Res Gestae - March 2021

EMPLOYER LIABILITY IN THE COVID ERA

New Year, New Appellate Rules THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION • MARCH 2021

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contents on the cover

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ad directory

What Liability are Employers Facing in the COVID Era? Suzanne Boy, Esq.

special feature

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What the Font?

20

Keith Grossman, Esq.

departments 6 Letter from the President

Blake Hampton, Esq.

8 Letter from the Executive Director

Lauren Baugh

10 Calendar of Events 12 Ethically Speaking

Henry Lee Paul, Esq.

14 Practice Section

Solo & Small Firm

Conor Foley, Esq.

16 YLD Spotlight

Shirlarian Williams, Esq.

18 Legal Lens

LCBA Swearing-In Luncheon

23 New Members

26 Guest Attorney Column

New Year, New Appellate Rules, Pt. 1 Christopher Donovan, Esq.

28 Advertiser's Spotlight

DeMine Immigration

30 The Dish

Taqueria San Juan Lauren Baugh

32 5 Things You Don't Know

About Me

Magistrate Bernard King

34 5 Things You Don't Know

About Me Cynthia Duff

36 100 Club

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IBC 15 15 35 29 37 33 17 19 13 33 29 BC 25 33 11 28 15 9 9 23 36 25 25 34 35 13 17 7 3 37 13 IFC 27 5 32 37 11 23

38 In The News

30 4

Aloia, Roland, Lubell & Morgan, PLLC Barbara Pizzolato Bounds Law Group Boy, Agnew, Potanovic Business Observer Calvo & Calvo Attorneys at Law CONRIC PR & Marketing Dal Lago Law DeMine Immigration Law Firm Denise Kennedy Direct Impressions Donna Tisch Edison National Bank Frank Piazza, P.A. Heather Fitzenhagen Henderson, Franklin, Starnes & Holt, P.A. Henderson, Franklin, Starnes & Holt, P.A.,IP Henderson, Franklin, Starnes & Holt, P.A., Robert C. Shearman, Esq. Imagine Wellness Spa Kelleher Law, PA Law Firm of Scott T. Moorey Law Offices of Dennis L. Webb LCBA Annual Bench Bar-B-Q & Shrimp Boil Leonard P. Reina Mark B. Yeslow Markham Norton Mosteller Wright & Company PA McHale, P.A. Men's Rights Law Firm Morgan & Morgan Musca Law Office, Inc. REAS, Real Estate Advisory Services, LLC Roetzel & Andress Sanibel Captiva Community Bank Sheldon E. Finman, P.A. Spivey Law Firm Personal Injury Attorneys, P.A. Sproat Workplace Investigations Stockman Mediation The North Law Firm, P.A. Wright Mediation

LeeBar.org

It is the policy of the Lee County Bar Association to hold meetings only in those facilities that do not discriminate on the basis of race, gender, sexual orientation, national origin, physical or mental disability, or religion. The Association will engage in a good-faith interactive process with any employee, prospective employee, member or invitee to determine if a reasonable accommodation is needed and will make reasonable efforts to provide such accommodations. Any requests for accommodation should be directed to the executive director of the Lee County Bar Association, Lauren Baugh at lbaugh@leebar.org or 239-334-0047.

Maximum Referral Fees Paid

Automobile Accidents Motorcycle Accidents Truck Accidents Victims of Drunk Drivers Slip & Fall Accidents Wrongful Death

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March 2021

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president's letter We have entered March, and I hope everyone’s year is off to a great start.

LEE COUNTY BAR ASSOCIATION

First, I congratulate Chief Judge Michael T. McHugh in being reelected by his colleagues for a fourth term as the Chief Circuit Judge.

This is Judge McHugh’s fourth two-year term, beginning on July 1, 2021 and he has served as Chief Judge since July 2015.

Executive Director - Lauren Baugh Administrative Assistant - Mairelis Tamayo

administration

executive council

Thank you for your support and participation with the LCBA. I’m also asking you to please consider donating to the Lee County Bar Association Foundation. Unlike our membership association, the Foundation is a 501(c)(3) and contributions should be tax deductible for those who itemize.

John Miller, III, Esq. Andrea Pleming Smith, Esq.

committee chairs BENCH-BAR GALA

LAW RELATED EDUCATION

Danielle Butler, Esq.

T. Rankin Terry, Esq.

DIVERSITY AND INCLUSION

LAW WEEK

Ita Neymotin, Esq. and Kelly L. Fayer, Esq.

Hon. John S. Carlin

HEALTH AND WELLNESS

LCBA FOUNDATION CHARITY GOLF TOURNAMENT

John Miller, Esq. and Joel Hyatt, Esq.

Shannon Puopolo, Esq. and Kenneth A. Jones, Esq.

HISTORY

MOCK TRIAL

Jenna Persons, Esq. and E. Bruce Strayhorn, Esq.

Shaina Zuppke, Esq. and Eunice Gedeon, Esq. PRO BONO

Shanthy Balachanthiran, Esq.

practice section chairs ALTERNATIVE DISPUTE RESOLUTION

IMMIGRATION LAW

Anne Dalton, Esq. and Bill Merchant, Esq.

Indera DeMine, Esq. and Nirupa Netram, Esq.

APPELLATE LAW

INTELLECTUAL PROPERTY

Alex Brockmeyer, Esq. and

Luca Hickman, Esq. and Mark Nieds, Esq.

CORPORATE LAW

Mairin Roepstorff, Esq. and Alicia Olivo, Esq.

LAND USE AND GOVERNMENTAL LAW

CRIMINAL LAW

Sarah Spector, Esq. and Erica Woods, Esq.

Kathleen Fitzgeorge, Esq. and Leah Harwood, Esq. ELDER LAW

Blake Hampton, Esq. and Amy McGarry, Esq. FAMILY LAW

Christina Holly, Esq. and Mellany Marquez-Kelly, Esq. GENERAL CIVIL AND BUSINESS LITIGATION

Carlos Kelly, Esq. and George Knott, Esq.

Blake P. Hampton, Esq. Blake@Hampton.law | 239.309.0090 RES GESTAE

TREASURER

Spencer Cordell, Esq.

BOARD MEMBERS

I’ll see you at the Shrimp Boil!

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VICE PRESIDENT

Tiffany Pereira, Esq.

Peter Knize, Esq. Michael Anthony Pica, Esq.

March is Women’s History Month. Although the LCBA is not offering any programming directly connected to this topic, I feel it is important to discuss. I am fortunate strong women have surrounded me in my professional career. I learned about Elder Law from Professor Rebecca Morgan at Stetson Law. Beth Prather inspired my comprehensive approach to elder care planning. I would not be President of the LCBA today if not for Kelly Fayer. Kelly appointed me to the LCBA Board, and I have worked hard for this organization ever since.

Today, Lee County is blessed to have the Lee County Association for Women Lawyers, a vital and active organization supporting the advancement of women in our profession and our community. I highly recommend getting involved with this fantastic organization.

SECRETARY

Kathleen Smith, Esq.

YLD President - Shirlarian "Shae" Williams, Esq. President Emeritus - Matthew Roepstorff, Esq

The LCBA does not have a membership luncheon this month.

We do have our Annual Bench Bar-B-Q & Shrimp Boil. Scott Atwood created the Shrimp Boil in 2016. This event has evolved into our first big event every year. The Shrimp Boil takes place at Alliance for the Arts on March 27. Thank you to our Shrimp Boil sponsors for making the event possible and to our annual sponsors for making this Bar the great organization it is.

It wasn’t long ago Lee County welcomed its first female attorneys. Although this is unverified, I understand Diane Jensen, who joined Pavese Law Firm in the early 1970s, was either the first or second female attorney to practice in Lee County. Judge Sherra Winesett was the third female to practice in Lee County and the first to be appointed as Circuit Judge in our 20th Circuit. Governor Lawton Chiles appointed her in 1995.

PRESIDENT

Blake Hampton, Esq.

LeeBar.org

REAL PROPERTY, PROBATE AND TRUST LAW

Jennifer Hammond, Esq., Kenneth Kemp, Esq., and Peter Knize, J.D., L.L.M. SOLO & SMALL FIRM

Conor Foley, Esq. TORT LITIGATION

Dawn Maselli, Esq.

executive director's letter 2021 is FLYING by! February has come and gone quicker than January came and went!

The official award-winning publication of the Lee County Bar Association, which serves citizens and the legal community since 1949.

In February, we celebrated Black History Month with our Monthly Membership Meeting dedicated to “Listening and Learning” at our “Black History In Law” Luncheon. Our panel was amazing. The panelists shared such moving stories, and they gave us much insight into the issues Black attorneys faced, and continue to face. I was touched by each and every story I heard.

239.334.0047 ResGestae@LeeBar.org

staff PUBLISHER

Connie Ramos-Williams | 239.690.9840 Ext. 1001

EDITOR-IN-LAW

Tiffany Pereira, Esq.

MANAGING EDITOR Keith Grossman, Esq.

We also held our first ever Virtual Mock Trial. Great job to all who participated, volunteered, and sponsored this important event.

CREATIVE DIRECTOR

Now we are in March, and as usual, we are jam packed with CLE programs, and, of course, our much-anticipated Annual Bench Bar-B-Q and Shrimp Boil. We had to cancel our 2020 Shrimp Boil, but this year, we are back and ready to get outside and have fun with the family. We’ll enjoy barbecue from Mission BBQ, beer from Suncoast Beverage, and, of course, our famous LCBA Craw Dads!!

ADVERTISING ACCOUNT EXECUTIVE

April Bordeaux

Lisa Doyle-Mitchell | 239.851.4729

FEATURE WRITER

Keith Grossman, Esq.

CONTRIBUTING WRITERS Blake Hampton, Esq. Lauren Baugh Henry Lee Paul, Esq. Conor Foley, Esq. Shirlalian Williams, Esq. Suzanne Boy, Esq. Christopher Donovan, Esq. Indera DeMine, Esq. Magistrate Bernard King Cynthia Duff

Thank you to our 2021 Boil Sponsors: Sanibel Captiva Community Bank, US Legal Support, John Webb Legal Group, Total Quickbooks Solutions and Kelleher Law Firm. We are looking forward to seeing everyone at the Bar-B-Q and Shrimp Boil. Space will be limited, so hurry up and register today!

I would also like to thank our 2021 Annual Sponsors.

They stepped it up this year to help us get all our exciting programming lined up. I am looking for CLE ideas, so if you or someone you know wants to get involved, this is a great way to start!

Check out our News You Can Use weekly newsletter and our website LeeBar.org for all the events we are having. And another reminder, we are on YouTube! If you are a member, you can log on and watch the CLE video and then email me. Once I verify you watched it, I will issue you the CLE certificate for credit.

Here’s to another great month!

CONTRIBUTING PHOTOGRAPHER Jim Jett Photography

BILLING INQUIRIES 239.334.0047

Res Gestae is an award-winning magazine published monthly by CONRIC pr + marketing in partnership with the Lee County Bar Association. All editorial, advertising and photos may be submitted for consideration through email to resgestae@leebar.org.

We make every effort to ensure the accuracy of the information published, but we cannot be held responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the LCBA, Res Gestae or CONRIC pr + marketing.

Copyright©2021 Lee County Bar Association Inc. All Rights Reserved. No portion of the publication may be reproduced in part or in whole without prior written permission from the Lee County Bar Association. To inquire about such permission, please contact the Lee County Bar Association at Info@LeeBar.org.

Lauren Baugh, Executive Director LBaugh@LeeBar.org | 239.334.0047 Ext. 102

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Patrick Kelleher, Esq.

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calendar of events Dates of some practice section meetings have not been confirmed. Check LeeBar.org for details!

March

1-5

LCBA YLD Canned Food Drive

Please drop off your donations to the LCBA Office.

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LCBA ADR Virtual CLE

LCBA YLD Virtual CLE

Noon - 1 p.m.

Topic: COVID-19…The Vaccine Speaker: Dr. Lu Cia Huffman with Physicians' Primary Care

Noon - 1 p.m.

Topic: Elder Mediation: Resolving Family Conflicts Speaker: Alexandra Kleinfeldt, Esq.

25

Pro Bono Committee Virtual CLE

Noon - 1 p.m.

Topic: Non-Profit Law Speaker: Kristalyn Loson, Esq.

27

LCBA Annual Bench Bar-B-Q & Shrimp Boil

Noon - 3 p.m.

Alliance for the Arts Family friendly OUTSIDE event! Sno-cones, ice cream, face painting, balloon animals, bounce house and more. Members and guests $25. Non-members $50. Kids 7-17 $15. Children 6 and under are free. All are welcome, see LeeBar.org/events/calendar for further details. RSVP to Lauren@ LeeBar.org.

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RPPTL Virtual CLE

Noon - 1 p.m.

Topic: Trust Modifications Speaker: Jennifer Hammond, Esq.

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LCBA Family Law Section Virtual CLE

Noon - 1 p.m.

Topic: Family Law Changes…The Details Speaker: Rana Holz, Esq.

Visit us online at LeeBar.org to see more calendar items and RSVP for upcoming events.

Would you like to submit an event? Email your event submission to ResGestae@LeeBar.org.

Thank You to Our 2021 Annual Sponsors

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LeeBar.org

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ethically speaking

JUNK MAIL LEADS TO DISCIPLINE by henry lee paul, esq.

T

he failure of a lawyer to confirm receipt of his email by a client began a series of events that led to a 90-day suspension in The Florida Bar v. McMillan, SC20-1587. For a nonrefundable fee, the lawyer agreed to represent a client in a domestic violence injunction case. The client paid the fee by credit card. Upon receipt of the notice of payment, the lawyer sent the client a fee agreement by email, confirming the nonrefundable nature of the fee.

Unfortunately, the fee agreement went into the client’s junk mail. The client mistakenly thought the lawyer had abandoned her, and she hired another lawyer to represent her. The respondent lawyer then transformed a relatively minor mistake, in accepting a nonrefundable fee before it had been confirmed in writing, into a cause for serious discipline. Rule 4-1.5(e)(1) requires a nonrefundable fee be confirmed in writing by the client.

The client requested a refund, which the lawyer refused, claiming he had prepared for the hearing and the fee was nonrefundable. Client then sought to obtain a recission of the credit card charge. The lawyer disputed the request for recission. In disputing

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this request, the lawyer asserted the fee was nonrefundable. In support of this position, the lawyer submitted a signature page of a previous fee agreement with the client. The fee agreement for the current representation had never been signed by the client. The lawyer did not disclose the executed signature page was from a different fee agreement.

The credit card company declined to refund the payment. The client then complained to The Florida Bar. The lawyer responded to The Florida Bar in a similar manner as he did to the credit card company and submitted the signature page from the previous fee agreement, without disclosing it was from a different fee agreement.

The Florida Bar discovered the deception, and the lawyer agreed to a consent judgment imposing a 90-day suspension.

After discovery by The Florida Bar, the lawyer refunded the fee, wrote apology letters to all relevant parties, and his firm abandoned the practice of accepting nonrefundable fees without prior written confirmation. The lawyer also undertook to perform an extensive amount of community service.

The Bar noted in the consent judgment LeeBar.org

this was an isolated incident in an otherwise unblemished 26-year career.

Numerous letters attesting to the lawyer’s good character were submitted by former clients, police officers, former judges and other lawyers. The lawyer ultimately acknowledged the wrongful nature of his conduct.

This incident is a tragic tale of how an isolated lapse of judgment can lead to serious disciplinary consequences in the practice of law. In the hectic daily routine of practice, we risk finding ourselves adrift from our moral compass as articulated in The Rules Regulating The Florida Bar. It is always helpful to step back from our hectic daily routine and remind ourselves of our obligations as a lawyer. It is also a good practice to confirm receipt of emails to clients, especially when they involve payment of a nonrefundable fee.

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.

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APPELLATE

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Call the Guru for all your Appellate needs!

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March 2021

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practice section: solo & small firm

Time to Step Up Your Zoom Game by conor foley, esq.

L

ife before the pandemic – do you remember it? It has been almost a year since COVID hit and sent everyone and everything into chaos.

Suddenly, the most simplistic tasks became nearly impossible. How do we go to work if we can’t go to work? And in our world, how do we go to court if we can’t go to court? How do we go to mediation if we can’t go to mediation? I could go on, but the fact is, COVID forced us to communicate differently. Once we were pushed out of our elements and our offices’ comfort, we discovered the power of Zoom.

with shorts. We’re a year into this new way of doing business, and it is here to stay. Yet we still see so many poor Zoom appearances. It is time to improve your Zoom etiquette.

Before the pandemic, Zoom was a popular way to connect with friends, family, and coworkers in different cities, states, and even countries. In March 2020, attorneys began using Zoom for everything from consultations with clients to hearings with judges.

Good Lighting/Background – Create a workspace with sufficient lighting.

This can mean setting yourself up by a window to utilize natural light (this is best), or near a lamp/light fixture. Keep in mind it is best to have the light facing you from the front so it does not create a silhouette. Make sure your background is clean and not distracting. You can set yourself up in front of a plain wall (this is best) or utilize one of the backgrounds provided by Zoom. Please keep in mind some of the background options can be distracting to other participants, so choose wisely. Additionally, others should be able to see your whole face and not just your forehead.

With this new form of communication also comes new etiquette. You no longer have the opportunity to shake your client’s hand as they walk into your office. But you can wear a button up shirt

Wait Your Turn – Do not to speak over the other participants. Although this is the etiquette you should always practice, it is imperative to implement it during a Zoom call. In this virtual chat, Zoom

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LeeBar.org

tries to highlight the participant who is speaking. This makes it easy for everyone to see the person speaking and hear them clearly. When multiple participants speak at once, it is impossible to decipher what was said. It may be unnatural, but even take a second after someone finishes speaking before you begin.

Get a Quality Camera & Microphone – Invest in a camera and microphone that works with your workspace. Many newer computers come equipped with both, but even then, you may want to upgrade for clearer video and audio. For $70, I recently upgraded to the Logitech HD Pro Webcam C920. It is a combo HD camera and microphone. The clarity compared to my laptop’s stock camera and mic is astounding.

Conor Foley practices Labor and Employment Law with Gunter Firm representing both employers and employees. Conor is the co-founder and chair of the LCBA Solo and Small Firm Practice Section.

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YLD spotlight

Young Lawyers Division Focuses on Health and Wellness

by shirlarian williams, esq.

Hello YLDers!

Every year, several large and small affiliate Bar associations throughout Florida gather to network, learn about the exciting programming the Florida Bar YLD has been working on, and present applications to receive grant money at The Florida Bar Young Lawyers Divisions’ Affiliate Outreach Conference (AOC).

This year, AOC was held virtually February 5th and 6th. Several members of the LCBA YLD (past and present) were in attendance, including Shirlarian Williams, Katherine Camadeco, Travis Russell, Tiffany Pereira and Kayla Richmond Miller. It was another great conference.

In the past, the Florida Bar YLD has awarded affiliates grant money as much as $5,000.00, although typical awards range from $500.00 to $1,500.00. The LCBA YLD has presented a grant application every year for the past 10 years, and this year was no different. This year we requested grant money to help fund a new project titled:

“A Healthier Me” Health and Wellness Fair This will be a four-hour event that will be free and open to the public. The event will focus on three different components: 1. Managing Your Mental Health - We will have a licensed professional to speak to the community at large about various topics including: How to create a positive work life balance, coping with stress, recognizing signs of depression and addiction and how to know when it’s time to seek help.

2. Let’s Move – We will have a certified personal trainer to conduct a socially distanced training session, which focuses on simple workouts anyone can do at home, with little to no equipment. This event will be held outside in an open-air location.

3. Clean Eating – We will have a nutritionist discuss food and how to have a healthier relationship with it. The pros and cons of various diets, how to calculate

your macros, and which foods increase your energy, boost your immune system, and help you live longer.

We will have a response to our grant application in approximately two months.

Thanks again for all your support. For more information or to inquire about YLD sponsorship opportunities, please contact me at snw@kubickidraper.com.

Shirlarian Williams specializes in first party property - personal and commercial claims, real estate and personal injury protection with Kubicki Draper.

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legal lens The LCBA Swearing-In Luncheon was held on January 29 at Sidney & Berne Davis Art Center. The luncheon was sponsored by CopyLady.

1. Eviana Martin, Hon. Archie Hayward

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LeeBar.org

Photos courtesy of Jim Jett Photography

2. Honorable Josephine Gagliardi swears in LCBA President Blake Hampton.

3. Blake Hampton, Matthew Roepstorff 4. Naelene and Dennis Webb 5. John Sheppard 6. Shirlarian Williams, Tiffany Pereira 7. Hon. Josephine Gagliardi, Blake Hampton 8. Blake Hampton, Peter Knize, Tiffany Pereira, Hon. Kathy Smith, Spencer Cordell, Michael Anthony Pica, John Miller, III. , Andrea Pleimling Smith, Matthew Roepstorff, Shirlarian Williams 9. Connie Ramos-Williams, John Webb

Photo courtesy of Jim Jett Photography

10. Linda Fiore, Hannah Frigo, Suzanne Boy, Connie Ramos-Williams 11. Cynthia Duff 12. Tiffany Pereira, Suzanne Boy 13. Eviana Martin, David Seitz, Kristalyn Loson, John Webb, Chene Thompson, Tiffany Pereira 14. Katherine Camadeco, Travis Russell, Shirlarian Williams For more pics, check out the gallery at LeeBar.org

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March 2021

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WHAT LIABILITY ARE EMPLOYERS FACING IN THE COVID ERA?

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LeeBar.org

by suzanne boy, esq.

A

year after the COVID pandemic started, employers are grappling with the impacts in the workplace, trying their best to protect their employees while keeping their businesses operating.

This task has been complicated, at least in part, due to constantly evolving and often changing guidance from various health organizations and government entities on necessary precautions to best combat this virus. This lack of clarity and continuity in what is a proper response, combined with the rapid spread and deadly seriousness of the virus, has resulted in a potential hotbed of claims against employers.

According to one firm tracking COVIDrelated litigation nationwide, there are over 1700 lawsuits filed against employers since last March, with filings steadily increasing over the past several months.

Employee Paid Leave Entitlements for COVID-Related Leave and Other Wage/Hour Concerns The Families First Coronavirus Response Act (“FFCRA”) was the first major workplace legislation related to COVID. The FFCRA, which covered private employers up to 500 employees and most public employers, required employers to give paid leave to employees for certain COVID-related reasons. These included contracting COVID themselves, caring for someone with COVID, or caring for a child who was out of school/ day care due to COVID, among other reasons. Private employers could seek an immediate tax credit for amounts paid out under FFCRA. The FFCRA is no longer mandatory, although covered employers who voluntarily provide paid leave under FFCRA may still seek a tax credit through March 31, 2021.

A significant number of the COVIDrelated lawsuits filed against employers involve the FFCRA. Most of these lawsuits involve employees claiming they were wrongfully terminated or otherwise retaliated against for requesting or taking leave under the FFCRA. A smaller number focus on the employer’s alleged wrongful denial of paid leave benefits.

In addition to FFCRA related liability, employers are also at risk of other wage/ hour related claims.

Employer Liability for Employees Contracting COVID Naturally, many employers are worried about potential liability to employees for workplace-related exposure to COVID. If employers are taking reasonable steps to comply with CDC and other applicable guidelines, it should realistically be quite difficult for employees to prove they contracted COVID in the workplace.

CDC, OSHA, and Workplace Safety The CDC guidance is widely seen as the standard for determining how to best prevent transmission of COVID and how to address exposure when someone does March 2021

contract COVID. The challenge is the CDC guidance has changed many times and it can be hard to keep track. Employers have to change protocols to reflect changed guidance.

OSHA has been quieter, at least until recently. President Biden issued an executive order directing OSHA to consider whether COVID-related emergency standards should be implemented and setting a deadline of March 15 to issue any necessary standards. OSHA recently released guidance recommending employers create a COVID prevention program focused largely on compliance with CDC guidelines. Although the guidance does not mandate action at this point, OSHA is expected to make COVID prevention programs mandatory by the President’s March 15 deadline.

Worker’s Compensation Typically, employers are shielded from most workplace-related injuries and illnesses by worker’s compensation insurance coverage. When this pandemic began, many assumed that would hold true for COVID exposure in the workplace; however, that has not proven to be the case. Some states have created a rebuttable presumption that an employee who has been working contracted COVID at the workplace; however, Florida is not one of them. Anecdotally, I have seen only claims denials from Florida worker’s compensation carriers for COVID exposure—even for medical practices with documented exposure to COVID patients. This highlights the employees’ difficulty to prove they contracted COVID at work.

Liability Shields/Legislation Florida legislation designed to shield businesses from COVID liability is currently moving through committees in the Florida Legislature. If passed, this legislation provides extraordinary liability protection to most businesses,

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Communicate with your employees.

Communicate openly and often with your employees. Understand others may have different fears and concerns based on their backgrounds—this is especially important when an employee complains. Make sure employees are informed of your COVID policies and expectations. Err on the side of transparency when there is an exposure and be sure to respect employee privacy.

Be very careful with COVID-related leave. Keep an eye out for new FFCRA developments and offer paid leave as required. Never assume an employee is not entitled to leave when it is requested or when there is an exposure—you are often going to be better safe than sorry when it comes to granting leave. government entities, and educational institutions. For example, to file a complaint, a plaintiff would be required to simultaneously file an affidavit by a Florida-licensed physician. The physician would attest to the belief the plaintiff’s COVID-related damages, injury, or death occurred because of the defendant’s acts or omissions. If the court determines the defendant made a good faith effort to comply with government-issued guidance, the defendant is immune from liability. Even if the court determines the defendant did not make a good faith effort, the plaintiff must prove the defendant was grossly negligent by clear and convincing evidence.

and retaliation claims related to COVID. For example, employees with high-risk conditions could be entitled to certain accommodations. Similarly, employees with certain disabilities or sincerely held religious beliefs could be entitled accommodations related to the COVID vaccine. On the flip side, employees who request accommodations are protected from retaliation for making the request.

This legislation has already received favorable votes from three committees and is expected to receive widespread support from the Republican-controlled Florida Legislature when the legislative session begins on March 2.

Follow the CDC guidance. Make sure your company has made reasonable and good faith efforts to comply with the CDC guidelines, and document those efforts.

Inform your employees in writing they are not permitted to report to work if they are experiencing COVID symptoms or if they have a known exposure. Develop a process for contact tracing if there is an exposure and adhere to the guidelines on isolation and quarantine. Consider mandating masks, especially where physical distancing is not possible.

Discrimination and Retaliation Claims Related to COVID Finally, employers covered by laws such as Title VII, the Florida Civil Rights Act, or the Florida Whistleblower’s Act could be at risk of a variety of discrimination

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BEST PRACTICES In the face of these myriad risks, there are certain best practices employers can implement to help protect their businesses from COVID-related liability.

These include:

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Develop written policies regarding remote work. Create written timekeeping policies requiring nonexempt employees to record all hours they worked from home and include a disclaimer requiring employees to certify they have reported all hours worked for that work week. Be clear about expected working hours, including meal periods and breaks. Address known off-the-clock work immediately.

Employers should keep in mind guidelines and legislation are likely to continue changing and developing.

While it may be impossible to plan for everything, and while all the uncertainty requires a fluid and flexible approach, employers who do their best to keep their employees’ well-being a top priority will be a step ahead when it comes to avoiding COVID liability.

Suzanne is proud to be one of fewer than 200 attorneys in Florida who are Board Certified by the Florida Bar in Labor & Employment Law. She is a founding member of Boy Agnew Potanovic, PLLC, a boutique law firm that focuses on employment, business, and government law.

xx new members Matthew L. Brust, Esq.

Jesse R. Marker, Esq.

Jesus M. Casas, Esq.

Meredith A. McBride, Esq.

Samantha R. Encalada, Esq,

Mark Schultz, Esq.

Robert H. Hanaford, Esq.

Michael S. Yashko, Esq.

Henderson, Franklin, Starnes & Holt, P.A. Department of Justice

Hahn Loeser & Parks, LLP

Aloia, Roland, Lubell & Morgan, PLLC. Hanaford Law

Marker Law Firm

Mark Schultz Law, P.A. Roetzel & Andress

Jeffrey S. Haut, Esq.

Hahn, Loeser & Parks, LLP.

Racheal S. Loukonen, Esq. Cheffy Passidomo, P.A.

CRIMINAL DEFENSE

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March 2021

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23

special feature

by keith grossman, esq.

ou may have missed the news.

Maybe it was in small print in the back of the Florida Bar News.

Starting in January 2021, the Florida Supreme Court’s new appellate rules abandon its longstanding page limits in favor of word count limits for all computer-generated documents.

The new rules also have font requirements for readability on computer screens – Arial 14-point or Bookman Old Style 14-point.

What? No Times New Roman? The old girl has been erased from acceptability, never to show her typeface again? What’s a lawyer to do?

According to my sources, Times New Roman was fine when everyone was reading documents on paper. However, eye-strained justices are mostly now reading on computer screens, and Times New Roman isn’t their favored type.

Therefore, the Florida Bar rules committee asked judges, lawyers, and others for their font preferences. The feedback favored Arial and Bookman Old Style fonts.

But why Arial and Bookman Old Style?

Honestly, this doesn’t seem like a very scientific study.

Why not the more elegant Garamond?

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Why not Arial and Univers, which the Connecticut appellate court requires? Or something from the “Century family”, as required by the U.S. Supreme Court? I guess the high court’s opinion on this matter is not stare decisis.

And what’s wrong really with Times New Roman? I don’t mean to start a war 1, but it’s good enough for other states. The Virginia Supreme Court has it on its list of acceptable fonts. So does California, which requires fonts to be “essentially equivalent” to Courier, Arial, or Times New Roman.

Most courts just require a “legible” font of a particular size.

Times New Roman provides us a certain comfort, a memory of the good-old-days.

It dates to the early 1900s created by the British newspaper, the Times of London.

It’s what Apple and Microsoft told us we needed in the early days of computers.

When we climbed into bed at night with our legal documents, Times New Roman was there to keep us company.

And besides, if we can file legal documents written by hand, why does the font even matter? One lawyer says he saw someone file a document in handwriting on the back of a flyer! Why must Times New Roman be the scapegoat? Where is the justice and fairness here? We were a community of serif users, and now there’s a non-serif in town.

Apparently, though, Times New Roman does get bad press. The U.S. Court of LeeBar.org

Appeals for the Seventh Circuit, which actually offers a complete guide to typography, advises against using Times New Roman.

In the book, Typography for Lawyers, author Matthew Butterick says, “When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, ‘I submitted to the font of least resistance.’

Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color.

To look at Times New Roman is to gaze into the void.”

Wow. Throw an exclamation point on that.

Drop the mic.

So, even if you are not filing a document in the Florida appellate courts, it’s time to rethink your use of Times New Roman. The U.S. Supreme Court issues its opinions in Century Schoolbook. Apparently, it’s highly readable and commands an air of authority.

Palatino is slim and sophisticated and has obtained a level of acceptance. Cambria is popular because it is available across most platforms. Calibri, a Microsoft developed font, is the default for Word.

All these choices are clattering in my head like a typewriter. It’s time to step away and refresh my page.

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4,000 mediations 1980 - 2020

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Leonard P. Reina, Esq. mediator

239.263.2059 ■ LReina@LPReina.com RES GESTAE

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guest attorney

New Year,

New Appellate Rules

(Part 1)

by christopher d. donovan, esq.

T

here are many important changes to appellate practice, including changes in jurisdiction, the font style of filings, and a move from page limits to word limits. Most of these changes became effective on January 1, 2021. Here’s a summary of them:

Circuit courts lose jurisdiction over county appeals The legislature enacted the first significant change to jurisdiction in 40 years. As part of its overhaul of the monetary thresholds to county and circuit jurisdiction, it amended section 26.012, Florida Statutes (2019), and repealed section 924.08, Florida Statutes (2019), thereby removing circuit court jurisdiction over county court appeals— both civil and criminal. So after January 1, most final county court appeals for Lee and Collier Counties must be filed

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in the Second District Court of Appeal.

And those that are in progress will be transferred to the Second District.

Circuit courts only retain appellate jurisdiction over appeals as provided by law, such as code-enforcement appeals under chapter 162. They will also continue to hear original jurisdiction proceedings, such as writs of certiorari, mandamus, prohibition, and habeas. So, for example, circuit courts retain certiorari jurisdiction over a local government’s quasi-judicial decision. A good summary of these changes that also identifies those limited statutes still providing for circuit court appellate jurisdiction can be found at www.flcourts.org/know-your-court.

As for a county court’s nonfinal appeals, if it qualifies as an appeal by right under rule 9.130, then appellate jurisdiction is also in the district courts of appeal. But it

LeeBar.org

is not entirely clear whether the district courts or the circuit courts will have jurisdiction over a county court’s nonfinal, nonappealable orders that are reviewable by certiorari, prohibition, or mandamus because, as noted above, circuit courts did retain their original jurisdiction.

Appellate filings must use either Bookman Old Style or Arial font The Supreme Court also moved the technical requirements for petitions and briefs in rules 9.100, 9.120, and 9.210 to newly created rule 9.045. For the most part, this rule contains all the same technical requirements, but with one very important difference: the Court removed the option to file appellate documents in either Times New Roman or Courier New font. Now all filings must be in either 14-point Bookman Old Style or 14-point Arial font.

This is important because if you do not file in the correct font and font size as of January 1, your filing will likely be stricken. The rule applies to all documents—including motions—filed in any Florida appellate court, including in those few cases where the circuit court is sitting in an appellate capacity.

Petitions, briefs, and other documents now have word limits, not page limits Because Arial and Bookman Old Style take up more room on a page, the Supreme Court has also finally done away with page limits on computergenerated briefs and replaced them with word limits. Although this applies to all brief-like documents—i.e., initial brief, answer brief, reply brief, petitions and responses, amicus filings, and supreme court jurisdictional briefing—it does not appear to apply to motions under rule 9.300 because that rule was not amended.

You must include a certificate of compliance identifying the number of

words in the document (less the usual parts that do not count against you) and states that the font requirement was complied with.

Here’s a quick chart of the new page limit for each relevant document: document

word limit

initial or answer brief 13,000 petition or response brief

13,000 answer and cross-initial brief 22,000 replay and cross-answer brief 13,000 reply brief or cross-reply brief 4,000 capital cases initial or answer brief 25,000 capital answer and cross-initial brief 40,000 capital reply brief or cross-reply brief 10,000 briefs on jurisdiction in supreme court 2,500

The Court also tinkered with the three orders concerning various government immunities, including sovereign immunity, absolute and qualified immunity in federal civil rights cases, and immunity under section 768.28(9), Florida Statutes. It moved appeal of orders about these immunities to new rule 9.130(a)(3) (C)(vii). The Court also fixed an ambiguity in the rule’s prior version to make it clear that orders denying these immunity defenses are immediately appealable regardless of whether they are denied on factual or legal grounds.

New appealable nonfinal order and some other tinkering to Rule 9.130 The Florida Supreme Court added new rule 9.130(a)(3)(C)(x), which allows for appeal by right of a nonfinal order for permanent guardianship of dependent children under section 39.6221, Florida Statutes.

Christopher Donovan is a shareholder at Roetzel & Andress and Florida Bar Board Certified in Appellate Practice. He is also Chair of the Appellate Practice Section of the Florida Bar, a board member of the Collier County Bar Association, and Chair of the Collier County Bar Association’s Trial Law Section.

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advertiser spotlight

Partners-In-Law (and life)

I

n 2016, Attorneys Tom and Indera DeMine found themselves at a crossroads in their careers. Indera was unexpectedly let go from her associate position at a local firm, while Tom was ending a law firm partnership. The couple hung their shingles — with Tom focusing on criminal defense and Indera focusing on immigration and nationality law.

Indera formed DeMine Immigration, an immigration-only law firm focusing on family petitions, deportation defense, investor visas and citizenship. The firm has filed appeals before the Board of Immigration Appeals, has represented clients in deportation hearings and the United States Citizenship and

Immigration Services, and has guided clients as they pursue petitions at U.S. Consulates around the world.

To learn more about DeMine Immigration, visit DeMineImmigration.com.

In 2020, the DeMines joined forces and decided to focus solely on immigration. Both Indera and Tom come from immigrant families. Indera was born in Guyana and Tom’s mother was born in South Africa. Both are passionate about immigration law and enjoy helping clients navigate the often confusing, immigration process.

The firm has grown to become one of the largest immigration law firms in Fort Myers. The couple, who met in docket sounding over seven years ago, now share two children, a dog and a law firm.

Your Outside IP Co-Counsel Henderson Franklin’s Intellectual Property attorneys are often called upon to serve as outside IP counsel. Our practice group has more than 70 years of combined experience in patents, licensing and marketing, merchandising, trademarks and service marks, copyrights, internet and domain name disputes, franchising, trade secrets, privacy and data protection and IP litigation. Henderson Franklin’s IP attorneys can help develop the solutions and legal strategies to protect your clients’ best ideas – just as we’ve done since 1924.

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*By appointment only.

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Edward M. Livingston

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29

the dish

TACO TUESDAYS OR ANY DAY THAT ENDS IN Y!

by lauren baugh, esq.

Y

ou’re driving down US 41 and crave tacos. Not just any ol’ taco; you want an authentic Mexican taco. You see the sign for “Taqueria San Julian”. Social media has been going crazy over this place, so you pull into the parking lot and see a line of fifteen people long outside this small hole in the wall taco spot. Although you’re tired from the 9-5, you park and walk up to the restaurant.

With this type of crowd on a Wednesday night, there must be something to the hype. I stop in and give it a try. After all, who doesn’t love a taco!

The line moved faster than I thought. After waiting in line for about 10 minutes, I am inside and swiftly take a seat. I am greeted by a friendly woman who hands me a menu and then quickly leaves to bring an order to another table.

To say they were busy would be an understatement.

Many people were taking their food to go.

The restaurant runs a tight ship. An order is placed and the lady at the counter immediately shouts it to the cook, who immediately prepares and cooks the food.

The cook hands the food to the lady at the counter, who then brings it out to you. Small location, small staff, BIG taste!

When inside, I look around and it is not decorated fancy, nor does it have much ambience, but they do focus all their energy, heart and soul into the taste of the cuisine. I notice they do not have fountain drinks but rather plastic and glass bottles of soda. They have

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your regular everyday Coca Cola and Diet Coca Cola, and also offer a variety of Mexican sodas.

The crowd in the taqueria is a mixed bag for sure — young, old, all different types of ethnicities. It is very refreshing to see all walks of life in one place, all joining together to enjoy what I, at this point know, is going to be some amazing food.

I accepted a friend’s recommendation and ordered the Tacos de Pastor (pork), Tacos de Pollo (chicken), and Taco de Camaron (shrimp). Once I order these tacos, they bring out a trifecta of secret sauces. I have no idea what they are exactly, but it is clear they made them in-house.

Naturally, I must try them all. They are beyond my expectations and packed full of flavor. They also brought out pickled onion and radishes to accompany my dish.

I went with a friend, who ordered the quesadillas. In most places, quesadillas are

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a sandwich-like item with pressed cheese and a topping. Not at this taqueria. The menu item is a taco, and rather than corn tortillas, it is a single flour tortilla. It has cilantro, onion and cheese.

I could not pass up the chance to try their Pico de Gallo and Queso Dip, which, like the tacos and sauce, did not disappoint. They have a variety of other traditional Mexican dishes on the menu, which I will go back and try, such as the Coctel De Camaron (shrimp cocktail) or the Tostadas De Ceviche (Ceviche Toast).

The authentic Mexican flavors are absolutely worth the wait in line. If you are craving Mexican food, look no further. Take a stroll down US41 and pop into this unassuming strip plaza for Taqueria San Julian. You won’t regret it!

Taqueria San Julian 11601 S. Cleveland Avenue, Suite #4 Fort Myers, FL. 33907 (239) 936-0037 3575 Bayshore Drive, Naples, FL 34112 (239) 775-6480 Open 7 days a week for lunch and dinner from 10 a.m. to 10 p.m.

Prices range from $5-$15

Photos (bottom clockwise): homemade sauces , pork, chicken and shrimp tacos, shrimp, beef, pork tacos, queso dip and chips.

March 2021

Lauren Baugh is the executive director of the Lee County Bar Association. She can be reached at lauren@leebar.org.

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judge spotlight

Magistrate Bernard King

1. In between my undergraduate studies and law school, I spent approximately three years living in rural Bangladesh. I went there with my wife for her Ph.D. research project.

We grew papaya trees as part of her soil management research. When my wife told me her project was in Bangladesh, I had to find a globe to even locate the country. In the areas we lived, we were generally the only foreigners that most people had ever met.

2. My wife and I have two boys who are currently in middle school. I enjoy coaching them in soccer, basketball and flag football.

3. My wife and I both attended the University of Florida. GO GATORS!! I later attended Georgia State University in Atlanta for law school.

4. Prior to being appointed as a Magistrate, I spent the better part of ten years practicing family law here in Lee County, Florida.

5. My wife and I recently decided to undertake an extensive do-it-yourself remodeling of our home. I am not sure this was the wisest idea, but it has allowed me to buy some really cool power tools.

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LeeBar.org

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March 2021

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member spotlight

Cynthia Duff

1. I was a Philadelphia Eagles Cheerleader.

2. I moved to Southern California when I was 20-years-old in my MGB. I stuffed everything I owned in my dad’s army footlocker. I wanted to be a movie star.

3. My favorite food is pizza. It must be made with Chef Boyardee pizza sauce. I buy it by the case.

4. I managed a rock band when I lived in California.

5. I love cats, and I have been proud to serve at the pleasure of at least two cats for over twenty years.

And because you asked, I’m throwing in an extra two!

6. My favorite movie is Wizard of Oz. At one time, I could recite every line.

7. My husband and I hosted a Brazilian exchange student, who will forever be our “all-of-a-sudden daughter”.

MARK B. YESLOW Mediations/Arbitrations 30 Years of Experience All Personal Injury Claims/Property Claims/Insurance Coverage Issues www.yklegal.com

239-337-4343 34

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Family Mediation

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March 2021

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35

100 club Is your firm part of the 100 Club? Any firm with two or more attorneys and 100% membership in the LCBA qualifies.

Absolute Law, P.A. Aloia, Roland, Lubell & Morgan, PLLC. Arend & Sisk, P.A. Associates & Bruce L. Scheiner, P.A. Banker, Lopez & Gassler, P.A. Boy Agnew Potanovic, PLLC. Boyle & Leonard & Anderson, P.A. Burandt, Adamski, Feichthaler & Sanchez, PLLC. Calvo & Calvo, Attorneys at Law Coleman & Coleman, PLC. Cole Scott & Kissane, P.A. - Fort Myers Florida Rural Legal Services, Inc. Freidin & Inglis, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards & Stockman, P.A. Goldberg|Noone|Abraham Personal Injury Atttorneys

Goldstein, Buckley, Cechman, Rice & Purtz, P.A. GrayRobinson, P.A. Green, Schoenfeld & Kyle, LLP Hahn, Loeser & Parks, LLP Henderson, Franklin, Starnes & Holt, P.A. Hollander & Hanukah, Attorneys at Law John Webb Legal Group, P.L. Kelleher Law Knott Ebelini Hart Law Offices of Dennis L. Webb, P.A. Law Offices of Michael M. Raheb, Criminal Lawyer Law Offices of Scott T. Moorey Lee County Legal Aid Society, Inc. Linde Law Group McQuagge & King Law Firm Men's Rights Law Firm

O'Halloran & O'Halloran, Attorneys at Law Osterhout & McKinney, P.A. Patrone, Kemp & Bentley, P.A. Pavese Law Firm Roetzel & Andress, L.P.A. Rubinstein & Holz Scarmozzino / King Trial Lawyers Sheldon E. Finman, P.A. Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Simmons Law Firm, P.A. Spivey Law Firm, Personal Injury Attorneys, P.A. Strayhorn and Person, P.L. Viacava & Cantor Attorneys at Law Viles & Beckman, LLC Zinn Law If you feel your firm is eligible, email a listing of your attorneys to admin@leebar.org and we will let you know.

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LeeBar.org

xx Court Appointed Receiver, Property Management and Specialty Oversight Kenneth P. Saundry, Jr. brings 42 years of business and real estate management experience to each Court Appointed Receiver assignment.

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Kenneth P. Saundry, Jr.

March 2021

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37

in the news Henderson, Franklin, Starnes & Holt, P.A., is pleased to announce that Registered U.S. Patent Attorney Edward Livingston has joined the firm. He is a Florida Bar Board Certified expert in intellectual property (“IP”) law, one of only five in Lee and Collier Counties. Livingston is registered to practice before the United States Patent and Trademark Office. He is often sought-out as outside IP counsel and serves as an expert witness in such cases.

Henderson, Franklin, Starnes & Holt, P.A., is pleased to announce that litigation attorney Kyle Dudek has been elected a stockholder. Dudek is a member of the Tort & Insurance Litigation department. A large part of Dudek’s practice is dedicated to serving as counsel for state and municipal entities involved in civil rights litigation. In the private sector, Dudek defends individuals and entities in cases involving employment law matters, premises liability, professional malpractice, subrogation rights, automobile liability, and wrongful death.

Henderson, Franklin, Starnes & Holt, P.A., is pleased to announce that Douglas Szabo has been elected Managing Lawyer by the firm’s stockholders for a three-year term commencing May 21, 2021. Szabo will succeed Russell Schropp, who has held this position since 2015. Szabo began his career with Henderson Franklin in 1987. He currently serves as chair of the Business Litigation department and is a member of the firm’s Marketing Committee.

Aloia, Roland, Lubell & Morgan recently appointed Stephen W. Dommerich as an associate attorney to its commercial and business litigation team. A Southwest Florida native, Dommerich has a diverse background in the legal field with experience in litigation and a wide range of various legal practices including business, real estate, construction law, personal injury, criminal law and first-party insurance.

Dommerich obtained his law degree from Nova Southeastern University Shepard Broad Law Center.

Honorable McHugh Elected to Fourth Term as Chief Judge by honorable josephine gagliardi

Honorable Michael McHugh has been re-elected for his fourth and final term (due to term limits) as Chief Judge of the Twentieth Judicial Circuit. Rule of Judicial Administration 2.210 (a)(2)(B) delineates the duties of the Chief Judge, who is essentially the administrator for the entire Circuit.

All chief judges answer to the Chief Justice of the Florida Supreme Court. In addition to all their duties, chief judges continue to maintain a docket and sit on the Judicial Management Council.

Recently, Judge McHugh was appointed to the Workgroup on the Continuity of Court Operations and Procedures during and after COVID-19. He works with judges from around the state to develop findings and recommendations on the continuation of all court operations.

Judge McHugh states, “We have to conduct court in ways we never would have imagined.”

As a Chief during a pandemic, Judge McHugh is managing issues never addressed by the court before. He reports both civil and criminal jury trials are being held with strict rules on social distancing, masks, and a lot of cleaning. Judge McHugh constantly weighs the needs of the public, the protection of constitutional rights and the safety and well-being of all. No small task.

Congratulations, Chief Judge McHugh!

The Honorable Josephine Gagliardi is a County Court Judge in Lee County.

38

RES GESTAE

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Our Dedicated Service Defines Us. Senior partners Frank Aloia Jr., Ty Roland, Evan Lubell and Jack Morgan are proud to announce the promotion of Danielle Levy Seitz to partner at Aloia Roland.

“As an exceptionally talented

attorney, Danielle has served countless families and individuals within the SWFL community, has proven her ethical practice of the law and significantly advanced our mission. We whole-heartedly congratulate Danielle as a new partner and we’re so proud she’s the first female partner at Aloia Roland!”

Appointed Partner: Danielle Levy Seitz Family Law & Adoption Lead Attorney Awarded Super Lawyers Magazine “Rising Stars” Distinction consecutively for four years by Reuters

Our Team of Attorneys Frank Aloia Jr., Esq. Ty Roland, Esq. Evan Lubell, Esq. Jack Morgan, Esq. Danielle Levy Seitz, Esq. Garrett McIntrye, Esq. Scott Hertz, Esq. Mark Joseph, Esq. Stephen Dommerich, Esq. Samantha Encalada, Esq.

Discover us for yourself at LawDefined.com.

Frank Aloia Jr. Senior Partner

Aloia, Roland, Lubell & Morgan, PLLC Practice Areas: +Litigation +Business & Commercial Law +Class Actions & Mass Torts +Construction Law +Corporate Transactional Law +Family Law & Adoption +Personal Injury & Wrongful Death +Property Damage +Real Estate Law +Wills, Trusts, Estates & Probate

Headquartered at 2222 Second Street + Fort Myers, Florida 33901 + info@lawdefined.com + 239-791-7950

P.O. Box 1387 Fort Myers, FL 33902-1387

PRSRT STD U.S. POSTAGE

PAID

(239) 334-0047 Fax (239) 334-0523

FT. MYERS, FL PERMIT NO. 147

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