May 2016 – LakelandLaw.com

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is radon, and how can it affect my property?

A: Radon is a radioactive, colorless, odorless, and tasteless gas occurring naturally as a decay product of radium, and thus radon is not readily detectible or observable by the human senses. Radon is considered a health hazard due to its radioactivity, and studies have shown a link between high concentrations of radon and lung cancer. According to the U.S. Environmental Protection Agency (EPA), radon is the second highest cause of lung cancer after cigarette smoking, and radon causes an average of 21,000 lung cancer deaths per year in the United States.

Radon levels are measured by picocuries per liter (pCi/L). An average of about 1.0 to 2.0 pCi/L is typical for indoor radon exposure, and the EPA recommends immediate remedial action for anything above 4.0 pCi/L.

Radon is produced by the radioactive decay of radium-226, which is found in uranium ores, phosphate rock, which has been mined extensively in Polk County over the years, shales, igneous and metamorphic rocks such as granite, and to a lesser degree in common rocks such as limestone, which is found throughout all of Florida.

Radon typically enters a building directly from the soil through the lowest level of a building that is in contact with the ground. Entry points of radon into a building, particularly an older building, are cracks, gaps, and cavities in the building as well as the water supply.

Of great concern in Polk County is phosphate mining and the impact phosphate mining has had on the environment over the years. Phosphate is typically found buried beneath an approximate 10 to 20-foot crust of ground referred to by miners as “overburden.” Radioactive compounds containing uranium and radium, which are dug up during the mining process, are also buried beneath the overburden and mixed with phosphate. Over many years, houses have been built on land which was extensively mined, particularly in the area between Lakeland and Mulberry along Highway 37 or what is known as South Florida Avenue.

Whenever buying or renting property, it is important to read the fine print. Florida Statute § 404.056 requires that any contract for the sale and purchase or rental agreement for the leasing of any building provides a warning about radon and its dangers. While this statute warns buyers and renters, it does not have much bite. If you are buying a home, be sure to pay close attention to the answers provided in the standard Seller’s Property Disclosure regarding any radon issues and have an attorney review all of the documents. If you are building a new home, talk to your builder about radon prevention measures you can take.

If you are buying or renting a property in an area where there has been extensive mining, you should test for radon. Simple test kits requiring a few days of testing are available online and you can hire a certified radon inspector to test for radon as well. The devil is in the details, and it is important to know your rights when buying or renting property and the impact it can have on your health and the health of your family and loved ones.

The June 2nd edition of “The Law” will discuss legal issues surrounding poorly written contracts.

By: Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

Q: Can a homeowners association prohibit the display of political yard signs?

A: As the 2016 presidential election draws closer, it is inevitable that we all will start seeing political signs popping up everywhere. You will find them plastered in windows, at most, if not all, intersections, and probably even along the median of I-4. But, oddly enough, one place you may not see any political signs is in your yard if you happen to live in a homeowners association.

The majority of governing documents for homeowners’ associations prohibit signs of any type from being placed on owners’ lots. But you may be thinking, “Can my association legally restrict me from exercising my freedom of speech?” The short answer is yes, and this is why.

Freedom of speech applies only when there is what is called “state action,” or in simpler terms government action. Basically, freedom of speech prevents federal, state and local governments from restricting our speech or restricting actions that express our views. But homeowners associations are private, not government, actors and therefore may impose restrictions and regulations on speech that the government simply cannot. Furthermore, when you purchase a home in a community that happens to be governed by covenants and restrictions, you are essentially entering into a contract where you have agreed to abide by all those rules and regulations. What this means is that if you live in a community that regulates the public placement of signs, you have technically contractually agreed to forbid yourself from placing any signs on your property, including political signs.

While published Florida case law may not have addressed the issue of political signs directly, a 1989 appeals court decision involving Quail Creek Property Owners Association in Naples sided with the association over the demand for an owner to remove a “For Sale” sign from his front yard. The court held that the association was not a governmental entity and that there was no “state action.” Therefore, the enforcement of the sign restriction did not violate the owner’s free speech rights. While this decision relates to a “For Sale” sign, and not a political sign, it is important because it illustrated the courts deference to the homeowners associations’ rules and regulations when there is no “state action.”

Understanding whether you can proudly display your political signs as the election draws closer and the debates intensify is an interesting legal question that requires owners to review their community’s governing documents, and for the association itself to consider whether or not to amend its governing documents to add language regarding signs.

The May 19^th edition of “The Law” will discuss the effects of radon on property and particular concerns in Lakeland.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com