Corporate Law Article
CCLM Law

Mobile Tech and ADA

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Do I have to design my business’s website or mobile app to be accessible by individuals with disabilities?

 A: Depending on the type of business, yes.  The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in various establishments, from restaurants and movie theaters to doctors’ offices and law firms.  The ADA also requires that new or remodeled establishments since the law was passed comply with the standards to accommodate accessibility by those with disabilities.  Although perhaps not contemplated when the law was passed, courts and the Department of Justice (DOJ) have begun to grapple with the question of whether websites and mobile technology need to be reasonably accessible.  Target previously settled a class action lawsuit alleged that its website was not accessible to the blind.  Similar web technology lawsuits are bound to follow, with approximately 5,000 ADA accessibility lawsuits filed nationally each year.

The issue is that websites frequently serve the same purpose as the public accommodations that are governed by the ADA, such as selling goods and providing educational courses.  A number of disabilities can hinder access to the information and the services of these websites.  Visually impaired individuals have difficulty reading text or viewing images or videos.  Mobility impaired individuals may have difficulty navigating a website that requires a mouse.  Intellectually impaired individuals may have difficulty where timed responses are required.  Many individuals with disabilities have assistive devices, such as screen readers, but websites need to be designed in a way that these devices can do their job.

The federal courts interpreting the ADA split as to whether the ADA applies when the website has no connection with a physical store or location.  The Eleventh Circuit, which covers disputes arising in Florida, appears to take the more limited view for now that the ADA does not apply in such a circumstance (such as an exclusively online education provider or retailer with no physical location).  It is nonetheless apparent that the trend is towards requiring ADA compliance for websites that provide products or services to the public.  The Department of Justice agrees and has suggested rulemaking to that end and has already previously gone after, and settled with, at least one provider of online courses based on the allegation that the website was not fully accessible to individuals with disabilities.

Given the trend, websites owners and mobile app developers should begin to educate themselves and revise their web technologies.  Reading the Web Content Accessibility Guidelines (WGAC 2.0) and reviewing settlement agreements on the topic would be a good starting point.  This guidance will suggest many ways to comply with the ADA but also reach more customers, including adopting underlying code on the website to make the page accessible to assistive devices, removing website timeout limitations, providing text-to-speech, and reducing the “flashing” of pictures and other content (for individuals prone to seizures).

The September 22nd edition of “The Law” will discuss the use of criminal records in employment decisions.

Questions can be submitted online to thelaw@cclmlaw.com

Corporate Law Article
CCLM Law

Defamation and Copyrights in Hyperlinks and Blogs

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Can my business get in trouble for sharing third-party content on its website and social media page?

A: Yes, in a few contexts.  In the event that the content was originally printed by a person who holds the copyright, reprinting the content on your own page is infringement.  You may be forced to remove the content and pay statutory amounts and other “damages,” including the profits lost by the copyright holder and the profits obtained by the infringement.

But perhaps less obvious is what happens when you share content that was itself wrongfully shared.  A common example of this would be third-party content that contains defamatory statements (i.e. damaging falsehoods).  More local businesses pop up on social media and elsewhere on the internet daily, frequently sharing and linking to third party content.  But the linking businesses have no control over the third party site, which might change without warning and contain defamatory or copyright-infringing content.

Courts are leaning towards protecting page owners who simply link to content as opposed to copy it.  Consider, first, a blog that offers commentary and frequently block quotes sources.  That blog reprints segments of other persons’ statements, whether made online or on other media.  One such segment, hypothetically, contains a libelous accusation.  Whether the blogger is reprinting the segment to support the accusation, prove that it is incorrect, or comment on a different portion of the quote, he has nonetheless “republished” the defamatory statement to a new audience.  Under the law of defamation, he might be held liable to the wrongfully accused person even though the blogger did not make the original statement and even though the blogger might have had the good intent to show the falsity of the statement.

On the other hand, if the blogger prints a more neutral segment of a libelous article or simply hyperlinks to it, he has not actually republished the false statement.  He has, in any event, called the existence of the statement to the attention of a new audience and provided an additional pathway to access the content.  Nonetheless, courts are concluding that such provision of attention and access to the existence of defamatory content is not itself the type of “affirmative act” of spreading damaging falsehoods that the law should prohibit.

Courts similarly tend to agree that merely linking to another website usually does not itself infringe copyrights nor give rise to the type of consumer confusion necessary for a trademark infringement claim.  However, if the linking page author has reason to believe that he is linking to infringing content, the court might venture into the land of “contributory infringement” to find liability.

Businesses should be careful to consider these issues when linking to and “sharing” content on their websites and social media pages.

The August 25th edition of “The Law” will discuss recovery of tax refunds for past years if you failed to file.

Questions can be submitted online to thelaw@cclmlaw.com

 

Traffic Law
CCLM Law

Bike Laws

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: I recently purchased a road bicycle from my local bike shop and plan to take to the road.  What laws do I need to know?

A: During this time of year with the culmination of the Tour de France, it is common for people to become inspired and take up road biking with the hope of emulating their favorite rider or perhaps just looking to get more exercise.

When starting any new sport, a person should become familiar with the rules, and with road biking the laws of the road apply.  A cyclist should obey all traffic laws such as stopping at stop signs and red lights and using hand signals when making turns.

If you are under 16 years old and riding a bicycle on a bike path or road, you are required by law to wear a bike helmet.  If you are 16 or older, you are within your rights to choose not to wear a bike helmet, but a helmet is a wise choice for safety reasons and especially if you plan to ride with a group because many groups require their riders wear helmets.

If you are riding on a road with a bike lane, you must use the bike lane.  If there is no bike lane, then you must ride as close as practicable to the right-hand curb or edge of the roadway except (a) when overtaking and passing another bicycle or vehicle going in the same direction, (b) when preparing for a left turn at an intersection or into a private road or driveway, or (c) when reasonably necessary to avoid an impediment such as a parked vehicle, pedestrian, pothole, or “substandard-width lane” which is too narrow for a bicycle and another vehicle to travel safely side by side in the lane.

Cyclists may ride not more than 2 abreast except on paths or parts of roadways set aside for the exclusive use of bicycles.  Furthermore, persons riding 2 abreast may not impede traffic when traveling at less than the normal speed of traffic at the time and place and under the conditions then existing and shall ride within a single lane.

If you plan to ride your bike late at night after sunset or early in the morning before sunrise, you must have a lamp with a white light on the front of your bike which is visible from a distance of at least 500 feet and a lamp and reflector with a red light on the rear visible from 600 feet.

If the driver of a motor vehicle overtakes you, the driver of the motor vehicle must maintain a safe distance of at least 3 feet between you and the motor vehicle.

Now that you know some of the basics, you are ready to get out there and enjoy your road bike.  Remember to be careful and educate your friends, fellow cyclists, and drivers about bike laws and bike safety.

The August 11th edition of “The Law” will discuss the risks and protections for businesses that use links and quotes to third party content on their websites and social media.

Real Estate Law Article
CCLM Law

HOA Assessments when HOA Forecloses

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Can a homeowner’s association foreclose on me even when I have a mortgage?

A: Yes.  One issue that I address in any community association law seminar or consultation with an association is assessment delinquency.  Most associations have at least a few owners who are delinquent, and some owners remain in default for years without any consequence other than a few demand letters.  The reason is usually financial.  The association might think it is simply not worth fronting the attorney fees for an enforcement action.  The legal cost and effort is of particularly questionable value when the property still has a mortgage, often in default, because the lender may have the superior right to come in and foreclose on the property at any time.  If the lender does not foreclose, the mortgage may stay in place and make the property unmarketable even if the association obtains the property by its own foreclosure.

Even so, associations should consider foreclosures under the right circumstances.  First, an association’s failure to enforce its own covenants, or its selective enforcement of the rules, opens the door in future lawsuits as to the validity of those rules.  (My colleague Kyle Jensen covered the concept of selective enforcement in the December 17, 2015 edition of this column.)  Second, while the association waits around for the lender to foreclose, the only loser is the association.  The owner enjoys the delay, often resulting in free housing, but the association continues to rack up delinquent assessments.  Under many circumstances, the bank will eventually take title, and the association will recover from the bank only a year of assessments, even if there are several years of delinquency.

If the association proceeds to foreclose on the property, one of three things will typically happen.  The bank might be motivated to foreclose, thereby curing the delay.  The association might get lucky and get a third party to buy the property at the foreclosure sale, thereby ensuring that the association gets paid for its claim.  Or the association might take title to the property subject to the mortgage.  The benefit here is that the association can begin to rent out the property and start to recover some of its losses from those rents while it awaits the lender’s foreclosure.  In certain circumstances, the association might even find it worthwhile to negotiate with the lender as to the proper resolution of the mortgage and debt.  For example, an association might be in a better (or more motivated) position to negotiate a short sale of the property to eliminate the mortgage and get the property into the hands of owners who will pay their bills.

Whether the association sells the property or the property goes to a new owner via the mortgage foreclosure sale process, the next owner is typically liable to the association for the assessments that accrued while the association held title in the property.  In reality, however, these amounts are not often recovered, because the association will usually feel forced to waive those past assessments so that a paying owner will get into the property and “stop the bleeding.”

The July 28th edition of “The Law” will cover the bike laws to keep you safe this summer.

Questions can be submitted online to thelaw@cclmlaw.com

Litigation Law
CCLM Law

Collaborative Law

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is a collaborative divorce?  Can the process be used in a business divorce?

A: As a litigator recognizing the costs, risks, and extended timeline of an old-fashioned lawsuit, and noting the existing burdens on our judicial system, I look for ways alternative resolution options for my clients.  In addition to common methods of mediation and arbitration, the family law arena may use collaborative law, which allows separating or divorcing couples to work with their own lawyers plus one or more other professionals to achieve an agreement that addresses the needs of the parties and their children without the threat of litigation.  The couple agrees in advance to have their lawyers collaborate with each other and any third party professionals, who might include, for example, child psychologists and accountants.  As the lawyers work together, and to encourage freely sharing information and ideas, the lawyers cannot represent their clients in any family-related litigation that might occur if no settlement is reached.  The collaborative process can also be used for prenuptial agreements.  Here especially, the process is designed to keep a loving couple from becoming adversarial.  Although collaborative law was first used in the United States in the late 1980s, it was not until March of this year that Florida became the fourteenth state to adopt a uniform law when Governor Rick Scott signed a version that imposes confidentiality on communications during the collaborative process.

In a business partnership, much like a marriage, the parties should not delay discussing ownership of assets, contributions and obligations, and what happens if it all goes south.  When things do go wrong, it is helpful to have had a clear and structured agreement in place to guide the process and avoid litigation.  But even with the clearest agreement, emotions can run high during a business divorce.  The costs of experts to value interests during a buyout and the intrusiveness of financial, asset, and intellectual property disclosures might lead businesspeople to want to find a better way than a lawsuit.  The collaborative process can be used in business formation, restructuring, buyout, and dissolution.  Unlike family law, it can be done completely without filing of any petitions and without regard to any court rules.

Like mediation, the collaborative process allows the parties, who may have creative ideas for resolution, to retain greater control over the outcome, with a settlement offer being accepted only if all parties want to do so.  Unlike mediation, however, the collaborative process eliminates the third-party facilitator who guides the process and places the parties in the driver’s seat.  Many businesspeople prefer to drive with the legal and financial professionals helping to navigate.

In considering whether to use the process, it bears repeating that the collaborative lawyer is not able to participate if litigation eventually arises.  But collaboration is almost always less expensive that the long path to trial.  It also has the business benefit of keeping trade secrets and confidential business information out of the public record.  Under the right circumstances, the process can even preserve a relationship from becoming a burned bridge by focusing on mutual respect and openness.  In the business world, the collaborative approach can make a lot of sense.

The July 14th edition of “The Law” will discuss the process and ramifications of homeowner’s associations foreclosing on their owners for delinquent assessments.

Questions can be submitted online to thelaw@cclmlaw.com

 

Real Estate Law Article
CCLM Law

99-Year Leases and Property Tax

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: When does a tenant become an owner for tax purposes?

 A: I “own” a condominium on unit on the east side of Santa Rosa Island in the Florida Panhandle, but I do not actually hold a deed.  Instead, because the island is county land leased to developers under 99-year master leases, I am the assignee of a lease to the unit.  Similarly, Island Resorts Investments, Inc., was subject to a sublease under one of these lengthy master leases on the west side of the island.  The developer brought a lawsuit against the county tax collector when the county started imposing property taxes on the tenant.  The developer argued that it was a tenant not subject to real estate taxes.  A trial court sided with the tax collector, but on appeal a panel of judges held that, primarily because the sublease agreement did not allow for the developer to either get automatic lease renewals or get a deed for a nominal price, the tenant did not have the sort of perpetual dominion rights typical of an owner.

The tax collector has vowed that the fight is not over, and a Florida Supreme Court ruling may be forthcoming, but the case raises questions of when a tenant can be a so-called “equitable owner.”  To understand why this is even a question, it is important to know that lawyers and courts consider ownership as a “bundle of rights,” and someone can have all or some of those rights.  You can have a right to exclusive dominion of a property, for example, but not the right to build on the land.  Or you can have the right to build but must turn over all improvements to another owner once you stop using the property for a specified purpose, upon the expiration of a specified term, or even upon a specified person’s death.  You may or may not have the right to sell or sublease the property you occupy.  If you have the entire bundle of rights, you are obviously the “owner” in all senses.  But if you have only some of the rights, the question arises as to what your responsibilities are, including as to real estate taxes.

In Florida, to be deemed an equitable owner for such tax purposes, a tenant must hold virtually all of the benefits and burdens of ownership, including the obligations to insure, maintain, and pay taxes (according to the lease).  Although these obligations are common in commercial leases, the key piece that makes equitable ownership uncommon is that the lease must either be perpetual or allow for the tenant to purchase the land for nominal value.  On the face of this rule, a lease with a purchase option could fall into this definition if the eventual purchase price is small enough.  Generally speaking, however, if the tenant’s right to occupy the property can be taken away at the option of the landlord or other legal owner at any time or at a specified time, as is the case in virtually all residential leases and most commercial leases, the tenant will not be an equitable owner with responsibilities directly to the state for property taxes.  Even if the tenant is not responsible to the government, however, the lease may require the tenant to pay the taxes, and the tenant must comply with his obligations under the lease.

Negotiating a lease and understanding your rights and responsibilities, including those not specifically set forth in the written agreement, should not be taken lightly.  Legal counsel can assist in the event a tenant or landlord has concerns over a residential, commercial, or land agreement.

The June 30th edition of “The Law” will cover the new collaborative law procedures for Florida family law cases and how the same concepts can be applied in business disputes.

Questions can be submitted online to thelaw@cclmlaw.com

Litigation Law
CCLM Law

Contract Interpretation

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: When does a poorly drafted contract become unenforceable?

A: Having someone with a background in contracts and litigation help you draft agreements will decrease disputes over the interpretation and effect of your bargains. But even with the best legal assistance, unanticipated circumstances may arise that lead you wishing you had clearer terms in the beginning.

Courts do not want to interfere with freely made deals. If everyone agrees that the contract should have said X even though it really says Y, you can agree to live with X. If the other side wants to take advantage of the mistake but you can prove X was his original intent, you can ask a court to “reform” the agreement to match the intention. When there is a dispute over original intent, however, the original intent must be “clear and convincing” to overcome the clear terms of the written agreement.

Reformation is used for many purposes, including inserting obligations, signatures, and property erroneously not in the original writing or even deleting property erroneously added to the contract. Depending on the facts, you typically have to ask the court within four or five years to reform the deal, but a twenty-year period applies to reformations of deeds.

Similarly, if the other side knew and took unfair advantage of your mistake, reformation may be appropriate. In the absence of unfair conduct, however, courts cannot help resolve a one-sided mistake except to rescind (or undo) the contract and put the parties back in the positions they were in before the agreement. That option is available only if the mistaken party was not negligent and the non-mistake party will not be significantly harmed.

Like with mistakes, if a contract has ambiguities or vague terms but the parties agree what was intended, they can live by whatever legal terms they wish. Where the parties do not agree on interpretation, however, courts will review for two types of ambiguities: those clearly existing on the face of the contract due to insensible or unusual language (“patent ambiguity”), and those that become apparent only when some outside evidence is presented, including how the contract plays out in practice (“latent ambiguity”). Showing that a particular term makes sense in the four corners of the contract but could have multiple meanings to the parties because of other information is the classic latent ambiguity. Patent ambiguity, if not resolvable through reformation of mistake, may lead to an unenforceable contract, because Florida does not allow evidence beyond the four corners of the document to explain the ambiguity. Latent ambiguities by their nature, however, require resorting to outside evidence.

Through these processes, courts look to determine what parties actually intended and avoid preventing receipt of intended benefits.

The June 16th edition of “The Law” will cover when leases become equitable ownership and create property tax liability.

Questions can be submitted online to thelaw@cclmlaw.com

Real Estate Law Article
CCLM Law

Radon

/in , /by

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is radon, and how can it affect my property?

A: Radon is a radioactive, colorless, odorless, and tasteless gas occurring naturally as a decay product of radium, and thus radon is not readily detectible or observable by the human senses.  Radon is considered a health hazard due to its radioactivity, and studies have shown a link between high concentrations of radon and lung cancer.  According to the U.S. Environmental Protection Agency (EPA), radon is the second highest cause of lung cancer after cigarette smoking, and radon causes an average of 21,000 lung cancer deaths per year in the United States.

Radon levels are measured by picocuries per liter (pCi/L).  An average of about 1.0 to 2.0 pCi/L is typical for indoor radon exposure, and the EPA recommends immediate remedial action for anything above 4.0 pCi/L.

Radon is produced by the radioactive decay of radium-226, which is found in uranium ores, phosphate rock, which has been mined extensively in Polk County over the years, shales, igneous and metamorphic rocks such as granite, and to a lesser degree in common rocks such as limestone, which is found throughout all of Florida.

Radon typically enters a building directly from the soil through the lowest level of a building that is in contact with the ground.  Entry points of radon into a building, particularly an older building, are cracks, gaps, and cavities in the building as well as the water supply.

Of great concern in Polk County is phosphate mining and the impact phosphate mining has had on the environment over the years.  Phosphate is typically found buried beneath an approximate 10 to 20-foot crust of ground referred to by miners as “overburden.”  Radioactive compounds containing uranium and radium, which are dug up during the mining process, are also buried beneath the overburden and mixed with phosphate.  Over many years, houses have been built on land which was extensively mined, particularly in the area between Lakeland and Mulberry along Highway 37 or what is known as South Florida Avenue.

 Whenever buying or renting property, it is important to read the fine print.  Florida Statute § 404.056 requires that any contract for the sale and purchase or rental agreement for the leasing of any building provides a warning about radon and its dangers.  While this statute warns buyers and renters, it does not have much bite.  If you are buying a home, be sure to pay close attention to the answers provided in the standard Seller’s Property Disclosure regarding any radon issues and have an attorney review all of the documents.  If you are building a new home, talk to your builder about radon prevention measures you can take.

If you are buying or renting a property in an area where there has been extensive mining, you should test for radon.  Simple test kits requiring a few days of testing are available online and you can hire a certified radon inspector to test for radon as well.  The devil is in the details, and it is important to know your rights when buying or renting property and the impact it can have on your health and the health of your family and loved ones.

The June 2nd edition of “The Law” will discuss legal issues surrounding poorly written contracts.

Real Estate Law Article
Dan Rich

HOA Political Signs

/in , /by

By:      Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

Q: Can a homeowners association prohibit the display of political yard signs?

A: As the 2016 presidential election draws closer, it is inevitable that we all will start seeing political signs popping up everywhere. You will find them plastered in windows, at most, if not all, intersections, and probably even along the median of I-4. But, oddly enough, one place you may not see any political signs is in your yard if you happen to live in a homeowners association.

The majority of governing documents for homeowners’ associations prohibit signs of any type from being placed on owners’ lots. But you may be thinking, “Can my association legally restrict me from exercising my freedom of speech?” The short answer is yes, and this is why.

Freedom of speech applies only when there is what is called “state action,” or in simpler terms government action. Basically, freedom of speech prevents federal, state and local governments from restricting our speech or restricting actions that express our views. But homeowners associations are private, not government, actors and therefore may impose restrictions and regulations on speech that the government simply cannot. Furthermore, when you purchase a home in a community that happens to be governed by covenants and restrictions, you are essentially entering into a contract where you have agreed to abide by all those rules and regulations. What this means is that if you live in a community that regulates the public placement of signs, you have technically contractually agreed to forbid yourself from placing any signs on your property, including political signs.

While published Florida case law may not have addressed the issue of political signs directly, a 1989 appeals court decision involving Quail Creek Property Owners Association in Naples sided with the association over the demand for an owner to remove a “For Sale” sign from his front yard. The court held that the association was not a governmental entity and that there was no “state action.” Therefore, the enforcement of the sign restriction did not violate the owner’s free speech rights. While this decision relates to a “For Sale” sign, and not a political sign, it is important because it illustrated the courts deference to the homeowners associations’ rules and regulations when there is no “state action.”

Understanding whether you can proudly display your political signs as the election draws closer and the debates intensify is an interesting legal question that requires owners to review their community’s governing documents, and for the association itself to consider whether or not to amend its governing documents to add language regarding signs.

The May 19th edition of “The Law” will discuss the effects of radon on property and particular concerns in Lakeland.

 Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com

Litigation Law
CCLM Law

Supreme Court Justices

/in /by

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How are state and federal Supreme Court justices appointed?

A: A swarm of controversy resulted from the death of United States Supreme Court Justice Antonin Scalia, as political parties argue over when a replacement should be appointed and by whom.  The appointment process for judges on the highest courts of both the country and the State of Florida involves steps covered by constitutions and tradition.

First, the United States Constitution requires the President to nominate justices for the United States Supreme Court.  Typically, the President will look for someone who is well qualified and serves his political interests.  Because the Senate’s consent is required before the nominee takes the bench, the President may discuss the nomination with key senators and choose someone who strikes a balance palatable to a majority of the gatekeepers.  The first gatekeeper is the Senate Judiciary Committee, currently made up of 11 Republican senators and 9 Democrats (none from Florida).  That committee, which as originally designed did not interview candidates, researches and reviews the candidate’s background and holds a hearing with witnesses in favor and against the nominee, including the nominee himself or herself answering committee questions.  Tradition calls for sending the nominee to the full Senate for consideration regardless of whether the recommendation is to confirm or to reject.  Because a vote of 60 of the 100 senators is required to stop a filibuster and to force a vote, 41 senators (and there are 54 Republican senators at the moment) could presumably block the vote from occurring.  Notwithstanding the political considerations, nominees have been confirmed almost ten times as often as rejected.  Notably, the Chief Justice position is not automatically filled by an existing justice, but rather that role is to be filled through these same confirmation proceedings.  Only about one-third of the Chief Justices ever sat as Associate Justices.

Second, there is the Florida Constitution.  Most of the procedures discussed above have formed from tradition and necessity, since the federal Constitution told us little more than that the President had to appoint justices with the advice and consent of the Senate.  Our state’s governing document is much more detailed.  Although the legislature does not serve a gatekeeping function, the governor’s choices are limited to the three to six nominees proposed by a Judicial Nominating Commission, which is made up of three lawyers appointed by the Florida Bar Board of Governors, three electors appointed by the governor, and three additional non-lawyer electors chosen by a majority vote of the first six commissioners mentioned.  While this process may appear to give the Governor great power in selecting the judiciary, the new justice will face statewide voter consent to retention at the first general election that occurs more than one year after the initial appointment.

With the vacancy left by Justice Scalia, there are eight sitting United States Supreme Court justices—four appointed by a Republican President and four appointed by a Democrat.  There are seven Florida justices, with the majority appointed by Republican governors.

The May 5th edition of “The Law” will discuss the display of political and other signs within a homeowners association.

Questions can be submitted online to thelaw@clarkcampbell-law.com