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Archive for the ‘Hospitality’ Category

A Dog Walks Into a Bar with its Owner: Service Animals Welcome Accessories Please Leave at the Door

Posted on: October 9th, 2019

By: David Molinari

The Americans with Disabilities Act (ADA) provides people with disabilities equal access to employment, state and local government programs and goods and services.  Businesses open to the public including hospitality venues must comply with the ADA and are prohibited from discriminating against individuals with disabilities.  The ADA requires businesses (hospitality establishments) open to the public allow individuals to bring in their service animals even if the establishment has a “no pet” policy.

A trend encountered in the hospitality industry is clientele demanding the venue accommodate their pet who does not meet the requirements of a “service animal.”  Staff is often faced with an immediate decision that has rippling consequences; a possible violation of the ADA resulting in civil penalties, possible damages and an award of the opposing party’s attorney’s fees.

A service animal is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability; including a physical, sensory, psychiatric, intellectual or other mental disability.  Service animals are working animals.  They are not pets.

Customers often blur the line with animals that provide emotional support, companionship or comfort.  These are not considered service animals because the animal does not perform a specific task associated with an individual’s disability.

The task performed by a service animal must be directly related to the disability of the person handling the animal.  Such tasks include, but are not limited to: guiding a person who is blind or has low vision, alerting a person with hearing loss, picking up or retrieving objects, alerting individuals to the presence of allergens, providing physical support or assistance with balance, assisting a person with psychiatric disabilities by interrupting impulsive behaviors.

For frontline staff dealing with customers in the hospitality industry, staff may not be able to immediately recognize a disability that is not obvious.  Therefore, staff should be trained to ask two questions: first, is the animal a service animal; and second, what task has the animal been trained to perform?

The hospitality venue and staff must refrain from asking about the nature or extent of the person’s disability, requesting the handler demonstrate the service animal’s task or requiring documentation proving the animal has been certified, trained or licensed.

A service animal must always be under the handler’s control.  Service animals must have harness, leash or other tether unless the handler’s disability prohibits such use or the animals’ task is adversely impacted by the use of a harness, leash or tether.

The hospitality venue must keep in mind that a service animal is a working animal; not a pet.  The staff must refrain from distractive actions around a service animal such as attempting to pet, feed or distract the animal.  Under no circumstances should the venue attempt to extract an extra fee or surcharge from a customer with a service animal.  This includes hotels that require a deposit for customers with pets, as well as restaurants, bars or other hospitality venues.

If a service animal is disruptive, threatening or not housebroken, the venue may ask the handler to remove the animal.  The venue must allow the individual with the disability the option of returning to the establishment without the animal.  Other customers who may have allergies or fears of dogs is not a valid reason for denying access to a disabled individual with a service animal.  The venue must try to separate the person with the allergy or other aversion from the disabled person with a service animal.

If further information is needed, please feel free to contact me at [email protected]; (619) 687-3000.

Connecticut Governor Signs Anti-Indemnity Law for Snow and Ice Management Contracts

Posted on: July 23rd, 2019

By: Marc Finkel

Connecticut recently became the third state, joining Illinois and Colorado, to pass legislation prohibiting certain indemnity and hold harmless clauses within snow and ice management services contracts.  An Act Concerning Snow and Ice Control Services Contracts (“the Act”) was signed into law by Governor Ned Lamont on July 12, 2019.  The Act forbids a service receiver from including provisions within snow and ice removal contracts that: (1) requires a service provider to indemnify a service receiver for acts not required under the terms of a snow and ice removal contract; or (2) requires a service provider to hold a service receiver harmless for the acts or omissions of the service receiver or its agents or employees.

The Accredited Snow Contractors Association has championed the passage of this legislation and has advocated for the passage of similar legislation throughout the United States.  Anti-indemnity legislation, such as the Act, has the anticipated benefit of ensuring that property owners and/or managers maintain adequate treatment for their roadways and sidewalks following a snow or ice event by forbidding the transfer of contractual defense and indemnity for the property owner or manager’s own negligence.  Additionally, the Act could also help to lower insurance premiums for snow and ice removal contractors by limiting tenders of contractual defense and indemnity by property owners and/or management companies.

Josh Ferguson and Marc Finkel of Freeman Mathis and Gary will join Kevin Gilbride of the Accredited Snow Contractors Association to discuss the Act at ASCA Snow Academy: Operating Under the New Law on August 20, 2019 at the Hartford/Windsor Marriott Airport Hotel in Windsor, CT. We look forward to seeing you there.

For further information on the Act or for inquiries involving hospitality or premises liability law, please contact Marc Finkel at [email protected].

Colorado Limits Risk Transfer for Snow and Ice Management Services

Posted on: June 13th, 2018

By: Josh Ferguson

Colorado becomes the second state to recently pass an anti-indemnity bill regarding snow and ice management service contracts.  The Snow Removal Service Liability Limitation Act has passed in Colorado and been signed into law by the Governor. The Act provides that it is against public policy and void for a snow and ice removal contract to require a snow and ice management service provider or receiver to: (1) indemnify the other for their own acts or omissions; (2) hold the other harmless for their own acts or omissions; or (3) impose a duty to defend the other for their own acts or omissions. Similar legislation is pending in many other states as indicated by Accredited Snow Contractors Association President Kevin Gilbride.

The Accredited Snow Contractors Association has noted several anticipated benefits to this legislation for the snow and ice management contractors. First, prohibiting transfer of contractual defense and indemnity for a property owner or manager’s own negligence, the property owner and/or manager has an increased reason to make sure the roadways and sidewalks are adequately treated.  Additionally, a potential side effect this statute could have is lowering ever increasing insurance premiums for snow and ice removal contractors by avoiding those tenders of contractual defense and indemnity.

For further information or for further inquiries involving hospitality or premises liability law, you may contact Josh Ferguson of Freeman Mathis & Gary, LLP, at [email protected].

A House of Cards: Stacking Inferences to Prove Liability

Posted on: May 10th, 2018

By: Melissa Santalone

A Florida appellate court recently reaffirmed Florida’s state law prohibition against stacking inferences in personal injury cases with a reversal of a $1.5 million verdict in a slip-and-fall case against Publix.  In Publix Super Markets, Inc. v. Bellaiche, 2018 Fla. App. LEXIS 4233 (March 28, 2018), the Third District Court of Appeal reversed a trial court’s denial of a directed verdict to Publix at the trial of a case involving slip-and-fall accident at a Miami-Dade County store, holding that proof of liability via the stacking of inferences is impermissible, in contrast to federal case law.

The plaintiff in the case, a 70-year-old woman, alleged she slipped and fell on water in an aisle at a Publix store that she did not observe before the fall.  After she fell, she testified she saw a Publix employee holding a mop nearby, but no evidence was offered that the mop was wet or that water from the mop ever made contact with the ground.  The manager of the store testified the employees at the store used dry rayon mops to clean the floors, and not pre-soaked cotton ones.  Video evidence also showed the only janitor on duty at the time, the only employee whose duty it was to mop the floors, was using a broom and dust pan just prior to the plaintiff’s fall.  The Third DCA noted in its decision that the plaintiff had the burden to prove that Publix either created the dangerous condition that caused her fall or had actual or constructive knowledge of it, an opportunity to correct it, and it failed to do so.  At trial, the plaintiff acknowledged she was not proceeding on a constructive knowledge theory, but on the theory that Publix created the dangerous condition or had actual knowledge of the water on the floor via its employee with the mop.  The jury sided with the plaintiff at trial and awarded her more than $1.5 million, and the trial court denied Publix’s motion for a directed verdict.  In Bellaiche, the Third DCA reversed the lower court’s denial of the motion for directed verdict.  The Third DCA held that “[a] jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.  If the only way that a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”

In other forums, however, the stacking or pyramiding of inferences is permissible, including in the courts of the Eleventh Circuit, the federal courts in Alabama, Georgia, and Florida.  In Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (1982), the Eleventh Circuit found that “[a]ccording to federal law there is no prohibition against pyramiding inferences; instead all inferences are permissible so long as they are reasonable.”  Moreover, in Daniels, the Eleventh Circuit further noted that a directed verdict is not required in instances where the jury may choose between allowable inferences including instances where the inference championed by the plaintiff is no more likely than other possible inferences.  The takeaway here is that litigants in personal injury cases must consider the inferences they or their opposition will ask a jury to draw and whether their chosen forum will allow the stacking of inferences to prove liability.  In some venues, like in Florida state courts, more concrete proof of liability is required.

If you have any questions or would like further information, please contact Melissa Santalone at [email protected].

#MeThree?

Posted on: May 1st, 2018

By: Jason C. Dineros

https://www.fmglaw.com/FMGBlogLine/wp-content/uploads/2018/05/Jason-Dineros-May-01-2018-Blog-300x216.jpg

Chloe Caras, a former female restaurant executive filed a sexual harassment suit last week against celebrity chef and Top Chef Finalist, Mike Isabella.  Caras alleges that Chef Isabella and his company, Concepts, failed to provide sexual harassment training and educate managers to recognize sexual harassment and implement a program to address complaints.  She cites the company’s absence of a human resources department from its inception in 2011, until this past October, and the jovial nature in which the company allegedly handles its sexual harassment training as evidence supporting her allegations.

The #MeToo Movement has brought to the forefront of business operations the need of not only having such training in place but also implementing methods to track its effectiveness and enforce its purpose.  The challenge particularly in the restaurant industry comes in approaching a subject that was frequently a source of humor and typical flirting among those working in it.  In an industry where anyone who has worked in it will agree requires a thick skin and resilient attitude, Caras’ suit falls in line with what has been a steadily rising trend of sexual harassment claims-turned-lawsuits in seemingly every industry—much less the hospitality.

In Meritor Savings Bank v. Vinson (1986) 106 S. Ct. 2399, the landmark Supreme Court case ushering governance over sexual harassment claims, the Court held that 1) a hostile work environment violates Title VII, 2) conduct amounting to sexual harassment must be “unwelcome,” and 3) employers must be on notice of the conduct to be liable for their employees.  While not to be confused with a position that condones any level of sexual harassment—in its unadulterated definition, meaning unwelcome sexual conduct—at what point do the playful flirtatiousness and mutual banter, albeit often immature and often times (in the restaurant industry) perverse, cross the line and become sexual harassment?

As the #MeToo movement continues to gain support, employers can expect to see a rise in employee complaints about workplace behavior.  When faced with such complaints, employers will have to be vigilant in promptly investigating these complaints, fairly assessing their merit and executing a plan that resolves the situation.  Such a protocol will provide employers the best opportunity to identify and resolve workplace conflicts. 

For further information or for further inquiries involving hospitality law or labor and employment law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].