Employer Access of an Employee’s Personal Information on a Work-Device

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

Question: What information may an employer access from an employee’s employer-issued mobile device?

Answer: If proper procedures are followed, employers are entitled to recover any information an employee has stored on an employer-issued device.

Interception of Electronic Communications and the Cloud
As technology advances, sometimes the law is painfully slow in keeping up with it. While many people still don’t quite understand how “the cloud” works, it has been a way for people to store their information without having to plug a phone into a computer to keep it backed up. This process ensures users that should a phone become lost, damaged, or replaced, the cloud allows customers to easily access old information and provides a seamless transition to a different device that includes all of the messages, photos, contacts, and music that was on the previous device. While most people frequently use this type of technology with regards to cell phones, it is equally common to connect laptops and tablets to the cloud.

The cloud becomes complicated when it comes to employer-issued devices because the line between what is work and what is personal to the employee begins to blur. If an employee sets up a cloud account on an employer-issued device and receives personal text messages on that device, can an employer use that information in any future lawsuit stemming from the employer- employee relationship? If certain procedures are followed, then the answer is probably yes.

The federal government has enacted the Electronic Communications Privacy Act (commonly referred to as the “Wiretap Act”) which prohibits the unauthorized interception or access to electronic communications. The Wiretap Act imposes civil and criminal penalties on any potential offender. Similarly, the federal government has enacted the Stored Communications Act, which prohibits the unauthorized access of stored wire and electronic communications and transactional records held by third-party internet service providers (ISPs). The State of Florida has adopted provisions that mirror its federal counterparts.

Collectively, these laws would seem to hinder employers from accessing information that is received by, or is stored on, an employer-issued device. While the law is not fully up to date with regards to cloud technology, there two critical trends in the law that allow employers to access information on a employer-issued device.

First, the Wiretap Act has an intentionality requirement that means it will not apply to many employers. This means that if an employee downloads his or her cloud account onto an employer-issued device, the employee is the one who caused that information to be stored on that device, not the employer. In a recent federal case, an employer sued a former employee for violating the employee’s contractual non-compete clause, using texts the employer had received on a work iPhone because the employee set up an Apple iCloud account. The court ruled that the employee was at fault for setting up the cloud account, and the employer did not violate the Wiretap Act because the employer did not intercept the communications intentionally.

Second, both the Wiretap Act and Stored Communications Act have consent provisions that exempt certain parties from the law. While most employees don’t realize it, employment policy handbooks or manuals that are given to new employees may contain a consent provision that allows an employer to store and monitor communications on an employer-issued device. Several courts have found that these consent provisions, with regards to using an employer-issued device, are enough to overcome liability that may be imposed by the Wiretap Act and Stored Communications Act.

Conclusion
Provisions in employer-issued employee manuals may address what information the employer is entitled to access and monitor on employer-owned devices. As long as the employer is not taking proactive steps to confiscate personal messages from an employee, it is unlikely that any criminal or civil liability will arise. The employer may be able to use information stored on an employer-issued device in a dispute should an employee or former employee decide to initiate litigation against them. In any case, consulting with an attorney is the best course of action before using any information on an employer-issued device.

Questions can be submitted to thelaw@cclmlaw.com.

Construction Liens – Timing is Key

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Under Florida law, certain individuals and entities who provide labor, work, or materials for the improvement of real property may have a lien on the real property for the value of the labor or materials supplied. These liens are known as construction liens and are governed by Sections 713.001-713.37 of the Florida Statutes. These potential lienors may use construction liens to secure payment in the event they are not paid for their services. Even in cases where a contractor is paid in full, a supplier or subcontractor who has not been paid may still have lien rights against the property.

The process is different depending whether a potential lienor directly contracted with the property owner or whether the potential lienor is a subcontractor or supplier who contracted with the general contractor. In the latter case, the process for securing a lien includes the following:

The first step requires potential lienors to provide a “Notice to Owner”. A Notice to Owner is generally required to be served within 45 days of the potential lienor commencing to furnish his or her labor, services, or materials. The Notice to Owner statutory form can be found in Section 713.06(2)(c) of the Florida Statues. The Notice to Owner notifies the owner of the real property that the potential lienor has provided materials or services, describes the materials or services, and informs the owner that the potential lienor is entitled to a construction lien on the real property. Depending on the circumstances these notices must be served upon the owner, general contractor, designated person, and/or the lender for the project.

Following the Notice to Owner, a “Claim of Lien” may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor, or no later than 90 days after the termination of the contract between the general contractor and the owner. The Claim of Lien should be recorded in the clerk’s office for the county in which the property is located. The statutory template for a Claim of Lien can be found in Section 713.08(3) and must meet certain requirements as enumerated within the statute. The Claim of Lien must be served on the owner prior to recording or within 15 days after the recording of the Claim of Lien.

Constructions liens are generally valid for a period of one year after the claim of lien has been recorded. Any lienor who intends on enforcing his or her construction lien must file a lawsuit to foreclose the lien within the one-year period. An owner may shorten the one-year period from one year to 60 days by recording a “Notice of Contest of Lien.” The owner must also service the Notice of Contest of Lien on the lienor. If a lienor is served with this notice and fails to initiate a suit on the lien within 60 days, its lien will be extinguished.

Florida’s construction lien law framework can be very complicated and nuanced. It contains many pitfalls related to who is qualified to lien, notices and documents required to be served and recorded, and many strict deadlines. If the specific timeline and structure is not followed it can result in the loss of lien rights. To avoid these pitfalls and ensure your rights are protected, I recommend working with an attorney when dealing with Florida’s construction lien process.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Overview of Undue Influence Will Contests

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

The term “Undue Influence” is a legal cause of action that can be brought in court when it is believed that a deceased person’s Last Will and Testament (trust, deed, beneficiary designation, etc.) was the product of another person’s over-persuasion, duress, force, coercion… to such a degree that the person who signed the document did not use their own free will power in executing the document.  The person filing the lawsuit also needs to have been negatively impacted as a result of the alleged Undue Influence.

Undue Influence is often not discovered until after a person has died and (in the typical scenario) their Last Will and Testament is presented to the court for probate administration (the legal process of transferring assets from a person’s estate to the proper beneficiaries).   When a person submits a Last Will and Testament to probate, the person who files the probate case is only required to serve notice of the proceedings to the following people: decedent’s surviving spouse, beneficiaries, persons who may be entitled to exempt property, and trustees of any revocable trust (if the decedent had a trust).  Therefore, if a person who has exerted Undue Influence in the creation of the deceased person’s Last Will and Testament, those who were improperly disinherited may never even be notified by the wrongdoer.

If a person receives a “Notice of Administration” document in a probate proceeding, they only have three (3) months in which to bring a challenge before they are time barred.  If a person does not receive the requisite Notice of Administration document, the general rule is that you would have up to four (4) years from date of death to bring a challenge before it becomes time barred.   However, a recent case which is binding on the 2nd Circuit Courts of Florida found that the “Delayed Discovery Doctrine” applied to the specific facts of a certain case and therefore the person who was improperly disinherited was able to bring the legal cause of action after the four (4) years had expired. The Delayed Discovery Doctrine is merely an exception to the general four (4) year rule. It means that in specific circumstances, the statute of limitations will be extended by the court to give the plaintiff more time to file the lawsuit (up to a maximum of twelve (12) years) if the plaintiff didn’t know of (or reasonable should have known) of the circumstances that gave rise to their legal cause of action.

Determining whether Undue Influence has occurred is a question of fact for the judge or jury to decide. However, common factors the court will consider in making that determination are as follows:

  • The presence of the beneficiary at the execution of the testamentary document;
  • The safekeeping of the testamentary document by the beneficiary after execution;
  • The procuring of witnesses to witness the execution of the testamentary document by the beneficiary;
  • The beneficiary instructing the preparing of the testamentary document to the drafter;
  • The beneficiary knowing the contents of the testamentary document prior to the document’s execution;
  • The beneficiary recommending or selecting the attorney; and
  • The beneficiary’s presence on occasions when the now deceased person had expressed a desire to make the testamentary document.

This list is not all inclusive but are some of the key factors to be considered in determining whether or not a document was the product of Undue Influence.

If you believe you may have a valid claim of Undue Influence, you should speak with a knowledgeable probate attorney to ensure you understand your legal rights and when the statute of limitations on your possible cause of action will expire.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

To Survey or Not To Survey

By: Kyle Jensen, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Q: Should I obtain a survey for real property I am purchasing?

There are many issues a buyer must consider and pitfalls a buyer must avoid when purchasing real property, regardless of whether the buyer is acquiring a large commercial center or the buyer’s first home. Accordingly, an experienced buyer will thoroughly investigate prospective real property to determine whether such real property is suitable for the buyer’s intended purposes. One of the most important steps buyers often take when investigating real property is to obtain a survey.

A survey of real property is, in part, a depiction of the real property that portrays its boundary lines and dimensions and all of the improvements, easements, and other attributes located within the real property. The survey allows the buyer to, among other things, confirm the actual boundaries and dimensions of the real property, confirm none of the neighboring properties’ improvements encroach upon the real property, and confirm none of the improvements located on the real property encroach upon any easements or encroach into any adjacent property.

Once a survey is obtained, the buyer should thoroughly review the survey, with the assistance of a knowledgeable real estate attorney if possible, to determine there are no major defects on the real property, and that the real property is suitable for the buyer’s intended uses. For example, if a buyer purchases a residential home with the intention of constructing a porch on the back of the home, the buyer should confirm there are no easements or other encumbrances running behind the home that would prevent the buyer from constructing such porch; or if a buyer purchases a commercial property within a busy commercial center, the buyer should confirm none of the improvements located within the real property, such as the building sign, encroach upon the adjacent property.

The failure to obtain, or thoroughly inspect, a survey of real property can cause significant problems for the buyer after closing. In the examples above, the buyer of the residential property may be prohibited from constructing a porch in his or her back yard because the buyer failed to discover a utility easement in favor of a local utility company running behind the home; or the buyer of the commercial property may be required to demolish and rebuild its sign because it failed to discover the sign was actually located on adjacent property.

Therefore, while it may be tempting for a buyer to forego obtaining a survey in an attempt to save money, failure to obtain a survey can actually cost a buyer money in the long run, and, in the most severe of situations, may result in the buyer being unable to utilize the real property for the buyer’s intended purposes.

Kyle Jensen is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Are salaried employees exempt from overtime pay?

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

The Fair Labor Standards Act (the “FLSA”) is a federal law which regulates, among other things, minimum wage and overtime pay. The FLSA generally sets a workweek at forty hours and requires that employees receive overtime pay for any excess work hours over forty.

However, not every employee is covered by the FLSA. While the FLSA has expansive coverage, it does have certain requirements that must be met in order for employers and individuals to be covered. The FLSA generally covers companies that have revenue in the amount of $500,000.00 or more, as well as federal and local government employers. An individual can be covered, regardless of the revenue of the company they work for, if they are involved in interstate commerce. Interstate commerce is interpreted broadly under the FLSA and may include individuals who make telephone calls outside of their home state, process payments from out of state, and produce goods that will be sent out of state.

One common misconception under the FLSA is that salaried employees are exempt from the overtime pay requirements of the FLSA simply because they are paid a salary rather than on an hourly basis. While in many cases a salaried employee is an exempt employee under the FLSA, they still must meet one of the exemptions created by the FLSA to be exempt from the overtime requirements. Generally, for a salaried employee to be exempt from overtime pay they must meet one of the following “white collar” exemptions: the executive exemption, the administrative exemption, the professional exemption, the computer employee exemption, the outside sales exemption, or the highly compensated employee exemption.

Each of these exemptions requires that the employee make at least $455 per week in compensation. Beyond the salary requirement, each exemption requires that the employee have certain job duties. It is not enough to pay someone $455 per week and give them a certain job title. The employee’s duties must meet certain requirements. For example, to qualify under the administrative exemption, the employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and this primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. Each exemption has specific duties and requirements that must be met by the employee for an exemption to apply.

“Blue collar” workers, or those workers who perform manual work with their hands, physical skills, and energy are not exempt from the overtime requirements no matter how highly they are paid or how they are compensated. Police, firefighters, paramedics, and other first responders are not exempt from the overtime requirements of the FLSA. In

many instances employees working in agriculture as defined by the FLSA are actually exempt employees even though it may seem like they would be included with those workers who work with their hands and physical skills.

The important takeaway when dealing with exemptions is that just because someone has a salary or a certain job title does not exempt them from overtime. The real focus should be on the duties of that employee to determine if their job function meets the requirements for an exemption under the FLSA.

The FLSA is a complex federal law with many nuances that have not been specifically addressed in this article. When determining whether an employee is exempt under the FLSA I recommend that you have an attorney participate in the analysis and advise you as to that employee’s status under the FLSA. Treating a non-exempt employee as an exempt employee can be a costly mistake resulting in litigation and the awarding of damages. Damages awarded can be double the amount of the actual unpaid wages owed as a result of treating a non-exempt employee as an exempt employee.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

The Basics of Medicare

By: Kevin R. Albaum, Esq.

Medicare is government health insurance that is administered by the Centers for Medicare and Medicaid Services (“CMS”). As a general rule, anyone is who is sixty-five (65) years old and is either a U.S. citizen or a permanent resident (who has lived in the United States at least 5 years) may receive Medicare health insurance coverage. Additionally, individuals under age sixty-five (65) who have been receiving Social Security Disability benefits for 24 months may also be eligible for Medicare benefits. In the typical scenario, a person becomes first eligible to enroll in Medicare three (3) months before their 65th birthday and then has seven (7) months after their initial eligibility date to enroll in Medicare coverage options discussed below.

Medicare consists of 5 different types of coverages as follows:

Part A- Hospital Coverage: This coverage pays for room and board in the hospital or skilled nursing care (for a short period of time). Cost: In most instances, there is usually no premium as long as you or your spouse has worked 10 years in the U.S.

Part B- Outpatient Coverage: This coverage pays for things like lab work, doctor visits, surgeries, medical equipment, etc. Parts A and B combined are considered “Original Medicare”. Cost: The premium is generally $134 per month unless you are a “high-income earner”, in which case the premium may be higher. If you are already receiving Social Security retirement benefits, the premium may be deducted automatically from your monthly benefits.

Part C- Medicare Advantage Plans: Medicare Advantage Plans or “MA Plans” are an alternative to a combination of Original Medicare (Parts A and B). These “all-inclusive” plans are administered through private insurance companies instead of the government-run Original Medicare. They were created to provide a lower-cost alternative to Original Medicare, and MA Plans often create cost savings by offering the subscriber lower premiums along with higher shares of costs as you need medical services. There are a variety of these plans offered. Most of them are either Preferred Provider Organization Plans (“PPOs”) or Health Maintenance Organization Plans (“HMOs”). These PPOs and HMOs have health care providers “in network”, and you may be required to use in-network providers if you want to keep your co-pays and deductibles low for medical services. The benefits offered by the different plan options vary in coverage and cost, but they are required to provide at least the same level of coverage as Original Medicare. MA Plans may also offer other options for dental, vision, drug coverage and some other benefits.

Part D- Prescription Drug Coverage: If you choose Original Medicare, you will likely also want to also enroll in a prescription drug coverage plan. A prescription drug plan will be purchased from a private insurance company and will enable you to purchase prescription drug prices for much lower than retail prices. Cost: The average national premium is averages $35 per month for a Part D plan. The Medicare website allows you to search and compare available Part D plans in the region where you live. Before you choose a Part D plan, it is recommended to carefully examine the company’s formulary drug list under the plan to make sure it provides for your current drugs. If the drug is not provided under the plan, you may be subject to a higher price.

Medigap Coverage a/k/a Supplemental Plans: Medigap plans cover what Medicare Parts A and B do not cover, such as deductibles, coinsurance, copays, foreign travel emergencies, etc. The point of Medigap coverage is to pay a monthly premium to avoid being hit with an astronomically large bill as medical needs occur. Medigap plans are on average more expensive than MA Plans. because Medigap plans offer more inclusive coverage. Under Medigap plans the subscriber may not be required to pay co-pays for certain medical services. The subscriber may also have more freedom to choose providers than if they were in a MA Plan with in-network restrictions.

A retired person without any employer coverage should either have a MA Plan (from a private insurance company) that covers hospital coverage, outpatient coverage, and prescription coverage or a combination of Part A and Part B (from the Government) and Part D and a Medigap plans (from private insurance companies).

Open Enrollment

Each year there is an annual election period when you can switch your Medicare Insurance options. That period begins October 15th and ends December 7th of each year. This means that during this period you can switch MA plans, switch prescription and Medigap plans. If you miss enrolling for Medicare when first eligible, there is another general enrollment period from January 1st through March 2st1 each year. During this period, you may have to pay a late-enrollment penalty (unless you qualify for an exception such as having your employer’s insurance end).

What if I am still working?

If you are sixty-five (65) years old and still working, you will likely have options between Medicare coverage and employer insurance. You can either keep your employer insurance and incorporate Medicare coverage as well or you can drop your employer insurance and obtain solely Medicare coverage. You decide when to leave your employer’s health insurance to join Medicare. It is illegal for your employer to force you to choose Medicare versus remaining on the employer’s health insurance coverage.

If you work for an employer with 20 or more employees, your employer insurance will be primary and Medicare will be secondary coverage. Part A is free if you worked 10-plus years Therefore, there would be no reason not to enroll in Part A upon turning age sixty-five (65). Part B has a premium of around $134 a month, so it may make sense to contact CMS and delay enrolling in Part B if your employer insurance coverage is sufficient for outpatient services. Part D also has a premium, and therefore, if your employer insurance has suitable prescription drug coverage, you may wish to delay enrolling in Part D. Once you retire and are sixty-five (65) and older, your employer’s insurance plan will mail you a credible coverage letter allowing you to enroll in Parts B and D without any penalty.

If you work for an employer with less than 20 employees, Medicare is your primary insurance coverage when you become eligible to apply you will need to enroll in Medicare Parts A and B and your employer coverage will become secondary coverage. In this case, people often decide to drop their employer coverage (if it is not paid for by the employer) and have Medicare only. If you elect to keep your employer coverage, however, you need to consider whether your employer’s insurance offers suitable drug coverage. If so, you may wish to delay enrolling in Part D until you retire as you are required to only enroll in Parts A and B in this scenario.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

The Basics Surrounding Homeowners Association Turnovers.

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

One of the most important events a homeowners association will face is its “turnover” or “transition” from the developer of the community to the unit owners. Despite the importance of a turnover, what I’ve found is that many unit owners are unaware of the basics surrounding a homeowners association’s transition. This article is intended to serve as an overview of the transition process for homeowners associations and developers that may be undergoing the process, are on the verge of a transition, or who just want to educate themselves on what a proper turnover entails.

“Transition” or “turnover” of any homeowners association means that the unit owners of the association, as opposed to the developer, are now entitled to elect at least a majority of the members of the association’s board of directors. This is a huge step for any association, as the board of directors, or board, serve as the voice of all unit owners while also conducting the day-to-day affairs of the association. For homeowners associations, the turnover process is governed by Section 720.307, Florida Statutes. Section 720.307 provides that a turnover is triggered upon any one of the following six events occurring:

  1. Ninety percent (90%) of the parcels in all phases of the association have been purchased, in which case turnover must occur within three (3) months of the developer reaching the 90% sale threshold;
  2. Some other percentage of parcels have been purchased, a certain “triggering” event has occurred, or a specified date has been reached, as particularly specified in the association’s governing documents;
  3. The developer abandons its responsibilities to maintain and complete the amenities or infrastructure as disclosed in the association’s governing documents;
  4. The developer files for Chapter 7 bankruptcy;
  5. The developer loses title to the association property via foreclosure or a deed in lieu of foreclosure, unless the subsequent owner has accepted an assignment of the developer’s rights and responsibilities; and
  6. A receiver is appointed by a circuit court judge for longer than thirty (30) days, unless the court determines that the transfer of control would be detrimental to the homeowners association;

Upon the occurrence of any of the above triggering events, unit owners, other than the developer, are legally entitled to elect at least a majority of the association’s board. However, so long as the developer is still holding for sale at least five percent (5%) of the association’s parcels, the developer remains entitled to elect at least one member onto the association’s board.

Section 720.307 goes on to provide that once unit owners have had the association turned over to them, the developer must also “turnover” all of the association’s documents to the association. These documents include, but are not limited to, the original recorded declaration of covenants, a certified copy of the association’s articles of incorporation, a copy of the bylaws, the minute books, financial records (more on this below), bank accounts and statements, personal property of the association (i.e. indoor and outdoor furniture, office equipment, computers), and all of the construction plans and specifications, which must include a list of the names, addresses and telephone numbers of all contractors, sub-contractors, or others in the current employ of the association. The developer is also required to provide unit owners with copies of all insurance policies, certificates of occupancy, permits, warranties, unit owner roster, and all of the contracts that the developer controlled association may have executed for services such as cable, telephone, security and other services.

Importantly, for all homeowners associations incorporated after December 31, 2007, the financial records that the developer must provide to the unit owner controlled association must be audited by a certified public accountant. Additionally, the audit must cover the time from incorporation up and until turnover, or the time span from the most recent audit to turnover, if an audit has been performed for each year since inception. The purpose of these stringent audit requirements is to allow the unit owner controlled association to determine whether all expenditures were made for association purposes, and to also determine if the billings, cash receipts and related records reflect whether the developer was charged, and in turn paid, the proper amount of assessments.

Hopefully this step-by-step analysis will help prepare developers and unit owners facing a “transition” or “turnover” of their association. However, if the procedures – as outlined above – are not followed properly, it can result in expensive legal exposure that ultimately could have adverse effects for the association, its finances, and its unit owners. This is why you, as a developer or interested unit owner, or your association, should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance on the appropriate turnover procedure for your specific association.

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

Litigation

How a Judgment Becomes a Lien

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

At the end of a lawsuit, the prevailing party often ends up with a final judgment awarding it some monetary amount from the losing party. This amount can include amounts for damages, attorney’s fees, and costs.

In many cases, obtaining the judgment is only the first step in recovering any money awarded. Collecting on a judgment can sometimes be more intensive than actually getting the judgment awarded by the court.

While there are many active ways to attempt to collect on a judgment such as garnishing wages and bank accounts, judgment creditors can also use their judgment to create a lien on the judgment debtor’s real and personal property.

Real Property

Real property is land and the buildings which occupy the land. A judgment can become a lien on the judgment debtor’s real property. In order for a judgment to become a judgment lien on a judgment debtor’s real property, a certified copy of the judgment must be recorded in the official records of the county where the judgment debtor owns real property. Additionally, the judgment itself must contain the address of the individual who possess the lien as a result of the judgment or an affidavit must be simultaneously recorded with the certified copy of the judgment stating the lien holder’s address.

Once a judgment is recorded as described above, it becomes a lien on real property. Importantly, a judgment lien is only effective in the county for which it is recorded. If a judgment is recorded in Polk County but the judgment debtor only owns real property in Orange County, the judgment holder has not created a lien on the judgment debtor’s property. As a result, great care must be taken to ensure that the judgment is recorded in the appropriate counties to create a lien on a judgment debtor’s property.

Judgment liens on real property have an expiration date. Under the current law, a judgment lien recorded on or after July 1, 1994 remains a judgment lien on real property for ten years from the date of its recording. A judgment lien holder can extend this period for one additional ten-year period by rerecording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the lienholder. An extension is effective from the date the certified copy of the judgment is rerecorded. No judgment can act as a lien on real property in Florida after twenty years from the date of the entry of the judgment expires.

Personal Property

A judgment can become a lien on the judgment debtor’s personal property by filing a judgment lien certificate with the Florida Department of State. The Florida Department of State produces a form Judgment Lien Certificate which can be filled out and filed with the department in order to create the lien on personal property. A judgment lien on personal property becomes effectives the date it is filed.

A judgment lien on personal property also has an expiration date. A judgment lien pursuant to a judgment lien certificate, becomes invalid five years after the date of the filing of the judgment lien certificate. However, at any time within six months before or six months after the scheduled lapse of a judgment lien, the judgment creditor may acquire a second judgment lien by filing a new judgment lien certificate. The effective date of the second judgment lien is the date and time on which the judgment lien certificate is filed. The second judgment lien permanently lapses and becomes invalid five years after its filing date, and additional liens based on the original judgment or any judgment based on the original judgment may not be acquired.

When dealing with liens time is of the essence as liens are generally prioritized by the time with which they were recorded or filed. If someone records their judgment first or files their judgment certificate first, it will generally be superior to those liens that are recorded or filed later in time.

Florida law does provide for certain homestead exemptions which exempt a judgment debtor’s homestead and some personal property from forced sale and from judgment liens. If you believe that certain property may be protected by Florida’s homestead exemption it is recommended to consult with an attorney regarding these rights.

If you were recently awarded a judgment, or are attempting to collect on a judgment, I would advise hiring an attorney to streamline the process and to make sure your judgment is perfected appropriately against the assets of the judgment debtor.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Supreme Court: Sports Betting is No Longer Prohibited Under Federal Law, it is Time for Each State to Decide for Themselves

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

On May 14, 2018, the United States Supreme Court (USSC) struck down the Professional and Amateur Sports Protection Act of 1992 (the “Act”) by ruling that the entire Act was unconstitutional. Since the Act was enacted in 1992, it implemented a federal ban on all sports betting throughout the United States (with only a few exemptions from the Act such as the gaming industry in Nevada). The USSC’s ruling was based on the belief that the Act violated the Tenth Amendment of the United States Constitution which states that “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. USSC’s ruling is saying that Congress had unconstitutionally abused their power by passing the Act and that each state should be responsible for deciding for themselves how their state should regulate sports betting. It is likely that the same line of reasoning (violation of Tenth Amendment) will be argued by the pro-marijuana side if the USSC decides to review a case in the near future regarding the legality of the federal ban on Marijuana.

Now that the USSC has handed down a decision, each state is able to regulate their own sports betting laws. Some states are acting fast as Delaware implemented legal sports betting on June 5, 2018, and Delaware Governor, John Carney, placed the first bet ($10.00 on the Philadelphia Phillies to win that day’s game) and on June 7, 2018, New Jersey had a bill pass allowing for legal sports betting. Other states (Connecticut, Mississippi, and West Virginia) are all expected to legalize sports betting by this fall in time for football season. California, Illinois, Michigan and New York all currently have bills or constitutional amendments pending that may pass before the end of 2018 as well. The legalization of sports betting is supposed to help cut down on a black-market industry where it is believed that Americans illegally wager over $150 Billion per year either through local bookies and offshore sports books. New Jersey will tax all gambling at a 9.75% tax rate with hopes to stimulate their revenue and to revive the dying tourist industry in Atlantic City. As many as twenty (20) other states are either considering or expected to consider legalization of sports betting by 2019 with more states likely to follow (especially if they see their neighboring states generating substantial revenue due to legalizing sports betting).

In Florida, sports betting remains illegal and that seems unlikely to change in the near future. This is due to a proposed constitutional amendment and an existing agreement with the Seminole Indian Tribe that both currently stand in the way of clarity to the legalization of sports betting in Florida. Amendment 3 will be on all Florida ballots this November and if passed will require that all casino gambling decisions in Florida would require an amendment to Florida’s Constitution in order to become law in Florida. If Amendment 3 passes, Florida’s legislature would no longer have the authority to create legislation related to casino gambling. The presence of Amendment 3 and the fact that this year’s session has already concluded makes is very unlikely for sports betting to become legal in Florida this year. Native American tribe agreements with the state of Florida will not be impacted by Amendment 3 (nor will pari-mutuel wagering on horse racing and dog racing).

About one-half of the states in U.S. have gaming agreements known as “Compacts” with Native American tribes which gives tribes the ability to conduct legal gambling operations. Currently, the Seminole Indian Tribe has a Compact with Florida and they pays the state more than $300 million a year for exclusive right to many card games and slot machine operations in the state in all counties besides Miami Dade and Broward. A renegotiation between the Seminole Tribe and the State of Florida is likely also needed before legal sports betting makes its way to Florida.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Enforcing community association rules by imposing fines.

By Dan Rich

One of the most common challenges for community associations is how to effectively enforce association rules against residents who repeatedly violate them. To start, it is important that the rules and regulations, as set forth in a community’s governing documents, be enforced consistently for each and every member, director, officer and resident or else the rules may be rendered unenforceable over time. If a community is faced with a repeat violator who has no intent of complying with the community’s rules, one of the most effective tools an association can use is to impose fines against the violator.
As of 2015, Florida law allows both homeowners and condominium associations to impose fines against members, tenants, guests and invitees who violate a community’s declaration of covenants, articles of incorporation, bylaws or any rules adopted by the association. For both homeowners and condominium associations, Florida statutory law provides that fines may not exceed $100.00 per violation, and that the fines may be imposed for each day that a violation continues, with the statutory mandate that fines cannot exceed $1,000.00, in total, per violation.

It is imperative that an association follow the statutory procedures as they are specifically outlined in Chapters 719 and 720, in order to impose fines at a later date. The steps necessary for imposing a fine are summarized below:

  • Step One. Establish a fining committee: An association’s board of directors must appoint an independent committee, often called the “fining committee” or “compliance committee” as its first step towards imposing fines. Fining committee members cannot be officers, directors, or employees of the association, nor can they be a spouse, parent, child, brother or sister of an officer, director or employee. The homeowner association statute requires a minimum of three (3) committee members, and the condominium association statute is silent as to the required number of committee members; however, selecting an odd number is often encouraged to avoid ties and unnecessary deadlock.
  • Step Two. Place violator on notice: After establishing the fining committee, and upon the occurrence of a violation, the association’s board of directors may place the violating resident (owners and tenants alike) on notice of the violation. Often times, it is most practical to send a courtesy notice warning the resident of their violation. Courtesy notices should contain the nature of the violation, the rule or regulation being violated, and provide a reasonable time frame to remedy the violation. If the violation remains uncured, the association is permitted to impose a fine; however, the violator must be provided with an additional notice, before the fine can take effect, stating that the violator has fourteen (14) days to request a hearing in front of the fining committee to dispute the validity of the fine before it is imposed.
  • Step Three. Fining committee hearing: If the violator requests the hearing mentioned in Step Two above, he or she is afforded an opportunity to appear in front of the fining committee to dispute the validity of the fine being imposed against the violator. The fining committee then has two options: (i) impose the fine levied by the association’s board; or (ii) overturn the fine – at which point the matter ends and the fine is no longer actionable. If the violator fails to request a hearing, for any reason, the fine can be imposed immediately at the end of the fourteen (14) day period.
  • Step Four: Collect the fine. If the fine is approved by the fining committee, the minutes from the meeting should be provided to the association’s board so that they can impose the fine. Typically, the fine is placed onto an invoice and transmitted directly to the violator. As stated previously, fines cannot exceed $100.00 per violation, but can be assessed against the violator for each day that the violation continues until the aggregate amount reaches $1,000.00. Only one fourteen (14) day notice and one opportunity for a fining committee hearing is required, thus, subsequent notices or hearings for the same fineable violation are not necessary. The association laws differ on how a maximum fine can be collected. In homeowners associations, the law provides that once the maximum fine is reached a lien can be recorded against the violator. However, for condominiums, the right to lien is absent. As such, the condominium association must pursue a collection action using the courts, or await a sale and then recoup the amount of delinquent funds at that time.

Hopefully, this step-by-step analysis will help association’s better address compliance and enforcement issues. However, if the process – as outlined above – is not followed properly, it can result in expensive legal exposure that ultimately could invalidate the fine. In fact, if a fine is challenged in court, the opposing counsel will first attack the association’s process in an attempt to invalidate the fine. This is why if you or your association should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance.

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