Read All the Terms

By Michael J. Gelfand, Esq. / Published October 2022

C

link On This: No Massage = Rough Justice?

     Long gone is the day when contracts were always on paper. You knew what a “written” contract was because you could pick it up, place it in a file drawer, or place it in the euphemistic alternative, the circular file.

     Today it is not unusual for a contract to be presented in an electronic format, if not the norm. For quite some time as each of us has visited a medical provider, we are usually presented with an electronic tablet before an appointment commences.

     The ubiquity of electronic contracts multiplies concerns over what is actually occurring. What is agreed upon?

     Frequently these contracts are created by a simple click on a screen. Has there been any discussion between the parties to negotiate terms? Did the buyer actually read, not to say understand, the long list of terms? Is there actually an agreement, or is that just a convenient fiction?

     What authorization has your community provided officers and management to activate a “click”? How this plays out in the real world is, of course, complex. As always, these issues arise in court decisions in the strangest ways. Though strange, they are recalled and provide guidance.

     The latest lesson of click on contracts that applies to Florida community associations arose in a memorable context, a massage parlor! In a recent decision, a Florida appellate court ruled that a Massage Envy customer agreed to arbitrate all claims and disputes against Massage Envy where the arbitration agreement was attached to the consent form by hyperlink, even though the customer never clicked on the hyperlink. The facts in Massage Envy Franchising LLC v. Doe, 47 Fla. L. Weekly D 1151 (Fla. 5th DCA, May 27, 2022), indicated that “Jane Doe” went to Massage Envy for a massage. When she checked in for her appointment, Massage Envy handed Jane Doe an electronic tablet that contained various forms. Jane Doe clicked on the box stating that she agreed to the Terms of Use Agreement (TOU) without clicking the hyperlink.

     Jane Doe sued Massage Envy, claiming she was sexually assaulted during her massage. Massage Envy moved to compel arbitration, alleging Jane Doe entered into a binding contract agreeing to arbitrate all disputes rather than submit the claims to a court. The trial court denied the motion, ruling that no binding arbitration agreement existed.

     The Florida appellate court disagreed with the decision of the trial court. The court seems to rely on the obviousness of the terms. The Terms of Use Agreement was underlined and in a contrasting font, characteristic of a hyperlink. When clicked on, the hyperlink displayed a 16-page “Terms of Use Agreement.” At the top of the Agreement was a notice printed in bold, all capital letters stating that the agreement contained a binding arbitration provision. The court stated the following:

[B]ecause the TOU immediately followed the “My Consent” forms, was attached via hyperlink, and Doe was directed to give her assent to the TOU by checking the “I agree” box, we conclude that Doe was put on sufficient notice of its terms and conditions, including the binding arbitration condition, and that she manifested her assent to those terms and conditions by affirmatively clicking the box where indicated, thus creating a valid agreement.

     The appellate court did not appear deterred by the immensity of the TOU, 16 pages. Would a normal consumer even scroll through or read the TOU?

     In spite of the similarly obvious impediments to the click being a real understanding of the parties, the court ordered that the agreement be enforced, including arbitration, removing Doe’s right to a trial. Thus, the ancient requirements of an agreement, that the parties have actually “agreed,” may have been lost in a click!

     A lesson for communities is the continuing importance of reading all the terms, even if that involves clicking on a hyperlink, before hitting the “I Consent” box. Beware of links to additional documents. Associations may want to consider negotiating these terms and determining what authority officers and directors have to agree to “click on” terms. Otherwise, you may be giving up rights, which can later come back to bite you.

Disability Access Claim Without Even Arriving At The Property!

     If there is to be a claim that a property does not provide disabled access, should not the claimant disabled person first arrive at the property and attempt access?

     In a decision that warns Florida community associations that provide public accommodation of the dangers of not anticipating issues, recently a Florida appellate court ruled that a plaintiff can sue Disney World after it denied his request for an exemption to its face mask policy during the COVID-19 pandemic even though he did not actually visit Disney World. In Abadi v. Walt Disney World Parks & Resorts, 47 Fla. L. Weekly D 1119 (Fla. 1st DCA, May 25, 2022), the plaintiff filed a disability discrimination lawsuit against Disney World with the Florida Commission on Human Relations alleging that Disney World failed to make a reasonable modification of its face mask policy during the COVID-19 pandemic.

     The plaintiff claimed that he visited Disney every year with his family, and he planned to visit in the fall of 2021, requesting an exemption from Disney’s face covering policy because of his disability, but was denied an exemption. The Commission dismissed the complaint because the complaint did not identify how the plaintiff was denied services since the plaintiff did not visit Disney.

     The Florida appellate court reversed the decision of the trial court. The court pointed out that under the Americans with Disabilities Act (ADA), a plaintiff must allege: 

• The plaintiff is disabled
• The defendant is a place of public accommodation
• The defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the goods and services provided by the defendant.

     The court went on to explain that the plaintiff is not required to allege that he was denied services during an actual visit to Disney World. Once the plaintiff has become aware of the discriminatory conditions existing at a public accommodation and is deterred from visiting the accommodation, the plaintiff has suffered an injury.

     The court stated, “[b]ecause Appellant plausibly alleged that he was aware of discriminatory conditions at Appellee’s public accommodation and that the denial of his request for a modification deterred him from visiting or patronizing that accommodation, the Commission improperly dismissed Appellant’s complaint on an invalid ground.”

     It is important to be aware that a plaintiff can sue for disability discrimination if he or she is deterred from visiting just because he or she has heard about the restrictions. While many Florida communities are for private accommodations and are subject to the Fair Housing Acts (FHA), not the Americans with Disabilities Act (ADA), a good number deliberately provide public accommodations. A good number of communities inadvertently also provide access and services for the public, which triggers compliance with the ADA and the ADA’s stricter standards. This decision provides a warning of increased duties created when an association, whether deliberately or inadvertently, slides into the realm of public accommodation.

     For the communities that are just FHA regulated, there is also the potential that the rationale of this decision may be applied to FHA’s duties. Thus, associations and their management should ensure that the documents provided to prospective buyers and residents do not include prohibited restrictions, such as concerning age or health.

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.