Succession Planning for Small and Mid-Sized Businesses

October 9, 2015/in Articles, General/by Ted Hamilton

Many business owners have only a vague idea of how they will exit from their current business. They have a general notion that when the time is right they will sell their business and retire or that their children will take over the business someday. Many business owners don’t realize that they need to plan their exit strategy – business succession doesn’t happen overnight or like a bolt out of the blue.

Creation of a good succession plan requires a comprehensive approach, including estate planning, entity planning (that is, appropriate formation documents and restrictions on the transfer of ownership interests in the entity), tax planning, and insurance planning. Early planning is essential not only because it saves money and aggravation, but also because planning and executing an exit from a business takes a remarkable amount of time. From initially deciding to explore exiting, to finalizing the transition, the process takes multiple years. Three to five years is a very short time line to execute an exit plan. Five to eight years is more reasonable, and will likely yield better results. Eight to ten years is best. Having a realistic timeline when you begin the process will help keep stress low and goals feasible.

There are several ways for a business owner to exit his or her business: internal succession, outside succession, sell the business, or simply close the business and dissolve. This article will provide a brief overview of these options and will conclude with a checklist of steps to take and issues to consider when planning for the succession of your business.

Internal Succession

An internal succession is often a business owner’s first choice, particularly if the business is family-owned and operated. Internal succession allows the business to continue and provides employment to the people the owner knows and cares about. However, with an internal succession the owner needs to view potential successors with a dispassionate eye and must examine carefully how such a transfer would work financially. Employees and second generation family members often lack the financial means to pay cash for the business and they may look to the business itself to finance the purchase. The owner should also be mindful of internal dynamics among business personnel, which can lead to disgruntled employees who feel excluded from the process. Before putting in place agreements for an internal succession, it is important for the business owner to “road test” the prospective successors by providing them with increased responsibilities and closely evaluating their performance. It is in no one’s interest for the business to fail after the transfer.

External Succession (Merger or Acquisition)

Sometimes, a business owner will look to acquire or merge with a smaller, complementary business run by someone with proven entrepreneurial skills to serve as his “replacement.” Such a situation can prove to be a great opportunity for the business owner planning his or her exit. Depending upon the size of the business, a business broker or an investment banker can be helpful in finding the right merger or acquisition target. An external succession through merger or acquisition takes time and requires a back-up plan if the right target company cannot be found. Here, especially, internal company dynamics can undermine the success of the plan and should be considered carefully. It is also important to consider whether the business cultures of the entities are compatible.

Sale of the Business (Stock Sale, Asset Sale or Merger)

The sale of a business may be accomplished as a sale of the ownership of the business (stock sale) or the sale of the business assets (including the name, customer lists and other important attributes of an ongoing business). There are tax considerations and liability considerations that cause sellers to favor stock sales and buyers to favor asset purchases. For example, asset sales can be structured to allow buyers to acquire the business without pre-acquisition liabilities and to allocate part of the purchase price to certain assets, giving them a stepped up tax basis and enabling the buyer to take higher depreciation deductions.

Selling the business sometimes requires that the former owner stay on as an employee for a period of time, which many former owners find difficult. The buyer usually requires a non-competition agreement, so business owners considering this option need to be sure they are ready to retire or are willing to leave their industry – at least for a period of time.

Closing the Business (Liquidation/Dissolution)

Many business owners simply close their business when they are ready to retire. They sell off the assets, pay off the liabilities, collect the receivables and take the net proceeds. The business can formally dissolve by filing articles of dissolution or it can be administratively dissolved if it fails to file annual corporate reports with the Secretary of State’s office.

Liquidation and dissolution carry their own set of potential pitfalls for business owners. In particular, Florida law states that participating shareholders can be held personally liable for claims against the corporation if they receive “improper” distributions in liquidation. Improper distributions in liquidation are distributions made without adequate provision for existing and reasonably foreseeable debts, liabilities, and obligations of the company. Improper distributions also include distributions made without giving preferred shares their required preferred treatment. Accordingly, careful planning is required even with the liquidation/dissolution option.

Issues to Consider When Planning Your Exit

What are your goals and what is your timeline? Business owners should begin identifying and prioritizing goals in connection with their exit strategy as early as possible. Important questions to consider include: What are your anticipated financial needs upon leaving your business? What is the actual amount (after taxes and costs) that you expect to realize? Is that enough for you? Is it important to you that the business continues in existence? In what form should it continue? Do you want or are you open to continued involvement in the business? What do you want to see happen in connection with your employees, including family members? In connection with your customers? In connection with your community?

What is your business really worth? It is a good idea to get a realistic view of what ongoing businesses sell for in your industry sector so you can better evaluate your financial expectations. If you understand what factors are important to achieve value in your industry you can work to improve the value your business ultimately will achieve. However, valuing closely-held businesses is difficult because the fair market value is not readily apparent. Unlike publicly traded companies there is no active market for the ownership interests of privately-held businesses. A formal valuation by a business appraiser can be expensive and impractical for many small businesses, but business appraisers will often provide a less formal “calculation report” at a lower cost.

There are many ways to value a business. Typically business appraisers consider relative valuation (comparing your company to companies with similar operating characteristics) or a discounted cash flow analysis (based on the present value of the future stream of free cash flow). Often the valuation calculation is based on multiples or ratios considering important financial metrics like revenues, earnings before interest and taxes (EBIT), earnings before interest, taxes, depreciation, and amortization (EBITDA), and net income. It is helpful for owners to evaluate these metrics to try to “ballpark” the value of their entity, bearing in mind that a formal valuation may be necessary prior to sale.

Many businesses do not get sold, but are closed. Business owners can and should evaluate the liquidation value of their assets (including accounts receivable) and compare that to the potential value achievable in the sale of your ongoing business (with the “goodwill” in the business name and reputation). If the values are close, or there is no ready market for your business, your best exit strategy may be liquidation. Understanding the sale of business option can help you operate your business with an eye to maximizing cash generated by liquidation.

How will you manage your ongoing business? It is a big mistake for a business owner contemplating his or her exit to lose focus on the current operations of the business or to prematurely release news of his or her exit planning. Both are likely to cause business deterioration. If key employees feel insecure, they may leave. Customers concerned about a company’s long-term viability may withdraw their business or slow down bill payment. Vendors may change the terms of credit. All these issues can cause the value of the business to deteriorate.

Business owners should develop information management strategies early in the succession planning process, identifying whether, when, and on what terms to let people know of the planning process. At some point, business owners may wish to provide employees with incentives to give them a vested interest in maintaining profitability and confidentiality, through phantom stock, performance-based bonuses or bonuses contingent upon the successful completion of a sale or merger. Information control is important. While employee confidentially agreements are helpful as a general deterrent, they are ultimately of limited assistance when a premature disclosure actually occurs. By that point, the damage may be difficult to address.

A Succession Planning Checklist

The sophistication and complexity of a business succession plan will depend upon the owners’ personal financial means and needs, the size and complexity of the business and the succession method (internal, external, sale, or liquidation). Therefore, while not all of the items on the following checklist may apply to your particular situation, the checklist will provide you with a framework within which to think about your own succession plan.

Current owners should review estate planning documents with their attorney. Consider whether a program of gifting stock to the next generation is advisable in light of the financial reality of the family and the qualified family-owned business (QFOB) deduction.
When the time is right, communicate your wishes regarding the future of the business to the next generation, whether or not they are involved in the business.
Review the organizational documents of the business, including any Shareholders’ Agreement, Cross-Purchase Agreement or Stock Redemption Agreement to ensure that they comport with the succession plan.
Make sure that at least one other person in the business has authority to make necessary banking transactions in the event of the unavailability of the primary bank contact.
Consider the tax planning alternatives and methods of funding applicable taxes (estate taxes, income taxes, etc.).
Review Insurance Portfolio: disability insurance, life insurance (to provide working capital during transition or to fund purchase of deceased shareholder’s stock).
Review retirement plans: deferred compensation, 401(k), profit-sharing plans, annuities
Establish a policy for family members entering or working in the business. The policy should cover criteria for entry into the business (such as previous work experience or education requirements) and ongoing criteria which must be met to keep a job with the family business (such as satisfactory performance reviews). Different criteria may apply to employment by the family business vs. ownership of the family business.
Consider establishing a formal compensation system for higher-level employees (including family-members). Such a system could include bonuses of cash or stock.
If considering an internal succession, establish a mentoring or training program for the middle managers to prepare them for ultimate management of the business.
Consider the ongoing role of existing owners as advisers or consultants during and after the transition (either paid or unpaid).

Conclusion

Getting an appreciation for possible successors and determining which method of succession is best for your company is critical to meeting exit strategy goals. As odd as it may sound, succession planning should begin the moment one embarks on forming a business. However, very few entrepreneurs do that, even though proper planning and decision-making can help reduce ultimate tax liability, ensure achievement of maximal value for the business, and generally ease the transition out of ownership. A good succession plan is essential for a smooth and successful exit. Now is the time to start the planning process.

Matthew J. Lapointe, Esq.

Our view on the Disbarment Recommendation by Judge Baird of Attorneys Adams, Diaco and Filthaut

August 30, 2015/in Articles, General/by Ted Hamilton

Many of you who are local to the Tampa Bay area may be following the story of three local attorneys, Adams, Diaco and Filthaut who were just recommended for permanent disbarment by Pinellas County Circuit Judge Baird. These three attorneys represented Bubba the Love Sponge in a case again Todd “MJ” Schnitt during a 2013 defamation trial against Bubba by Clem.

During the defamation trial, Adams, Diaco and Filthaut allegedly conspired with a Tampa police officer to trap the attorney for Schnitt, C. Phillip Campbell, into a DUI. The court considering the disbarment of Adams, Diaco and Filthaut found the lawyers guilty of arranging Campbell’s DUI arrest to gain an advantage in a multimillion dollar case involving Bubba and Clem.

On August 27, Judge Baird in Pinellas County recommended that all three attorneys, Adams, Diaco and Filthaut be permanently disbarred. Often you will see a temporary disbarment of an attorney. Rarely do you see a permanent disbarment. Permanent disbarment (never again practicing law) is held as the ultimate sanction of an attorney by the Bar. The Court found all three attorney’s to have violated many of the rules that govern lawyers. These include engaging in conduct involving dishonesty, fraud or deceit and conduct prejudicial to the administration of justice.

Why is this ruling important? For lawyers, this shows the idea of being an “aggressive” attorney has its limits. As a profession, we have rules we have to follow. Having practiced for almost 25 years, I have seen many attorneys who make the practice of law miserable for other attorney’s and the judge by lacking basic courtesy, treading on the boundaries of honesty, or just misrepresenting something to the court. On the other hand, a vast majority of lawyers still treat this as a profession to be respected.

For clients and the population as a whole, this ruling sends a message that the idea of being an “aggressive” lawyer has its boundaries. It further shows that as lawyers, we can police the profession to ensure that the rules of professionalism are followed. These rules set the standard for what we have to do to zealously represent our clients. Above all, the rules that govern us as lawyers are not there as a suggestion or as something to get around or manipulate. The Rules provide the framework for the honesty and integrity that all lawyers must follow.

Being a zealous advocate is always our purpose and goal within the boundaries of the law and the Rules that govern us as attorneys. We applaud the ruling of Judge Baird in ensuring that those lawyers who violate the rules of the Bar to the extent that occurred in this case are sanctioned with permanent disbarment.

Theodore J. Hamilton, Esq.

Starting Your Business – Which Corporate Form Should You Use?

August 5, 2015/in Articles, General/by Ted Hamilton

What are the Differences Between an LLC and the S Corp or C-Corp?

For those of you that have ever thought about using a corporation when starting your business, including owning rental property, the first question that comes to mind is whether to form an LLC or a Corporation.

To begin with, you should incorporate (either LLC or Inc.) if you own a business that has any risk of personal liability. In most circumstances, both types of incorporation will insulate you from personal liability for someone getting injured at your business or your products causing injury.

The differences between an LLC and a Corporation fall into a few categories which we will discuss below:

LLCs ARE MANAGED DIFFERENTLY THAN A CORPORATION

LLCs are managed by managers. These managers can either be owners or can be non- owners. Unlike a corporation, there are no officers or board of directors to report to in an LLC so the control of the Corporation is not as directly in the hands of the owners as in an LLC.

THE C CORPORATION FORM OF OWNERSHIP HAS THE OPTION OF NOT BEING A PASS-THROUGH ENTITY

Corporations can either be established as a C Corporation or an S Corporation for income tax purposes. Using a C Corporation allows the Corporation to retain profits and losses and then pay taxes on these and be taxed as a “separate entity.” Thus, unlike an S Corporation or LLC, in a C Corporation, profits of the corporation don’t automatically pass through to the personal tax returns of the shareholders.

THE SINGLE MEMBER LLC, UNLIKE THE S CORPORATION, IS A COMPLETE “PASS THROUGH ENTITY” FOR TAX PURPOSES.

All of the income and expenses from the business gets reported on the single member LLC operator’s personal income tax return. In a single owner S corp, the owner pays himself or herself a salary plus receives dividends from any additional profits the corporation may earn. Thus, the single owner S Corporation, is not merely a “pass through” entity for tax purposes. As a result, the single member LLC shows all income and expenses on their personal tax return. Further, in a single member LLC, the LLC does not file a business tax return which could save some money in tax preparation at tax time.

S CORPORATIONS CANNOT HAVE NON-U.S. CITIZENS/RESIDENTS AS SHAREHOLDERS and CANNOT BE OWNED BY C CORPRATIONS, OTHER S CORPORATIONS OR LLCS.

Unlike an LLC, all of the S Corporation’s shareholders must be U.S. Citizens/residents. This issue may become larger as more and more foreign nationals seek to purchase real estate in the U.S. This may also be a substantial reason to ensure that real property holding companies are formed as LLCs. Finally, an S Corporation cannot be the subsidiary of another corporation. Thus, if you are considering the sale of your company stock to another company, you will want to consider the LLC or the C Corporation form of ownership.

THE ENTIRE NET INCOME OF AN LCC IS TREATED AS SALARY TO THE OWNER FOR TAX PURPOSES

The owners of an LLC are taxed on the entire net income of the LLC. This means that the all of the company income is subject to the 15.3% self-employment tax contributions towards Medicare and social security. In an S Corporation, only the wages of the S-Corp shareholder who is an employee are subject to employment tax. The remaining income is paid to the owner as a “distribution” which is taxed at a lower rate if at all!

THE S CORPORATION HAS A LIFE DISTINCTIVE OF THE OWNERS

Unlike an LLC, the S corporation continues its existence even after the death of an owner, the sale of the shares, or if an owner leaves the company. If any of these events happen in an LLC, it is possible the LLC will end its existence.

The decision as to which form is best for you and the potential tax consequences of each requires the advice of your attorney. If you don’t have an attorney or wish to discuss these options, please feel free to give our office a call. Unlike the online sites, we can speak to your questions directly and for a surprisingly reasonable fee can ensure you are ready to move your business forward.

Theodore J Hamilton, Esq.

The Medicaid Myth

May 1, 2015/in Articles, General/by Ted Hamilton

The Medicaid Myth: “Will they take my house?” That is the single biggest question we hear from clients in regard to Medicaid. Medicaid is a state and federal combined program that allows qualifying individuals access to skilled nursing care, or long term care, in a nursing home facility. In order to qualify for this type of Medicaid coverage in Florida, an individual must first qualify medically, meaning they must need substantial assistance with their activities of daily living and a nursing home is the most appropriate placement for such care. Next, they must qualify as being either aged (over 65), blind or disabled.

Then, the individual must qualify financially. In 2015, a married couple may retain $119,220 in countable assets. A single individual may have only $2,000 in countable assets. These figures may change almost yearly. The key to qualifying is to know what assets are not part of this “countable asset” category.

Typically, the largest asset a person owns that is not counted as part of the financial qualification is an individual’s primary residence (homestead). If the primary residence has equity value of less than $552,000.00 and the spouse is living there or, if single, the applicant expresses an “intent to return home”, the home will not be counted as an asset. Additionally, due to Florida’s constitutional homestead laws, if the homestead will be passing to children or other blood relatives, it will not be attached by Medicaid following the applicant’s death. So, the answer to the medicaid myth of “Will they take my house?” is most circumstances is No.

Other assets that are considered non-countable include: property other than the homestead if rented at fair market value; one vehicle, regardless of age or value; life insurance policies with no cash value; life insurance with cash value if the total face value of all policies is less than $2,500.00; irrevocable burial contracts; an account with $2,500.00 designated for burial expenses; one burial plot per family member; and retirement funds of the applicant, if required minimum distributions (or their equivalent) are being paid out.

There are also income limits of $2,199 per month; however, if an applicant’s income exceeds that amount, an Income Assignment Trust, also known as a Miller Trust, can be prepared to hold excess income.

Qualifying for Medicaid can be a cumbersome and scary task, even when an individual appears to meet all of the qualifications. It is important to consult with an Attorney experienced in the Medicaid policies who can assist in the application process. We are happy to provide such counsel to our clients facing these long term care challenges.

Sarah Schelling Peet, Esq.

How to Choose a Lawyer in Florida

February 28, 2015/in Articles, General/by Ted Hamilton

With the excess of information at everyone’s finger tips, sometimes making any decision seems more complicated these days. Choosing the right lawyer in Florida for your needs is no exception. We are no longer flipping through the yellow pages or relying on radio ads to determine who to turn to if we have a legal problem. Instead, we turn to internet searches and the volumes of information that comes up on our screens. But how do you know if the first lawyer on the list is the best, or merely the one that paid the most to have their website pop-up first? What information should you be looking for when determining which lawyer will meet and may be even exceed your needs?

The first place to turn to is the Florida Bar. You always want to determine that the person you are talking to and hiring is an attorney. You can do this by going to The Florida Bar website at www.floridabar.org. Use the “Find a Lawyer” search engine and find the lawyer’s information, address, phone number and email to confirm their credentials.

Call the lawyers office and talk to their staff. Make sure they are friendly and accommodating. Set up an initial appointment with the lawyer (either via phone or in person) to make sure that you have communicated with the actual lawyer that will be handling your case and providing you services. If any lawyer is too busy to meet with you at the beginning stages of the business relationship, they may be too busy to meet all your needs as your relationship and case grows.

Also, consider the lawyer’s reputation. Do you know people who have worked with the firm before? Have you heard people praise an attorney’s work? Ask around. Someone you know may be working with an attorney that might be able to meet your needs as well.

You can also check the attorney’s discipline history. If an attorney has been professionally disciplined by the Florida Bar you can find that information on The Florida Bar’s website, as referenced above. Once you find the attorney’s page using the “Find a Lawyer” search engine, scroll down until you see the words “10 year discipline history.” If there is no discipline, the word “none” will appear to the right of the name. if there is a history, the word “yes” will appear, with a link to take you to the documents with additional information.

Remember, choosing the right attorney should make your life easier, whether professionally or personally. Finding a firm with a good reputation for both their legal knowledge, results, and customer service is a formula for success.

Kalei McElroy Blair, Esquire

Residential Leases and Security Deposits

January 26, 2015/in Articles, General/by Ted Hamilton

Most people have at one time or another been a tenant in a residential property. Security deposits for the lease of a residential property are not uncommon in Florida. Such deposits are typically paid to landlords to be held as security for damage that may caused to the property by the tenant or in the event of the tenant’s failure to pay rent.

Upon vacating the property at the end of a residential lease, assuming no other issues are present, the tenant is entitled to the return of the full security deposit paid to the landlord. Florida Statute 83.49(3) requires that the landlord return the deposit to the tenant within 15 days of the date the tenant vacates the property.

If, however, the landlord wishes to make a claim against the deposit, the landlord must notify the tenant by certified mail within 30 days of the date the tenant vacates the property. It is important to note that if the landlord does not return the deposit within 15 days and does not impose a claim on the deposit within 30 days as provided by the statute, the landlord loses any potential claim against the deposit. This can be a critical mistake for landlords who do not act within the statutory time frame.

So what happens if you are a tenant and your landlord refuses to return your security deposit and fails to impose a claim against the deposit as described above? You have the right under Florida Statutes to bring an action against the landlord in court (typically the county court of the county where the property is situated) to recover the deposit. In addition, the statute provides that the prevailing party is also entitled to recover costs and attorneys fees. This means that a tenant can collect the full deposit as well as all of the costs incurred in doing so.

What if you are a landlord and you want to make a claim against the deposit for damage to the property caused by the tenant? Within 30 days of the date that the tenant vacates the property at the end of the lease, the landlord may impose a claim against the tenant’s security deposit by notifying the tenant in writing by certified mail. The notice must indicate the amount of and reason for the claim. The tenant then has 15 days from the receipt of the notice to object to the landlord’s claim. If no objection is made, the landlord may deduct the amount of the claim from the deposit and remit the remainder, if any, to the tenant within 30 days of the date of the notice to impose a claim.

Remember, if you are a tenant or a landlord facing issues regarding residential leases, you have rights as provided for by Florida Statutes. For further information about your rights, please contact our office at (813) 225-1918.

Jaremy J. Shelton, Esq.

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.

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.