Category: General

Illinois Law Provides Pharmacists With Important Protections Against Unreasonable and Unsafe Working Conditions

Posted on by Louis Fine

Even though pharmacists are a critical part of the continuum of care, and despite the strains of the pandemic falling on them just as hard, if not harder, than other healthcare providers, many feel that their challenges and concerns are not afforded the same respect or attention as other practitioners. And they have had enough. Due to understaffing, unreasonable employer demands, poor working conditions, and performance-based metrics that are antithetical to the delivery of quality care, pharmacists have been leaving their chosen profession in droves. This toxic combination has created a nationwide shortage of qualified pharmacists, causing pharmacies to limit their hours and making it harder for patients to access their services and fill their prescriptions.

Illinois pharmacists are not immune from the burnout that has driven so many of their colleagues out of their careers. But they do have one advantage over pharmacists in most other states. In recent years, Illinois took an important step to address pharmacist burnout through legislation designed to improve their working conditions, limit their hours, and otherwise protect them from unreasonable demands. Pharmacies and employers that violate these protective provisions face potential licensing problems and other serious consequences.

Burnout Driving Pharmacists Out, Leaving Behind a Staffing Crisis

The latest National Pharmacy Workplace Survey from the National Alliance of State Pharmacy Associations (NASPA) found “increasing demands, harassment, and bullying by patients/consumers experienced by pharmacy staff” and that “the feelings of not being heard or valued are risk factors that can cause stress leading to occupational burnout.”

Pharmacists were feeling the burn even before the pandemic began, with 91% of full-time chain pharmacists seeing their workloads as “excessive” and 69% of full-time pharmacists reporting that their workloads had “increased” or “greatly increased” compared to the year before (2018), according to the 2019 National Pharmacist Workforce Study. Additionally, many large chains made compensation and advancement dependent on speed and meeting targets like filling a certain number of prescriptions each day, increasing stress along with the risk of serious medication errors. When COVID testing, vaccination, and related responsibilities were piled on top of this already heavy workload, the profession reached a tipping point, creating the dire shortage facing the country today.

A summer 2022 survey by the National Community Pharmacists Association found that 76% of independent community pharmacies were having a “difficult time” filling staff positions. Pharmacy behemoths CVS and Walgreens are also feeling the impact, with both chains announcing cutbacks in hours due to a lack of qualified staff.

Illinois Puts Limits On Pharmacists’ Hours and Workloads

In 2020, Illinois amended the Pharmacy Practice Act to specifically address poor working conditions and unreasonable demands placed on pharmacists in the state. Specifically, Section 15.1 of the Act provides that, except in an emergency:

  • The workday for a pharmacist, student pharmacist, and pharmacy technician shall not exceed 12 hours, including breaks;
  • If a pharmacist has to work six continuous hours or longer in a day, they will be allowed to take one 30-minute uninterrupted meal break and one 15-minute break during the day;
  • If a pharmacist has to work 12 continuous hours or longer in a day, they will be allowed to take one 30-minute uninterrupted meal break and two 15-minute breaks during the day; and
  • A pharmacist entitled to a meal break cannot be required to work more than five continuous hours (So, a pharmacist who is required to work 6 hours or longer cannot be given a meal break during the last half hour of their shift).
  • If a pharmacy or a building where a pharmacy is located has a private break room, the pharmacist must be given access to the break room and be permitted to have breaks in that room. The pharmacy can close while the pharmacist is on break, but it is not required to do so. If the pharmacy does not close, the pharmacist must remain in the pharmacy or establishment where the pharmacy is located during the break for emergencies.

Consequences For Non-Compliant Pharmacies, Whistleblower Protections For Reporting Pharmacists

A licensed pharmacy that disregards the foregoing requirements or otherwise imposes unreasonable working conditions on pharmacists faces the loss of its license, fines, and other consequences. Specifically, a pharmacy is subject to license revocation and other disciplinary action if it:

  • Fails to provide a working environment for all pharmacy personnel that may jeopardize the health, safety, or welfare of patients;
  • Fails to employ sufficient personnel to prevent fatigue, distraction, or other conditions that interfere with a pharmacist’s ability to practice with competency and safety or creates an environment that jeopardizes patient care;
  • Fails to provide appropriate opportunities for uninterrupted rest periods and meal breaks;
  • Fails to provide adequate time for a pharmacist to complete professional duties and responsibilities, including drug utilization review, immunization, counseling, prescription verification, and all other duties as listed in the Department rules;
  • Introduces or enforces external factors, such as productivity, production quotas, or other programs against pharmacists, student pharmacists, or pharmacy technicians, to the extent that they interfere with the ability to provide appropriate professional services to the public.

Pharmacists who report violations of the law regarding working conditions are protected from retaliation and can avail themselves of the remedies provided in the Illinois Whistleblower Act.

If you are a pharmacist or pharmacy with concerns about compliance with Illinois law or licensing issues related to working conditions or other obligations, please call me at (312) 236-2433 or fill out my online form to arrange for your free initial consultation.

Before You Shoot First In Business Litigation, Ask These Questions Sooner Rather Than Later

Posted on by Louis Fine

No business owner likes to be trifled with, insulted, stiffed, screwed over, or otherwise on the receiving end of bad actions that threaten their company, its reputation, or its bottom line. Filled with frustration over a long overdue invoice, full of righteous indignation about a former employee or competitor stealing trade secrets, or seething in anger about a supplier’s failure to keep their promises, a business owner may be quick to call their lawyer and heatedly direct them to immediately “sue the b*stards.”

But an itchy litigation trigger finger can lead to unintended and undesired consequences if the prospective plaintiff does not understand the realities and risks of commercial lawsuits. Unquestionably, there are times when litigation is the best or only recourse in a business dispute, whether with a competitor, customer, or business partner. A lawsuit may be the next necessary step after other attempts to resolve the conflict have failed. Sometimes, immediate court intervention is needed to vindicate or protect a company’s rights. In these situations, having a skilled and tenacious lawyer ready to advance your interests in the courtroom can be indispensable.

However, before you ask your lawyer to run to the courthouse and file a lawsuit on your company’s behalf, you should first know the answers to these questions about business litigation:

Are You Ready For a Years-Long Ordeal?

Never underestimate a lawyer’s ability to turn the simple into the complicated. In a business lawsuit, it happens often. Sometimes, it is by design, with one party using every means available to make the lawsuit as costly and painful to the other as possible.

Unfortunately, the rules and realities of business litigation mean that a seemingly straightforward case can devolve into a years-long slog. Even if your attorney does everything possible to keep the case moving forward, there are plenty of ways the other side can slow things down to a snail’s pace.

The parties may file motion after motion regarding various issues, each with weeks or months-long briefing schedules and hearings. The process of gathering evidence and questioning witnesses, called discovery, can also take a long time and cost a lot of money. You may need to retain experts and pay them handsomely for their reports and testimony. The parties may have to exchange and review thousands of pages of documents or electronic records.

Not only will your attorney spend a great deal of time (and your money) during discovery, but it can also place a disruptive burden on your shoulders and those of key employees. They may need to take time away from doing their jobs to prepare for and attend depositions, while other employees may spend hours searching through files and servers in response to subpoenas or document requests. Unless you’re ready for these possibilities, you may not be ready for contentious litigation.

What If My Case Is a Slam Dunk?

It may not be found in law books, but one of the foundational principles of litigation is that there is no such thing as a “slam dunk” case. No matter how brilliant your lawyer is, at the end of the day your fate lies with a judge or 12 jurors who may see things differently than you do.

Despite your belief in the strength of your case, your business could be on the receiving end of a judgment if the other party pursues a successful counterclaim. Similarly, Alternatively, all of the time and money you’ve invested with your lawyer may be for naught if the judge or jury denies you the damages you seek. Depending on the language of any applicable contract or agreement, the losing side may also suffer the indignity and cost of having to pay the other side’s attorney’s fees.

Can I Collect on Any Judgment I Get?

Of course, you may ultimately win your commercial lawsuit. Your business may obtain a considerable judgment for a large sum of money. But no matter how many zeros that judgment contains, remember that until that money is in your pocket, it is just a piece of paper.

First, whatever the amount of the judgment, subtract from that sum the amount your company paid your attorneys. That can turn a large judgment into a much smaller one. Second, even if you are successful in adding your fees and costs to the judgment, you may need to spend even more money to collect what the defendant owes you.

The judgment debtor may be insolvent, file for bankruptcy, or lead you and your attorney down a rabbit hole of strategies and shell games designed to stifle your collection efforts. The other party may also continue to fight, asking for a new trial or appealing the trial’s outcome to a higher court. The result of these appeals could be a reversal or even an order for a new trial, in which case the entire ordeal starts all over again. This means more bills from your attorney and more years spent engaged in litigation with no end in sight.

Again, none of this means that business litigation is always destructive or counterproductive. It is sometimes the best or only way to obtain the relief your company is entitled to. But if you approach litigation with a shoot first, ask questions later mentality, you may wind up shooting yourself in the foot.

Choose Wisely: 4 Things To Look For When Looking For a Lawyer

Posted on by Louis Fine

I am also acutely aware that the decision as to which attorney they hire to assist them is one they don’t, and shouldn’t, take lightly. Unquestionably, the quality and competence of a lawyer can play a significant role in the outcome of a given matter. How that attorney approaches their practice and relationship with clients can make all the difference between peace of mind and closure or unresolved concerns and constant worry.

Many of the people I speak with have never needed a lawyer before, or at least one versed in the matter at hand. With over 26,000 attorneys in the Chicagoland area alone, according to the Bureau of Labor Statistics, it isn’t hard to find a lawyer. The challenge is finding the right lawyer. And that requires knowing the essential qualities that the best attorneys share.

Based on my decades of diverse experience handling countless matters, here are some qualities you should consider if you are in the process of looking for an attorney:

  1. Knowledge of the Law

It goes without saying that your lawyer should know what they’re doing, including keeping up to date on new developments and approaches. The law is constantly changing; new legislation, court decisions, rules, and guidelines come out all the time. It is crucial to hire a lawyer who not only understands the law as it is but who is aware and alert to the impact of changes that may be coming down the pike.

  1. Experience and Success

So much of what happens in a legal matter is not based on things found in books or statutes; knowing the nuances of both the law and the reality of practice is crucial to obtaining successful results. Look for a lawyer who knows their way around the courthouse, hearing room, or conference room. Look for a lawyer who knows how things work and how things get done. You want a lawyer with experience and success defending cases like yours, so ask about their track record handling such matters. Sound judgment and deep insight aren’t learned in law school or at a seminar. That is something that only comes from years of experience.

  1. Communication

You undoubtedly have many questions about your situation, what may happen next, and what the plan should be going forward. Throughout your case, you’ll want to know that when questions and concerns come up, your attorney will be available and ready to answer and resolve them. You also want a lawyer who will actually listen to you and take the time to understand your needs and goals. If they seem too busy to speak with your or respond to your emails, they are probably too busy to give your matter the attention and effort it needs and deserves.

  1. Empathy and Trust

When you meet with a lawyer, you are not there necessarily to discuss a case or a file; you are talking about your life. You want an understanding and compassionate lawyer with who you can freely speak about your concerns and issues, and you want to feel as if they genuinely care and understand what is at stake. Choose an attorney who makes you comfortable, who is trustworthy and ethical, who you believe will truly expend all necessary efforts on your behalf, and who gives you a feeling of peace of mind every time you leave his office or hang up the phone after speaking with them.

The attorney-client relationship is a unique and important one, and the trust you place in your lawyer is something they should value and work to earn every single day. I certainly do.

Saving Careers: A Conversation With Chicago Professional License Defense Lawyer Louis Fine

Posted on by Louis Fine

“Careers are on the line, livelihoods are at stake, and reputations hang in the balance. I never lose sight of that.”

When you ask attorney Louis Fine to describe his practice, his initial response isn’t to tell you about the professional license defense work that has been at the heart of his distinguished career. He doesn’t start by talking about the countless divorces he has handled or the business and real estate deals he has closed. His initial response is much more succinct.

“I help people who need help.”

It’s an apt description for someone who has made assisting others the defining characteristic not only of his law practice, but also of his volunteer and philanthropic work in the community. It’s also a description born of necessity.

“When my kids were very young, they would ask me what it was that I did as a lawyer,” Louis says. “They could understand that a fireman fights fires, that an engineer drives a train, or that an astronaut goes into space, but they couldn’t wrap their heads around what exactly a lawyer was. So I thought about the essence of what I do, and it really comes down to helping people work through difficult problems or achieve a personal or professional goal.”

Protecting Careers and Livelihoods

Louis has devoted a significant amount of his practice to protecting the careers and livelihoods of licensed professionals in Chicago and throughout Illinois. He understands that threats to someone’s license to practice or engage in their chosen career strike at the essence of who they are.

“Whether you’re a physician, an accountant, a hairstylist, or a real estate appraiser, you invested a lot of blood, sweat, and tears in your career,” he says. “It’s not just the years of education and training or the tens or hundreds of thousand dollars in student loans. And it’s not just about being able to make a living. Your career can define who you are and how people perceive you, and how you perceive yourself.”

And when a licensed professional sees an envelope in the mail from the Illinois Department of Financial and Professional Regulation (IDFPR) advising that they are under investigation or may be subject to disciplinary action, all of that hangs in the balance. It can be easy to panic.

“I often get a call right after someone gets that dreaded letter or notice from IDFPR,” Louis says. “There is a lot of understandable anxiety and concern, often mixed with righteous indignation or disbelief.”

He says that in addition to reviewing the complaint and gathering the facts, his initial task is helping clients take a breath and explaining to them what is happening – and what isn’t.

“Things are always scarier when you don’t understand what’s going on. I try to put things in context and provide clients with some peace of mind that, while IDFPR actions must be addressed seriously, it isn’t necessarily the catastrophe it may appear to be,” he says.

“In any career where you are serving others, you’re going to make someone unhappy. There will always be at least one patient or client who thinks you have wronged them or that you were incompetent or worse,” Louis advises. “Many of these complaints involve nothing of substance. That is why many if not most IDFPR complaints and investigations are resolved either after an informal hearing or without any action being taken at all.”

Understanding IDFPR Inside and Out

However, Louis knows better than anyone that when the IDFPR believes that a licensed professional has engaged in misconduct and launches an investigation or commences disciplinary proceedings, things can be deadly serious.

He also knows how and why the IDFPR makes the decisions and takes the actions they do. That’s because he used to be the one making the decisions and taking the actions.

Louis served as IDFPR’s Chief Prosecuting Attorney and as an administrative law judge for many years, giving him unique insight into how the board handles licensure issues and how to navigate the process in a way that is most likely to lead to a positive outcome for a licensee. His experience investigating and prosecuting licensed professionals also made him appreciate how unfair the disciplinary process can sometimes be.

“The IDFPR’s procedural rules and practices put licensees at a sometimes crippling disadvantage in disciplinary proceedings,” Louis says. “For example, a licensee’s ability to pursue the discovery necessary to defend themselves is extremely limited. In fact, the extent of allowable discovery is determined by the very people who are prosecuting the case.”

The other big problem, according to Louis, is that the hearing officers presiding over disciplinary proceedings are not independent.

“They are employed and paid by the IDFPR, just as the prosecuting attorneys are,” he notes. “Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the very same folks who are seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.”

Despite these challenges, Louis has successfully defended countless Illinois professionals, protecting their licenses and helping them move forward with their careers and lives. And as Louis will be the first to tell you, helping is what his job is all about.

Faith v. Phony: How Should Employers Evaluate Employees’ Claimed “Religious” Objections to COVID-19 Vaccination Mandates?

Posted on by Louis Fine

Questioning the legitimacy of someone’s faith or religious beliefs is a tricky business. But employers across the country, from major corporations to local governments, have to deal with such deeply personal inquiries with increasing frequency as many employees and job candidates opposed to COVID-19 vaccine mandates seek “religious exemptions” from having to get the shot.

Recognizing the uncomfortable and somewhat perilous task faced by employers when such claims arise, the Equal Employment Opportunity Commission (EEOC) released new guidance on October 25, 2021, specifically addressing how employers should evaluate requests for religious exemptions from vaccine mandates. The new Section L of the EEOC’s omnibus COVID-19 page supplements previous direction about employer obligations regarding claimed religious objections to vaccinations.

The Basis for Religious Exemption Claims

The basis for religious exemptions to employer COVID-19 vaccine mandates is found in Title VII of the Civil Rights Act of 1964. Title VII requires an employer, upon receiving notice, to reasonably accommodate an employee whose “sincerely held religious belief, practice, or observance” conflicts with a job requirement, such as a company-wide vaccination mandate, unless providing the accommodation would create an undue hardship for the employer.

Accordingly, the threshold question for employers when an employee advises them of their request for a “religious accommodation” to an employer COVID-19 vaccine requirement is determining whether the objection to getting the shot is, in fact, based on a “sincerely held religious belief.”

What Is a “Religious Belief”?

The definition of “religion” under Title VII not only includes widely recognized faiths like Christianity, Judaism, Islam, or Hinduism, but it also protects nontraditional religious beliefs that may be unfamiliar to employers. However, as the EEOC clarifies, “social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.”

Therefore, employers are free to disregard exemption requests premised on concerns about “personal freedom,” the underlying legal legitimacy of vaccine mandates, or conspiracy-laden claims about microchips, magnetism, or other disinformation about COVID vaccines.

How To Determine Whether an Employee’s Religious Belief Is “Sincerely Held”

As the EEOC notes, “Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many types of Title VII religious claims.” But the reluctance of many workers to get vaccinated or their refusal to comply with employer or government vaccine mandates has made this very much an issue.

That’s because many employees who refuse to get vaccinated against COVID-19 for non-religious reasons are trying to incincerely and improperly shoehorn those objections  into Title VII’s religious protections. As the New York Times recently reported, “Vaccine-resistant workers are sharing tips online for requesting exemptions to the requirements on religious grounds; others are submitting letters from far-flung religious authorities who have advertised their willingness to help.”

This puts employers in the delicate position of questioning the sincerity of an employee’s faith and religion. According to the EEOC, an employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” When evaluating that credibility, the EEOC says that employers can consider the following “factors that – either alone or in combination – might undermine an employee’s credibility”:

  • Whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance).
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons).
  • Whether the employer otherwise has reason to believe the employee is not seeking the accommodation for religious reasons.

Employers can ask an employee to explain how their claimed religious beliefs conflict with a COVID-19 vaccine mandate. The EEOC advises that employers:

“Should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.”

If you are a business owner and have questions about how to address religious or other objections to your company’s COVID-19 vaccination policies, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

What Illinois Medical Practice Owners Need to Know About Pritzker’s Vaccination Mandate For Healthcare Workers

Posted on by Louis Fine

There is no more debate for healthcare workers in Illinois about whether to get vaccinated against COVID-19 (not that there should have been any debate), at least if they want to continue working. On August 26, 2021, Gov. J.B. Pritzker issued Executive Order 2021-20, which mandates that almost all healthcare professionals and staff in the state must get their shots, subject to certain narrow exceptions. The Order took effect immediately. Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

All “Health Care Workers” Must Receive At Least One Dose By Sept. 5

The Order requires all “Health Care Workers” to:

  • receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021, and
  • be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series.

“Health Care Workers” and “Health Care Facilities” Covered By The Vaccine Mandate

As defined in the governor’s order, “Health Care Workers” covered by the vaccine mandate are those who:

  • are employed by, volunteer for, or contract to provide services for a Health Care Facility, or are employed by an entity that is contracted to provide services to a Health Care Facility, and
  • are in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis as determined by the Health Care Facility.

With the exception of state-owned or operated facilities, almost any facility or office that provides medical care is a “Health Care Facility” whose workers, as defined above, must get vaccinated. This includes:

  • physician offices
  • dental offices
  • ambulatory surgical treatment centers
  • hospices
  • hospitals
  • free-standing emergency centers
  • urgent care facilities
  • birth centers
  • post-surgical recovery care facilities
  • end-stage renal disease facilities
  • long-term care facilities (including skilled and intermediate long-term care facilities)
  • Specialized Mental Health Rehabilitation Facilities
  • assisted living facilities
  • supportive living facilities
  • medical assistance facilities
  • mental health centers
  • outpatient facilities
  • rehabilitation facilities
  • residential treatment facilities
  • adult day care centers

Unvaccinated Workers Barred From Premises Until Tested

As of September 5, 2021, covered Health Care Facilities must ban from their premises any Health Care Worker who has not provided proof (CDC vaccination card, photo of card, or documentation from a health care provider) that they have been fully vaccinated unless they submit to testing as follows:

  • Health Care Workers who are not fully vaccinated against COVID-19 must be tested for COVID-19 weekly, at a minimum.
  • Such testing for Health Care Workers who are not fully vaccinated against COVID-19 must be conducted on-site at the Health Care Facility or the Health Care Facility must obtain proof or confirmation from the Health Care Worker of a negative test result obtained elsewhere.

Those With Medical and Religious Exemptions From Vaccination Mandate Still Require Weekly Testing

Consistent with federal law, the Order provides medical, religious, and Americans With Disabilities Act exemptions, though any workers who qualify for an exemption must submit to weekly testing.

To qualify for a vaccination exemption, a worker must demonstrate that:

  • vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or
  • vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance. 

The Order does not specify what consequences or penalties could be imposed on medical practices for violation of the vaccine mandate, but it does authorize state agencies to “promulgate emergency rules as necessary to effectuate this Executive Order.” Accordingly, practices should establish clear policies and protocols for ensuring that their staff is fully vaccinated, as well as implement a testing program for unvaccinated workers. They should also be prepared to send home any employee who does not comply with the Order.

If you are a medical practice owner and have questions about the governor’s vaccination mandate for your employees, please give me a call at 312-236-243 or fill out my online form to arrange for your free initial consultation.

How To Win During A Year Of Incomprehensible Loss: VOTE

Posted on by Louis Fine
 

While it may seem impossible to encapsulate into one word the multidimensional maelstrom of horrors and crises which is the year 2020, “loss” comes as close as anything. The loss of hundreds of thousands of lives and loved ones to a criminally mismanaged pandemic. The loss of countless more to gun violence, police misconduct, and systemic racism. The loss of millions of jobs, livelihoods, and economic security. The loss of certainty and the rhythms and rituals of ordinary life, from children playing with their friends and laughing in school hallways to attending a wedding or watching a ball game.

The Rule Of Law Is Under Attack – And On The Ballot

All of these losses are staggering and would have been incomprehensible at the start of this Godforsaken year. But there are even more insidious and ongoing losses that predate the pandemic. These aren’t losses caused by biology or random chance. Rather, these are losses purposefully engineered by those who see the foundational principles of America, as well as the concept of objective reality, as impediments to their own craven designs, their shameless corruption, and the advancement of their personal interests at the expense of everyone else’s.

As a lawyer – as an American – I see the rule of law as sacrosanct and one of the last remaining bulwarks standing between the survival of the Republic and authoritarianism. But the past four years have seen an unrelenting and unprecedented war on the rule of law by those charged with faithfully executing those laws and those who have aided and abetted them in these efforts.

If past is prologue, and if cornered rats are the most dangerous kind, I fear that the next few months will see an even more voracious attack on the rule of law. That war is occurring in plain sight, from the sabotage of the postal service, to the incitement of violence for political gain, to a firehose of lies and misinformation spewing from the highest office in the land.

Attacking the rule of law and purposefully and relentlessly undermining public trust in the institutions that uphold the law in order to facilitate rampant lawbreaking is an unforgivable civic sin. That those engaging in such misconduct laughably do so under the banner of “law and order” makes it even more enraging.

Voting Is How We Maintain The Rule Of Law

The rule of law is how we hold leaders and lawbreakers accountable. It is what levels the playing field, at least in theory. It is the way we as a society facilitate change and address inequality and other social and economic injustices. And the way we do that is through the power of our votes. That is why so much effort is focused on depriving individuals of their right to vote, encouraging bad actors to corrupt the system, and sowing doubt about the legitimacy of an outcome that may not go as those currently in power would like – in a fair fight.

Voting determines everything. On life and death matters, it determines whether or not you can get health insurance if you have a preexisting condition or if you’ll have the resources to be able to pay your rent or mortgage. Even on less existential issues, who we elect matters. As a professional license defense attorney, I’ve seen how changes in leadership and laws impact the lives and livelihoods of thousands of licensed professionals and those they serve.

So, as early voting is set to begin here in Illinois and across the country, it is imperative that all of us enlist in the fight to preserve the rule of law by ensuring that we are registered and know our options as to how to cast our ballots. Illinois residents can register to vote or check your registration status here. You can request a vote by mail application here. Given ongoing efforts to interfere with your right to vote, casting your ballot sooner rather than later should be a priority, more so than in prior elections.

Shakespeare wrote one of the most misinterpreted lines in history: “The first thing we do, let’s kill all the lawyers.” Rather than an attack on the legal profession, the quote from “Henry VI” was actually a strategic statement by someone out to destroy the rule of law. It was uttered by Dick the Butcher, who was a follower of the rebel Jack Cade and thought that if he disturbed law and order, he could become king.

We don’t do kings here. We are a democracy. We are a nation of laws – and voters.

Illinois Adult Use Cannabis Dispensary Applications Are Ready. Are You?

Posted on by Louis Fine

If you want to obtain a license to own and operate an Illinois adult use cannabis dispensary, your time has come. On October 1st, the Illinois Department of Financial and Professional Regulation (IDFPR), which is charged with implementing and administrating multiple aspects of the state’s adult use marijuana program under the Cannabis Regulation and Tax Act (the “Act”), made available the application form for new Conditional Adult Use Dispensing Organization Licenses.

These licenses, applications for which must be hand-delivered to the Department’s Chicago offices no later noon on January 2, 2020, are “conditional” in that they do not allow the licensee to purchase or sell marijuana until they have found a suitable location (which they must do within 180 days), passed an inspection by IDFPR, and paid the registration fee. All available conditional licenses will be issued no later than May 1, 2020.

Once these requirements are met, the Department will award the licensee an Adult Use Dispensing Organization License, which authorizes the holder to legally obtain and sell cannabis pursuant to the Act.

In a previous post, I discussed application fees, the number of licenses that the Department will issue, the criteria that the Department will use in choosing licensees, and general ownership requirements. Now that applications are available for preparation and completion, let’s discuss what is involved in the application itself.

In short, a lot.

Hundreds of Pages of Supporting Documentation Required

The application form itself is all of one page long, but the supporting documentation that must be gathered, prepared, and submitted is voluminous and comprehensive. This isn’t just a matter of making copies of existing records; applicants must develop detailed plans covering several aspects of dispensary operation. IDFPR will not consider any application that lacks the required exhibits.

In addition to the fee and Principal Officer application form, applicants must submit a:

  • Table of Organization, Ownership and Control and Business Operating Agreements
  • Dispensing Organization Agent Training and Education Plan
  • Purchaser Education Plan
  • Business Plan
  • Recalls, Quarantine, and Destruction Plan
  • Security Plan
  • Inventory Monitoring and Recordkeeping Plan
  • Proposed Floor Plan
  • Operating Plan
  • Plan for Community Engagement
  • Diversity Plan
  • Anonymized Document or Resume for Each Proposed Principal Officer (demonstrating education, knowledge, or experience in the cannabis industry)
  • Financial Information
  • Evidence of Status as a Social Equity Applicant, if applying as a Social Equity Applicant
  • Labor and Employment Practices Plan (optional)
  • Environmental Plan (optional)
  • Evidence of Status as an Illinois Owner (optional)
  • Evidence of Status as a Veteran (optional)

For each of the foregoing exhibits, IDFPR has established detailed and specific requirements as to what applicants need to include. Given how much is involved in preparing a dispensary application, January 2, 2020 doesn’t seem that far away. Aspiring Illinois cannabis entrepreneurs need to fire up their efforts immediately, if they haven’t already done so.

Need Help With Your Illinois Adult Use Cannabis Dispensary Application? Call Me Today.

If you are considering entering the legal cannabis industry in Illinois and have questions about the IDFPR application process and criteria, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Illinois Recreational Marijuana Licensing: A High-Level Overview

Posted on by Louis Fine

Illinois is expected to be one of the largest retail marijuana markets in the country, and plenty of budding pot entrepreneurs will want to get in on the action and meet consumer demand by opening adult use dispensaries. And if you’re going to legally sell weed to the masses, you’ll have to pass muster with the Illinois Department of Financial and Professional Regulation (IDFPR).

Under the Cannabis Regulation and Tax Act (the “Act”) signed into law earlier this year, IDFPR is charged with implementing and administrating multiple aspects of the state’s adult use marijuana program, including the licensing and oversight of dispensing organizations. Needless to say, IDFPR won’t be passing around dispensary licenses without ensuring that applicants meet the Act’s multitude of requirements and limitations on dispensary ownership and operations.

On a very high level, here is what you need to know before firing up your efforts to apply for a license to open a recreational marijuana dispensary in the Land of Lincoln:

When to Apply

Applications for Conditional Adult Use Dispensing Organization Licenses will be available no later than October 1, 2019, and will be due no later than January 1, 2020. These licenses are “conditional” in that they do not allow the licensee to purchase or sell marijuana until they have found a suitable location (which they must do within 180 days), passed an inspection by IDFPR, and paid the registration fee.

Once these requirements are met, the Department will award the licensee an Adult Use Dispensing Organization License, which authorizes the holder to legally obtain and sell cannabis pursuant to the Act.

Costs of Application and License

The costs involved in applying for and maintaining an adult use license depends on whether or not the applicant is a “Social Equity Applicant.” In an effort to promote and ensure socio-economic diversity and opportunity in the Illinois cannabis industry, the Act provides for reduced fees and other accommodations for applicants from economically disadvantaged areas in the state.

The application fee is $5,000 for Non-Social Equity applicants and $2,500 for Social Equity Applicants. The fee for maintaining a two-year license is $60,000 for Non-Social Equity licensees and $30,000 for Social Equity licensees.

Number of Available Licenses

IDFPR may grant up to 75 adult-use dispensary licenses by May 1, 2020, and up to 110 licenses by December 21, 2021. But the law imposes limitations on the number of licenses IDFPR may issue for each of the 17 Bureau of Labor Statistics (BLS) Regions in Illinois based on that region’s percentage of the state population. The number of available licenses per BLS region is:

  • Bloomington: 1
  • Cape Girardeau: 1
  • Carbondale-Marion 1
  • Champaign-Urbana: 1
  • Chicago-Naperville-Elgin: 47
  • Danville: 1
  • Davenport-Moline-Rock Island: 1
  • Decatur: 1
  • Kankakee: 1
  • Peoria: 3
  • Rockford: 2
  • Louis: 4
  • Springfield: 1
  • Northwest Illinois Nonmetropolitan Area: 3
  • West Central Illinois Nonmetropolitan Area: 3
  • East Central Illinois Nonmetropolitan Area: 2
  • South Illinois Nonmetropolitan Area: 2

Criteria for Choosing Winning Applicants

There will be a heck of a lot more than 75 applicants for these 75 licenses, so IDFPR will use a point system based on numerous factors to determine who will receive licenses. Those who score highest on the following 250-point scale will be the most likely to be opening dispensary doors next year:

  • Suitability of Employee Training Plan (15 points)
  • Security and Record-Keeping (65 points)
  • Business Plan, Financials, Operating Plan, and Floor Plan (65 points)
  • Knowledge and Experience in Cannabis or Related Fields (30 points)
  • Status as a Social Equity Applicant (50 points)
  • Labor and Employment Practices (5 points)
  • Environmental Plan (5 points)
  • Illinois Owner (5 points)
  • Status as a Veteran (5 points)
  • Diversity Plan (5 points)

Ownership Requirements

Not every aspiring dispensary owner will be eligible to receive a license. In addition to being 21 or older, “principal officers” of the business (pretty much anyone with any ownership stake or management authority) must not have been “convicted of an offense that would impair the person’s ability to engage in the practice of owning a dispensary.” IDFPR will use several criteria when evaluating the impact of a principal officer’s previous conviction on their application.

These are just some of the issues involved in applying for and obtaining an adult use cannabis dispensary license in Illinois. While IDFPR may be the body granting licenses, applicants will also have to deal with local governments which will have a big say in whether and where a dispensary can set up shop.

If you are considering entering the legal cannabis industry in Illinois and have questions about the IDFPR application process and criteria, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Bad Online Reviews Can Hurt Your Business – But Responding in Kind Can Too

Posted on by Louis Fine

If you own a small business or are a professional and have customers and clients, there is a good likelihood that someone has published an online review of your company and its goods or services. From Yelp to Angie’s List to TripAdvisor to any number of websites tailored to particular interests or industries, online reviews can have a profound impact on your business.  Even one negative review can be devastating.

You can find a lot of tips and do’s and don’ts online about how to handle such negative reviews from a strategic and business perspective. On more than one occasion I have had a panicked and apoplectic client ask me whether he can sue the author of a negative review for defamation.

The answer is, of course you can sue “IHateYourBusinesss123”” or whomever made the post. But the reality is that much of what is written in even the most scathing negative review will likely not qualify as actionable defamation. Furthermore, such lawsuits themselves can open up the business owner to further scorn, ridicule, and bad publicity in the fickle social media world.

As a preliminary matter, most online review sites and other platforms (Facebook, Yahoo, Google+, etc.) where comments may appear are immune from liability for defamatory comments in reviews as a matter of federal law. Section 230 of the Communications Decency Act shields such sites from claims based on comments posted by third parties.

What is Defamation in Illinois?

In Illinois, in order to prove defamation, including a claim based on an online review, a plaintiff has to prove:

  • the defendant made a false statement about the plaintiff;
  • there was an unprivileged publication to a third party;
  • fault by the defendant amounting to at least negligence; and
  • the publication damaged the plaintiff.

There is a special category of defamation that does not require a plaintiff to prove actual damages. Defamation per se, as it is called, involves specific statements that are deemed inherently damaging. These statements include ones which assert that the plaintiff:

  • is infected with a “loathsome communicable disease” (e.g. a sexually transmitted disease, HIV, hepatitis, etc.)
  • has a lack of ability to perform their professional duties, or otherwise harms the plaintiff in their professional reputation
  • lacks integrity in their professional duties
  • has committed fornication or adultery
  • has committed a criminal act

Provable Fact v. Opinion

The most common issue that distinguishes an actionable defamation claim based on online reviews from one likely to fail is the issue of whether or not a statement was false. Only false statements of fact can be the basis of a defamation claim, not opinions. A statement of fact has to be able to be objectively proved or disproved. Consider the two following hypothetical restaurant reviews:

“That was the most disgusting and flavorless meal I have ever had in my life.”

“The waiter spit in my food.”

The former is non-actionable opinion, as it cannot be objectively proven that the meal was the “the most disgusting and flavorless” one the reviewer ever had. Conversely, the latter is a statement of fact; it can be proven (perhaps not easily) whether or not the waiter spit in the diner’s food.

Additionally, Illinois courts emphasize the context in which an allegedly defamatory statement has been made in determining whether the statement can be the basis of a claim. Even if a single statement in a long rant is arguably a statement of provable fact, it may not constitute defamation if a reasonable reader would see it simply as invective.

Consider Brompton Building, LLC v. Yelp, Inc., a 2013 Illinois Appellate Court decision in which a building management company sued an anonymous former tenant who had posted a hyperbolic, scathingly negative, and extremely lengthy online review. Even though the rant contained a few objectively verifiable statements, the court found that it could not support a defamation claim because in context they would not be understood to be actual factual allegations. As the court noted, “The context of the defamatory statements is critical in determining its meaning. In determining the context of the defamatory statements, we must read the writing containing the defamatory statement ‘as a whole.'”

Careful How You Respond – Especially if You’re a Physician

The bottom line for business owners and professionals is that a lawsuit in response to outrageous internet reviews and comments that make their blood boil and their businesses suffer may not be the best course of action.  While certain false statements of fact in such comments can be the basis of a defamation claim, business owners and professionals should carefully consider how to proceed lest their response make a bad situation worse.

This is especially true if you are a physician. Doctors and other health care professionals are regularly reviewed online, and some of those reviews come from disgruntled patients who may publicly criticize the treatment they received. The problem is that in an effort to defend the care they provided, some doctors have revealed confidential patient information in comments they have posted in response to negative reviews. Such HIPPA violations, as with other online professionalism mistakes, have serious licensing and regulatory consequences. Any doctor wanting to post an online response to a patient complaint should think long and hard about how they do so – and whether they should respond at all.