On November 15, 2018, the Florida Supreme Court held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”

The statute which governs a motion to disqualify requires that the moving party file an affidavit in good faith stating fear that he or she will not receive a fair trial…on account of the prejudice of the judge as well as the facts and the reasons for the belief that any such bias or prejudice exists.

In finding that Facebook “friendship” alone falls below the threshold for disqualification, the Court reasoned, that the mere fact that a Facebook “friendship” exists provides no significant information about the nature of any relationship between the Facebook ‘”friends.”  The Court further noted that “[n]o reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook “friends” with a relationship of an indeterminate nature.”

Florida courts, including the Supreme Court, have long recognized the general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.  Why should Facebook “friendships” be any different?


  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

 

An employer can be liable for the actions of its employees, even if committed outside the course and scope of the employment.  The two causes of action are negligent hiring and negligent retention.  The principle difference between a negligent hiring and a negligent retention claim is “the time at which the employer is charged with knowledge of the employee’s unfitness.”

In a negligent retention action, a plaintiff must show:

  1. The employer was required to make an appropriate investigation of the employee and failed to do so;
  2. An appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and
  3. It was unreasonable for the employer to hire the employee in light of the information he knew or should have known.

In Florida, there is a presumption that an employer is not negligent in hiring an employee if the employer:

  1. Obtained a criminal background check from the Department of Law Enforcement;
  2. Made a reasonable effort to contact prior employers and references;
  3. Required the employee to complete a job application that included questions related to the employee’s criminal background and civil liability for intentional torts;
  4. Obtained a check of the driver license record of the employee if a check is relevant to the work the employee will perform; or
  5. Interviewed the employee.

In a negligent retention action, a plaintiff must show:

  1. During the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and
  2. The employer failed to take further action such as investigating, discharge, or reassignment.

However, in either a negligent hiring or negligent retention action, the tortious conduct of the employee must have been foreseeable to the employer to hold the employer liable.  An employee’s wrongful conduct that is unrelated to the conduct that ultimately harmed the plaintiff will not be enough.

To avoid liability, employers should have procedures in place to conduct an appropriate investigation before hiring an employee and to monitor an employee once retained.


Megan A. McNamara is an attorney with the law firm Fox Rothschild LLP.  Megan practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida.  Megan focuses her practice on commercial and business litigation throughout Florida. You can reach Megan at (561) 804-4445 or mmcnamara@foxrothschild.com

I’ve posted several times, hereherehere, and here regarding the dilemma of service dogs and emotional support animals (“ESA”).

I was interested to see that Delta has recently tightened up its rules for service dogs and ESAs who fly on its planes.

Delta, as of March 1, 2018, will require the following:

  • All customers traveling with a service or support animal must show proof of health or vaccinations of the animal 48 hours in advance of the flight.
  • In addition to the current requirement of a letter prepared and signed by a doctor or licensed mental health professional, those with psychiatric service animals and emotional support animals will also need to provide a signed document confirming that their animal can behave properly (not aggressive and won’t pee on the plane).

Delta has picked up on what many airline passengers these days have suspected and that is that many passengers flying with ESAs are gaming the system to fly animals not normally allowed on-board (including turkeys, pigs, flying sugar gliders, etc.) or to avoid the fee associated with flying a pet.

Additionally, Delta is also facing a lawsuit from a passenger who was bitten in the face by a 50 pound dog who was flying in the lap of a middle seat passenger who claimed the dog was an ESA.  Besides the risk of severe dog bite, having an unrestrained 50 pound dog riding in the lap of a middle seat passenger simply creates safety risks on a plane.  Most airlines strongly recommend that babies over 40 pounds have their own airline seat even if the child is under the age of two (when most airlines permit babies to fly for free in the lap of an adult).

Businesses, including airlines who must comply with the Air Carrier Access Act (which require accommodation of ESAs not required by other land-based businesses), are increasingly facing dilemmas on how to accommodate real service animals (which are limited under the ADA to dogs or miniature ponies) and not running afoul of the ADA while managing the needs of other customers and their obligations under various health code requirements.

Businesses are damned if they do (bites, dog’s peeing on the floor [which I recently witnessed at a popular West Palm Beach restaurant]) and damned if they don’t (ADA lawsuits and bad publicity).  The dog that mauled the Delta passenger belonged to a military veteran and we all know that a business that excludes such a dog from their premises will draw negative publicity as being anti-military, anti-veteran and anti-disabled.


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 previously blogged on the standard for punitive damages in Florida.  To be entitled to an award of punitive damages, a plaintiff must show that the defendant’s conduct rises to a high level of culpability.

But what if a statute authorizes the recovery of punitive damages?  Certain statutes, like Florida’s unauthorized publication of likeness and wiretapping statutes, specifically provide for an award of punitive damages to a successful plaintiff.  As a result, some plaintiffs have argued that the culpability standard does not apply to claims for punitive damages brought pursuant to these statutes.

The Fifth DCA has rejected this argument and held that a statute authorizing punitive damages should be read in connection with Florida’s punitive damages standard.  In a recent case, James v. Intelligent Software Solutions, Inc., the USDC for the Middle District of Florida dismissed a plaintiff’s claims brought pursuant to a statute that authorized punitive damages where the facts were insufficient to show the defendant’s conduct was willful, wanton, or malicious.

Thus, regardless of statutory authorization, punitive damages still may only be awarded where a defendant’s conduct satisfies the culpability standard.

I’ve posted before here on the Oregon wedding cake case (not to be confused with the Colorado wedding cake case that went to the Supreme Court).

Now comes recent news that the Oregon Court of Appeals has upheld a $135,000 fine against two bakers, Melissa and Aaron Klein, who refused to bake a cake for same sex couple Rachel Bowman-Cryer and Laurel Bowman-Cryer who were getting married.

Carson Whitehead, Assistant Attorney General with the Oregon Department of Justice, represented Bureau of Labor and Industries. He argued the case turns on two simple facts:

The Kleins refused to provide the exact same service for a same-sex couple that they would with a heterosexual couple, and the denial of services was based on sexual orientation.

Here in Palm Beach County, Florida, bakeries are similar required to serve same-sex couples as set forth in Palm Beach’s anti-discrimination law, which was expanded in 2015.


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.

Miami is know for fun, sun, beaches and is a top spot for people looking to vacation or get together with friends or family for reunions and parties.  As a result, Miami-Dade County has been one of the busiest areas for peer-to-peer short term rentals.   The more short term rentals in a neighborhood the more complaints from neighbors regarding noise, parking, trash and other concerns.

Back in April, Miami-Dade reached agreement with Air BnB to collect bed taxes on the short term rentals listed on their platform.

Following the deal on taxes, Miami-Dade has now imposed regulations on the short-term rental market.

The new requirements include the following:

  • Hosts must apply for a certificate of use, which includes a “minimal” application fee.  Applicants will have to provide contact information for the property owner (who is also liable for any violations under the ordinance) and the short-term rental host, as well as the platform where the vacation rental will be listed.
  • In their applications, hosts will also have to certify that they will be collecting and remitting local tourist and state taxes, have permission from the property owner to rent short-term, carry insurance coverage on the property and have a vacation rental license with the Florida Department of Business and Professional Regulation.
  • Hosts will also have to acknowledge that the property owner is aware he or she risks losing a homestead exemption by renting short-term.
  • The certificate of use must be renewed annually and will be revoked, with few exceptions, if the property has three or more violations in the preceding 12 months.
  • If a host owns property within 2,500 feet from a school, the host will be required to ensure that a prospective guest is not a registered sexual offender or sexual predator.
  • Hosts must also maintain a register with the names and dates of all guests who stay at the home or apartment — including people invited to the property by the guests.  The maximum overnight occupancy at any short-term rental will not be permitted to exceed two people per room, plus two per property for a maximum of 12.  During the day, capacity is limited to 16 people.  This rule is designed to combat the problems with AirBnB “party houses” and other overcrowding problems.
  • Finally guests are expected to follow standard garbage procedures, noise restrictions (including no amplified sound outdoors), public nuisance laws and rules for pets, in coordination with the host. Guest parking is limited to two cars at a time on the property or on the street.  Again, violations are the responsibility of the property owner and can imperil the renewal of the certificate of use.
  • Fines for violations range from $100 for a first offense to $2,500 for a third offense within 24 months.  Five percent of all money collected from violations or fines will go into Miami-Dade’s Affordable Housing Trust.

_________

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 recently wrote in Fox Rothschild’s Consumer Law Ledger about a Florida appellate court’s ruling that the statute of limitations for a negligent appraisal claim begins to run on the date that the loan is funded, even if a loan default does not occur until much later.

I’ve been told that a Motion for Rehearing En Banc or for Certification for the Florida Supreme Court will be filed by the lender. So, we may not have heard the end of the Llano Financing Group, LLC v. Petit case just yet.

We’ll keep an eye on this one to see if there are any changes to this ruling.

A conspiracy requires the combination of two or more persons.  To state a claim for civil conspiracy, a plaintiff must show:

  1. An agreement between two or more parties,
  2. To do an unlawful act or to do a lawful act by unlawful means,
  3. The doing of some overt act in pursuance of the conspiracy, and
  4. Damage to plaintiff as a result of the acts done under the conspiracy.

A corporation is a legal entity, which can only act through its directors, officers and employees.  As a result, the intra-corporate conspiracy doctrine provides that agents cannot conspire with their corporate principal, because “it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself.”

Group of business people having board meeting around glass table

The intra-corporate conspiracy doctrine generally prevents a plaintiff from asserting a claim for civil conspiracy against agents and their corporations for internal agreements to commit wrongful conduct.  However, there is an exception, known as the “personal stake” exception, which provides that an agent may be liable for civil conspiracy if he or she has a personal stake in the activities that is separate from the corporation’s interest.  In other words, the agent must have acted in his or her own personal interest, “wholly and separately from the corporation.”

In Mancinelli v. Davis, the Fourth DCA recently considered whether a plaintiff sufficiently pled the personal stake exception in an action against a corporation and its CEO for civil conspiracy.  In finding that the CEO’s increased compensation resulting from the unlawful conduct was insufficient to establish the personal stake exception, the court said:

A personal stake must be more than just personal animosity on the part of the agent.  Moreover, the benefit to the agent must be more than incidental to the benefit to the principal.

However, in an action for civil conspiracy against a hospital and its chairman, the Third DCA found the complaint sufficiently pled the personal stake exception where it alleged that the defendants influenced patients to see the chairman instead of plaintiffs and refused to honor referrals to plaintiffs.  Thus, whether the exception applies and an action for civil conspiracy exists should be analyzed on a case by case basis.

I’ve posted before, here and here, regarding the dilemma business owners have when faced with a customer with a dog (fake service dog) or a customer with an animal (emotional support animal – which are not afforded the same protections as service dogs).  Many business owners simply don’t know how to respond or respond incorrectly (and generate bad press for themselves).  Many customers are fed up with fake service dogs everywhere and they resent businesses that do nothing as well and that means companies often can’t win.

Yesterday, there was an interesting article/editorial in The Hill regarding a proposal for creating a national certification database for service dogs.

What are your thoughts on a national certification program for service dogs?

__________

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.

Following up on my earlier post regarding fake service dogs, news from up north that Massachusetts is also considering a law to penalize those that pass off pets at service dogs.

The bill would makes passing a pet off as a service dog a civil infraction, carrying a $500 fine.

__________

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.