Open Government Laws: Florida Senate Bill Aims to Restrict Attorney Fees for Lawsuits regarding Public Records Requests

One of the more underscored debates in the Florida Legislative session this year is an amendment to Florida Statute 119.2, which provides civil action for citizens who are denied access to public records under the Florida Sunshine Act.  The amendment will require plaintiffs to provide written notice to the named agency prior to demand of costs and attorney fees.  The purpose behind such an amendment is to restrict the possibility of persons who submit excessive public information requests in order to seek monetary damages and attorney costs when their requests are delayed or even denied.

The proposed amendment, SB1220, aims at giving judicial oversight to the claims process and ensuring that a good faith effort is made on behalf of the plaintiff to inform the named agency in the suit of their intent.

Critics of the amendment cite that this “unnecessary” notice of intent and subsequent judicial discretion is an infringement of citizens’ right to open-records.  Currently, the only course of action to correct an open-records law violation is by way of a lawsuit.  Opponents of the amendment assert that this change in language will make it more difficult for plaintiffs to recoup the cost of legal action if an agency wrongfully delays or denies their public records request.

Workplace Bullying: When does Uncomfortable become Unlawful?

In most workplaces there is a fair amount of unwanted harassment and “bullying”, most corporations have strict rules in place to curb this type of behavior.  It has long been seen as bad for morale and causes unneeded tress and turnover in most occupations.  In Florida, there are no “anti-bullying laws”, however, there is a point where bullying crosses over into discrimination and harassment.

The Equal Employment Opportunity Commission (EEOC) investigates hundreds of charges of workplace discrimination and harassment each year.  In Florida, the agency often pairs with the Florida Commission on Human Relations (FCHR) to investigate these charges and determine probable cause and jurisdiction.

The most common charges that lead in lawsuits are based on workplace harassment that is based on discriminatory remarks and exclusionary practices.  Under federal law, employers may not discriminate against an employee or applicant based on race, color, religion, sex, marital status, ethnicity, age (40 or older), or disability.  Discrimination, harassment, and favoritism that is not based on these characteristics is not protected under federal or state law.

When Does Harassment Become Illegal?

Offhand remarks and general poor humor is not necessarily a base for a discrimination lawsuit.   In order to prove an employer is violating federal law, it must be proven that the employer is being abusive, threatening or hostile and enduring the harassment has become a condition of employment.

The unlawful action can be committed by the victim’s supervisor, co-workers or another employee/supervisor in a different office.  The behavior does not have to be directed towards you, but may be indirect in a way that makes you feel threatened or intimidated.  Example of this may be religiously offensive materials being posted in a break room, or circulating mass emails that are intended to harass or provoke discriminatory behavior.  Ultimately, the employer is responsible for maintaining a safe environment and may be held liable for the harassment/discrimination committed by its employees.

Many employers have been proactive in curbing harassment in the work place.  Many programs include interactive training seminars for supervisors and employees, as well as more stringent enforcement of existing policies.  Currently, only three states have anti-bullying laws on the books, but bills have been introduced in 23 others, including Florida.  The Florida “Abusive Workplace Environments” Bill was proposed in 2013, but gained no traction in the Florida State legislature.

If you believe you are a victim of workplace bullying or harassment, you can contact the law office of Massey & Duffy in Gainesville.  Our attorneys are experienced in Employment and Labor Law and known throughout North Florida as one of the top resources for employees who suffer unlawful discrimination and harassment by their employers.  We offer FREE CONSULTATIONS for all employment related cases and are available to represent you.  Please give us a call at (352) 505-8900.

Florida Appellate Cases in Review

  1. 11th DCA says declares ban on credit card surcharges unconstitutional – Dana’s Railroad Supply v. Attorney General, State of Florida, Nov. 2015

Everyone has seen at least one gas station in the last year or so that offers a “cash discount” or clearly posts two prices for credit card and cash customers.  Plaintiffs in this case challenged Fla. Stat. 501.0117(1)–(2), which made it a second-degree misdemeanor to apply a surcharge to customers electing to use a credit card for purchases.  This law gave specific exemption to “the offering of a discount for the purpose of inducing payment by cash”.  The 11th District Court of Appeal struck down the law citing that it was a direct violation of Free Speech in order to indirectly affect commercial behavior.  For now, merchants remain free to impose surcharges for credit card purchases, however, a recent New York appeal case upheld a ban on credit card surcharges, so there is a possibility that this case may be reviewed again by the 11th DCA or Florida Supreme Court.

  1. Service of Process gets a boost from the Digital Age – Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., September 2014

Florida Process Servers and Attorneys will need to be a little more creative when attempting to find principles to serve civil process.  The 2nd DCA reversed a default judgment after Plaintiffs failed to personally serve Defendants, instead using mail as a substitute service.  In this case, service of process was attempted multiple times to the same address, however, Plaintiffs were in regular contact with the Defendants via text messaging and Plaintiffs had actual knowledge that Defendants were in California at the time.  The 2nd DCA ruled that the Plaintiff’s ‘failure to use an “obvious and available” resource was fatal to [Plaintiff’s] resort to substituted service’

  1. 11th Circuit Rules on Scope of Digital Searches – United States v. Johnson, Dec. 2015

A Florida couple left their cellphone at retail store, an employee found the phone and contacted the couple to return it to them.  Before the couple could retrieve their phone, the employee searched the digital contents, finding a vast amount of child pornography.  After reviewing what she found with her husband, the employee called Law Enforcement and turned over the phone as evidence.  Upon receipt of the phone, a law enforcement officer searched even deeper into the files and found even more child pornography than the employee and her husband had viewed.  So the question brought forth in appeal was, did the officer exceed the scope of lawful government search?  The 11th DCA concluded that the initial review of the files already seen by the employee and her husband did not exceed the scope of government search, but the further search beyond what was already discover did violate the scope of lawful government search.  Note:  This decision did not affect the sentence of the owners of the cellphone, the files initially viewed were admissible and certainly provided more than enough evidence for a conviction. Defendants’ challenge of sentence, which was included in appeal, was denied. 

The Law Firm of Massey & Duffy, are experienced in the areas of Federal and State Appellate Law.  Our attorneys have successfully reversed judgments in the Eleventh Circuit Court, the First District Court of Appeal and the Fifth District Court of Appeal.  If you would like to have your case reviewed, call our office at (352) 505-8900 to schedule a FREE CONSULTATION.

Massey & Duffy Honors Veterans!

Happy Veterans Day 2015!

At the 11th Hour, of the 11th Day, of the 11th Month, (November 11th) in the year 1918, the Great War ended.  Almost a century has passed since World War I has ended and since then our nation has chosen November 11th as Veterans Day.  This is a day to honor those brave men and women who have embodied the principles of our nation and put themselves in harm’s way to protect our very way of life.

Few have been hit with the unemployment crisis as hard as our returning veterans.  Veteran unemployment is among the highest of any group.  Despite the stigmatism that follows retuning veterans, many employers are overlooking the great skills and abilities these men and women have to offer in the civilian workplace.  Many are proven leaders, innovators and loyal employees.

In honor of all our US Military Service members, the Law Offices of Massey & Duffy, would like to say “Thank You” to those who served and continue to serve our nation.

The American with Disabilities Act (ADA) outlines many protections for returning Veterans, some of whom suffer severe service-connected disabilities:

  1. Discrimination: Title I of the ADA prohibits an employer from discriminating against an applicant or employee based on veteran’s status. This includes but is not limited to hiring, promotions, job assignments, training, and/or termination due to their disability, a history of having a disability, or the employer’s perception of such disability.

 

  1. Definition of “Disabled”: A veteran with a service-connected disability is protected by the ADA when he meets the ADA’s definition of disability and is qualified for the job he has or wants. According to the changes outlined in the ADA Amendments Act of 2008, it is easier to establish entitlements under the ADA. For example, the term “major life activities” includes not only activities such as walking, seeing, hearing, and concentrating, but also the operation of major bodily functions, such as functions of the brain and the neurological system.  This is particularly helpful to veterans who have suffered from PTSD or Traumatic Brain Injuries (TBI).

 

  1. Veterans’ Preference for Federal Employees: Under the Veterans’ Preference Act, veterans with and without disabilities are entitled to a preference in certain federal government agencies over others in hiring from competitive lists.  Qualified veterans are given additional points in the application process and if two qualified candidates are selected, this veteran’s preference would be assessed.

 

  1. Tax Incentives for Employers: Although the ADA prohibits discrimination “on the basis of disability,” it does not prevent affirmative action on behalf of individuals with disabilities. A private employer may hire an individual with a disability who is qualified (including a veteran with a disability) over a qualified applicant without any disability. This practice is not required by law, but may qualify the employer for certain tax incentives such as the Work Opportunity Tax Credit (WOTC).

 

  1. Accommodations: If you are a disabled veteran, you may be entitled to certain accommodations from your employer. These accommodations are not “special favors”, they are legal entitlements you may need to perform your daily work functions.  These accommodations should be requested, in writing, and given to your immediate supervisor as well as your Human Relations Department to ensure that they are aware of what accommodations you need.  Some employers may require medical documentation from your physician.

The attorneys of Massey & Duffy are proud to represent our veterans when they face discrimination and injustice.  If you believe you have been denied your legal rights under the Americans with Disabilities Act, please call our office at (352) 505-8900) to schedule a free consultation.

Motion to Dismiss Overcome | Plaintiff’s Response to Defendant’s Motion to Dismiss

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS

Plaintiff responds to Defendant’s Motion to Dismiss dated October 4, 2012 as follows:

I. The Written Agreement

Footnote 1 of Plaintiff’s Complaint makes it clear that “Plaintiff is not in possession of a signed copy of this contract, however it was signed by all parties and is believed to be in the possession of the Defendant.” Thus, the allegation that a signed copy of the agreement is in the sole and exclusive possession of one or more of the defendants precludes dismissal. Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972).

Moreover, according to Trawick’s Florida Practice and Procedure, 2003 Edition, Section 6-15 (Exhibits), Footnote 3, “A signed copy [of the document] is not required” to be attached under Rule 1.130. Similarly, the “attached or incorporated document does not have to be complete and may be supplemented by allegations in the pleading.” Id. at 6-15.

Finally, even if permanently lost by all parties and even if Plaintiff’s testimony could not supplement the fact that it was signed, a lost contract will not preclude a breach of contract action on the same. See, e.g., Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895)(allowing reestablishment of a lost contract for the sale of land and a specific performance claim to proceed simultaneously); Griffin v. Fries, 23 Fla. 173, 2 So. 266, 267-68 (1887)(allowing a claim for reestablishment to proceed with a claim for relief under such document in the same cause of action); Young v. Charnack, 295 So.2d 665, 667 (Fla. 3d DCA 1974)(action to reestablish and enforce lost mortgage and note). Defendant’s argument that Count I should be dismissed because a signed copy of the agreement is not attached is without merit.

II. Statute of Frauds

Defendant’s next argument is that the statute of frauds precludes Count II, the alleged breach of an oral contract. However, the statute of frauds is an affirmative defense, and cannot be asserted as a grounds for a motion to dismiss. Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963) (the statue of frauds affirmative defense may not be asserted as grounds for a motion to dismiss a complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint).

Additionally, because the contract could have been completed within a year the statute of frauds does not apply. Only if a contract could not possibly be performed within one year would it fall within the statute. See Hesston Corp. v. Roche, 599 So.2d 148 (Fla. 5th DCA 1992). Also, the statute of frauds only applies to executory contracts, not to agreements that have been fully performed. Full performance takes the agreement beyond the operation of section 725.01. See Moneyhun v. Vital Indus., Inc., 611 So.2d 1316, 1319 (Fla. 1st DCA 1993).

Finally, as identified in the attached Exhibit B, the initial term of the agreement was for February 3rd, 2004 until December 31st, 2004. See Paragraph 1(b). Thereafter, the “Agreement will be automatically renewed for additional periods of one-year each….”. Id. Thus, the initial termoftheagreementwaslessthanoneyearandthenitrenewsayearatatime. Becausethe contract renewed each year, it is not barred by the statute of frauds. As stated by the court in Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000):

In Rothman v. Gold Master Corp., 287 So.2d 735 (Fla. 3d DCA 1974), appellant appealed from an order granting defendant’s motion to dismiss his complaint with prejudice. In his complaint, appellant alleged that he entered into an oral contract of employment with the defendant to commence on July 1, 1965 and terminate on June 30, 1966. Further, he alleged that the oral contract was renewable each year by virtue of mutual acts and performances, that the parties annually renewed the contract and that on July 1, 1971 the contract was renewed with the understanding that appellant would relocate himself and his family to Florida. In November 1971, prior to the end of the term of the contract, appellant was dismissed from his employment without cause.

In reversing, the Third District held that where an agreement expires by its terms and without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old. See id. at 736. Further, the court held that if a pleading informs the defendant of the nature of the cause against him, the pleading is sufficient. See id. at 737 (citing Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971)). Thus, the oral renewal of a one-year oral contract took the contract out of the statute of frauds. See id.

As in Rothman, we hold in this case that appellant sufficiently stated a cause of action for breach of an oral agreement. This does not, however, preclude appellee from raising his affirmative defense of statute of frauds at a later stage in these proceedings.

(e.s.). Similarly, simply because the agreement between Plaintiff and Defendant renewed each year does not mean the matter is barred by the statute of frauds even if that affirmative defense is ultimately pled (which Plaintiff contends would be wholly without merit).

III. Unjust Enrichment has been adequately pled.

Defendant claims that Plaintiff did not adequately plead two elements of unjust enrichment, however it fails to take into account that Plaintiff reincorporated paragraphs 1-7 of the Complaint into that count. adequately pled.

Thus, all elements of unjust enrichment have clearly been

/s/ Michael Massey Michael Massey Fla. Bar No. 153680

Personal Injury Doctor Questionaire

BRIEF DOCTOR QUESTIONNAIRE

Doctor Name:____________________________

Doctor Phone:____________________________

Patient Name: ____________________________

1. Based on reasonable medical probability, is the patient’s condition or disability permanent or continuing in nature? ____________

2. Was the patient’s injury, condition or disability (as referenced in the previous question) caused or aggravated by the car accident of ________________? ______________

3. What is the patient’s permanent impairment rating? ____________________

4. What are the patient’s estimated future medical expenses?

Average Per year_________________

For this many years_______________

5. What type of future medical care and prescriptions will the patient need and for how long?

Future medical care_______________________________________

Years of medical care_____________

Prescriptions_____________________________________________

Years of prescriptions ____________

6. When can the patient go back to work and what are her work restrictions?

When can go back to work_______________

What are work restrictions________________________________

How long will those last____________________________________

7. Date maximum medical improvement reached:_______________________

____________________________ Date:_________________

Doctor Signature