For the first time in 20 years, the Department of Justice (“DOJ”) has published guidance on website accessibility matters under the Americans with Disabilities Act (“ADA”).

In the publication, posted on March 18, 2022, and available at ADA.gov, the DOJ reiterates its priority for ensuring web accessibility for people with disabilities and emphasizes this is an obligation of both state and local governments under Title II of the ADA, and businesses that are open to the public, or public accommodations, under Title III.

The guidance provides a non-exclusive listing of examples, options, and resources for assistance and guidance in making websites available to the disabled.  Importantly, however, the technical assistance states that “The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”  Thus, as the publication further notes, businesses and states have flexibility in how they comply with the ADA general requirements as to websites, but they still must ensure that the programs and services in good faith provided to the public are accessible to people with disabilities.

The publication also notes that automated accessibility checkers and overlays can be helpful tools in identifying or fixing problems, but that they need to be used carefully.  The DOJ further states that pairing a manual check of a website with the use of automated checkers can give a better sense of the accessibility of the website.  The DOJ also explains that the existing technical standards provide helpful guidance concerning how to ensure accessibility, and refers to the Web Content Accessibility Guidelines (WCAG) and the Section 508 standards utilized by the Federal Government for its own website. 

ShuffieldLowman is ready to assist companies and clients with respect to issues that may arise from ADA website compliance. For additional questions on ADA website accessibility, please contact our commercial and civil litigation or corporate law teams. Visit our contact page here

We enter into contracts all the time, but what exactly creates a contract? Simply put, a contract is formed when one entity makes an offer to another, and that offer is accepted. Any time you exchange money for services you have likely signed a contract with the service provider.  Have you ever hired a plumber? Did you receive a written estimate that you signed to accept the estimate and begin services? If so, you’ve entered into a contract.

The three essential elements are the offer, acceptance, and consideration. To begin a contract, an offer must first be extended. Details of the agreement, as well as its terms and conditions, should be included. Simply explained, an offer is an attempt by the offeror to enter into a contract with another party. Once the offer has been made, the offeree has the option of accepting or rejecting the proposal and its terms and conditions. Finally, to have a legitimate legal agreement, something of value must be exchanged such as money, merchandise, property, protection, or services. If the parties are not trading in money, they should ensure that whatever they are trading, commonly known as their consideration, is considered valuable by the court.

Dissecting a contract even further, there are 7 key ingredients that should be included in a contract: Who, What, Where, When, How Much, The Date, and Signatures. The “Who” in the case of contracts are the parties involved. Let’s say you call a plumber to fix a leak. In this case, you and the company the plumber works for is the “who.”

The “What” is the scope of work. The scope of work is the section of a contract or agreement where all expected activities and deliverables are detailed with the goal of harmonizing expectations between both parties is known as the “tasks and deliverables section.” You and the plumber are discussing the problem and they tell you the leak is part of a bigger problem and outline what work needs to be done to correct the issue. They write up a proposal explaining the scope of work. This is the “what.”

The ”Where” is the location of the work. In the case of the plumber, your home is likely the “where” with special attention to specific locations affected such as the front or back yard, the bathroom, the kitchen, etc.

The “When” is the timeline of work. The plumber, in their written estimate that will become a contract if you sign it, will lay out the timeline for completion of the project. It may take a week to get a special part, and then a day to do the work,  and another day to follow up.

The “How Much” is the terms of payment. What will it cost for whatever merchandise, property, protection, or services you’d receive? Going back to our plumber example, the quote you will sign will tell you how much the services will cost and the payment timeline. Will you have to pay a deposit? Will you pay the balance upon completion?

The “Date” is simply the date the contract becomes effective. Usually, that is the date the contract is signed.

Finally, the “Signatures” close the deal and the contract is complete. The plumber has given you the scope of work, the location of the work, the timeline of the work, the expected payment terms, and has dated the estimate. Now you accept or decline. You’ve decided the plumber you’ve called is giving you a good deal, so you accept and sign the estimate.

You now have a contract with the plumber’s company. You have been given an offer, you have accepted, and you have met the consideration standards. In doing so you have met all seven key ingredients for a contract. You know the who, what, where, when, how much, have the date, and have given your signature to confirm your intent to follow through with the agreement. Our commercial litigation, real estate, construction teams, and other attorneys within our practice areas are here to advise our clients on their options based on the specific terms outlined in their contracts. For more information and assistance with a contract, you can contact us here.

What is Eminent Domain?
Eminent Domain is the power of the government to condemn (take) private property for a public purpose without the property owner’s consent.  The Florida Constitution requires that no private property shall be taken except for a public purpose and with full compensation paid to each owner.  The Florida Constitution’s guarantee of “full compensation” is intended to ensure that the owner receives full, fair, and complete compensation.

What is the Public Purpose Requirement?
The Florida Constitution prohibits use of the power of eminent domain except for a “public purpose.”[i] In determining whether a particular use of eminent domain is for a public purpose, Florida courts have historically held that the public interest must dominate the private gain.[ii]  Additionally, a condemning authority must only take the amount of land reasonably necessary to achieve this public purpose. The requirement of public purpose and public use is essentially a limitation on the exercise of the power of eminent domain.  When faced with a government taking, it is important to seek representation right away to evaluate whether the condemning authority has properly complied with Florida law.

How Much will it Cost in Attorney’s Fees?
As part of the Florida Constitution’s guarantee of full compensation, a condemning authority is required to pay the property owner’s attorneys’ fees and reasonable costs of the condemnation proceedings.  These costs include reasonable appraisal fees and other costs associated with formulating the property owner’s claim.  The amount of the attorneys’ fees to be paid in an eminent domain matter is calculated based upon a statutory formula in the Florida Statutes.  Attorney’s fees are paid separately from the property owner’s compensation and do not reduce the property owner’s overall recovery.

When Should I Seek Legal Representation?
When facing a taking, it is important that the property owner seek legal counsel as soon as possible.  A government taking by eminent domain can have significant impacts on property rights and values.  Understanding how the process works can assist in ensuring that the property owner is adequately compensated and that property rights are preserved.  Our law firm is committed to ensuring that your property is protected, and you are compensated to the fullest extent of the law. If you have received a condemnation notice, contact one of our Orlando eminent domain attorneys right away.


[i] Article X, § 6, Fla. Const.

[ii] Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954, 128 So. 402, 406 (1930)

ShuffieldLowman attorneys Clay Roesch, Ryan Vescio and Greg Meier recently represented TLC Engineering Solutions in a lawsuit with a former employee who violated restrictive covenants put in place to protect the employees and other shareholders. TLC initiated litigation with the former employee which went to trial in April of 2021.  During the week of June 7th, 2021, the Judge ruled in favor of TLC and awarded significant monetary damages as well as injunctive relief.

ShuffieldLowman is pleased to represent TLC Engineering Solutions in this matter which aimed to protect existing shareholders and staff. We are proud of our team who worked so hard to ensure they received fair compensation in accordance with the law and facts of the case.

Learn more about our Orlando litigation team by visiting our practice area page

In an important decision issued April 7, 2021, the United States Court of Appeals for the 11th Circuit – which covers Alabama, Florida and Georgia – reversed a lower court decision and ruled that Winn Dixie’s website does not violate the Americans With Disabilities Act (“ADA”) with respect to its use by visually impaired people.

The Plaintiff in the lawsuit, Juan Gil, is legally blind and was a long-time Winn Dixie shopper.  He found that Winn Dixie’s website would not function with his screen-reading technology.  The website’s primary functions were to re-fill existing prescriptions for in-store pick-up and to link digital manufacturer coupons to the customer’s Winn Dixie rewards card so that the coupons are applied automatically upon check-out.  Gil obtained a summary judgment against Winn Dixie in the District Court for the Southern District of Florida, which held that since its website was incompatible with screen-reader software, Winn Dixie violated the ADA.  The District Court issued an injunction requiring Winn Dixie to make its website accessible to individuals with disabilities, specifically by conforming its website to the Web Content Accessibility Guidelines 2.0, and ordered other related relief.

In a 2-1 decision, a panel of the Atlanta-based Appeals Court ruled, first, that websites themselves – even if conjoined with a business that has brick and mortar facilities – is not a “public accommodation” under the ADA.  On this first issue, it disagreed with rulings of other circuit courts of appeal.

Second, the 11th Circuit declined to hold that a company website may provide a “nexus” to its brick and mortar facilities so as to be viewed as part and parcel of the same, at least under the facts of this case, so as to require that the website afford accessibility to the visually impaired under the ADA.

Last, the Court held that Winn Dixie’s website did not otherwise violate the ADA by presenting “intangible barriers” to the “equal access to the services, privileges and advantages of Winn Dixie’s physical stores”, which are places of public accommodation.  In reaching this, the Court emphasized that Winn Dixie’s website has only limited functionality and, most importantly, did not function as or allow points of sale.  The chief advantages of the website were that it allowed the refill of prescriptions (which still needed to be picked up in the store) and also allowed manufacturer coupons to be put on a Winn Dixie shopping card (although the redemption of such coupons still had to happen within a Winn Dixie store).  Gil’s inability to access these features, while sighted customers or users could, did not translate into an ADA violation. The Court distinguished other cases where sales actually occurred through the company website, and thus it may reach a different decision if presented with those facts.

As indicated above, the 11th Circuit decision is at odds with decisions of other circuit courts of appeal, thus setting up a conflict in the law which can only be resolved by the United States Supreme Court.  Until the same occurs, jurisdiction and venue (that is, the court and location where the action is held) will be extremely important to, if not determinative of, the outcomes in these cases.

ShuffieldLowman stands ready to assist companies and clients with respect to issues that may arise from ADA website compliance. For additional questions on ADA website accessibility, please contact our commercial and civil litigation or corporate law teams. Visit our contact page here

Many litigation cases are referred to mediation by either the court or one of the parties. Mediation is intended to be a neutral process in which a third party can step in and resolve issues, hopefully avoiding the need to go to court. The mediator facilitates communication and expresses the goals of each party in order to create an amicable solution. Watch as ShuffieldLowman attorney, Loren Vasquez, explains how a mediator, along with our attorneys, can help bring your dispute to a settlement agreement without needing a trial.

The Americans With Disabilities Act (“ADA”) was enacted in 1990 to prohibit discrimination against individuals with disabilities in all areas of public life, including in employment, schools, transportation and all public places and private places that are open to the public.  Title III of the ADA regulates public accommodations and services operated by private entities, and is the basis for a new wave of “website accessibility” claims.

ADA public accommodation accessibility claims

Traditionally, public accommodation accessibility claims involved unannounced visits by individuals with one or more disabilities to places of business (typically restaurants, hotels, and other retail establishments) to ascertain whether such public accommodations were in compliance with the ADA.  Many of these “visits” were undertaken by either representatives of interest groups or “testers”, who may not have even lived close to or otherwise frequented such places.  Numerous lawsuits resulted, with Florida being a hot spot for such activity.

With the advent and proliferation of websites and the internet, issues were raised as to whether company websites were within the scope of the ADA and, thus, whether they had a duty to code their websites to be accessible to visually impaired and hearing impaired persons.  Despite the fact that the Department of Justice, regardless of its repeated pronouncements, has failed to enact regulations governing the accessibility of websites, claims have been brought against companies for their alleged lack of website accessibility compliance under the ADA.  These claims have accelerated and expanded in number.  Once again, Florida is at the top of the pack in the number of these lawsuits

The law continues to develop in this area, but it is now reasonably established that if a business operates a “brick and mortar facility” somewhere, which is open to the public, then a website of such business is, or is part and parcel of, a public accommodation and subject to ADA requirements.  Failure to adhere to those “requirements” exposes the business to the standard ADA remedies, including injunctive relief and plaintiff’s costs and expert witness and attorney’s fees.  This is in addition to, of course, a business incurring its own attorney’s and expert’s fees and other costs in defense of such action.

ADA requirement for websites – WCAG 2.0

So what are the ADA “requirements” in this regard?  In the void created by the absence of Department of Justice regulations, courts have looked to private industry and associations for an applicable standard as to website accessibility for the visually impaired.  In this regard, certain courts have looked to and even embraced the Worldwide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) as the standard to be met.

Like their predecessor “testers” or “drive-by visitors”, generally speaking, plaintiffs who file these website accessibility claims tend to be repeat or serial filers.  As opposed to their predecessors, however, they do not have to actually visit the company facility (or even leave their house or apartment); rather, all they need to do is access the company’s website from wherever they are.  Typically, they do so in the presence of their chosen expert and videotape their maneuvering through the website and the claimed obstacles and deficiencies therein.  Thus, many times these cases come “readymade” upon filing.

Given the above, it is best to address these cases promptly.  Of course, the best defense would be to have an ADA compliant website (to the extent possible).  Care in selecting website programmers and coders is warranted, as WCAG 2.0 has many specific requirements, and consultants must be familiar with them and be able to test compliance appropriately.  The experience of many businesses in this regard, as to self-described consultants or experts in the area, has been very uneven.  This can be quite a problem, as there are cases where a company’s expert has been rejected, and also cases that hold that efforts to bring a website into compliance, that have not been finalized, do not stay litigation or preclude further litigation against the company, as to the same website, by another plaintiff.

ShuffieldLowman stands ready to assist companies and clients with respect to these issues.  Indeed, ShuffieldLowman early on took the lead itself in having its website audited and brought into compliance, and certified in accordance, with WCAG 2.0 AA standards. If you have additional questions on ADA Website Compliance you can reach out to us at 407-581-9800.  

 

After a tenancy has been terminated or expired, and the premises have been vacated by the tenant through eviction, surrender, abandonment, or otherwise, a landlord may find himself in possession of abandoned personal property which remains on the premises.  Although a landlord may be tempted to immediately sell or dispose of the abandoned property, he may be subject to liability if he does not follow the proper procedures outlined by Florida law.  The Disposition of Personal Property Landlord and Tenant Act provides the necessary guidance to avoid liability under these circumstances.  See § 715.10, F.S., et  .

Any personal property left behind should be left on the premises or stored safely by the landlord.  A landlord has a duty to exercise reasonable care in storing the property, but he is not liable to the tenant or owner of the property for any loss.

 

Florida Abandoned Property Notice – How to Use

The first step a landlord should take to properly dispose of personal property is to notify the tenant, and any other person the landlord reasonably believes to be the owner of the abandoned property, that such property remains on the premises.  The notice should be in writing, and it should describe all of the property left behind.  The description should be detailed enough so that the owner of the property can identify it.

The notice should also notify the owner of the property where the property is being stored (if not remaining on the leased premises), and that reasonable costs for storage may be charged before the property is returned.  There should be specific information as to where the property may be claimed and the date before which claim must be made.  Such date must be a minimum of ten or fifteen days away, depending on how the notice is served.  The Florida Statutes provide sample notice forms that should be used.

If the owner of the property, or anyone reasonably believed to be the owner, pays the costs of storage and acts to take possession of the property on or before the date specified in the notice, the landlord should release the property.

 

When is Property Considered Abandoned in Florida?

If the owner of the property does not respond within the time frame allotted, the landlord may take action to sell or dispose of the property.  If the abandoned property is estimated to be worth less than $500.00, the landlord is free to dispose of it however he would like.  If the estimated value of the abandoned property exceeds $500.00, the landlord should arrange for a public sale of the property at the nearest suitable place to where the property is held or stored.  Before the sale may occur, notice should be published once a week for two consecutive weeks in a newspaper of general circulation where the sale is to be held.  The advertisement should include the name of the former tenant, a description of the property to be sold, and the time and place of the sale.

A landlord is permitted to bid at the public sale.  The successful bidder’s title to the property is subject to ownership rights, liens, and security interest which have priority by law.  After the costs of storage, advertising, and the sale have been deducted from the proceeds of the sale, the balance may be claimed by the tenant or property owner within thirty (30) days.  If the funds are not claimed, they must be paid into the county registry.  At that time, the landlord should be relieved of all further obligations regarding the abandoned property.

There may be similar circumstances where someone is looking to dispose of personal property even when the parties are not connected through a traditional landlord-tenant relationship.   Although Chapter 715, Florida Statutes, does not expressly state whether this procedure applies in a situation not involving a landlord and tenant, it would seem reasonable to follow this procedure before disposing of unwanted property in order to avoid liability.  It should also be noted that Florida law provides a separate procedure for items abandoned on public property, which involves law enforcement taking possession of the items and auctioning them.  See Chapter 705, Fla. Stat.

This article provides an overview of the process for a landlord to dispose of property left at the premises by a former tenant.  You should contact an attorney to determine whether this process is appropriate for your individual situation, and to obtain all of the information necessary to ensure compliance with applicable Florida law.

Under Florida law and as a matter of public policy, settlements are highly favored and will be enforced whenever possible.  Settlement agreements are governed by the rules of contracts, and the existence of an enforceable contract is contingent upon the Parties’ agreement to the essential terms of the agreement.  What happens when you think you have a settlement agreement, but the other party refuses to sign a formal written settlement agreement?

Is a formal written agreement required to enforce a settlement in Florida?

Creating an enforceable settlement requires agreement to the essential terms of an agreement.  What constitutes a material or essential term varies from case to case.  Nevertheless, once the parties reach an agreement on the essential terms, a formal written agreement is not required to enforce a settlement.  Numerous courts in Florida, both state and federal, have enforced agreements reached through a series of emails between attorneys.

For example, in Warrior Creek Development, Inc. v. Cummings, 56 So. 3d 915 (Fla. 2d DCA 2011) the attorneys involved negotiated a settlement over e-mail.  Their emails set forth the “essential and material terms” of the agreement between the parties.  The attorneys subsequently drafted a written settlement agreement, which one party refused to sign, stating “the deal is off”.  The Second District Court of Appeals affirmed the trial court’s order enforcing the settlement, finding that the “parties had agreed upon all of the essential and material terms for settlement and that those terms were reflected in the November e-mail.  Similarly, in Miles v. Northwestern Mut. Life Ins. Co., 677 F. Supp. 2d 1312, 1315-1317 (M.D. Fla. 2009) the Court held that a written settlement agreement is a mere formality where the parties act with the intent to follow the settlement, and the written agreement is essentially what was already agreed upon.

Negotiating a settlement over email – the considerations

These cases illustrate the risks inherent in negotiating a settlement over email.  A party who wants to avoid being bound in the absence of a written settlement agreement should consider making an offer conditional upon the execution of a mutually agreeable settlement agreement and release. Conversely, setting out the essential terms of an agreement in written communication can result in a settlement that is enforceable against a party who gets cold feet.

COVID-19 closes Florida courts – Is it time for a settlement agreement?

As COVID-19 closes courts across Florida and the entire Unites States, litigants may be more interested in settling a dispute for a couple of reasons. First, litigation is a lengthy process with an average dispute taking 1-3 years if there is no settlement. Now, with COVID-19, timelines have been extended significantly and will prolong the litigation process further with indefinitely postponed trials.

This pandemic has also caused many to feel uncertain when it comes to their financial status and job security. Litigation is expensive, time-consuming, and stressful. By settling, you can avoid costly attorneys’ fees and most likely will receive financial compensation sooner than you would by going to court.

If you have questions on enforcing a Florida settlement agreement or entering into a settlement, you can contact our fiduciary or commercial & civil litigation teams.

Trustees are required to administer a trust in good faith, in accordance with the terms and purposes of the trust, and the interests of its beneficiaries. There are, however, many aspects of trust administration that can leave even sophisticated trustees searching for advice. The Florida Legislature recognized there are situations in which a trustee must rely on an expert in order to fulfill his or her fiduciary duty when it enacted the Florida Trust Code. Florida Statute Section 736.0816(20) provides that:

A trustee may: Employ persons, including, but not limited to, attorneys, accountants, investment advisers, or agents, even if they are the trustee, an affiliate of the trustee, or otherwise associated with the trustee, to advise or assist the trustee in the exercise of any of the trustee’s powers and pay reasonable compensation and costs incurred in connection with such employment from the assets of the trust, and act without independent investigation on the recommendations of such persons.

Because it provides that a trustee may act on an advisor’s recommendation without independent investigation, Section 736.0816(20) should provide a trustee with immunity from mistakes made by his or her advisors. Indeed, prior to the enactment of the Florida Trust Code, the Third District Court of Appeals found that a substantively identical provision of the Florida Probate Code, Florida Statute Section 733.612(21), shielded personal representatives from liability resulting from errors made by their accountants. See Wohl v. Lewy, 505 So.2d 525 (Fla. 3rd DCA 1987). Personal representatives and trustees are held to the same standard of care and, as a result, Section 736.0816(20) should shield a trustee from liability for a mistake made by an advisor.

Nevertheless, a recent decision by the Fifth District Court of Appeals casts doubt on whether a trustee can rely on an advisor’s recommendation. In Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015) a trustee hired an attorney to decant a testamentary trust into a special needs trust. The trustee’s attorney did not, however, follow the requirements of Florida Statute Section 736.04117 in decanting the original testamentary trust. The Trustee argued that, like the personal representative in Wohl, he relied on his professional advisor’s recommendations and therefore should not be liable for the improper decanting. The court rejected that argument.

In light of the decision in Harrell, it is unclear to what extent a trustee may rely on Section 736.0816(20) for protection from liability for erroneous legal, accounting and other negligent professional advice. Unlike personal representatives who are protected by Section 733.612(21), the Harrell decision suggests that trustees are “de facto” insurers of the professionals they hire. Accordingly, trustees should carefully consider who they hire to render them legal and other professional advice.

ShuffieldLowman’s four downtown offices are located in Orlando, Tavares, DeLand and Daytona Beach.  The firm is a 34 attorney, full service, business law firm, practicing in the areas of corporate law, estate planning, real estate and litigation.  Specific areas include, tax law, securities, mergers and acquisitions, intellectual property, estate planning and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, commercial and civil litigation, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, environmental law and mediation.