Florida's Unique Lien Treatment of Horses

Both owners of horses and businesses who provide feed, care, and/or stables to horses should become keenly aware of some unique and strange rules regarding liens on horses.  Owners should be especially careful to remain current on all amounts owed because if they fall behind on payments, the stable could sell the horse without notice to the owner to satisfy the debt as soon as one month from the beginning of the debt.

Florida law provides a lien for “all persons feeding or caring for the horse or other animal of another, including all keepers of livery, sale or feed or feed stables, for feeding or taking care of any horse or other animal put in their charge; upon such horse or other animal.”  Fla. Stat. §713.65 (2016).  Where there is privity (a legally recognized relationship) between the parties, such as through a contract, a lienor has the right to execute upon that lien through judicial action requiring sale of the property described by the lien and/or a general action for damages that can be executed upon the property covered by the lien.  Fla. Stat. §85.011 (2016).  

However, there is an additional method for lienors to recover amounts owed for the care and feeding of horses.  Any person with a Claim of Lien for feeding or caring of horse(s) may recover money owed by selling the horse(s) without judicial proceedings.  Fla. Stat. §85.031(2) (2016).  This method is generally preferable for the stable/caregiver because it avoids court costs, attorney’s fees, and the delay and formalities of trial.  

In order to utilize a sale without judicial proceedings, the lienor must “give public notice of the time and place thereof, by notices posted for 10 days in 3 public places in the county, one of which shall be at the courthouse, and another in some conspicuous part of his or her shop or place of business.”  Id.  While there are no specific statutory requirements for the public notices, similar notices for other public sales generally require the time and location of the sale; a detailed description of the animal(s) being sold; and the amount of the debt.  There is no statutory requirement to provide the debtor/owner with personal notice of the sale.  Id.  Once a minimum of three months have passed since the debt began, the owner of the horse may demand possession of the horse from the lienor.  Associates Commercial Corp. v. Ross, 465 So. 2d 663, 664 (Fla. Dist. Ct. App. 1985).  The lienor can still bring judicial action to enforce the lien and force a sale but loses the ability to hold a nonjudicial sale once three months have passed and the owner has demanded possession of the horse.  Id. at 665.  There is a continuing duty for the lienor to mitigate damages while in possession of the horse and the lienor may refuse to provide possession of the horse to the owner for up to three months as leverage for payment of the debt owed.  Id. at 664.

Any amounts received from the sale in excess of the amount claimed under the lien must “be deposited with the clerk of the circuit court for the county, if the owner is absent, where they shall remain subject to the order of the person legally entitled thereto. The clerk shall be entitled to receive 5 percent on the proceeds for the care and disbursement thereof.”  Id.  Thus, a lienor may not profit from the nonjudicial sale.

Mobile Home Lot Rent in Florida

With the coming of the new year, I have gotten more calls than usual from clients with questions about mobile home lot rent increases.  Mobile homes are a curious area of the law blending elements from landlord/tenant law and real property principles.  Florida lawmakers have attempted to protect mobile home owners and park owners by establishing a detailed statutory framework covering lot rent.  In this post, I will attempt to explain the steps that park owners must take and the things that mobile home owners should know as lot increases are proposed and go into effect.

To start, Florida law does not require that lot rental agreements be in writing.  Fla. Stat. §723.031(2) (2015). From the calls I have been getting, it is apparent to me that many mobile home owners get a written agreement from the park owner upon moving to the park but that park owners do not typically provide subsequent written agreements after the initial agreement has been terminated. When an agreement for lot rent is not made in writing, the duration of the agreement must be at least one year. Fla. Stat. §723.031(4) (2015). The practical effect of this statutory requirement is to provide mobile home owners with protection from a park owner who unilaterally changes the lot rent month to month. Such practices are prohibited by Florida law; lot rent changes may only occur once per year under an oral lot rent agreement.


Increases in lot rent amounts must be “reasonable”.  Fla. Stat. §723.033 (2015).  Courts have determined that reasonableness is to be determined by market rent factors and an examination of comparable mobile home parks with similar services, facilities, amenities, and managements.  Fla. Stat. §723.033(3) (2015); §723.033(5) (2015).  Courts also allow for lot rent increases supported by increases in the rate of inflation, increased costs of maintaining the park, increased taxes, pass-through charges from capital improvements, and the like.  Fla. Stat. §723.033(6) (2015).

Park owners must provide mobile home owners with written notice of all proposed increases at least ninety (90) days prior to the effective date of the increase.  Fla. Stat. §723.037(1) (2015).  There is no waiver of this statutory requirement through oral or written lease agreements.  Id.  Pass-through charges for capital improvements must be listed separately from other increases.  Id.  Park owners must file all increases imposed from the previous year with the state the following year.  Fla. Stat. §723.037(3) (2015).  Park owners must also hold information gathering meetings with the homeowners’ association (if one exists) or a committee up of to five (5) owners at least sixty (60) days prior to the rent increase.  Fla. Stat. §723.037 (2015).  If a majority of the affected mobile home owners object to the rent increase to the park owner in writing, the park owner and affected homeowners must submit to mediation to determine an equitable lot rent increase.  Fla. Stat. §723.037(5) (2015).

Florida law allows a park owner to terminate the lot rental agreement with a mobile home owner after at least five (5) days have passed after a written demand has been made for payment of rent due.  Fla. Stat. §723.061(1)(a) (2015).  After a court action has been brought against a mobile home owner for nonpayment of rent, the mobile home owner can have the action dismissed only by paying all past due amounts, including late fees, interest, and other charges.  Id.  Actions are brought by park owners in county court and are eligible for expedited summary procedure, meaning that actions proceed quickly once filed.  Fla. Stat. §723.061(3) (2015).  Park owners comply with the requirements for eviction and demand for past due rent if they post written notices on the mobile home and sent to the last known address of the owner by certified/registered mail with return receipt requested.  Fla. Stat. §723.061(4) (2015). After a judgment for nonpayment of rent and eviction has been entered against you, once ten (10) days have passed the court can issue a writ of possession to the park owner entitling the park owner to take possession of your mobile home and all personal property located on the lot.  Fla. Stat. §723.062 (2015).

A mobile home owner’s only defense to a nonpayment of rent / eviction action is a material noncompliance with the requirements of Chapter 723 (see the above requirements).  Fla. Stat. §723.063 (2015).  Before an owner can establish a defense, the owner must make a written demand to the park owner specifying the material noncompliance and providing the park owner seven (7) days to come into compliance with Florida law.  Id.  The written demand must also specify whether the mobile home owner is withholding rent, including a portion thereof.  Id. As I tell all of my clients, I highly recommend that mobile home owners obtain the assistance of counsel to prepare this written demand letter to ensure it meets statutory requirements.

Commonly with nonpayment of rent, my clients complain that the park owner or her agent has entered into their mobile home while the mobile home owner was away without the mobile home owner's permission. Under landlord/tenant law principles, a landlord may enter a tenant’s property without notice “[i]f the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.”  Fla. Stat. §83.53(2)(d) (2015). The best way to avoid entry by the park owner into your unit is to remain current on all lot rent payments and to inform your park owner in writing if you plan on being away for at least half of the periodic rental period. For example, if you pay lot rent monthly, inform your park owner in writing if you will be away for at least 15 days.

NEVER WITHHOLD LOT RENT AS A "NEGOTIATING TACTIC" TO "FORCE" YOUR PARK OWNER TO PROVIDE YOU WITH A WRITTEN LEASE. This is the most common mistake mobile home owners make. If you have a specific complaint against the park owner, obtain the advice of an attorney to determine your legal rights.

When Snooping Goes Too Far

Privacy is a major concern for Floridians, so much so that there is a section of our state constitution devoted to protecting citizens from government intrusion into one's private life.  But what happens when someone other than the government starts prying into your private life?

Florida recognizes the common law tort of intrusion, otherwise known as intrusion upon seclusion.  Intrusion is defined as "wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities."  State Farm Fire & Cas. v. Compupay, Inc., 654 So.2d 944 (Fla. Dist. Ct. App. 1995).  Unlike other privacy torts like defamation, intrusion does not require publication to others as an element; the intrusion alone is actionable.

So what kind of intrusions are covered?  Actionable intrusion includes "physically or electronically intruding into one's private quarters."  Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 162 (Fla. 2003).  And we have already seen that private activities are covered as well.  The place or activities intruded upon must be one in which there is a reasonable expectation of privacy.  Id.

Let's pause here to consider what kinds of places this might include.  Certainly, one's home and especially one's bedroom are covered.  But what about more contemporary "places" like one's cell phone or email account?  While the courts have not come to complete conclusions on electronic "places", if a person were to protect their cell phone or email account with a password or PIN, that should give rise to a reasonable expectation of privacy.  And few things are more "personal" than one's cell phone.  Hardly an hour goes by without the phone being used or at least on one's person or close belongings (purse, briefcase).  This is certainly an area of the law that will grow as technological changes bring more devices into everyday use.

So assuming that the place intruded upon qualifies, does that mean that damages automatically result.  Not quite.  The intrusion must be highly offensive to a reasonable person.  In a case of surveillance that might go too far, the surveillance itself "must have been done in a vicious and malicious manner not reasonably limited to a legitimate purpose."  Catania v. Eastern Airlines, Inc., 381 So.2d 265, 268 (Fla. Dist. Ct. App. 1980).  Malice can be found from "a motive to harm the plaintiff by the activity engaged in."  Pinkerton National Detective Agency, Inc. v. Stevens, 132 S.E.2d 119, 124 (Ga. Ct. App. 1963).  Surveillance is a common source of intrusion upon seclusion actions.  Take this current case involving a Subway co-founder and recording equipment that led to a falling out and legal action between the co-founder and a former real estate partner in West Palm Beach.

Actionable intrusion needs to cause outrage or mental effects in order to become tortious.  Physical or mental impairment must flow naturally from the tort itself as a consequence of the intrusion.  Id.  There must be some "mental impairment as opposed to mere fright, shock and hurt feelings."  Id.

As our private lives become more and more public with the advent of technology, social media, and the ease of recording with a smartphone, I believe that claims of tortious intrusion upon seclusion will grow.  The law already has adequate safeguards to provide recovery only for those actions that pry directly into places and activities that are meant to be private.  Further, the law reduces the risk of frivolous lawsuits by requiring outrage and mental impairment to flow from the intrusion.

Ashley Madison Lawsuits - Florida's Abolition of the Economic Loss Rule Makes Them Possible

A popular topic of the news recently has been the filing of at least $500 million in lawsuits against website Ashley Madison, a site frequented by users seeking to enter into extra-marital relationships with other like-minded people.  The popularity of this news topic provides me with a great opportunity to discuss "Con-Torts", a branch of civil litigation where the lines between pure Contract Law and pure Tort Law (Negligence) blur.

Wait a Second, Contracts on the Internet?
One might wonder, why would contract law come up in an Internet setting?  I never signed anything and I never even got a piece of paper.  Contractual agreements can arise even from purely electronic transactions between parties.  With the use of Ashley Madison and other similar websites, the branches of contractual law called browse-wrap and click-wrap come into play.  Browse-wrap is a contract or licensing agreement whereby a user, simply by using a website, agrees to abide by the site's terms of use or conditions of use.  Hines v. Overstock.com, Inc., 668 F.Supp.2d 362, 366 (E.D.N.Y. 2009).  Similarly, clickwrap agreements arise when a user clicks on an "I Agree" button in order to use a website, often with the terms of use listed above in a window or as a hyperlink that the user is instructed to read carefully before signifying agreement.

Going back to the classic elements of a contract (offer, acceptance, consideration), the offer from the website is to allow you to use the site pursuant to its terms and conditions; the clicking of "I Agree" or use of the site signifies a meeting of the minds on the terms of the offer; consideration is found through the benefits gained by the user of the site through use of the site/detriment to the provider of loss of bandwidth or the detriment of the user giving up their right to use the site as they wish/benefit of the site's increased traffic.

OK, So I "Signed" a Contract, Didn't the Website Breach?
Ashley Madison users been identified by email address, credit card information, name, and sexual proclivity in the data dump of user data made public by hackers.  Didn't Ashley Madison have an obligation to keep this information secret?

Looking at the site's Terms and Conditions (TAC) and Privacy Policy, Ashley Madison does not make an affirmative pledge to safeguard user information from potential hackers.  Rather, under the TAC, the site "cannot ensure the security or privacy of information you provide through the Internet and your email messages... You agree to release us, our parent, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees and agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, know and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to the release or use of such information by third parties."  If effective, this waiver would seem to preclude simple contractual claims against Ashley Madison.

Further, the site (since it is a product sold to users) also expressly disclaims warranties in Sales Law and limits liability to $5,000 per user.  The disclaimer is achieved through an "allocation of risk" whereby the user takes on all risk in exchange for the service being made available (it otherwise would expressly not be made available).

If effective, both the waiver of remedies for breach and the disclaimer of warranties would preclude recovery for injured parties in Contract Law and Sales (UCC) Law.

But They Were Negligent in Securing the Data!
Maybe Ashley Madison did have a duty to protect the information and maybe they did breach that duty (neither of which is clear until the litigation sorts out the respective duty and standard of care).  But before we can even consider negligence as a theory of recovery, we need to examine the Economic Loss Rule.

Economic Loss Rule Precludes Tort Recovery for Parties to a Contract in Some Cases
The Economic Loss Rule is "the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby discourages [parties] to avoid causing physical harm to [other parties]."  Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1246 (Fla. 1993).  The rule was created by the courts to preclude recovery in tort (negligence) when the only damages suffered were purely economic damages (money).  Parties in privity to a contract were generally prohibited from recovery in tort for damages caused during performance of the contract.  Laufen, Inc. v. Andrew, 83 So.3d 898 (Fla. App. 2012).

Economic Loss Rule Abolished in Florida
In a landmark case, the Florida Supreme Court found the Economic Loss Rule to have expanded to the point of being "unwise and unworkable in practice", especially with its numerous exceptions.  Tiara Condo. Ass'n, Inc. v. Marsh, 110 So.3d 399, 407 (Fla. 2013).  Departing from prior precedent, the Florida Supreme Court held that "the application of the economic loss rule is limited to products liability cases."  Id.

Ashley Madison-type Cases in Florida Going Forward
So with the abolition of the Economic Loss Rule in Florida, parties to a contract are free to attempt to recover damages, even purely economic damages, in both tort and contract law.  But in the Ashley Madison claims, the contract expressly limited damages to $5,000 per user and attempted to disclaim all liability for breach due to data hacking by third parties.  Is that enough to preclude tort damages as well?

The Florida Supreme Court has yet to decide whether a party, through contract, can effectively preclude tort damages that were previously barred by the Economic Loss Rule.  One can surmise that, without express language to the contrary, a party could be liable in tort for damages flowing from the contract.  But what language is effective in barring tort liability?  Can any contractual language bar negligence?  Can contractual language establish the duty of care and limit tort damages (probably)?

While I do not have a clear answer to these questions yet, at least the abolition of the Economic Loss Rule will allow parties to seek these answers in future cases like Ashley Madison.

Neither Congress Nor the President Can End Birthright Citizenship

Yesterday, Republican presidential candidate Donald Trump announced that he, if elected President, would end birthright citizenship.  Birthright citizenship is the principle that a child, even if born to illegal immigrants, automatically is bestowed with U.S. citizenship if that child was born while on U.S. soil (including overseas military bases, territories, and the like).  So the question arises: Can Congress through statute or the President through executive action end birthright citizenship?

A quick look at the history of birthright citizenship is necessary to provide context to the eventual answer to this question.  Originally, there were two schools of thought on birthright citizenship in pre-America Europe.  Roman law, in an effort to perpetuate the feudal system, stated that citizenship followed the status of the parent.  Thus, the child through descent and blood gained his/her citizenship and nationality just like any other physical trait.  This served to ensure that the king and his vassals had a dedicated and loyal feudal base upon which to build long-standing kingdoms.

England, on the other hand, diverted from this practice. In 1700, the British statute of 11 & 12 Wm. III enacted that "all and every person or persons, being the king's natural-born subject or subjects, within any of the king's realms or dominions,' might and should thereafter lawfully inherit and make their titles by descent to any lands 'from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom' title should be made or derived, had been or should be 'born out of the king's allegiance, and out of his majesty's realms and dominions,' as fully and effectually, as if such parents or ancestors 'had been naturalized or natural-born subject or subjects within the king's dominions.'" 7 Statutes of the Realm, 590.  In short, the statute established birthright citizenship.  France soon codified a similar statute and by the time of the adoption of the 14th Amendment to the U.S. Constitution, "civilized" countries were split on the issue.

Article I, Section 8 of the U.S. Constitution gives Congress plenary power to enact laws related to immigration.  Congress has acted to establish a very detailed and comprehensive immigration scheme, so why couldn't Congress simply eliminate birthright citizenship?

Favoring a policy of birthright citizenship (probably due to exploding immigration and an increased need in low-skilled labor), the 39th Congress passed the Civil Rights Act of 1866. The law stated, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...."  14 Stat. 27-30.  The same Congress later enacted a joint resolution to amend the Constitution with the same birthright citizenship provisions (probably fearing the repercussions if a later Congress were to repeal the Civil Rights Act of 1866).  That language was formally ratified by the states and added to the U.S. Constitution as the 14th Amendment in 1868.

The Citizenship Clause of the 14th Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."  If the plain language of the Amendment was not enough evidence that birthright citizenship is protected by the U.S. Constitution, the Supreme Court put to rest any lingering doubts in United States v. Wong Kim Ark, 169 U.S. 649 (1898).  The question considered by the court was whether a child born on U.S. soil to parents who were in the U.S. illegally becomes a U.S. citizen by birthright citizenship under the 14th Amendment.  Id. at 653.

After analysis that mirrors the above paragraphs in this post, the court held in the affirmative that birthright citizenship was protected by the 14th Amendment.  Id. at 705.

Back to the initial question: Can Congress through statute or the President through executive action end birthright citizenship?  The plain language of the Citizenship Clause of the 14th Amendment, the historical context of English common law (from which many U.S. legal principles derive their beginnings), and the Congressional intent of the 14th Amendment as indicated by the Civil Rights Act of 1866 are all clear—there is a Constitutional civil right of birthright citizenship for all people born on U.S. soil regardless of the immigration status of the parents.

Under the Supremacy Clause of the U.S. Constitution, Congress cannot subvert a constitutional right via statute and the President cannot subvert a constitutional right via executive action.  Therefore, for Mr. Trump's goal to be achieved, either the States through conventions or Congress through joint resolution must amend the U.S. Constitution as prescribed therein.

Same-Sex Discrimination by Florida Businesses

                Ever since the U.S. Supreme Court decided in June that “same-sex couples may exercise the fundamental right to marry in all States” and “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character”, media outlets have been reporting regularly on bakeries and other establishments being fined or sued for refusing to provide services to same-sex couples (Oregon; Louisiana; Colorado).  Obergefell v. Hodges, No. 14–556, slip op. at 28 (U.S. 2015).  So the question naturally follows: do Florida businesses have the right to refuse service to same-sex couples solely because they are members of the same sex?  For the reasons below, it is my conclusion that current Florida and federal law does not include sexual orientation or same-sex marriage as protected classes under their respective civil rights acts.  Neither Florida law nor federal law specifically mandates that same-sex couples be provided services without discrimination.  Likewise, Florida and federal law does not affirmatively protect businesses seeking to discriminate against same-sex couples.

Businesses, however, should proceed with extreme caution.  In addition to the charter counties that have passed their own civil rights protections against discrimination based on sexual orientation (Orange County Ord. 22-42; Miami-Dade County Ord. Sec. 11A-19; etc.), federal law (if it were to change) may apply if the business is engaged in interstate commerce.  Further, this issue is an emerging issue that is certainly going to be debated by both the judiciary and the legislature in the coming months.  As such, the law will be very fluid and is subject to rapid change in the coming year.

Florida Civil Rights Act Applicability Generally

            The Florida Civil Rights Act of 1992 (FCRA) was enacted to establish state civil rights “for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights, and privileges of individuals within the state.”  Fla. Stat. § 760.01(2) (2015).  Notice the absence of the language sexual orientation.  Comparable civil rights acts in other states specifically include that language (as do the charter county ordinances above).  For comparison, the Colorado statute specifically includes sexual orientation and marital status.  Colo. Rev. Stat. § 24-34-601 (2014).  The Colorado court decision linked in the initial paragraph of this blog imposed a civil fine on a bakery specifically because of their state’s statute; there is no comparable language in FCRA. 

Under the expressio unius est exclusio alterus canon of statutory interpretation, Florida courts can be expected to hold that the inclusion of several protected classes in FCRA necessarily excludes those classes not listed.  Further, the Florida Legislature just added a new class to FCRA this past legislative session (pregnancy).  2015 Fla. Laws Chapter 2015-68.  Florida courts will be reluctant to read a new class for sexual orientation into FCRA given that the Legislature just debated the area.

FCRA does create an autonomous Commission on Human Relations who receives all initial claims of discrimination from aggrieved parties.  Fla. Stat. §760.03–07 (2015).  The Commission has a broad charge to “promote and encourage fair treatment and equal opportunity for all persons regardless of… religion… sex… or marital status and mutual understanding and respect among all members of all economic, social, racial, religious, and ethnic groups; and shall endeavor to eliminate discrimination against, and antagonism between, religious, racial, and ethnic groups and their members.”  Fla. Stat. §760.05 (2015).  While the Commission could conceivably be a catalyst for convincing the Legislature to broaden existing restrictions on public accommodations, sexual orientation is again notably absent from the list of protected parties.

For FCRA to apply, the Commission must make a reasonable cause finding of a violation of FCRA.  Fla. Stat. §760.11(4) (2015).  Upon such a finding, the complainant can elect to proceed to state court or have an administrative hearing.  Fla. Stat. §760.11 (2015).  Places of public accommodation are covered by FCRA.  Fla. Stat. §760.08 (2015).  Those places include “lodgings, facilities principally engaged in selling food for consumption on the premises, gasoline stations, places of exhibition or entertainment, and other covered establishments.”  Fla. Stat. §760.11(11) (2015).  The statute goes on to list examples such as hotels, motels, restaurants, on-premises food providers, theaters, sports arenas, and stadiums.  Id. 

Even if a business is a “public accommodation” under FCRA, a violation exists only when that business discriminates on the basis of “race, color, national origin, sex, pregnancy, handicap, familial status, or religion.”  Fla. Stat. §760.08 (2015).  Again, sexual orientation is conspicuously absent.  Therefore, FCRA does not penalize a business for discriminating on the basis of sexual orientation.

Regulation of Florida’s Lodging Establishments & Restaurants

            It comes as no surprise that Florida’s hotels and restaurants are regulated in other areas of Florida law other than FCRA.  Thus, an examination of these regulations is also required before reaching the conclusion that discrimination based on sexual orientation or same-sex marriage status is not actionable under present law.

            Oversimplified for space, Florida law regulates hotels, motels, restaurants, and places where food is “prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.”  Fla. Stat. §509.013(5)(a) (2015).  Exclusions include fraternal orders, common carriers (places, trains, ferries), hospital cafeterias, farms, theater snack bars, and vending machines.  Fla. Stat. §509.013(5)(b) (2015).  It is here, for the first time in this analysis, that the hypothetical wedding bakery popularized by the media is first implicated.

            Florida public lodging establishments and public food establishments, as defined, have “the right to refuse accommodations or service to any person who is objectionable or undesirable to the operator, but such refusal may not be based upon race, creed, color, sex, pregnancy, physical disability, or national origin. A person aggrieved by a violation of this section or a violation of a rule adopted under this section has a right of action pursuant to [FCRA].”  Fla. Stat. §509.092 (2015).  Again, there is a conspicuous absence of sexual orientation as a protected class.  Under the FCRA analysis above, I come to the same conclusion: Florida’s regulatory scheme affecting hotels, motels, restaurants, bakeries, and the like does not preclude discrimination of same-sex couples based on sexual orientation or the same-sex nature of their marriage.

            The prudent lodging or restaurant operator should be mindful of posting any restrictions against providing services to same-sex couples in accordance with Fla. Stat. §509.101(1) (2015) [English language, prominent posting, etc.] and should be mindful of the ejection/refusal of admission requirements of Fla. Stat. §509.141 & 509.142 (2015).

Federal Law

            The Civil Rights Act of 1964 entitles people to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation… without discrimination or segregation on the ground of race, color, religion, or national origin.”  42 U.S.C. §2000a.  The covered establishments mirror the requirements of FCRA [hotels, motels, restaurants, on-premises food, theaters, etc.].  Id.  In order for the federal law to apply, a business must be primarily engaged in the business of interstate commerce [even minimal contacts or potential contacts with out-of-state customers or must be supplying services to the State government.  Id.  This is purposefully broad and has been interpreted as broadly as possible by the U.S. Supreme Court.  Suffice to say, federal law would cover the vast majority of businesses providing services to the public.

            Again, there is a conspicuous absence of sexual orientation or same-sex couple from the protected classes.  Therefore, I come to the same conclusion as above: federal law does not preclude a business from refusing to provide services to a couple based on their sexual orientation or the same-sex nature of their marriage.

Strong Caveats

            Lest Florida businesses run out and begin openly discriminating against same-sex couples without fear, let me provide the following advice.  First, it is no small point that the U.S. Supreme Court has found a fundamental right for members of the same sex to marry.  Fundamental rights are among the most bedrock principles protected by the U.S. Constitution.  Many states have found a fundamental right to be protected by the government from discrimination based on sexual orientation.  The U.S. Equal Employment Opportunity Commission has already found it illegal for an employer to discriminate against a worker based on transgender, lesbian, gay, or bisexual identification.  Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011),http://www.eeoc.gov/decisions/0120110873.txt; Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011),http://www.eeoc.gov/decisions/0520110649.txt; Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012),http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.  It is highly likely that the U.S. Supreme Court will consider whether gender identification and/or sexual orientation should be protected by the government from discrimination as a class (similar to race and national origin protections).

            Second, Florida law does not preclude charter counties (basically the largest counties in the state with some exception; see this table) from passing ordinances precluding businesses from discriminating against people based on their sexual orientation or the same-sex nature of their marriage.  I listed two county ordinances above as examples; there are others who have passed or are considering to pass similar ordinances.

            Finally, this issue is certain to gain traction for debate and change in Florida.  Just this month, a Longwood, FL bakery was targeted by an opponent of same-sex marriage for their refusal to print “We do not support gay marriage” on a cake.  I think that the incident was the first of many to come in Florida.

Conclusion

            In sum, while local laws by Florida charter counties may preclude businesses operating within the county from doing so, Florida law and federal law are silent as to whether businesses can refuse to provide services to couples solely because of their sexual orientation or the same-sex nature of their marriage.  Businesses that choose to discriminate against same-sex couples in non-charter counties or in counties whose laws are silent on the issue do so at their own risk.  The issue is certain to attract more debate and interest in the coming months as the issue increases in visibility and businesses and couples alike seek to force courts to consider the issue directly.

"Lobbyist"—A Dirty Word But A Misunderstood Industry

Full disclosure—I am a former corporate lobbyist and part of my law practice includes representing clients' needs in government affairs, government relations, and lobbying.

In my experiences, I have witnessed many of the activities that are commonly associated with "lobbyists"; namely, the kind of discretions made infamous by Jack Abramoff and others.  But I believe that the public as a whole believes that such conduct is MUCH more prevalent than it actually is.  Lobbying and lobbyists are a necessary evil of politics and the vast majority of lobbyists and government affairs professionals are ethical and do things "the right way".

A brief history of lobbying: the name lobbyist came into popular parlance during (though not originating from) the days of President Ulysses S. Grant.  President Grant was a frequent visitor to the Willard Hotel's bar close to the White House.  Even in the mid-to-late 1800s, catching the ear of the President was a difficult thing to do.  So when the word got out of the President's favorite watering hole, people seeking to influence public policy followed.  President Grant hated the practice because it took him away from his cigar and brandy, but lobbyists soon became a great way for lawmakers to enjoy a drink or a meal on someone else's dime, all while learning about the issue de jour of their host.

Fast forward to today and there are more lobbyists and lobbying than ever.  While some bemoan the practice, I am excited and proud to see the profession's growth.  Lobbying is the First Amendment at its purest—a petition of grievances to the government and an exercise in democracy.  Have you ever emailed or tweeted your elected official?  If so, you are a "lobbyist", at least in the academic sense of the term.  If not, why not?  Communication no longer is restricted to smoky back rooms in a speakeasy next to Capitol Hill.  You don't need to spend weeks and months courting an elected official's staff members in order to get on their boss's calendar.  Today, you can contact your elected official at any level of the government, make a cognizable argument, and be sure that the member's staff member in charge of that policy area will read it.  Make a good argument, and that staff member will have your message in front of the elected official during their daily briefing sessions.

Lobbying professionals will always have the advantage of being able to develop long-term relationships with policy leaders and develop reputations of knowledge and trust for their respective issues.  Many also are involved in political action committees and fundraising efforts, giving lobbyists better access to elected officials than the average citizen.  But the days of lobbyists enjoying a monopoly on communication with political leaders are over.

Elected officials are, by definition, elected by their constituents.  If enough voters would educate themselves on the issues, organize communications with their elected official, and actually vote for candidates who support their positions, not even the most well-heeled professional lobbyist could change the elected official's position.  Self-preservation trumps a free meal every time.

There are generally two schools of thought in lobbying: use monetary influence to build relationships with members in leadership positions so that you can call in "favors" when the time comes; OR (they generally are mutually exclusive from my experience) use your superior knowledge of the issue at hand to educate elected officials and your supporters through grassroots communication predicated on the elected official's fear of not being reelected because of their opposition to your position.

Full disclosure again—I am a proponent of the second option.  First off, it is much cheaper and safer to go the education route.  If the party or member(s) in which you have focussed your contributions is no longer in power or in a leadership position, you have to start over.  Plus, it takes A LOT of money to move the political needle.  There are well-funded industries all over the political spectrum who are extremely active in political campaigns and issue framing.

It is my opinion that good advocacy will trump campaign contributions for most elected officials.  So give it a try and become a "citizen lobbyist".  Stay abreast of important political issues that affect your daily life, be it your pocketbook or your lifestyle.  Communicate your position to elected officials.  You might find that "lobbyist" becomes less of a dirty word and more of a badge of honor to be worn proudly after realizing that you, too, can influence public policy and politics.