Don’t Get Bitten by Pet Liability

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

Q: What is my liability if my dog bites someone?

A: While each year only about one or two Floridians die from dog bites, some five hundred state residents could go to the hospital with injuries. In what is hopefully not a signal that the legislature thinks dogs are inherently dangerous nuisances, a whole chapter of Florida Statutes covers damage by dogs. Some of the provisions are more unusual than others, such as that it is lawful to kill a dog roaming over the country if that dog is known to have killed sheep. (Please think twice before assuming a loose dog in your neighborhood fits this definition.)

The most talked about provision is the “dog bite statute”, which generally pegs the pet owner with responsibility for his dog biting anyone who is not trespassing. One exception or reduction to the owner’s liability may exist if the bitten person negligently provoked the dog in a way that the person should have known would lead to a bite. Also, where the owner posts a conspicuous sign at his home reading “Bad Dog”, he may be able to limit or eliminate his liability for bites (except where those bites are of children under 6 or where the owner has acted negligently, which could include failure to supervise children). Of course, the owner should not expect to get such protection if he tells his party guests to ignore the yard sign’s warning.

Despite a common misconception otherwise, Florida does not have a “one free bite” rule allowing owners insulation from liability when their dogs have not shown prior dangerous tendencies. However, dogs deemed “dangerous” or under investigation by animal control authorities are subject to heightened standards (that may differ from county to county) and strict criminal penalties for owners of such dogs who do in fact bite.

One final point: reduce your worries by verifying that your homeowner’s insurance covers your dog’s bites.

 

The March 12th edition of “The Law” will cover crafting an effective power of attorney as part of your estate and long-term care plan to help you delegate authority and avoid fraud or misuse of your assets.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Toolbox Grows for HOAs with Delinquent Owners

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

Q: How can homeowners’ associations collect assessments while awaiting a first mortgage holder foreclosure?

A: Depressed property values and myriad bank-owned properties have left lenders slow to foreclose. Homeowners may enjoy delay; but, HOAs can lose out on their assessments.

Recent changes in Florida law have altered the assessment collection landscape.

First, an HOA can now foreclose on its lien for unpaid assessments without cutting off a future buyer’s liability for past assessments. Associations now have an incentive to foreclose, take ownership and rent out the premises during the pendency of the first mortgage foreclosure.

Second, associations can now request an “order to show cause” at the outset of the mortgage foreclosure, forcing the court to require the homeowner to show cause for why a foreclosure judgment should not be immediately entered. This change may end up greatly reducing a lender’s delay.

As most associations are aware, associations typically can recover up to 12 months of past assessments from the foreclosing lender if the lender takes title after the foreclosure sale.

Please note, however, that a federal court in January cut off that liability because of lender-friendly language in one association’s governing documents. It is of the utmost importance for associations to review and amend documents as necessary to remove impediments to collecting assessments.

The March 13 edition of “Simply the Law” will cover maximizing homestead exemptions, particularly for senior citizens.

Questions may be submitted online only to simplythelaw@clarkcampbell-law.com.

Occupants Who Don’t Sign the Lease Do So at Their Own Peril

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

A: When entering into a residential lease agreement, tenants may consider having one or more occupants not sign the lease. This issue often arises because tenants think it is unnecessary for all of them to sign, some tenants do not anticipate remaining in the residence for the entire lease term, or because a tenant’s credit may impact his or her ability to be approved. Tenants should consider the legal ramifications and potential costs of signing or not signing the lease.

Each tenant who signs the lease is bound by the terms of the lease and is liable for all rent due under the lease. Tenants who occupy the residence but have not signed the lease may not, depending on the lease terms, be liable for rent. If a non-signing tenant refuses to contribute, the signing tenant is still responsible for the rent, and the landlord is likely to pursue the signing tenant, and not the non-signing tenant, for that rent.

If the lease does not specifically provide that the non-signing tenants may reside in the residence, those tenants may be staying in the residence illegally. If the illegal tenants fail to leave upon the landlord’s demand, the landlord typically has the right to terminate the lease and evict all tenants, regardless of whether they have paid rent.

Finally, a non-signing tenant’s rights to remain in the residence are subject to the rights of the signing tenant. Depending on the lease or other agreements between the parties, the signing tenant may be able to evict the non-signing tenant. Non-signing tenants should consider his or her rights under the lease and whether it would be prudent to enter into a separate agreement with the signing tenant that sets forth the terms upon which the non-signing tenant can stay in the residence.

The February 26th edition of “The Law” will cover Florida dog bite laws and other pet ownership liability issues.

Refunds and Store Credits

By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: “I returned merchandise and received a certificate from the store against future purchases. May the store impose time limits or other conditions on my use of the certificate?”

A: Generally, no. Under section 501.95, Florida Statutes, a “credit memo” (defined as “a certificate, card, stored value card, or similar instrument”) issued in Florida in exchange for returned merchandise, when the instrument is redeemable for merchandise, food, or services, may not have an expiration date, expiration period, or any type of postsale charge or fee imposed on it, including, but not limited to, service charges, “dormancy” (non-use) fees, account maintenance fees, or cash-out fees. Credit memos sold or issued by financial institutions or money services businesses, however, are not subject to these rules if the credit memo is redeemable by multiple unaffiliated merchants.

 

Q: “Are Florida retail establishments required by law to offer a refund, credit or exchange on goods sold?”

A: No. However, section 501.142, Florida Statutes, requires a retail establishment that sells goods to the general public and offers no cash refund, credit refund, or exchange of merchandise to post a “no refund” sign at the point of sale. The absence of such a sign means the store has a refund or exchange policy. A copy of the policy must be given, in writing, to a consumer upon request. A store that fails to comply with these rules must give the consumer, upon request and proof of purchase, a refund (not an exchange or credit) within 7 days from the date of purchase. The merchandise must be unused and in the original carton (if there was one) when the merchandise was purchased. Food, perishables, custom-made goods, custom-altered goods, or goods that are prohibited by law from resale are exempt from these rules.

 

Q: “Who enforces these laws? Are there penalties for non-compliance?”

A: The Florida Department of Agriculture and Consumer Services is principally charged with enforcing these laws. If the Department finds that a person has violated or is operating in violation of any of these laws, it may enter an order imposing a civil fine not exceeding $100 per violation and/or order the violator to cease and desist. Local governments may also issue a warning for a first violation and fines of up to $50.00 per violation for second and subsequent violations. An aggrieved consumer has no private right to sue at this time.

“Oh, You Shouldn’t Have!”

By Joseph A. “Jay” Geary
Clark, Campbell, Lancaster & Munson P.A.

Q: Do the gift cards I received during the holidays expire? Are there any charges or fees for use or non-use?

A: Generally, Florida law provides that consumer “gift cards” (i.e., instruments issued on a prepaid basis primarily for personal, family, or household purposes) are not subject to expiration dates or fees. However, as with any general rule, there are exceptions.

Florida law (§ 501.95(1) (b), Fla.Stat.), defines a “gift certificate” as:

* * * a certificate, gift card, stored value card, or similar instrument purchased for monetary consideration when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction, but this term shall not include [theme park and entertainment] tickets * * * or manufacturer or retailer discounts and coupons.

Under Florida law, the general rule is that a gift certificate purchased in Florida may not have an expiration date or period, or any type of post-sale charges or fees imposed on the gift certificate, such as service, “dormancy” (i.e., “inactivity”), account maintenance or cash-out fees.

Nevertheless, a “gift certificate” may have an expiration date of not less than three (3) years if given as a charitable contribution, or not less than one (1) year if given as part of an employee incentive plan, AND, in either case, the expiration date is prominently disclosed in writing at the time it is provided. Gift certificates given by a financial institution or a money services business (for example, pre-paid Visa debit cards) may have expiration dates if redeemable by multiple unaffiliated merchants.

This article describes Florida law applicable to “gift certificates”. Certain federal laws also apply to gift certificates, gift cards, general-use pre-paid cards and to “loyalty, award, or promotional” gift cards. The last category of cards may allow the imposition of service fees, dormancy charges, and expiration dates, provided they are prominently disclosed when the card is issued. Federal laws exempt certain cards from the restrictions on expiration, fees and certain charges, including cards: for pre-paid telephone services; not marketed to the general public; and issued in paper form only.

The January 15 edition of “The Law” will cover liability for damage from your neighbor’s overhanging tree limbs.

[Joseph A. “Jay” Geary is a shareholder with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Making Sure Your Donations Are Deductible

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

Q: During the Christmas season I donate money and toys to various organizations. Are these donations tax deductible?

A: Yes, in certain situations charitable donations are tax deductible; however, the situations in which an individual taxpayer may claim a deduction for such donations are relatively limited. As an initial matter, a charitable donation is the donation of money or property to an organization without the actual or anticipated receipt of a benefit. If a donation entitles an individual to merchandise, goods, or services, including admission to a charity ball, theatrical performance, or sporting event, the charitable donation is only that portion of the donation that exceeds the fair market value of the benefit received.

Charitable donations are tax deductible only if the individual taxpayer itemizes his or her deductions and only if the charitable donations were made to an organization that qualifies under Section 170(c) of the Internal Revenue Code. The IRS maintains a searchable database of qualifying organizations that may be accessed at http://apps.irs.gov/app/eos/. Furthermore, the amount of the tax deduction an individual taxpayer may claim for charitable donations in a given year is capped at fifty percent (50%) of the individual’s adjusted gross income. This cap is lowered to thirty percent (30%) of an individual’s adjusted gross income for charitable donations to certain private foundations, veterans’ organizations, fraternal societies, and cemetery organizations.

Finally, most charitable donations must be substantiated. Donations of household items, such as toys, clothes, furniture, and appliances, worth $250.00 or more must be substantiated by a written acknowledgement from the charity receiving the donation. Such acknowledgement must include the name of the charity receiving the donation, the date of the donation, and a reasonably-detailed description of the items donated. Donations of money, regardless of the method of payment or amount, must be substantiated by a bank record or a written acknowledgement from the charity receiving the donation. Cancelled checks and bank, credit union, or credit card statements are generally sufficient to substantiate a donation of money. Due to these substantiation requirements, you should ensure that you obtain a written acknowledgement when you donate cash or significant amounts of property.

The January 1st edition of “The Law” will discuss gift certificates, credit memos and refunds. Questions may be submitted online to thelaw@clarkcampbell-law.com.

Civil Remedies For Worthless Checks

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

Q: My customer’s check bounced, and he won’t return my calls. What can I do to recover?

A Every day in Florida individuals and businesses receive payments for goods or services in the form of “payment instruments”, which include checks, debit card orders and electronic funds transfers. Unfortunately, many of these payments are “worthless”, because they have been dishonored by the drawee banks or credit unions for lack of funds, lack of credit, lack of account, or the maker has stopped payment. When a worthless payment is issued, and the maker refuses to issue a good check or make payment in another form, Florida law provides the payee with civil remedies that allow the payee to recover from the maker the amount of payment, bank fees and service charges. This article focuses on worthless checks, although the civil remedies discussed also apply to other “payment instruments”.

The payee of a worthless or “bounced” check is entitled to demand and receive from the maker the full amount (i.e., the face amount) of the worthless check, along with any bank fees incurred and a service charge. The payee must first send a written demand by certified mail that notifies the maker that the check was dishonored, lists the full amount owed, and that states the maker must pay the full amount owed in cash within 30 days from the date of receipt of the letter. If, after 30 days, the maker has not paid the payee the entire amount owed, the payee then may file a civil suit against the maker and seek three times the amount of the worthless check, plus bank fees and service charges, court costs, and reasonable attorney fees.

Because of the expense, and uncertain outcome of civil actions, including the possibility of an uncollectable judgment, payees should take the following precautions when issued a check, not only to ensure the check is valid, but also to ensure recovery from the maker if the check is dishonored. First, the payee should always confirm the full legal name and home address of the maker of the check through a government issued form of identification. Second, a payee should never accept a check that is post-dated or has no date on it since that may prevent criminal prosecution if the check is dishonored. Finally, a payee should never accept checks from third parties if the identity of the maker or whether the check was stolen or forged cannot be immediately confirmed.

The December 18th edition of “The Law” will discuss end-of-year tax issues. Questions may be submitted online to thelaw@clarkcampbell-law.com.

Keeping Information Private

By Joseph A. “Jay” Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: How does the new Florida Information Privacy Act affect my business?

A: On June 20, 2014, Governor Scott signed into law the “Florida Information Privacy Act of 2014,” Florida Statutes, Section 501.171 (“Privacy Act”), which became effective on July 1, 2014. The Privacy Act repeals and significantly changes an earlier (2005) electronic data privacy law, Florida Statutes, Section 817.5681, and is in addition to existing federal laws intended to safeguard the confidentiality of personal health information and personal financial information. Businesses should immediately become acquainted with the requirements of the Privacy Act, particularly the reporting and notification requirements. The salient features of the Privacy Act are as follows:

Ÿ      If a business acquires, maintains, stores or uses “personal information”, provided by individuals in Florida in order to purchase or lease products or services, and the business records and preserves that data in electronic form as “customer records” on a computer system, data base or digital mass storage device, then the business is a “covered entity” – i.e., subject to the Privacy Act.

Ÿ      A “covered entity” includes a “sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other commercial enterprise” that receives “personal information” from individuals “in this state”.

Ÿ      “Personal information” is defined in the Privacy Act. Generally, it is information contained in “customer records” of a “covered entity” that affords the business access to an identified individual’s financial accounts or medical information.

Ÿ      A “covered entity” must take “reasonable measures” to protect and secure electronically-stored “personal information”. (“Reasonable measures” is undefined in the Privacy Act.)

Ÿ      If there is a “breach of security” (unauthorized access to secure data) involving 500 or more individuals in this state, a “covered entity” must report the incident, in writing – “as soon as practicable”, but no later than 30 days from the date the breach is discovered – to the Florida Department of Legal Affairs, AND must directly notify “each individual in this state” whose “personal information” was or is believed to have been accessed due to the security breach. The required informational content of the report to the Department, as well as the content and permitted manner of notice to individuals, is described in detail in the Privacy Act.

Ÿ      The Department may seek and recover civil penalties of up to $500,000.00 for violations of the reporting and notice provisions of the Privacy Act by a “covered entity”. Only the Department can bring an enforcement action; however, the law expressly provides no private cause of action.

The December 4th edition of “The Law” will discuss bouncing checks in Florida. Questions may be submitted online to thelaw@clarkcampbell-law.com.

Litigation

How We Select Our Judges

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

Q: Polk County has recently seen judges appointed by governor and elected by the people. What is the process for judicial appointments, elections, and resignations?

A: The short but problematic answer is that trial court judges are elected by the people unless a vacancy arises (by resignation, by a judge being elevated to another court, or otherwise). This answer is problematic, because courts continue to grapple with how and when judicial resignations create a gubernatorial power of appointment.

For example, in March, Jacksonville’s Judge Donald R. Moran, Jr. tendered a letter of resignation to the governor, effective one business day prior to the end of the judge’s term this coming January. Days later, the Secretary of State received the first candidate submission. Once the governor accepted the resignation, however, the Division of Elections advised the candidate that the position would be filled by appointment rather than election, because the judge was resigning.

The timing of the letter and effective date were important. If the date the resignation letter is accepted by the governor predates the election process (i.e. candidate submissions), regardless of whether the effective date is later, the position is filled by the governor; otherwise, the election process continues. According to a 1970s Florida Supreme Court decision, however, if the judge resigns effective as of the end of his term, creating no actual vacancy, Florida favors elections.

An appeals court last month held that, even though the effective date of Judge Moran’s resignation created only a single business day of vacancy, there was no clear right to an election. The court’s Judge Philip J. Padovano, in dissent, expressed concern that such a ruling creates the potential for abuse; specifically, a judge could give the governor appointment power by resigning effective just hours before the end of his term or could strip the governor of that power by refusing to formally announce resignation until after the election process begins.

Above, I refer to how trial court judges get on the bench. Florida has also has an intermediary “court of appeals” and a “supreme court”. Judges on those benches are appointed by the governor after a nominating commission provides the governor with suggested candidates. Appeals and Supreme Court judges, like other judges in Florida, typically serve six-year terms and must go through a retention election process at the end of each term.

The October 23rd edition of “The Law” will address the sometimes confusing HOA covenants and restrictions.

Questions may be submitted online to thelaw@clarkcampbell-law.com.

Greening May Not Cost You So Much Green

By Justin Callaham, LL.M., Attorney 
Clark, Campbell, Lancaster & Munson P.A.

Q: Greening has decimated my small orange grove. How can I remove the trees but still retain the grove’s agricultural designation for property tax purposes?

A: Yes, you may be able to remove the trees and retain the land’s agricultural designation.

Greening, also known as huanglongbing or HLB, is a bacterial disease spread by flying insects known as psyllids. When HLB infects a grove, many growers scale back their maintenance regimen and all but abandon the infected grove. Removal of the trees, however, is the best way to prevent an infected, unproductive grove from becoming a breeding ground for psyllids and HLB. Many growers hesitate to push the grove due to the possible loss of the land’s agricultural designation for property tax purposes.

In recognition of this problem, the Florida legislature adopted § 193.461(7)(a) which allows land to retain its agricultural designation for property tax purposes if the land was taken out of agricultural production by a state or federal eradication or quarantine program. Additionally, the Citrus Health Response Program, an initiative developed by the Florida Department of Agriculture and Consumer Services, declares that much of the State of Florida is quarantined due to the presence of HLB. Taken together, §193.461(7)(a) and the Citrus Health Response Program allow growers to remove trees from an infected and unproductive grove while retaining the land’s agricultural designation.

If your grove is infected with HLB and you are interested in completely removing the trees, start by contacting your local Citrus Health Response Program office and requesting a Site Report. Next, execute a CHRP Abandoned Grove Compliance Agreement. Once you receive the Site Report, submit the Site Report and an executed CHRP Abandoned Grove Compliance Agreement to your local property appraiser before the March 1 statutory deadline. If your grove is currently designated as agricultural for property tax purposes, you will not be required to file a new application. However, if your grove is not currently designated as agricultural for property tax purposes, submit an application for such designation along with the Site Report and CHRP Abandoned Grove Compliance Agreement.

The October 9th edition of “The Law” will address the sometimes confusing process of the appointment and election of judges. Questions may be submitted online to thelaw@clarkcampbell-law.com.