfboard Christmas Tree in Palm Beach (photo by me).


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.