Cybersecurity, WCI 2021, the Pillory, and more.

One of the groups with which I collaborate sent me a note the other day "Please take our online cybersecurity training." Essentially, this group affords me access to information and data. They are happy to do so but have some concern that I will do something untoward that could expose their network to malicious persecution of some notable effect.

Remember Otter in Animal House (1978) "I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part.” Brother Bluto replies solemnly "We're just the guys to do it." It was irreverent and preposterous. It has stuck with many of us for the decades since. The problem with computer security is that the "stupid and futile" occur from time to time, but we perhaps do not think it through and decide to do it nearly as fully as Otter and Bluto.

We all make errors on the computer. Mitch Ratcliff made one of my favorite comments of all time about computers: "A computer lets you make more mistakes faster than any other invention with the possible exceptions of handguns and Tequila.” Oh, we can make mistakes. Social media merely affords us the opportunity to make it more offensive in the process. 

So, I spent a few minutes in the training. I learned that people may send you emails with links in them. The bottom line is do not click links in emails from people you do not know. This remains true even if it is from a prince or potentate, or a relative thereof, who has a billion dollars that you can help them retrieve with just a few minutes of your time, and for which they agree to let you keep half of the money. The same goes for documents attached to emails. The instructor dourly repeated "what type of file is absolutely safe? None, none I tell you" (and then he laughed maniacally). I made that last part up, but the "repeated" and "dourly" are for real.

The latest threat, apparently, is called a social engineering attack. The example is a group standing about smoking a cigarette or two outside (cannot smoke inside anymore). I recently read a piece about how Florida State University has made smoking verboten anywhere on its campus (inside, outside, upside down even). We'll come back to that.

So they stand, smoke, socialize, and commiserate. When some head back into the business, they all seem to move together. What none realize, is that one of them is not really a company employee. She/he has engendered group membership and trust and thus sneaks into the business, sits at a vacant computer, and hacks away. This is only an example. In its broadest sense, social engineering is any process by which someone gains the trust of another to allow a computer attack. Anyone might be a threat against you, your network, and your business. I found this one very interesting as it is something we might see James Bond do. 

That recent training was on my mind when a story was published on May 6, 2021, about a Florida high school student who will be tried as an adult. This story is about her downfall and the ridicule to which she is now being subjected. Don't get me wrong, a crime was allegedly committed. I am all for that being investigated and prosecuted if appropriate. But public ridicule?

Some may not realize it, but it used to be an English punishment (and yes, we imported it to America) to publicly shame people by locking them in a pillory and ridiculing them in the town square. Britain stopped using the device in 1837 according to Britannica; Delaware was the last U.S. state to abolish it in 1905. Then Facebook and Twitter brought it back in a more convenient, pervasive, digital format in the 21st Century. Go figure. 

The teen essentially is accused of hijacking the election for homecoming queen at a Florida high school last fall. Her mother was employed by the school board in a position of trust. She had access to computer resources and information. The student is accused of using her mother's password to gain access to some student accounts and to vote for herself, and she won the Homecoming Queen title. Not exactly Snidely Whiplash, but an alleged crime nonetheless. 

The young lady "has been stripped of her title and will be tried as an adult." This is, as John Mellencamp might say "serious business." A young person now accused of "a really futile and stupid gesture," and a "mother (that) admitted she was negligent." The mother has already faced consequences related to her employment (at least at one point she was suspended from work; the reports do not provide any edification on how long that is to continue, or the next steps).

Thus, the ultimate "social engineering" is when someone gains trust and then accesses information that they should not (what is more trusting than a parent/child relationship?). Some will argue that this is a petty crime, stealing a homecoming election. But the theft is not the crime. Illegal access to a computer network is a crime. There was trust, and it was exploited. Some would say exploited stupidly (breaking news: kids do stupid and impulsive things all the time. Breaking news, adults do also). No hacking involved, no computer expertise involved, no phishing, no click-bait, just good, old-fashioned misuse of someone's password. Who knows your password? How do you know? So, lesson one is to beware of who knows your passwords and with whom you share them.

Let's return to the smoking ban at Florida State for a second. There are a great many people on this planet. We all have to function daily in the midst of each other. our rights may (will) periodically run up against someone else's rights (your right to smoke and my right not to inhale your exhaust). The government will become involved in those points of friction, and courts will make decisions. We must remember in those contexts that there is no perfect solution when rights collide. The government will regulate and we will all be faced with the outcomes. The smoking ban is likely a great illustration of that.

Now, back to the public pillory. Sure, Facebook, Twitter, and more have perfected the "pillory post of social media" (copyright, David Langham, 2021). Post a picture of your meal and prepare for the ridicule to follow ("you eat meat, what about our planet"). Post a picture of yourself in a public place and see who is offended ("You paid money to that company, you know their human rights record?). Express an opinion (oh no, not an opinion), and be prepared to be accused of every social ill since Eve took a bite of the apple and just ruined everything for everyone. But, the virtual pillory of our modern age has not changed public ridicule; it has just made it faster and easier, a parallelism to Mitch Radcliff's "more mistakes faster" is perhaps "more ridicule and disdain faster."

The student in this story, however, made the news not because of online bullying in the pillory. In this story, we learn that the school published a yearbook that included her photo. And, superimposed over her face is a photo of, to put it delicately, the southern end of a northbound horse. Ouch. That is clearly criticism; some may find it humorous as well, but it's not very kind. And, like any picture on the Internet, it will be around forever. The news reports that parents are "outraged." The school is "recalling those yearbooks to fix that problem." But, the photos will not disappear. I wonder if this young person will be at the ten-year high school reunion?

We are in a huge society. We will face the challenges that people around us do things that we do not like, and that potentially even harm our own health, safety, and welfare. We will have our "government of the people, by the people, for the people." And, laws will be made, conduct will be forbidden and criminalized. Those laws will not stop people from stupidly or diabolically impacting us though. We will be threatened, challenged, and inconvenienced.

We must remember that. We must remember that computers will help the ne'er do wells be stupid and diabolical far more rapidly than they can do so in person. The threats are all around us. This December, I will host a session on Cybersecurity at the WCI Conference in Orlando. I will bring a broad overview to the table, and then turn it over to Florida's top experts on cybersecurity from the Center for Cybersecurity at the University of West Florida. I hope you can be there. Whose problem is cybersecurity? You guessed it, it is yours. 

How can you do a better job of security against the malicious and the stupid? What are the threats to you and your business? What will it cost you when some employee allows a security breach? How will your customers and your customer's customers impose constraints on your Internet use? How will the law? Come to the program and learn more. Trust me, I will not put your picture on the Facebook pillory. I will even pose with you for selfies afterward so you can inflame your friends and followers by associating with someone who still dares to have "opinions."

Decriminalizing Marijuana?

On April 22, 2021, The Florida Supreme Court issued Advisory Opinion to the Attorney General Re: Adult Use of Marijuana. The subject of marijuana is not new to this blog. Most Americans by now have been exposed to the topic in some form. The concept or using pot for treatment of complaints has been around for decades now. And, the list of states that have decriminalized weed keeps growing. There is a "legal weed map" that illustrates this in bright colors. This, like so many other examples, insists that pot is "legal" when in fact it has merely been decriminalized.

That is an important distinction. Congress has yet to act in "legalizing" marijuana. Pot remains illegal for possession or use under federal law. There are interesting perspectives regarding enforcement of federal law, and many cite Gonzales v. Raich, 545 U.S. 1 (2005) in discussing, the commerce clause, and the supremacy clause. For more on the current posture of pot, see Mischaracterizing Pot Again (February 2020).

The law can be confusing. In 2020, WorkCompCentral reported on a Florida teacher who lost a job in 2020 because of marijuana use that the teacher believed was "legal." Pot advocates are prone to use the "legal" label. The teacher filed an appeal of the dismissal, and the decision was ultimately upheld. The news coverage in the Ocala Star Banner likewise repeatedly uses the "legal" label.

That labeling may cause confusion. The teacher was fired because marijuana is not legal. It is illegal in all 50 states. Some states have decriminalized it, meaning the state will not prosecute someone in certain circumstances of use or possession; will not prosecute under state law. But, it remains illegal pursuant to federal law. see Mischaracterizing Pot Again (February 2020).

More recently, WESH published a story of another fired teacher: "Florida teacher fired for prescribed medical marijuana use." That is also incorrect. No physician prescribes pot. Pot is illegal and a physician could imperil her or his license by writing such a prescription. Doctors therefore "recommend" pot for their patients, but they do not prescribe it. Using the word "prescription" lends an impression of permissibility or legitimacy, which may mislead the reader in the same manner as "legal."

Too complex? Is the nuance too subtle?

The pot issue has been discussed in Florida for several years. In both of the situations described above, the use of pot became known following work accidents. The subject of "medical" pot is thus becoming intertwined in the world of workers' compensation. The discussions of whether it must be paid for a treatment for workers' compensation is also an issue. See Federal Law Matters in Maine Also.

Some people are most eager to have pot. However, efforts to decriminalize it further have not been passed. WJCT recently reported on another teacher for whom pot was "recommended" (though the article headline portrays it as "legal). This teacher was also terminated according to the story. The article focuses upon a bill proposed but not passed in the just-ended legislative session to "to prohibit employers from taking action against qualified medical marijuana patients."

The alternative to legislation on legal topics is constitutional amendment. There have been a variety of provisions adopted in that manner, including animal rights, voting, the minimum wage, and more.

In the recent Opinion to the Attorney General Re: Adult Use of Marijuana, the Florida Supreme Court was asked to consider whether such a proposal for a constitutional amendment to decriminalize pot in Florida may be placed on the ballot for consideration. Justices Canady, Polston, Muniz, Couriel, and Grosshans concluded that the amendment may not be on the ballot as currently proposed. Justice Lawson wrote a dissenting opinion, and Justice Labarga dissented also.

The Court's majority concluded that the manner in which the proposal is summarized for the ballot lacks clarity as required by Florida law. It noted that clarity is required “to ensure that the ballot summary and title ‘provide fair notice of the content of the proposed amendment’ to voters." The Court explained its process for such cases as involving two considerations:

"(1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voters of the chief purpose of the amendment; and (2) whether the language of the ballot title and summary, as written, will be affirmatively misleading to voters.”

It explained that “[A]n accurate, objective, and neutral summary of the proposed amendment is the sine qua non of the citizen-driven process of amending our constitution” (sine qua non means absolutely indispensable). Here the summary says the amendment

“Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.”

The Court concluded that “[p]ermits” is problematic. It noted that the use of "permits" “mislead(s) voters regarding the interplay between the proposed amendment and federal law.” it concluded that this word "strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida," which ignores the persistent point that use or possession remains illegal under federal law. The Court concluded that "A constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law." Therefore, "a ballot summary suggesting otherwise is affirmatively misleading."

There will be those critical of the conclusions. Critics may see too fine of a point in the focus on word meaning. However, the examples cited herein reflect untoward outcomes for two Floridians who believed that their use of marijuana or THC was "legal." The connotation of "legal" or "prescription" is of legitimacy and permission, as is the word "permits."

Justice Lawson dissented with a written opinion. His conclusion is that such a ballot "summary need not address secondary issues or ramifications, including federal law." He analogizes the challenge of composing such a ballot summary to an examination and focuses upon whether some student's answer to that examination question is accurate, compared to whether the answer provides additional information not necessarily clearly sought by the question.

Justice Lawson also notes that the Court has “traditionally" been "deferential" in reviewing such ballot summaries. He characterizes this as "restraint," noting that "Sovereignty resides in the people and the electors have a right to approve or reject a proposed amendment to the organic law of th[e] State." Therefore, he notes the Court "take(s) a nonpaternalistic approach to our review, expecting voters to educate themselves regarding the details of a proposed amendment before voting." Justice Lawson concludes that it is thus the purpose of the initiative summary to "give the voter fair notice of the question he must decide so that he may intelligently cast his vote."

Both the majority and dissent are intriguing reading for the lawyer. It is 38 pages of perspectives regarding the Court's precedent in the Florida ballot initiative process and is recommended reading. The Court's conclusion will require reworking of the ballot summary and the debates about decriminalizing marijuana will continue. In the meantime, it would likely benefit people greatly if we all quit misusing the terms "legal," "legalize," "prescription," and "prescribed."

Two teachers have suffered consequences of their misunderstanding of marijuana being "legal" or "prescribed." The dissent's explanation of our "expecting voters to educate themselves" is respectful of our autonomy and freedoms as Americans. But, the majority's focus on avoiding the "affirmatively misleading" is also appealing in the context of our individual rights - specifically the right to not be misinformed.

The Court concluded that "permits" is misinformation. Similarly, when the press or pundits use "legal" or "prescribed" that is similarly misinformation that has the potential to lead good people into difficult situations involving their employment and lives. And, in some instances to suffer detriments regarding their workers' compensation benefits, see section 440.09(3). 

Hope for no Breakthrough, Part Deaux

I have been enthusiastic about our collective recovery from the challenges of SARS-CoV-2 avoidance. See The Future's so Bright (February 2021); Vaccination Implications (February 2021); Great Hamburger with a Smile, and We're Really Back (April 2021). I have been ridiculed publicly for my support of vaccines. One lawyer, in a public meeting, laughed out loud at my enthusiasm and questioned "Judge, don't you remember Thalidomide?" Thalidomide was an interesting, and frankly tragic, pharmaceutical failure that influenced and impacted many individuals and a generation. I do not believe there is any real corollary to this vaccine though. 

Vaccinations are preventative. The impact of the vaccines for SARS-CoV-2 has already been noted. In 2021, we are progressively improving socially, economically, and professionally with these scientific wonders. I continue to remind you that many "experts" said deploying a vaccine in 12 months was overly optimistic. Last year, they essentially said it could not be done. And, it takes years to deploy many medications across large populations. hundreds of millions of people have now been inoculated against SARS-CoV-2, and the rate of side effects is still exceedingly low. 

The first SARS-CoV-2 vaccine was deployed in the U.S. in nine months, last December. By the 12-month anniversary of the "experts'" expressions of deployment doubt, according to Everyday Health: 

"50.8 percent of the U.S. population age 65 and older has now been fully vaccinated, and almost three-quarters of those in this age group have received at least one dose of the vaccine. About one in five adults age 18 and up have been inoculated."

The doubters who said it could not be developed in 12-18 months were spectacularly wrong; "Dewey Defeats Truman" wrong. The vaccine was deployed in far less than 12 months, and 20% of the adult population was already inoculated by the 12-month mark. By 18 months, we will likely have administered the vaccine to everyone in America that wants it. By 24 months, we will likely have an oral medication to treat COVID, from Pfizer or Merck, or both.

But, the National Public Radio (NPR) pundits are cautioning that we should not be too optimistic. Let's not forget that they make their "livin' off the evenin' news" (Don Henley, Dirty Laundry 1982). They warn that the Centers for Disease Control is studying "Breakthrough COVID Cases," infections in those already vaccinated. USA Today reports that as of April 23, 2021, the U.S. has inoculated (at least partially) 41% of the population, about 134 million vaccinated. Millions more are vaccinated every day.

The NPR folks warn of "some relatively rare cases of coronavirus infection" occurring "despite vaccination." They provide anecdotal examples of individuals who obtained the vaccination, assiduously stuck to masking, sanitizing, and distancing, but became infected with SARS-CoV-2 nonetheless. Some report their reaction to becoming infected as incredulity.

NPR reports that this is referred to as "breakthrough" infection and that the Centers for Disease Control is "tracking these coronavirus infections." There have been "reports of about 5,800 breakthrough cases." These are a subset of the vaccinated public. By definition, one cannot experience a vaccination breakthrough unless he/she has been vaccinated. Thus, the 5,800 must be compared to the 134 million currently vaccinated Americans. They represent .000043 or .0043%. In practical terms, it is an exceedingly small percentage.

It is as small as the percentage of patients that suffered blood clots following injection of the Johnson and Johnson vaccination. Scientific American reported that particular vaccine was paused following the discovery of blood clots in 6 women, one of whom died. At the time, 6.8 million doses of that vaccine had been administered. The 6 clot cases equaled .00009% of uses. Notably, before SARS-CoV-2, about 274 people died daily of blood clots, according to the National Blood Clot Alliance. 

That the sample is exceedingly small is no reason not to study the breakthrough cases. The CDC is looking for "demographics or vaccine characteristics." They are looking for commonalities that might explain why the vaccine is not effective for some people. The statistics demonstrate the for some reason they are more predominant among those over 60 years of age and (presumably biologically) female. 

One expert was quoted by NPR says that the existence of "breakthrough" cases is not unexpected. He says that the vaccines were predicted to be "at least 94% effective." The expert explains that 94% is "not 100%." Under Florida law, we allow experts to express opinions "if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence." Section 90.702, Fla. Stat. So, perhaps it is helpful to some for this expert to explain in such clear terms that 94% is not 100%. The expert also reassures us "The bottom line is: It's expected. No need to freak out."

So, the NPR headline that breakthrough cases are being studied perhaps overstates the obvious. In short, this news is not news. The SARS-CoV-2 pandemic is not "over" and we are not societally "over it." So, many will continue in coming weeks, months, and perhaps years, to wear masks, socially distance, fastidiously apply sanitizer, and otherwise exercise caution. Bless them. In the widespread relief from fear and trepidation, let us certainly rejoice and strive for a return to collective normal. Let us also remember that 94% is not 100% and some among us may continue to experience fear, anxiety, withdrawal, and worse (infection itself).

Let's remember that their feelings are their own, subjective, personal, and sincere. Moving forward through our collective return to normal, let's be understanding of those who still do not want to shake hands, embrace, or perhaps even maintain their social distance. From a time when much or all of that was "normal" for each of us, let's remember that for some it may remain normal for some time. That you are ready to embrace does not mean others share your optimism, and we can all agree to accept and respect that.

For us all, let's remember Ronald Reagan's theme in dealing with the United Soviet Socialist Republic, "Trust, but verify." We can trust the vaccine, each other, and our health. But, if we get symptoms that have been associated with COVID-19, we would each do well to remember 94% and verify. Testing may be uncomfortable or inconvenient. However, if you are among the .0043% with a breakthrough, you would be better served to know it.

Survey 2021

I recently read an interesting blog post by Bob Wilson. When I saw the title What if Workers' Comp Surveyed Like McDonald’s? I heard Carly Simon in my head: "You probably think this (blog) is about you, You're so vain." It wasn't, not any more than Love Story was about Al Gore. Perhaps I am too vain, but the Wilson post coincided closely with our deployment of the 2021 judicial survey. 

The Wilson post is essentially a suggestion that you "don't ask the question if you are not interested in a real and true answer." There is an old adage passed around by lawyers; it comes from To Kill a Mockingbird. The author, Harper Lee, warns "“Never, never, never, on cross-examination ask a witness a question you don't already know the answer to, was a tenet I absorbed with my baby food.” Not bad advice. I have seen a fair few lawyers ask questions that they wish they never had. I have even seen them introduce documentary evidence that proved the other party's case for them. In one memorable example, I listened to the "other party's" lawyer argue vehemently against admitting the documentary evidence the lawyer wanted to admit. Forgive me, but I digress.

That adage is true, much of the time in trial. But, the survey is not cross-examined. It is direct. The questions are open-ended and afford you the opportunity to comment freely. It is probable that we can learn from the answers you will provide on the survey. After all, this is not a case, a hearing, or a motion. This is your state adjudication system for workers' compensation claims. It should, in large part, be about those it serves: employees and employers. Of course, it is also about the law. 

This post is actually about the annual chance to enhance. For the fourteenth year in a row, the OJCC has recently deployed the annual survey in conjunction with The Florida Bar Workers' Compensation Section. And, "no" you do not get a free ice cream cone if you complete it. And, "no," your "chances of winning" do not change based on whether you provide positivity or negativity. Seriously, read Bob's post if really don't believe someone would entice in exchange for a more positive response.

We ask a few things. First, If you have not been before a particular mediator or judge in the last three years, please elect not to respond regarding that person. The point of the survey is to afford insight into the perceptions of people recently, and currently, acquainted with the judge or mediator. We ask that you complete some demographic information regarding your geography, chronology, etc. And, we ask that you provide an objective assessment of your perceptions of each judge or mediator for whom you provide feedback. The survey is not about vitriol or insults. What we need is your frankness and positive ideas for improvement. 

In Above the Law, Steven Segal is faced with overwhelming odds. A gang member points out that the hero Steven Seagal is in a precarious position: "I don't think you can take us all." To which Seagal replies: “You’re right, but I’ll get an ‘A’ for effort." Does effort count? Perhaps it should? As you answer, perhaps consider your perceptions as to whether a particular judge or mediator should be recognized for effort. Did some mediator over the last year go that extra mile in your case? Did someone show you patience, courtesy, caring? Speaking of an A for effort, I appreciate you for putting forth the effort to complete the survey. Each of you who takes the time gets an A in my book.

We ask that you be frank and positive. For each of the various categories, there is an opportunity to leave a comment. If you select a low numerical value for something, the system will prompt you to leave a comment. That is your opportunity to suggest how something could be improved. If there is something you do not like, why not propose what you believe would be better? If someone is performing well, why not take a moment and explain how? I find in every trial there is something that impresses me. I strive to provide feedback so that lawyers know. 

This is your chance to do the same. If you are not satisfied, suggest what would help. If you are satisfied, take the time to say what impresses you. The survey is only of value if you take advantage of the opportunity. Your input is critical. The survey is open to attorneys who are registered for e-JCC or are members of the Workers' Compensation Section. If you did not receive an email (or it got in the spam folder), send me an email david.langham@doah.state.fl.us. 

Is there Repair?

One might wonder at the mechanics of adapting to a pandemic. A recent article I read postulated that this is "the worst pandemic that most anyone living has experienced." Of course, the impact has been significant on life and livelihood. But, the Johns Hopkins data currently shows just over 3 million deaths related to COVID-19.

Most everyone alive has also experienced the impact of another pandemic that has been ongoing for almost forty years, which is a disease thought to have originated in 1920, but which became a human pandemic recognized in the 1980s. Of course, that is HIV, which has killed well over 30 million people. In 1999 it was the fourth most prevalent cause of death worldwide.  For some reason, the fund-raisers and discussions of this pandemic have subsided. It may be too easy to forget pandemics as they fade into our past.

Without a doubt, the SARS-CoV-2 virus and COVID-19 are impacting our society profoundly. Many things are more difficult. One that came to my attention last summer was the seemingly simple concept of administering an examination. When the normal time for The Florida Bar Examination approached, Florida and other states first strove to postpone. For those who have succeeded in forgetting the path we trod through this pandemic, many lived week-to-week in 2020 with hopes of the arrival of good news.

The state responses regarding a Bar Examination were varied. According to Justia, some states proceeded with such exams as scheduled, some provided alternate dates instead, some went online, and others simply decided that testing was not necessary, granting a license to practice on the strength of a diploma alone (Washington was among those, according to The Spokesman-Review; Oregon did also, according to the NCBE). According to Bloomberg, the states providing this included Utah and Louisiana. That is not unprecedented, there were times historically when various states utilized the "diploma privilege."  Over 1,000 lawyers were admitted in 2020 with such "privilege."

There was a lot of activity on social media about bar exams. Many students around the country felt very strongly that they should (1) not have to go to a public place to take an exam, and (2) should not have to wait to take an exam. When some states provided "remote" alternatives, there was also some complaint that students should not have to (3) have access to computers or the Internet, or (4) undergo the stress of a remote testing paradigm. One noted pointedly that the process, delays, and tribulations were simply not "fair." When others on social media ridiculed the "fair" statement, it soon became a finger-pointing free-for-all all. There were a handful of responses suggesting that the practice of law as a career might well provide a modicum of stress as these young lawyers move forward on their selected paths. 

In the midst of a summer of riots, some law students protested in front of the Florida Supreme Court. Some of the law students brought their mothers with them. They complained about delays and the impact on job offers or job prospects. Some complained of challenges with software selected by The Florida Bar Examiners to administer a remote bar exam. 

But, Kentucky had a different software glitch. There, graduates took a bar exam and were notified in early December of their success. The Courier-Journal reported that 15 applicants received an email informing of their passage. One was so excited that he proceeded to "send in his bar dues," before receiving a phone call about 4 days later that week informing him that "he had actually failed the exam." A "data processing error" was responsible for the misinformation earlier in the week. He expressed frustration, pain, anger, and embarrassment. The same or similar error had resulted in the opposite: three "told they had failed when in fact they had passed."

According to the Courier, the Bar Admissions apologized and "acknowledged no apology can undo the anguish and disappointment." Officials conceded that the data relied upon should have been double-checked. Politicians made public comments ("awful and unacceptable") and apparently social media participants "condemn(ed) the Office" of Bar Admissions. A law professor labeled the error "cruel and a disgrace." He argued that law students "deserve so much more" from the Bar Admissions office. 

A tragic error? Certainly. An embarrassment for officials? No doubt. An impact on the misinformed who celebrated, announced success, and focused on moving forward professionally? Absolutely. A simple human mistake? Absolutely. Those who made disparaging remarks about the Bar Admission Office, I am confident, are among the comfortable majority of adults who have never made a mistake. It is perhaps too easy for those of us who have never made an error to fault and pillory someone else when they do. And, with our access to the great broadcast capability of social media, that criticism of people in the minority, the mistake-makers, can be swift and absolute. 

The situation is troubling from various perspectives. Is there value in professional testing? Simply stated, does an examination have value in determining who may be a lawyer, a doctor, or an accountant? If there is no value, why do states utilize them in the best of times? If there is value, why would a state abandon them in troubled times? Are the perfect among us really the majority, or do we all make mistakes and errors every day? My guess is that those of us with human failings are in the majority (by a lot). I am guessing that even some law professors make periodic errors and mistakes. The pandemic added stress to many lives, of students, lawyers, professors, and likely even Bar Admission employees. It is practical to presume that stress brings with it some increase in our individual propensity to make errors. 

I heard a story recently of a motion to compel production hearing. The alleged behavior of one party looked egregious. Responses had not been forthcoming. Accommodations had been seemingly ignored. Commitments had not been kept. Despite the first blush of being contumacious, a different story emerged in the hearing. It was a story of a professional under stress, suffering life-disrupting circumstances, dealing with a myriad of unexpected and frankly overwhelming personal and professional challenges. That motion to compel was withdrawn. There was, through communication and empathy, a path to repair. You have no way to know what someone is going through until you ask and then listen to their explanation. 

As we stand on the brink of returning to normalcy, might we all admit that the last 12-14 months have been stressful? Could we acknowledge that mistakes were likely made, some undoubtedly worse than others? Those undoubtedly led to some disappointments, embarrassments, and even consequences. But our society has largely survived and we emerge hopefully stronger than we were. I commiserate with those whose professional paths were detoured, but I commiserate also with a great many people who strove throughout this pandemic to maintain a course, for themselves and others. 

There is repair. Does repair mean the damage never happened? No. We cannot, individually or collectively erase the past. But, we can come to accept it, accept both our own imperfections and those of others, and we can set out yet again a bit stronger than we were before the challenges. As we do, let us remember this pandemic and the people that it affected, personally and professionally. Though it is not yet of the HIV magnitude, it is likely to be with us for years. Though it is likely to threaten and affect less of us moving forward, let's remember that it is likely still affecting some of us. Let's try to stay off our high horses and admit that we all make errors; our focus should remain on repairing them. 

Complexity Analysis

Florida workers' compensation has made a shift to "objective medical evidence." Section 440.09, for example, uses "objective relevant medical findings" three times.  It defines 

"'objective relevant medical findings' are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing."

There are also references to "objective" elsewhere in the statute, notably in the requirements for our Florida Impairment Guides. 

I was intrigued to run across a recent article When Complexity Science Meets Implementation Science: a theoretical and empirical analysis of systems change (April 2018). It is founded upon the study of implementation in "the evidence-based medicine movement" and the underlying "straight line," or "linear" process commonly relied upon in scientific progress. That is a process reminiscent of our recent COVID-19 experience: laboratory effort, clinical trials, and then "new tests, drugs, equipment, or procedures." 

The authors describe this as a "knowledge pipeline," and concede that it has "deliver(ed) huge advances in medicine over the last two centuries." But, they warn that this linear approach is not suited to the overall complexity that is modern healthcare. Their conclusion is that for these complexities, science must adapt. Critical to the approach is a broader understanding of "systems-level behaviors" and reactions from a more macro view.

The authors are critical of the limited potential offered by this linear model (which they describe as Newtonian) because they perceive the "clinical frontlines" as resistant to change when the most successful innovations are ultimately made available. However, they are more critical of the current methodology of research funding, the propensity of various hypotheses to fail along the development pathway, and the challenges in implementation that result. They characterize the medical delivery system as "socio-technical," recognizing some element of humanistic implication, perhaps emotion, involved in or influencing the science itself. They believe these influences may come from the researchers, implementers, or consumers. The resistance and complications are multifaceted and multi-source.

They contend that a theoretical approach called "complexity science" can be applied to this traditional "implementation science" to empower "more effective" evidence-based care. They conclude that system change is possible in large and complex systems such as medical practice, but that it is dependent upon some "triggering mechanism" that may be regulatory (top-down) or participatory (market up). The authors concede that change is complicated because our medical care system is complicated with a multitude of "forces, variables, and social practices." Whether the stimulus thus comes through direction or consensus, there is potential for changes to take hold, increase in momentum, and deliver improvement on a systemic basis. 

The complexity approach recognizes of these groups and their contributions to the science: "aggregating to be more than the sum of their parts." Their contributions or influences may be of varying intensities and particularities as regards any particular challenge or solution. Thus, progress is expected to occur in an environment of "variations, multiple pathways, unanticipated processes and results, and exhibit conflict between stakeholders." The participants and their humanity create and perpetuate uncertainties in substance, process, and pace. The seeming chaos of the human condition, coupled with the dynamic of both involved individuals and groups, thus makes progress somewhat unpredictable and a challenge to map or plan. 

They describe "the Greenhalgh model" on "diffusion of innovation," suggesting "pivotal systems factors" upon which implementation of change depend: (1) "the innovation itself," (2) "the system’s . . .  readiness for change, (3) the "implementation process," and (4) the existence of "external . . . context." That there is complexity does not mean that hypothesis cannot proceed to implementation ("from bench to bedside or test tube to needle"), it means that the path may not be the straight line that one might expect. The path may instead be "convoluted, imprecise, uncertain, ambiguous, and deceptive." We cannot conclude our trip from Colorado to Connecticut an unmitigated success if we describe our route through Anwar, Cape Town, and Beijing. 

The authors suggest that energy is lost in the scientific process through independent and focused study on "parts of a system . . . as distinct variables" that are combined analytically into a composite whole on an assumption of completeness and overall comprehension. In other words, what we gather and combine we assume to be all there is. It is possible our model does not include all possible or appropriate parts, but instead, the ones we located and chose to include. From the resulting product, causes and proposed solutions to systemic behavior are conceived, designed, and implemented. These largely focus on particular, discreet, variables. If those are confronted and controlled, then the composite whole is altered and improved. 

The authors do not decry that there is thus focus on these elements, but in fact concede "the agents and their artifacts, are important." Those may, seemingly, be any of the inputs whether theory, function, or the people that provide (or resist) implementation. However, they contend that it is more important to perceive and understand "the relationships between these components." In other words, it may be less about the ingredients in the recipe and more about the methodology or order of preparation and thereby the interaction of those ingredients. 

This article is a fascinating read regarding systems and the challenges that science faces. It is practical to accept that there is incredible complexity in the field of science, the practice of medicine, and the deployment/implementation of change. It is also practical to reflect on the authors' suggestions in a broader context. Might their observations of complexity, ingredients, contributors, constituencies, and challenges be as aptly applied to amalgam that is workers' compensation?

It is difficult to conceive of anything as complex as the human body upon which science is focused. Various functional systems (circulatory, nervous, skeletal, etc.) coexist in concert, in balance, and in interdependence. However, that may as aptly describe workers' compensation. This thing we all too often refer to in a singular sense is at least 60 jurisdictional systems, each comprised of various parameters (rules, statutes, precedent), each subject to influences regional, professional, financial, functional, and human. In discussing the various statutory reforms, a common illustration is of Comp being a balloon: "When pressure is applied to one part, the balloon neither shrinks nor grows, the volume shifts to some other part of the balloon." That may aptly illustrate the authors' warning about a singular focus on a mere element of the whole. 

The authors of this article provide insight into the potential for better scientific analysis through the adoption, or at least appreciation, of non-linear thinking. Their focus on the implementation of evidence-based medicine is critical in our community that has adopted such medicine into the standard. However, the broader appreciation of parts, interactions, complexity, and the resulting composition of the greater whole in our own system or community may be of greater value still.

The authors conclude with a warning that is therefore worthy of consideration:

"Complexity thinking adds a real-world, multidimensional appreciation of the system and its density and dynamics, but it does not make it easier to effect change; in fact, the opposite is true."

Thus, if we accept the applicability of these foundations, we may find a new and broader appreciation, itself another added complexity or challenge. 

Judicial Timekeeping

Seemingly in every exposition, we have become accustomed to the overarching disclaimer of innocence. The U.S. attorney regularly precedes listings of charges with something like: "The charging documents are merely accusations and defendants are presumed innocent until proven guilty." That is an appropriate reminder, and we must all maintain a focus on that reality. In this country, we are each presumed innocent until such time as the government proves us guilty.

With that caution in mind, a recent filing regarding a Florida judge is of interest. On April 13, 2021, the Florida Judicial Qualifications Commission filed a Notice of Formal Charges with the Florida Supreme Court.

This references multiple canons of the Code of Judicial Conduct, applicable to the Florida Courts through adoption by the Supreme Court pursuant to constitutional authority:

"Your actions constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18"

The topic is worthy of consideration here because the same Code is applicable to Florida Judges of Compensation Claims through legislative adoption, see section 440.442, Fla. Stat.

The Notice, as quoted above, finds concern with three separate Canons, the Constitution, and more. Canon 1 is focused on "Uphold(ing) the Integrity and Independence of the Judiciary." Canon 2A is focused on "promot(ing) public confidence in the integrity and impartiality of the judiciary." Canon 3A is focused upon judicial "duties . . . tak(ing) precedence over all the judge's other activities. Canon 3B(2) requires a judge "shall be faithful to the law"; Canon 3B(4) requires a judge "shall be patient, dignified, and courteous"; Canon 3B(8) requires a judge "judge shall dispose of all judicial matters promptly"; and 3C(1) requires a judge "shall diligently discharge the judge's administrative responsibilities."

Specifics in the Notice are more focused, providing the following foundation statements:

Art. V, §13 of the Florida Constitution “All justices and judges shall devote full time to their judicial duties.”

Canon 3A “The judicial duties of a judge take precedence over all the judge’s other activities.”

Florida Supreme Court Admin. Order 2014-66 (‘Diligent Performance of Judicial Duties’) “The failure of any judge to comply with an administrative order or directive of the Chief Judge is considered neglect of duty…” “The chief judge in each circuit shall separately communicate to all trial court judges in that circuit the importance of a professional work ethic and accountability to the judiciary as a full-time commitment under the [Code of Judicial Conduct] and the Constitution of Florida.”

Being a judge is a full-time job. I know many judges, and I am persistently amazed by their perseverance, patience, and dedication. Their work ethic is often laudable and sometimes simply above and beyond expectations. I have known judges to wait patiently into the evening for a jury, all the while working on other orders, correspondence, and more in the interim. I have become aware of JCCs who work evenings, weekends, and early mornings to produce the orders necessary to keep this community functioning. That is not to say judges do not have slack time, or that they do not take leave. They do. But, overall, most invest incredible time and effort into their responsibilities. 

The Notice of Formal Charges in this instance alleges that a county court judge "failed to devote full time and attention to . . . judicial duties during" at times in 2016. The document notes that courthouse absences and work less than "full time" are alleged "on a recurring basis." There are similar allegations about 2017 and 2018 and 2019.

In addition, the Commission alleges that this county court judge failed to "properly notify the Chief Judge of . . . absences or keep adequate records of . . . leave time between 2016 and 2019." Judges keep records and report time away from the office. That may come as a surprise to some. 

The Commission concluded that these alleged absences and record-keeping allegations:

"constitute violations of the provisions of Canons 1, 2A, 3B(2), 3B(4), 3B(8) and 3C(1) of the Florida Code of Judicial Conduct and Art. V, §13 of the Florida Constitution, Canon 3A and Florida Supreme Court Admin. Order 2014-66, and Palm Beach County Admin. Orders 11.107-9/08 and 11.107-01/18."

The Judge is permitted 20 days in which to file a response with the Florida Supreme Court. The judge's attorney commented to the South Florida Sun-Sentinel that the judge "always, without exception, completed all her own work on the County Court." Furthermore, the attorney asserts that this judge additionally performed "hundreds of hours of additional work for Circuit Court Judges.” The attorney essentially asserts that this judge was working "remotely" before the COVID-19 pandemic made that paradigm familiar and accepted. Will challenges with time-keeping become more common to all employers as a result of this shift to a "remote" world?

Too many years ago for me to admit (candor), I was appointed to the bench with high aspirations. I was convinced that there was much that troubled the Florida Office of Judges of Compensation Claims. In those days, the work ethic of some of our judges was a frequent subject of both disdain and complaint.

There was the story of a judge who showed up late for a trial due to urgent Christmas shopping. Another was told of a judge adjourning a trial to accommodate a grooming appointment. Some recounted often finding a particular judge sitting in chambers reading a newspaper or book. Back in those days, as hard as it may be for the current practitioners to grasp, it sometimes took years for a final order to be issued after a trial concluded. We currently average well under 30 days; that remains true year after year.

When I was appointed, one of my first conversations was with a seasoned Judge of Compensation Claims. The judge offered me several suggestions, which were well taken. I relished the advice significantly, but I was more touched that this judge thought enough of me to offer advice. As Baz Lurhman taught me long ago:

"Advice is a form of nostalgia, dispensing it is a way of fishing the past

From the disposal, wiping it off, painting over the ugly parts

And recycling it for more than it's worth"

You have to be careful of advice. Baz acknowledges that: "Be careful whose advice you buy but be patient with those who supply it." But, I was pleased to have this advice. That judge told me: "Dave, just remember that half of this job is just showing up." The judge explained to me that the public needed to know that when they had needs, those would be met. I took that to heart and strove to be present in the district office persistently.

Many years have passed. For the last 14 years, the Florida OJCC has published aggregate figures regarding the time required to enter trial orders. The period for trial orders is also reported for each individual judge. For several years, the Annual Report has similarly included the average days from the filing of a settlement motion to the entry of an order. These figures support that tremendous progress has been made as regards timeliness. And, as important, the judges of the twenty-first century OJCC are known for their professional demeanor, timely adjudications, and efficiency. We have indeed come a long way.

I try to pass that senior judge's advice on to each new appointee: "Show up." In the midst of COVID, we had some judges, mediators, and staff telecommute out of necessity. Their reasons varied. The need was most often periodic. At the height of telecommuting, perhaps 20% of the OJCC staff was doing so on a given day. The OJCC never closed, though a couple of offices were shuttered for a day of deep cleaning here or there. But, the work was done, and demonstrably so. the Florida Judge of Compensation Claims is more transparent and apparent in terms of work accomplished than any other judicial officer of which I am aware. The Annual Report is encyclopedic and detailed, easily accessed, and broadly informative.

Throughout the pandemic, and for years before, the judges here accepted the maxim "show up." The work may not require it; we might write orders at home, the beach, or the mountains. But, the people who depend upon us expect it nonetheless: "show up." I am proud of the performance of this Office, the dedicated staff, mediators, and judges that not only saw you through a pandemic but continued each day before and since to "show up."

I will watch with interest as the Supreme Court works its way through the allegations noted at the outset. Will the issue in this case be time spent in the Courthouse or volume of work product produced? How will the Court view the "full-time" and "precedence" requirements of the Canons of the Code? What will the Court conclude as to the merits of the allegations the Judicial Qualifications Commission has filed? In any event, the filing is an interesting reminder of our obligations as judges, and the pride I have in those with whom I am honored to serve. 

 

Giggin' Again

No, we were not dancing wildly this week on the WC Hot Seat. We were not hunting for frogs or flounder with a pointed stick. We were discussing the practice of short-term jobs. 

April 21, 2021, brought another (the 17th) rendition of the Workers' Compensation Hot Seat. To say it was an animated conversation understates things a bit. We had two powerhouse guests from the American workers' compensation community. Professor Michael Duff brought his "Blue collar," Teamster shop steward, and progressive perspective. William Zachary brought his management background, legislative reformer experience, and workers' compensation passion. Each also has deep experience in the academic side of workers' compensation. They were a dynamic duo regarding the challenges of a gig economy and interrelationships with workers' compensation. Bob Wilson and I barely got a word in edgewise. 

The program started with a realization that defining what "gig" means is itself a challenge. The term is used often in the press, some would suggest at times indiscriminately. The takeaway, from my perspective, is that there is nothing new about "gig" employment. For decades, people have been alternative ride service providers, babysitters, handypersons, yard technicians, and more who perform various tasks "off-book." There was always some degree of concern about the nature of the relationship (employee, contractor, casual) with these folks. There seems some consensus that the technology of our App-driven world has merely accelerated this labor method and thus exacerbated the need for some discussions about it.

Bob Wilson made an excellent point regarding the broader concern of independent contractors (a more long-term version of the same non-employee). The implication of misclassification hung in the air, but was not raised per se in the conversation. I have written about it before. See Misclassification - Is It in Trouble in Florida? (2014); Misclassification - What is it? (2015); and Misclassification and Regulation - Will Government be Nimble? (2015). There are challenges presented by those who avoid the protections of workers' compensation, to their personal financial gain and probable comparative advantage in competitive pricing.

The Hot Seat progressed past these definitional points to a discussion of both regulation and perception. Professor Duff noted that any gig solution must be accomplished transparently. Otherwise, he cautions, that the labor side will be difficult to engage for support and participation in that solution. He conceded that there is similar doubt about how workers' compensation laws generally are motivated and enacted, but that is a larger picture than this Hot Seat anticipated. Mr. Zachary stressed that some solution must come and that the volume/severity of injuries occurring in populations not covered by workers' compensation will undoubtedly stimulate discussions and change because otherwise, they are a taxpayer challenge. He oft repeated, "nature abhors a vacuum."

The discussion diverged a bit from the "gig" to a related topic when we were focused on change and transparency. This issue is essentially who will sit at that table to have these discussions? More pointedly, who will speak for the injured workers, or workers generally? There was mention of organized labor as well as attorneys. However, there seemed some skepticism, with suggestions that some may have misaligned financial incentives for behaviors regarding the vulnerable workers. There was consensus on one point, any process focused on addressing the gig concerns has to include those workers.

I was reminded of a couple of parables as the conversation continued. As we voiced realizations about the challenge of defining the gig, of prioritizing, of motivating change, of getting a group to sit down and go to work, there was some sense of the enormity of such an undertaking, the complexity of such an undertaking, and the potentials for failure. I found myself wondering quietly if anyone has the wherewithal to both get this party started and see it through.

The first proverb that came to me is Confucius: "The man who moves a mountain begins by carrying away small stones.” In other words, let's get started instead of focusing on how big it is. One of the panelists suggested that we "not try to eat the whole elephant in one bight"; there is merit to that. The other parable in my mind though was "The Starfish Story," which presents a youngster striving to save many beached starfish. Ridiculed for attempting to save them, he is told by a seasoned citizen: "there must be tens of thousands of starfish on this beach. I’m afraid you won’t really be able to make much of a difference.” In response, the kid picks up yet another and puts it back in the sea, saying with a smile “It made a difference to that one!”

There is no doubt that workers' compensation is a difficult subject. Discussions are often perspective-driven, self-interested, and acrimonious. Regardless of how one feels about the manner in which this legislative orchestra was composed, in the end, there will be injuries to workers. We cannot regulate the question of whether there will be bills to pay as a result. We may regulate only who will pay and under what circumstances. In the end, as I noted in 2016, Someone Has to Pay.

Another thought that crossed my mind was stimulated by Professor Duff's mention of rights generally and their foundational status in much of what we discuss in the law, a constitutional concern as a predicate. What he did not add, and what bears mention, is that rights are virtually never absolute, whether you label them "fundamental," innumerate them, exalt them, or even if you "hold these truths to be self-evident." They simply cannot be made absolute.

Our rights are in constant conflict with government powers and unfortunately the rights of others. I tell my students that rights are like a pie. We have but one, and every piece you eat is one that I cannot. We are, like it or not, in competition. I have a right to the quiet enjoyment of my backyard, and you have the right to have Twisted Sister come bellow in your adjoining backyard at 200 decibels (150 decibels is generally enough to burst your eardrums). In this illustration our individual rights conflict. But, one of us might recruit the government to support our preference, and that would add government power (state action) to this challenge, in favor of one and opposed to the other. Almost all protection and recognition of rights is subject to the fact that there has to be inherent compromise in the process. That truth is immutable and inherent in our human nature. 

Mr. Zachary touted the solution of surcharges and coverage which is the hallmark of the Black Car Fund. I have written about this organization in The Gig Economy - Can it be Socialized (2018) and shortly thereafter Gig Economy Post - Redux (2018). The Black Car has a couple of things going for it. First, William Zachary is a fan, and having a scholar like that endorse your idea is a phenomenal advantage. Second, Professor Duff is not a critic, though he has questions about details and implementation decisions, he is not a critic. Third, it is not hypothetical and proposed, but a working model that is out there enjoying success and proving it can work. If it is merely a starting point, it is admittedly still a starting point.

The Hot Seat ended with some critical points. There were divergent views expressed on employment, rights, and even the role of government, some liberal and some conservative. People are different. There is an opportunity now to seize the day and brainstorm some ideas to build a better array of potential outcomes from injury, perhaps not utopian but better. Notably, there was consensus on some points despite the very different perspectives that were represented. We've proven that collective and collaborative discourse is possible. Now can we find some time to sit down and really talk?

Public Accommodation

Another case of statutory interpretation. The subject is intertwined with workers' compensation, which is itself entirely statutory. 

Just what is a public accommodation and why is it important? The Americans with Disabilities Act (ADA) was passed in 1990 and quickly became part of the American legal lexicon. The implications in workers' compensation litigation were immediate and contentious. The law was intended to provide equal access to those who suffer disabilities, and too often work accidents/illnesses leave residual effects despite even the best efforts at medical treatment and care. It is common for a worker to suffer from "disability," in the course of a workers' compensation event. Through the 1990s there was significant focus on the subject as courts worked to interpret the provisions of the Act.

A very recent case from the Eleventh Circuit Court of Appeal provides an interesting analysis of a critical element of the ADA, the "public accommodation." In Gil v. Winn Dixie, No. 17-13467, D.C. Docket No. 1:16-cv-23020-RNS, (11th Cir. April 7, 2021), the court explained the "general discrimination provision" found in 42 U.S.C. § 12182(a), which provides:

"[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

The critical nature of the phrase "public accommodation" is immediately clear. It is in those "places" that discrimination is prohibited by this provision. In recent years, there has been significant debate and litigation over whether an Internet website is or is not such a "public accommodation." In the Gil decision, the Eleventh Circuit joins those courts that have concluded that at least some websites are not. That potential for some distinction will be of concern to some readers whose initial assumption might be a website is a website is a website.

However, the court begins its analysis with a careful description of the website in this case, noting:

"Winn-Dixie owns and operates grocery stores in the Southeastern United States. It is undisputed that Winn-Dixie only sells goods in its physical stores and does not offer any sales directly through its limited use website."

There are those who suggest that the court's determination of Gil is potentially not a broad pronouncement that websites are not "public accommodations" as much as it is a narrow determination that not all websites are "public accommodations." The distinction, perhaps, is whether a website is a substitute for, or adjunct to, a retail environment. If a website offers goods for sale on a website as a store would on its shelves, there is the potential for a different outcome.

The litigation began five years ago, which illustrates that our justice system takes time. The plaintiff was a Winn Dixie customer who is legally blind. He learned of the potential through the store's website to perform some shopping functions, including refilling medication prescriptions. However, when he attempted to use the website, he found that it was not compatible with the software he utilized to "screen read" on the Internet.

Alleging that the website was therefore inaccessible to those with visual disabilities, Gil sued seeking various damages including "an order requiring Winn-Dixie to update its website 'to remove barriers'" to "individuals with visual disabilities." The trial court concluded that the Winn Dixie website is a "public accommodation." In doing so, the trial court "acknowledged that the circuit courts," that is the federal appellate courts, "are split on the issue of whether the ADA limits places of public accommodation to physical locations."

The Court provides an expansive list from the ADA, locations that the legislature included in the statutory definition of "public accommodations." The list is 12 paragraphs long (lettered "A" through "L"), and includes "an expansive list of physical locations"; over 50 examples are cited along with many "or other" phrases of seemingly broad inclusivity. However, the Court noted, "the list does not include websites."

The Eleventh Circuit explained this split, noting that the Third Circuit has held that “[t]the plain meaning of Title III is that a public accommodation is a place.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998). The Sixth Circuit has concluded that the "plain meaning" of the law means a place. Stoutenborough v. Nat’l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995). Even the Ninth Circuit has rendered decisions focused upon the more narrow "actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

The Court explained that other Federal Circuits have viewed the language in a broader context: "The First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) has determined that that the phrase “public accommodation” “is not limited to actual physical structures.” Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994). Specifically referencing that decision, the Seventh Circuit (Illinois and Indiana) has concluded that the "core meaning" of the "public accommodation" language precludes any "owner or operator" of a business "that is open to the public" from "exclud(ing) disabled persons." Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999).

The Eleventh Circuit reversed the trial court in Gil, concluding that "the plain language of Title III of the ADA, public accommodations are limited to actual, physical places." Thus, in the Eleventh Circuit (Alabama, Florida, Georgia), this is the law. The same applies in the Third Circuit (Delaware, New Jersey, Pennsylvania, and Virgin Islands), the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee), and the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Mariana Islands, Oregon, Washington).

Thus a conflict in legal interpretation existed before Gil was decided. Conflict between the Federal Circuit Courts can be homogenized in two ways. The legislature could react to these interpretations of the ADA and enact additional or amended language to clarify the law. Legislative action would apply to causes of action that arose after such laws were passed. Or, the United State Supreme Court could undertake review of one such case and provide an analysis and conclusion which would be applicable across the country.

With little explanation of why, some legal pundits contend that Gil is likely to be a case in which such conflict is brought to the U.S. Supreme Court. In terms of explanation, it is pertinent to note that the conflicting opinions cited by the Eleventh Circuit were rendered in 1994, 1995, 2998, 1999, and 2000. The split has thus been at least apparent for twenty years, though the Gil decision in 2021 certainly brings the issue to the fore again.

It is also interesting that this interpretation returns us to the "plain meaning" of a statute, recently discussed in Statutory Interpretation in Colorado (April 2021). When a statute's plain meaning is clear, the courts need not proceed to examinations of legislative intent or sentiment. The Gil court noted that the plaintiff "relies on legislative history to support the notion that Congress intended an expansive definition of 'public accommodation' in the ADA." The Court reminded that "legislative history is not the law,” according to the U.S. Supreme Court. There is also a citation to a concurring opinion of Justice Scalia regarding interpretation. He noted that a court's duty is to apply the plain meaning, and "if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it.” (Citations omitted).

For now, the law is somewhat settled in the Eleventh Circuit. A website that does not offer goods for sale is not a "public accommodation" under the ADA. Some writers continue to suggest that this may be a distinction addressed in future litigation. Similarly, some suggest that Gil is destined for review by the U.S. Supreme Court to resolve this decades-old Circuit conflict. The certainty in such prognostications is usually this, only time will tell.

 

We're Really Back!

On October 6, 2020, I attended my first in-person workers' compensation seminar in nine months. At the time, I blogged "we're back we're back" and then admitted that was an overstatement but concluded we were "returning." The OJCC annual seminar at the Florida First District Court of Appeal was on February 21, 2020. That was a great program, but no one imagined it would have to hold us over for eight months. I was fortunate to have the October opportunity, a great many could not yet travel then. A great many cannot travel even now.

In the 1993 cartoon "We're Back, A Dinosaur Story" children were provided an amusing premise:

"A time traveling scientist goes back to prehistoric times and feeds dinosaurs a magic cereal that increases their intelligence - next they land in modern New York City for a series of comic adventures."

As I wandered the strangely quiet halls of the Omni Champions Gate last week, I returned to the sentiment that "we're back." I no longer think that we are merely returning; We're back! And, with that realization, the cartoon returned to my memory. 

We're back! The Workers' Compensation Claims Professionals and The Florida Bar Workers' Compensation Section co-produce a great spring program annually. It has steadily grown from the old Board Certification Review Course that historically attracted 50-100 attorneys. In recent years, the crowd has been in the range of 400 by my estimate, and I am always proud to participate. Of course, in 2020 the program was canceled as was so much of our lives, and travel restrictions continue to somewhat mute us. But, yes, We're back!

In April 2021, we gathered again at the Champions Gate venue. There were masks and distancing as we have come to expect. There were vendors striving to give away hand sanitizer that at least seems to have lost its attraction. And, there were crowds, handshakes, hugs, and interaction. I was astounded at how many handshakes there were. The fear and trepidation seem to have evaporated. It was refreshing to see so many faces, sans-masks. 

Many stories were shared. The panel on which I was honored to participate addressed some effects of the pandemic on practice and process. After, an attorney confided that COVID-19 has become tiresome and the attorney was pleased to hear about the law and the practice again. This attorney lamented that we discussed COVID-19 at all.

I felt a bit like that "time-traveling scientist" returned to the days of yesteryear (yes, it was only in 2019 that we were last together like this at the Forum, but it seems so long). We partook for two days in the "magic cereal" of education and we "increased . . . intelligence." We, as a community, proclaimed with energy and verve that "We're Back!" And. I could not be more pleased.

There were stories. One attorney recounted how inoculations had been enjoyed early in 2021 despite being contrary to the government age constraints. Another acquaintance recounted vaccine doubts but admitted to recently undertaking the first of a course. In yet another conversation, I heard a recounting of an attorney's client who steadfastly intends to forego inoculation altogether. Another was proud of immunity ("I had my second shot on March 19, and I am immune"); I did not have the heart to remember that vaccines do not yield immunity, but only protection.

I was amused by a conversation with one vendor/sponsor, whose company is headquartered in a galaxy far, far away (up north). It was apparently somewhat difficult to convince those at headquarters (1) that there was actually a live program in Florida this month, (2) that people were actually planning on attending, and (3) that sponsorship and attendance was worthwhile. Thus, though we in Florida find ourselves blessed to be back (or nearing), perhaps we need to remember that this return towards normal is seemingly not progressing at such a pace everywhere. 

In the end, there were a variety of perspectives expressed. One news source recently highlighted a projection that vaccine interest is waning. The author says we may soon "hit a wall." There are doubts expressed that we will reach "herd immunity" due to some reluctance. As I enjoyed the return to a live conference, that potential concerned me. With herd immunity, perhaps things could become even more normal? Without it, will we live with the remnants of this SARS-CoV-2 for years? That is troubling. But, a significant portion of our population seems destined to forego the shot. Ultimately, that should be an individual's decision. 

So, thanks to all those who answered the call to normalcy. They prepared and planned, studied, and invested. They showed up in person and proved that we can return to a modicum of normal. Thanks to the following participants, and any I may have missed, for making this program real:

Leopoldo (Leo) Garcia Jr., Forum Co-Chair - Bar Section

Stacy Hosman, Forum Co-Chair - WCCP

W. Rogers Turner, Attorney,

Matthew J. Troy, Attorney,

Karen M. Gilmartin, Attorney

Kenneth M. Hesser, Attorney,

Heather Byrer Carbone, Attorney,

Paul M. Anderson, Attorney,

Philip Augustine., Attorney,

Michael J. Winer, Attorney,

Alan D. Kalinoski, Attorney,

Hon. Frank Clark, JCC,

Michael D. Rudolph,

Andrew R. Borah, Attorney,

William H. Rogner, Attorney,

Hon. Margret G. Kerr, JCC,

Kimberly J. Syfrett, Attorney,

George A. Helm, III, Attorney,

Kelli B. Hastings, Attorney,

David E. Perloff, M.D.,

Robert J. Rodriguez, Attorney,

Hon. Walter J. Havers, Jr., JCC,

Richard J. Manno, Attorney,

Philip Augustine., Attorney,

Hon. Iliana Forte, JCC,

Hon. Jonathan E. Walker, JCC,

Christopher J. Smith, Attorney,

Hon. Thomas Hedler, JCC,

Eric M. Christiansen, Attorney,

Thomas P. Vecchio, Attorney,

Jeffrey M. Friedman, Attorney,

Joanne M. Prescott, Attorney,

Karen J. Cullen, Attorney,

Christopher L. Petruccelli, Attorney,

Paolo Longo, Jr., Attorney,

Karen M. Gilmartin, Attorney, 

Glen D. Wieland, Attorney, 

Hon. Neal P. Pitts, JCC, 

Hon. Sylvia Medina-Shore, JCC,

Hon. Jacquelyn L. Newman, JCC,

Hon. Erik B. Grindal, JCC,