“We do not provide and have no duty to provide security services for your protection or for the protection of your property. You must look solely to the public police for such protection. We will not be liable for failure to provide security services to protect you, your family, or others, or your property from the criminal or wrongful acts of our employees, agents or others.”

Fortunately, under Florida law, such language is not worth the paper it is written on. Pursuant to Section 83.47 Florida Statutes, “a provision in a rental agreement is void and unenforceable to the extent that it purports to limit or preclude any liability of the landlord to the tenant arising under law”.

In addition, Section 83.51 Florida Statutes requires the landlord to maintain premises in accordance with applicable building, housing and health codes, which include proper maintenance of the exterior doors and windows.

The result? We all hope that misfortune does not occur while living in rental apartments. However, if a burglary occurs as a result of improperly maintained doors or windows, or if a tenant is attacked at an apartment complex where the landlord knew of prior security issues and took no remedial actions, Florida law puts the responsibility where it belongs, regardless of the fine print hidden in the rental agreement.

Crimes are classified in two basic categories: “general” intent and “specific” intent crimes. General intent crimes ( also referred to as “strict liability” crimes) presume, by their very nature, that the accused knew that their actions were illegal. Assault, Battery and DUI are good examples of general intent crimes. In contrast, “specific” intent crimes require proof that the accused knew that their actions were illegal ( also known as”mens rea” ) and intentionally committed the offense. Theft, sexual battery and premeditated murder are all specific intent crimes.

Prior to Judge Scriven’s ruling, all drug offenses in Florida were classified as general intent crimes. The state merely needed to prove that the possession, sale or delivery occurred. Under this scenario, a person could be successfully prosecuted for possession of drugs which had been placed in their clothing, backpack or motor vehicle without their knowledge. Hypothetically, a Federal Express delivery man could be prosecuted for (unknowingly) delivering illegal drugs which had been shipped by Fedex.

Prior to the decision in Shelton v Department of Corrections, Florida was the only state in the nation to expressly eliminate intent as an element of a drug offense. Quite frankly, it is about time that Florida has been brought in line with the rest of the nation’s drug laws. The State should have to affirmatively prove that the accused knew that he or she possessed, sold or delivered an illegal drug.

In the long term I do not see any earth shaking changes to the manner in which drug offenses are investigated, prosecuted or defended. In most cases, there should be ample evidence to prove knowledge and intent. What will hopefully change is that in cases where an accused is truly an unknowing victim of circumstances involving illegal drugs, the State will be less apt to file charges and force the accused to somehow “prove” themselves innocent.

However, for the short term, State Court judges will now be forced to grapple with the effect of the Federal Court’s ruling in Shelton. The State of Florida will almost certainly appeal, thereby postponing any immediate effects upon pending cases. However, if affirmed on appeal, you should expect a flood of defense motions to both dismiss pending cases and revisit cases which were previously disposed of under Chapter 893 as it now exists.

While it probably will not happen without a fight, the Florida legislature will eventually have to re-write Chapter 893 to include the element of intent in all drug offenses. The companion (and perhaps larger ) issue will be whether the legislature decides that the changes should apply retroactively to closed cases. I’m guessing no – a decision which will only spur additional legal attacks.

Regardless of how the future of drug law enforcement is ultimately resolved by the courts, should you or a loved one be faced with defending against a criminal drug charge in the Tampa Bay area, please do not hesitate to give me a call at the Heyman Law Firm at 727-822-3700 to schedule a no charge consultation at our main offices in St Petersburg.

As a corollary to that advice, it is just as critical to carry as much liability coverage for damage to others should injury result from one’s own negligence or that of a permissive driver operating a borrowed motor vehicle.

Unfortunately, as a result of the financial inability to purchase sufficient coverage, (or just plain bad advice of an insurance agent), I have had to counsel frantic clients who are suddenly faced with a liability claim and discover that they have little or no insurance to protect their assets. Under these circumstances the primary question is. “what’s safe and what’s in jeopardy of being taken”?

Under Florida law there are protections granted to certain property and assets against seizure from third parties who have obtained a judgment as a result of a lawsuit. The largest, and in most instances the most important, is the protection granted to a person’s residence. If the home is owned by the person against whom a judgment is obtained, that residence is exempt from the claims of all creditors except for a bank or finance company which may hold a mortgage on the property.

This “Homestead Exemption” is guaranteed by the Florida Constitution, and was in large part the motivation behind O.J. Simpson’s curious relocation to Florida following the multimillion dollar judgment assessed against him as a result of the civil trial based upon his murder charges.As of this date, there is no limit to the value of the homestead property which can be protected, but do not be surprised if in the future a “cap” is placed upon the protected amount.

The Florida Constitution also provides protection for personal property up to $1,000.00. This can include cash, investments or any other personal property which is owned by an individual. Property jointly owned by a married couple is protected if the judgment is entered against only one spouse.

Similarly, any motor vehicle owned by the debtor is protected up to $1,000.00 ( obviously not including a bank or finance company which extended a loan to purchase the vehicle).

While a creditor may attempt to seize (or “garnish”) wages, a debtor’s income is not subject to garnishment unless it exceeds $500.00 per week. Social Security, Disability, Unemployment Compensation, Worker’s Compensation and retirement benefits are also exempt from the claims of creditors.

Obviously the rationale of these exemptions are to prevent the debtor having limited means from being rendered penniless. The moral of the story remains the same – while Florida law does protect individuals from the poorhouse, the assets which are protected can provide only a n extremely basic existence. In order to properly protect those assets which provide a meaningful lifestyle, please be sure to maintain insurance coverage equal to the value of those assets.

Should you have any questions regarding the types of coverage you should seek from a reputable insurance provider, please contact me at the Heyman Law Firm at 727-822-3700 or through this website.

Until recently, the Courts applied the same principle to car rental businesses which leased vehicles to the public. see: Susco Car Rental System v. Leonard, 112 So. 2d 832 ( Fla 1959).In more recent times, the Florida Legislature placed a monetary cap on the liability of businesses which offered short-term ( less than one year) car leases to $100,000 per person and $300,000 per incident. Property damage liability was also limited to $50,000.See: Florida Statute 324.021(9)(b).

No doubt as a result of extensive lobbying efforts by Avis, Hertz, Enterprise and others in Washington, D.C., Congress passed the Graves Amendment in 2005, which overruled (or preempted) all state laws which addressed the potential vicarious liability of car rental businesses. While there have been numerous attempts by Florida plaintiffs’ attorneys to convince the Courts to at least narrow the application of the Graves Amendment, in Florida, and throughout the United States, vicarious liability of auto rental companies for damages caused by the negligent operation of their vehicles has been abolished.

Is this a good thing or a bad thing? Obviously it depends upon one’s perspective. To the rental car business, the Graves Amendment has removed a huge source of potential liability. I can only assume that prior to the passage of this law, such companies included the financial cost of such exposure in the price of the rental agreement. Liberated from such liability, one would logically assume that Avis, Hertz and the others would therefore be able to reduce their rates. Don’t bet on it. The only rates that have probably been lowered are the lobbying costs spent in Congress.

In order to protect the public, I would propose that no driver should be able to rent a vehicle unless they maintain the same $100,000 / $300,000 liability coverage that was previously imposed upon the car rental businesses by Florida law. Don’t expect the same lobbyists to line up behind that proposal. Bad for business, don’t you know. Much worse for citizens in St. Petersburg and the surrounding Tampa Bay area who injured by a negligent driver in a rental vehicle who have been wronged but may no longer have a proper remedy.

Absent an unanticipated dramatic reversal in the Federal law, I can only stress once again that in Florida, please carry as much uninsured/underinsured motorist coverage as you can afford. Should you have any questions about these or any other auto coverage issues, please feel free to contact me at the Heyman Law Firm, PA either at 727-822-3700 or through this website.

Regardless of that fact, the Florida Legislature has not required motorcycle operators to obtain any insurance as a prerequisite to registering their vehicle. Personal Injury Protection, or “PIP” coverage is not available for any vehicle having less than 4 wheels. Yes, if the motorcycle is financed through a bank, the lending institution will probably require insurance coverage for theft and/or damage to the bike.

As a corollary to the 2000 repeal of the helmet law, should a rider foolishly decide to ride without a helmet, he must carry proof of $10,000.00 in medical insurance – literally a “drop in the bucket” should an accident occur. And while coverage for damage to property or injuries to third parties is not required, should the motorcycle operator be found at fault in an accident, they should expect a lawsuit which will threaten their personal assets.

Even if the driver has medical coverage with a major medical provider ( such as Blue Cross, United, Aetna,etc. ), they should review their policy to insure that there are no exclusions for injuries caused by “dangerous activities”, such as driving a motorcycle.

The bottom line is that while motorcycles are less expensive and more economical to operate than a car, a portion of those savings should be used to protect the driver from personal liability and to provide medical coverage should an accident occur which results in medical bills which could cause financial ruin. As a personal injury attorney in St. Petersburg and Pinellas County I have unfortunately been the bearer of bad news to clients who have been injured by uninsured motorists and find they have no other coverage to look to for their medical treatment and lost wages.

As with any potentially dangerous activity ( of which driving the roads of St. Petersburg is near the top of the list!) enjoy the experience, but always prepare for the unexpected. My advice regarding medical and liability insurance?? Don’t hit the road without it!

In my career as both a prosecutor and defense attorney, I have been faced with numerous situations where this prohibition has been disregarded by the victim who, after the anger and shock of the spouse’s arrest has worn off, wants to connect with the Defendant for financial, emotional or other reasons.

To all my clients who ask my advice in this situation, I tell them in no uncertain terms, DON’T DO IT. The simple fact is that the alleged victim cannot unilaterally ignore the judge’s order any more than the accused can. The difference is, while the victim’s actions might be deemed ill-advised, the Defendant, if upon feeling enboldened by the spouse’s actions, maintains further contact, he or she could wind up back in jail with no bond.

Once a no contact order is entered, it can only be rescinded by the assigned judge. This is easily accomplished by scheduling a hearing where the victim must appear and state under oath that he or she is not in fear of the Defendant and wants to reinitiate contact.

One more thing – even if the judge does permit contact, the State Attorney has the final say as to whether the criminal case will continue. As a practical matter, I usually ask the victim at the contact hearing whether he or she still wishes to prosecute the spouse. A “no” answer is, under most circumstances, persuasive enough to convince the State to dismiss the case.

If you have a pending domestic violence charge, understand that even if the spouse makes contact by telephone, texting or in person, you must abide by the no contact provision unless removed by court order.

The first difference between a medical malpractice case and other negligence based claims concerns the applicable Statute of Limitations. Florida Statute 775 mandates that a professional malpractice lawsuit must be commenced within 2 years of the negligent act upon which the lawsuit is based.

Since in many circumstances the commission of the negligent act is not immediately discovered, the statute provides that the “clock” does not start running until the act was known or should have been known by the patient, but in any circumstance, the lawsuit must be commenced within 4 years of the negligent act.

Florida Statute 766 provides that once the plaintiff decides to proceed with a lawsuit, he or she must properly investigate their potential case, obtain the sworn expert opinion of a properly qualified doctor that negligence was present and caused injury, and then send written notice to the prospective defendant/doctor of the plaintiff’s intention to initiate litigation.

Once the Notice of Intent to Litigate is received, the defendant / doctor has 90 days to investigate the claim, take discovery ( which may include requiring the physical examination of the claimant ) and either offer to negotiate a settlement or deny the claim. If the claim is denied, the plaintiff has 60 days from the denial, or the end of the 2 year statutory period ( whichever is later) to file suit.

In theory, this procedure was thought to promote expeditious settlements of cases where liability is clear and the damages are easily calculated. In practice, most claims are merely delayed 90 days in order to comply with the statutory pre-suit requirements so that a lawsuit can thereafter be filed.. In very few cases have insurance carriers followed the spirit of the statute and attempted to resolve legitimate claims in good faith.

The moral of the story: should you or a loved one have been harmed as a result of suspected negligent medical treatment, contact an attorney who specializes in malpractice cases immediately or else risk losing forever the right to recover damages.

A “protective sweep” is narrowly defined as a cursory search of a residence or building for people who might be hiding inside and pose a danger to police officers who are otherwise performing a legitimate investigation within the premises. A good example is when police are called to serve an arrest warrant at a residence where they have information that persons, other than the subject of the warrant, might be located who pose a legitimate threat to the officers’ safety.

The leading case on this issue is Maryland v. Buie, 494 U.S. 325 ( 1990). In that case, the police served an arrest warrant upon Buie and another subject at Buie’s residence. After the arrests, one of the officers conducted a search of the basement “in case there was someone else there” and thereafter seized an incriminating running suit which was later introduced in evidence at Buie’s trial.

The US Supreme Court recognized that a properly limited protective sweep is justified when the officer has a “reasonable belief, based on specific facts, that the area to be swept harbors an individual who poses a danger to those on the arrest scene.”

A problem arises when a search for dangerous individuals evolves into a generalized search for contraband. This “evolution” is clearly a violation of the 4th Amendment protections against unreasonable searches and seizures. Such circumstances arose in Nolin v. State, 946 So2d. 52 ( Fla 2d DCA 2006). After responding to a domestic dispute and identifying the suspect, the officers conducted a non-consensual protective sweep of the residence and located marijuana in a bedroom dresser.

At the hearing on Nolin’s Motion to Suppress, the officers testified that they were trained to routinely search the entire residence for officer safety purposes. While perhaps sensible at first glance, the Nolin court agreed that the evidence should have been suppressed in the absence of articulable facts to support the officers’ mere hunch that other persons might be present and pose a danger.

To the casual reader, this ruling may appear unjust. Remember however, that if the officers can point to articulable factors to justify their safety concerns, evidence found in plain view as a result should be admissible. If this reasonable standard were to be eliminated, so also would be many of the protections the 4th Amendment is intended to insure.

In Florida, that changed in 1975, when the legislature enacted Florida Statute 768.28 which was entitled “Waiver of Sovereign Immunity in Tort Actions; Recovery Limits; Limitations on Attorney Fees; Statute of Limitations”. This enactment at least partially opened the door to negligence lawsuits against government agencies and set up strict guidelines under which such lawsuits must proceed.

Pursuant to Section 768.28 the government may be held liable for the negligent actions of its agents or employees ( while acting within the course and scope of their employment) under the same circumstances that a private individual would be liable for property damage, personal injury or wrongful death. In short, the law applied the existing common law of torts that applies to all of us to the government. Nothing more, nothing less. Trianon Park Condominium Association, Inc. v Hialeah, 468 So2d 912 ( Fla 1985).

While the standard 4 year Statute of Limitations still applies, some specific rules were also imposed by the new law. In all cases, the claimant is required, within 3 years of the incident, to file a claim in writing to the involved agency and to the Florida Department of Financial Services. Upon receipt of the claim, the agency has 6 months ( 90 days in medical malpractice claims) to evaluate the claim and either deny or offer to settle the claim before the claimant can file suit. The failure of the agency to respond within those time frames is deemed a denial.

Under the Federal statute which permits lawsuits to be filed against the government ( the Federal Torts Claims Act), claims are specifically excluded where the government agent or employee’s actions involved policy making, planning or “judgmental” functions. The logic being that such an exception is necessary to enable the government to make basic policy decisions without the threat of liability. Permitting lawsuits under those circumstances would undoubtedly result in more gridlock than we already witness in the absence of such claims.

In response to this concern on the state level, the Florida Supreme Court, in Commercial Carrier v Indian River County 371 So2d 1010 (Fla 1979), imposed the same standard contained in the FTCA. Policy decisions remain protected, ministerial ones are not. For example, a city’s decision concerning where to place a bus stop shelter is immune from suit. If that shelter is not properly maintained and thereafter collapses and causes injury, a claim is permitted.

The statute also “caps” the damages which can be recovered to $200,000 per person and $300,000 per incident. While a judgment greater than those limits can be awarded, the Florida Legislature would have to approve any excess payment by passing a specific “claims bill”. A very rare occurence, given the recent focus on reducing state and local budgets.

Should you believe you have a potential claim against a government agency, do not delay seeking legal advice. The pre-suit requirements of
Chapter 768.28 are strict and can bar an otherwise meritorious claim for damages if not followed properly.

While the “King” has now permitted himself to be sued, he still makes and enforces the rules to the letter.

I try to capitalize on this motivation to settle by scheduling as many “mediations” as possible before January 1st of the coming year. A mediation is simply a conference attended by all parties to a lawsuit where the case is discussed before an agreed upon mediator, followed by settlement negotiations. There is no requirement that an agreement be reached nor can the mediator force one to occur.

While the insurance adjusters are well versed in how mediations are conducted, most plaintiffs have never attended one before and often have no idea what to expect.

The first thing to understand is that all that occurs at mediation is confidential. The theory is that, if the parties are permitted to speak freely about the issues presented, the chances of an agreement are increased. As a result, most mediators require all parties to sign a confidentiality agreement at the outset of the conference. This prohibits either party from later calling the mediator to testify about any statements or offers of settlement made at the mediation should no agreement be reached.

The mediation begins in a group setting where each side makes an opening statement detailing their view of the facts, damages and any legal issues which may arise should the case proceed to trial. Following those statements, the parties separate into different rooms to caucus. The mediator thereafter moves back and forth between the parties to exchange settlement offers, additional pertinent facts, and arguments in an attempt to forge a compromise and ultimate agreement.

I always prepare my clients to not be offended by the initial offer from the insurance adjuster. A first “lowball” offer is always expected and never accepted. As the mediator moves between the parties rooms, the subsequent settlement offers generally move closer to the other until one or more parties indicate they will not negotiate further.

This is the point at which the effective mediator earns his or her fee. Both sides know that trials are expensive, time consuming and
carry no guaranteed outcome. The plaintiff is particularly vulnerable at this point, since while the insurance company is simply making a business decision, the plaintiff may be counting on the settlement funds to pay outstanding medical bills or replace lost wages.

The mediator’s job is to point out to the insurer that because their position is business driven, they should contribute the few additional dollars it will take to close their file, cease any further legal fees and release any excess reserve funds being held.

While some insurers apparently do not view these arguments as compelling, most will bend more during the fourth quarter than other times of the year. Remember, the operative concept is compromise – often a little bit beyond the pre-mediation “bottom line” if necessary.
If no agreement is reached, an “impasse” is declared and a report is sent to the trial judge who will therafter schedule a trial date, usually six months or more into the future.

Al mediators say that a successful mediation results in neither party leaving happy following an agreement. They will leave with finality, certainty and an end to legal fees. Given the prospect of a subsequent jury of six strangers deciding the case, possibly with disastrous results for one party or another, the grumbles following a successful mediation are most often quickly forgotten.