2014 - Wetherington Hamilton, P.A.

What you need to know about Florida Construction Lien Law

August 13, 2014/in Articles, Construction Law/by Ted Hamilton

Do you know everything you need to know about Florida construction lien law? Below are some FAQ and answers that may give you exactly what you are looking for. Remember, at Wetherington Hamilton, P.A. we can help you in all areas of Construction Law.

What property can be liened? Liens can only attach to privately owned real estate. Government owned property is exempt from construction liens.

What services are lienable? In order for a lien to be filed the service must be related to the permanent improvement of privately owned real estate. This includes most services used to improve a property and most identifiable materials incorporated into a project whether the work was performed pursuant to a written contract or oral agreement. Services that do not provide a permanent benefit to the property, such as lawn care, are not lienable.

What Notice needs to be given? If there is a contractual relationship A notice to owner must be served on the owner within 45 days after providing the services or delivery of the goods. Failure to provide such notice can result in forfeiture of your right to file a lien for unpaid work. Keep in mind that the statue requires the owner to receive the notice within 45 days from the date the work was started on the jobsite or materials were delivered, unless professional services were provided, or as a laborer, unless it was mailed, by certified mail, return receipt requested, no later than 40 days after delivery of materials or commencing to provide services.

When should the lien be recorded? A Claim of Lien must be recorded within 90 days of the construction services provided, whether they are labor or material. A copy of the Claim of Lien must be served on the owner within 15 days from the date it is recorded. After serving and recording a Claim of Lien, the lienor must file a lawsuit to foreclosure the claim of lien within 1 year from the date it was recorded. However, if a “Notice of Contest of Lien” is filed by the owner, the lienor only has 60 days to file suit after the Lien is recorded. If a suit is not filed within the 1 year or 60 day deadlines (depending on the situation) the Claim of Lien is subject to dismissal.

By Attorney Kalei McElroy Blair

Going to Court

August 5, 2014/in Articles, General/by Ted Hamilton

You may wonder what the lawyers do when we, as we say, “are in court”. We go to court to argue our client’s case and do our best to be on the winning side.

Going to court usually means appearing before a judge and trying to convince him or her that they should rule in our client’s favor. Hearings for legal arguments may be held in the judge’s chambers or in a court room. Sometimes there is another attorney who is arguing his client’s side. Sometimes the other party doesn’t have an attorney and usually doesn’t have much of a chance. Sometimes the other party doesn’t show up at all. We usually win those cases.

Some cases may take much effort and preparation. We are armed with legal authority to support our client’s case. We may be making just legal argument at a hearing or there may be evidence presented from witnesses or documents, such as in trials. Trials may be lengthy endeavors and jury trials require the most effort. A jury is picked, testimony and evidence is presented and a convincing legal argument must be made.

Going to court may be a brief hearing at the beginning of a case, it may attempt to conclude the case, or it may be after months of prior hearings, depositions and hours of preparation. Sometimes we know exactly what will happen. Sometimes we have no idea. Sometimes we are surprised by something completely unexpected.

When we go to court we do our best to present a winning argument for our clients. Preparation, legal knowledge and experience of attorneys, and their staff, are the keys to obtaining a favorable decision.

By: Thomas K. Sciarrino, Esq.

Wage Garnishment – Good & Bad News

June 13, 2014/in Articles, Debt Collection/by Ted Hamilton

THE GOOD NEWS AND BAD NEWS FOR CREDITORS DOING A WAGE GARNISHMENT IN FLORIDA

Creditors enforcing payment of a judgment through a wage garnishment in Florida have some good news and some bad news. First the good. A judgment creditor can obtain a garnishment of a debtor s wages of up the 25% of the disposable income. It is also good news that the garnishment is continuing in nature and the deduction from wages continues from each paycheck until the judgment is paid. Garnishment is accomplished without advanced notice to the debtor.

Now for the bad news. Florida allows a head of household exemption from wage garnishment. A head of household is a debtor who provides more than one-half of the support of a dependent or other family member. Family members can include parents or grown children. The burden is on the debtor to prove head of household status. This is accomplished by filing a claim of exemption asserting the reason for the exemption. If the creditor objects, a hearing is held where the debtor testifies and can be cross-examined by the creditor about the entitlement to the exemption.

If an exemption is granted, the garnishment ends. If denied, the garnishment proceeds and funds are deducted from pay until the judgment is paid.

Unfortunately, there is more bad news. Florida considers wage of a head of household deposited in a bank account as also exempt. The funds do not lose their character as wages when deposited. Unless the debtor has other funds in the account that are not wages, the bank account will be exempt, if the debtor asserts and proves the exemption claim.

We can end this on some other good news for creditors. There can only be one head of household. If a creditor has a judgment against a husband and wife, and they are both working, the one making the least money can have wages garnished. Also, debtors often claim a right to exemption, but do not always prove their entitlement to it.

By: Attorney Thomas Sciarrino

Legal Medical Marijuana in Florida and You

May 12, 2014/in Articles, General/by Ted Hamilton

How might the proposed medical marijuana law affect your Florida community or condo? Will smoking pot for medicinal purposes become a legal right? Could someone smoke in their condo or home regardless of the nuisance this might impose? Last week we examined the proposed Florida constitutional amendment regarding medical marijuana. This week we examine the effect of this Amendment on Florida Communities.

Debate has surrounded medical marijuana for decades. If the Constitutional Amendment passes regarding the use of legal medical marijuana, the discussion will then focus on the rights of those affected by it. Maybe these questions need to be asked now. Questions such as “How will this Amendment affect your neighborhood?”; “What happens when you see your “young adult” neighbor smoking a joint next door on his back porch? Do you just assume he has a license for medical marijuana? Do you have a right to ask him?”; “How will medical marijuana affect our children?” All of these questions and more will become key issues in the
following years should the Medical Marijuana Amendment pass.

As with smoking tobacco, community associations will face the task of ensuring the rules and regulations of the community deal with the potential nuisance that could result from smoking pot.
These regulations could be similar to tobacco smoking laws in effect for indoor public areas. The Florida Legislature, if the Amendment is passed, will likely put a ban on smoking marijuana that is similar to tobacco. This ban, as with tobacco, would automatically allow the Association to prohibit smoking marijuana in public areas. It is also likely that the state legislature would pass laws only allow smoking of marijuana in a private home or specific medical facility created for the purpose of smoking marijuana. Such laws would mean the only effect on the Community would the smell of the smoke.

As a result, keep an eye out on our blog for further information should the Amendment pass in November as to how and when the State of Florida implements the law. Each Association will need to review their policies regarding smoking should the Marijuana Amendment pass to ensure compliance with the state regulations that will follow.

Should you have any questions regarding this issue, feel free to call Ted Hamilton at our office to discuss further how this potential amendment will affect your community.

By Theodore J. Hamilton

Legal Medical Marijuana in Florida

April 28, 2014/in Articles, General/by Ted Hamilton

Marijuana in Florida

Will you be lining up to sell medical or recreational marijuana in Florida soon? How do you feel about your neighbor smoking legal cannabis on their back porch right next to yours? This day may be coming sooner than you think. You don’t have to go to Amsterdam to legally smoke pot anymore, now you can go to Colorado or Washington. Florida may be next!

The trend of legal medical marijuana over the last few years in the United States has been the gradual loosening of state marijuana laws. Although federal laws have not changed, the drug is still classified as a Class I controlled substance; yet the Obama administration has said it will “not enforce” the Federal Laws which designate marijuana as a Class I controlled substance. More recently, the Department of Treasury issued guidance to banks stating that, “Regardless of the Federal Statutes making it a crime for a bank to hold drug money, the Treasury Department will not enforce this law at this time in reference to money coming into a bank from a marijuana vendor.

Based on the fact that the federal government is loosening its enforcement of Federal Law against marijuana, both Colorado and Washington have passed recreational marijuana laws. In fact, twenty one states have passed medical marijuana laws. While Florida legislature has considered several bills this year, none appears to be ready for passage.

In November all Florida voters will get a chance to vote on the issue and express their opinion on this matter of nationwide interest. The Florida Ballot in November will contain a medical marijuana constitutional amendment, which if passed, will allow the use of marijuana if prescribed by a physician for treatment of a “Debilitating Medical Condition”. A “Debilitating Medical Condition” is described in the proposed Amendment as cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn‘s disease, Parkinson‘s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient. The amendment also puts deadlines on the state government to adopt regulations regarding licensing for “marijuana middle men” who are going to be able to track patients and dispense the drug with a valid prescription.

To get over the fact that the governor might not enforce the Amendment even if passed, the Amendment requires the state to adopt regulations to enact the Amendment. With the current administration, this will likely be stymied. The law requires the state to adopt rules within 9 months of the passing of the Amendment; otherwise any citizen has the right to file a court action to force the state to comply with the Amendment. This will force compliance through the courts.

The Amendment attempts to provide protections for abuse of the drug by providing an id card to all patients authorized to take the drug. These patients will be able to purchase the drug and supplies at licensed “Medical Marijuana Treatment Centers”. Each patient will also have a licensed personal health worker assigned to them.

So, you want to become a medical marijuana treatment center owner? Be careful, regardless of the Amendment the Federal Law on the books in the United States will still make it a crime. A new administration might decide to enforce Federal Law which will set up a challenge between the adopted Florida Amendment and the Federal Laws. IF you are still into this new business possibility, you will have to wait at least 9 months after the Amendment is adopted to open your shop. At that point, you will have to get licensed, which could take equally as long.

By: Theodore Jay Hamilton

The New Florida Limited Liability Company Act

January 22, 2014/in Articles, General/by Ted Hamilton

In the spring of 2013, the Governor of the State of Florida signed a new Limited Liability Company Act which took effect on January 1, 2014. Until January 1, 2015, Limited Liability Company’s (LLC’s) formed in Florida before January 1, 2014 will continue to be subject to the current law under Chapter 608 unless they elect to be governed by the new law after that date. The new law will apply to all LLC’s filed after January 1, 2014. After January 1, 2015 all LLC’s must adhere to the law. Some of the important changes included in the law are as follows:
• Defines more precisely the duties of members and managers and eliminates in the process the notion of “Managing Member”;
• Gives LLC’s the ability to assign authority or restricted authority to certain persons or groups in the LLC and authorizes the filing of Statements of Authority with the Florida Department of State to such effect;
• Adds more “non-waivable rules” regarding Operating Agreements. For Example, an Operating Agreement cannot call for waiver of certain rules including member’s right to seek judicial dissolution in certain situations and prohibiting indemnity rights for certain kinds of misconduct by the person seeking indemnification;
• Adding new provisions regarding service of process on all LLC’s and creating a new section of the Florida Statutes Chapter 48 that addresses such service of process;
• Retains the Olmstead Amendment made to the LLC Act two (2) years ago;
• Clarifies the rights and duties of the transferee of a membership interest;
• Changes the voting rights of members in certain circumstances;
• Disassociated members now have the right to disassociate at any time.

However, members who disassociate may be liable to the LLC for wrongful disassociation.

• Durivative Actions. Under the new law, a member may now maintain a durivative action if the other members do not take action within a reasonable time, not to exceed ninety (90) days. Furthermore, a demand is unnecessary if demand would be either futile or irreparable injury would result in waiting for other members to take action. The new act also provides procedures for the appointment of special litigation committee to investigate any durivative actions.
There are many other sections not addressed in this article. Please do not rely only on this article for legal advice. It is meant as a brief summary of the changes in the statute. Ultimately, a review of your LLC documents is recommended in light of the new law for all Florida Limited Liability Companies. If you have any further questions or would like further details on the law, please contact Theodore J. Hamilton at extension 14 in our office.