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Internet Safety for Kids

Internet Safety for Kids: Chatting About Being Safe Online

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In today’s age, people of all ages are very active online- whether it be connecting with family and friends, sharing what they are doing and where they are doing it, sharing photos and videos from their mobile device, or building online profiles which describe who they are. While the internet has made it easy to share this information, doing so comes with certain risks, especially for kids. Here we discuss those risks and how can you discuss them with your child(ren).

Talking To Your Kids About Staying Safe Online 

The best way to protect your kids online is to talk to them about it. As soon as your child starts using a phone, mobile device, or computer, you should begin the conversation of online safety. As parents, you should initiate the conversation. You can use everyday opportunities to initiate the conversation. For example, news stories about cyberbullying or texting while driving can spark a conversation about their online experiences and your expectations.

When communicating your expectations, be specific about what’s off-limits, and what you consider to be unacceptable behavior. During these conversations, it is important to be patient and supportive. Resist the urge to rush through having the conversation; most children need to hear things more than once before it sinks in so you should have a short conversation about this more than once.  Work to keep the lines of communication open.  Listening and taking their feelings into account will help keep the conversations productive.

Parents or guardians should consider the unique ways to speak to kids and teens

There is no question that as children get older you have to communicate with them differently. Learning how to talk about online safety through the years is important to make an effective impact on your child’s online behavior and safety. For young kids, supervision and parental controls are the best ways to monitor their online activity. Some features available are filtering and blocking, browsers for kids, and disabling in-app purchases from your device.

As young kids get older and turn into tweens, they like to feel independent. They also may be at the age where they are tech-savvy enough to get around the parental controls that once worked. An alternative action you can take at this stage is setting time limits on use. When children turn into teens, they begin to form their own opinions and take on the value of their peers. The most valuable thing you can do is talk about credibility, manners, and expectations.

Addressing kids and social networking

Kids share a lot online from pictures, videos, whereabouts, thoughts, and plans with their friends, family, and sometimes strangers too. Some downfalls with online socializing are oversharing too much information, or posting pictures, videos, or words that can damage a reputation or hurt someone’s feelings. So, what can you do to keep your kids safe? Remind your kids that online actions have consequences. The things they share could be seen in the future by colleges and other people who can influence their future.

Cyberbullying is bullying or harassment that happens online. Help prevent cyberbullying by talking to your kids about bullying. Let them know that they can’t hide behind the words they type or images they post or send to others. Recognize the signs of cyberbullying – it often is in the form of mean-spirited comments, and if you do see this, make sure they know to say something.

Using Mobile Devices 

It is each parent’s responsibility to decide when is the right age for their child(ren) to have a phone or mobile device. Whenever that time may come, it’s important to know the various ways that you can keep them safest with it. Most wireless companies have settings that allow parents to turn off features like web access, texting, or downloading/in-app purchases. Many smartphones today also have GPS location on them – this technology can be beneficial for you as a parent, but it also allows for their friends and possibly strangers to know their whereabouts.

If your child’s mobile device is a smartphone, there are hundreds of apps that are available to them. You should know that there is a chance that apps might collect and share personal information, let your kids spend real money (even if the app is free), and link to social media, all without you being aware. To avoid these possible negative effects of apps, you should read the description, content rating, and user reviews, and check what information the app collects before downloading. Most apps also allow you to restrict content, set passwords, and turn off Wi-Fi so it can’t connect to the internet.

When it comes to texting, encourage manners. Texting shorthand can lead to misunderstandings, so it’s important kids think about how someone else may interpret the message. You should also remind your kids to ignore texts from people they do not know and when it comes to sexting, do not do it! Aside from risking their reputation and friendships, they could be breaking the law if they create, forward, or even save this kind of message.

Making Computer and Internet Security A Habit

The security of your computer affects your user experience, and also that of your kids. Certain types of software can install viruses on your computer, send unwanted ads, and monitor your computer use. To avoid these problems, use security software and keep it updated, keep your operating system, web browser, and apps up to date, and allow the use of multi-factor authentication.

You should let your children also know that it is important to create strong passwords and keep them private, not to provide personal of financial information unless the website is secure, and watch out for “free” stuff. An important tip to teach your kids: If the URL does not start with “https,” don’t enter any secure information – the “s” means that your information is encrypted.

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Jennifer Englert

Five Things I’ve Learned in 10 Years

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This month we celebrate the tenth anniversary of The Orlando Law Group.

On August 8, 2009, I took a leap of faith that the Central Florida region would benefit from a law firm that puts people first and cares deeply about the community. We knew our clients wanted a firm staffed with attorneys who precisely focus on all areas of law.

Back then, I had a small office with two lawyers and no support staff. When I started up, the firm was agile, focused on growth and service, and I knew that what we had to offer could dramatically change many of our clients’ lives for the better.

Now, a decade later, I’ve seen a lot of change and have learned quite a bit along the way. As I reflect, there are five things I have learned that stand out.

  1. The law is continually evolving. Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. Sometimes these laws are only small changes to existing laws and other times entirely new laws are put into place, like the current bill filed with the state of Florida to decriminalize marijuana. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.
  2. Our clients’ needs have become more complex. The practice of law is exciting in that there are so many different legal areas. Over the past ten years, it’s become clear that it is impossible to draw definitive boundaries around each practice. So many times we have to take into account several areas of law when we work with a client. Family Law, for example, can stretch into business law and estate planning quite easily. As a firm, my team’s ability to be nimble and creative is a tremendous asset. We are able to look at the big picture for a client and provide them with a complete solution, even when their needs span multiple areas of law.
  3. A dedication to the community is critical. If any new business owner were to ask me for advice on how to be successful, I’d tell them that being an active member of the community is very important — the communities in which we serve benefit in countless ways when business get involved. As business owners, we have the experience to think critically about solving problems, we can assemble teams to accomplish great things, and we can inspire others to do the same. From the beginning, The Orlando Law Group has made community involvement and service a hallmark of how our firm operates.
  4. Surround yourself with positive, uplifting people. There’s a saying that suggests that you are influenced more by the people you surround yourself with than by any other source. I believe it. From the beginning, I’ve always found that when I work, socialize, and volunteer with people who have a positive and uplifting attitude, we accomplish more, and every outcome is rewarding. I encourage everyone to seek out the positive people in their lives and simply spend time with them. Their spirit is contagious and can affect you in profound ways.
  5. Set big goals and work tirelessly towards them. After a decade, my firm has grown to five offices with two dozen employees. My goals are substantial, and they get bigger all the time. When you set big goals and make a strategic plan to achieve those goals, amazing things happen. I truly love what I do. It’s my purpose in life, and that is why I work so hard to help as many people as possible. It’s not about how many offices we have or how many employees come to work every day. What matters most is that we have a positive impact on the lives of our clients.

I am fiercely proud to be celebrating our 10th anniversary today. In some ways, it feels like just a few moments have past and in others a lifetime. I do know this; we continue to be agile and aggressive. We continue to work with endless dedication to our clients. And while we celebrate ten years of serving our clients and our community, we are now focused on the next ten. 2029, here we come.

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What Happens If A Parent Refuses To Honor The Time-Sharing Schedule Set Out By The Court?

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In Florida, courts adhere to public policy when shaping a time-sharing schedule. This policy states that each minor child should have frequent and continuing contact with both parents during a separation and after a marriage is dissolved. The court adheres to the notion that parental responsibility is shared by both parents unless the court finds that it would be detrimental to the child.

It is important to note that divorce often results in a rollercoaster of emotions and situations may arise that lead to conflict between parents. If such distress leads one parent to begin restricting or altering the time-sharing of the other, Florida Statute 61.13(4)(c) states that the Court may:

1. Reimburse the denied-parent, as soon as possible, for the time-sharing missed. This is done at the convenience of the denied-parent and at the expense of the noncompliant parent; or

2. Order the noncompliant parent to pay reasonable court costs and attorney’s fees to the denied parent for the expenses incurred from bringing an action to enforce the time-sharing schedule; or

3. Order the noncompliant parent to attend a parenting course; or

4. Order the noncompliant parent to perform community service; or

5. Order the noncompliant parent to have the financial burden of promoting continuous contact, if the child resides more than 60 miles away from the compliant parent; or

6. Modify the parenting plan if it is in the best interest of the child; or

7. Impose any other reasonable sanction as a result of the parent’s noncompliance.

In addition to the possibilities listed above, if a parent refuses to honor the time-sharing schedule, they may be punished by contempt of court or another remedy that the is deemed appropriate. A contempt order may be criminal or civil. The determination of which type of contempt applies depends on the action of the party. Criminal contempt is often used to punish a party whose conduct rises to the level of embarrassing, hindering, or obstructing the administration of justice. Civil contempt is often used to persuade a party to comply with a court order after they have already failed to abide by it. To avoid being held in contempt, the parties must follow the time-sharing schedule set out by the court or properly modify it.

HOW DO YOU PROPERLY MODIFY A TIME-SHARING SCHEDULE?

Florida Statute 61.13 states that in order to modify a time-sharing schedule, a two-prong standard must be satisfied: (1) that there be a showing of substantial, material, and unanticipated change in circumstances; and (2) a determination that the modification is in “the best interests of the child.” In order to allow for a modification of the time-sharing schedule, the change in circumstances must be significant and involuntary. Additionally, as discussed in previous blogs regarding time-sharing, the “best interest of the child” is the primary standard that the court adheres to when constructing a time-sharing schedule for a minor child and his/her parents. There are numerous factors that must be considered when determining what is best for the child, some of which are:

· The ability of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent;

· The length of time the child has lived in a stable environment; and

· The moral fitness of the parents;

Therefore, if a party meets its burden of proving that there is a substantial change in circumstances and the modification is in the best interest of the child, the court may allow for the time-sharing schedule to be altered.

It is important to remember that the focus of both parents must remain on the well-being of the minor child/children, particularly in developing a safe and healthy environment for them. Additionally, if a time-sharing schedule is modified, then child-support payments may need to be adjusted as well. If you are planning on obtaining a divorce or modifying a time-sharing schedule, it is imperative that you understand the process, as well as the rules that the court must adhere to.

The attorneys at The Orlando Law Group are equipped with the knowledge and experience to assist you with such a process. Call 407.512.4394 to schedule a consultation today.

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Divorce Child Custody

How Do Courts Calculate Time Sharing in Divorce Child Custody

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Divorce can be an overwhelming process, especially if a parent doesn’t understand the reasoning and methodology behind the court’s decisions. One decision that many people must deal with is the courts’ decision on the custody arrangement.

When the amount of time you spend with your child is at issue, it often helps to understand the rules that the court must abide by when constructing a time-sharing schedule. In Florida, courts adhere to Florida Statute 61.13, which may be a little overwhelming to read at first glance. This is why the professionals who focus on family law with The Orlando Law Group are here to help. 

Florida Statute 61.046(23) defines time-sharing as a timetable that must be included in the parenting plan that specifies the amount of time that a minor child will spend with each parent, which includes overnights and holidays. A time-sharing schedule can either be 1) developed and agreed upon by the parents, then approved by the court; or 2) established by the court, if the parents can’t agree or if the time-sharing schedule they have already developed is not approved. 

61.13 (2)(c) further states that the court must make a decision regarding a minor child’s time-sharing based on the best interest of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. This means that the court takes into account all factors that affect the welfare and interest of the minor child, as well as the circumstances of the family. For example, some of the factors that the court looks to when determining the best interest of the child are: 

a. The capacity of each parent to encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required; 

b. The ability of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent; 

c. The length of time the child has lived in a stable environment; 

d. The moral fitness of the parents; 

e. The mental and physical health of the parents; 

f. The home, school, and community record of the child; 

g. The reasonable preference of the child; 

h. The knowledge, capacity, and disposition of each parent to be informed of circumstances that involve the child; 

i. The ability of each parent to provide a routine for the child, such as discipline and daily schedules for homework, dinner, or bedtime; 

j. The capacity of each parent to communicate with and keep the other parent informed of issues and activities involving the child; 

k. Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect; 

l. Evidence that either parent knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect; 

m. The ability of each parent to participate and be involved with the child’s school and extracurricular activities; 

n. The ability of each parent to maintain an environment free from substance abuse; 

o. The ability of each parent to protect the child from ongoing litigation, which includes: no talking about the litigation, no sharing documents with the child, and refraining from speaking badly about the other parent; 

p. And any other factor that is relevant to the determination of time-sharing. 

In addition to the best interest of the child, the court makes its decision in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, or otherwise known as the “UCCJEA”. The purpose of the UCCJEA is to avoid competition and conflict between courts of another state, where matters of custody may have been previously handled.

The UCCJEA Affidavit requires the parent to fill out the child’s name, place of birth, birth date, sex, present address, the period of residence, and places where the child has lived within the past 5 years. It also requires the name, present address, and the relationship to the child for each person with whom the child has lived during that 5-year period. 

Statute 61.13 further states that it is the public policy of the state that each minor has frequent and continuing contact with both parents after the parents separate or after the marriage is officially dissolved. It encourages both parents to share the rights and responsibilities that come with raising their child. It also emphasizes that there is no presumption against the father or mother of the child regarding their time-sharing, which essentially means that there is no predetermination made by the court regarding which parent the child will spend more time with. After the court weighs all of the factors outlined above, it will make its determination based on whatever time-sharing schedule is best suited for the child’s individual needs. 

If you are currently struggling with determining a suitable time-sharing schedule in a divorce child custody situation, finding an attorney who can effectively help you during its construction is vital. The attorneys at The Orlando Law Group are ready, willing, and able to assist you with such a process. We have countless hours of experience in family court helping our clients navigate divorce cases and understand the type of custody that has been arranged.

Call 407.512.4394 to schedule a consultation today.

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Florida Medical Marijuana

Florida Medical Marijuana – What employers need to know.

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Regarding the Florida Medical Marijuana Law, what defines “marijuana?”

“Marijuana” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin, including low-THC cannabis which are dispensed from a medical marijuana treatment center for medical use by a qualified patient.” Florida Statute § 381.986 

The vote for the use of medical cannabis in Florida.

In 2016 Florida citizens voted for a constitutional amendment permitting individuals to use cannabis for medicinal purposes. The bill passed with tremendous support garnering 72% of the votes, in the state known for its narrow margins and hotly contested elections.

While Medical Marijuana may have passed in Florida, Federal Law, as well as Florida law, does not prevent Florida employers from punishing employees for failing a drug test. Despite its landslide victory, the herbal medicine still faces controversy and must overcome ambiguity before it can be used freely by the constituents who voted for it. 

Florida Statute §381.986, in great detail, covers the use and restrictions of Medical Marijuana in Florida. This statute reads, in part: 

(1) (j) “Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification. The term does not include use or administration of marijuana in the following locations: 

a. On any form of public transportation, except for low-THC cannabis. 

b. In any public place, except for low-THC cannabis. 

c. In a qualified patient’s place of employment, except when permitted by his or her employer. d. In a state correctional institution, as defined in s. 944.02, or a correctional institution, as defined in s. 944.241. 

e. On the grounds of a preschool, primary school, or secondary school, except as provided in s.1006.062. 

f. In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis. 

(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. 

Florida employers are not required to accommodate.

The excerpt above sparked major controversy and was unbeknown to most voters until after the law went into effect. Although the usage of Medical Marijuana is legal for those people who qualify, the law is clear that an employer is not required to accommodate an employee’s medical use of marijuana. This differs from other laws such as the Americans with Disabilities Act or the Family Medical Leave Act, where the federal government has mandated that employers follow certain protocols when dealing with these classes of people. 

Florida employers do not have to accommodate to the fact that you are legally allowed to use marijuana, nor are they required to allow you to use marijuana at their business location. An employer can terminate an employee for the use of legal medical marijuana, and this termination does not create a basis for legal action for wrongful termination.

Marijuana can stay in a person’s system for up to multiple weeks, ensuring that employees subjected to drug test must refrain from the substance for indefinite amounts of time. A person with a marijuana card, depending on the rules of their employer, would not even be able to administer the medicine (smoking medical marijuana, for example) outside of work because they would run the risk of failing a drug test. 

Incentives for employers

Under the laws as they currently stand, Florida actually provides incentives for employers NOT TO allow the usage of medical marijuana in their workplaces. In 1990 the Florida Legislature enacted a State law titled “Florida Drug-Free Workplace” F.S 112.0455. This law provided specific requirements which an employer must comply with to be certified as a Florida Drug-Free Workplace. The law also provided incentives and benefits for employers who are certified as a Florida Drug-Free Workplace. The State of Florida, through this law, encourages employers to drug test employees and promotes a Drug-Free Workplace environment. In Florida, companies get reduced rates on various insurances if they implement drug-free workplace policies. 

Could the Florida medical cannabis pave the way for recreational use of weed?

Florida is also slowly moving toward recreational marijuana, with at least one bill being proposed in 2019 before dying in committee. Proponents of recreational marijuana are citing states like Colorado who have generated billions since approving of recreational use. Florida is already a tourist destination and could easily capitalize on the recreational marijuana industry. With the passage of medical marijuana and the lag time in the laws of Florida to catch up with these medical innovations, it makes you wonder whether recreational marijuana will be vertically integrated and structured the same way. The “drug” may become legal for recreational use, but under Florida Law, you could still be terminated from your place of employment. 

There have been no successful legal challenges in Florida regarding medicinal marijuana in the workplace. Of course, this amendment is relatively new and the possibility remains that the courts could decide in favor of employees – especially as the opioid epidemic worsens and more and more states are looking to medical marijuana as a better alternative to chronic pain relief. Until that time, the statute is clear that marijuana use, medical or otherwise, is not permitted under the Florida Drug-Free Workplace rules.

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#focusondrivingfl texting while driving

#FocusOnDrivingFL – What you need to know about the texting while driving in Florida

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Texting and driving can be a dangerous combination. In a 2014 report, the US Department of Transportation National Highway Traffic Safety Administration studied data from 2012. The data revealed that distracted driving was associated with 3300 deaths and 421,000 injuries in collisions in the US; much of the evidence in these cases suggests that smartphone use continues to be a substantial contributor to these incidences.

Further, AAA recently conducted a study that revealed 78% of Americans suggest that texting while driving is a “significant danger.” The study also cited that 35% of the respondents admitted to texting while driving.

Starting July 1, 2019, texting while driving has been defined as a primary offense in the state of Florida. Many people don’t realize that texting and driving was illegal before the July change. The difference is that previously, a law enforcement officer had to witness you violating another law to be able to pull you over for texting while driving.

In early 2019, the Florida government voted to change that.

With the July 1 change and texting while driving becoming a primary offense, authorities can pull you over if they see you typing on your phone or other hand-held devices.

Here are some of the top questions we have been asked about the new law.

Someone told me that if I am stopped for texting while driving, a police officer can ask to see my phone to verify that I was texting. Is this true?

This is actually true; officers are allowed to ask to see the phone of the driver who was pulled over for texting while driving, with one caveat. While the responding officer can ask to see your phone, they must tell you that you have the right to decline the request.

The original law making texting and driving a secondary offense started in 2013. Since then, officers have received training to be able to identify drivers who are texting. If you are stopped, it is because an officer believes you were texting while driving based on your behaviors.

How do things change after July 1?

Florida statute 316.305 — which is known as the Florida Ban on Texting While Driving Law, officially changes the law against using a mobile phone or hand-held device from a secondary offense to a primary offense. Beginning on July 1, law enforcement officers can pull over drivers for using a wireless device while operating a vehicle.

And there’s more. There’s also a part of the law about school zones and construction sites with active workers. This part of the law states that starting October 1, 2019, phones or hand-held devices can only be used in a “hands-free” manner while in use in a school zone, school crossing area, or construction area with active workers.

What happens if I get pulled over for texting while driving after July 1, 2019?

The answer to this question is “it depends.” Depending on the law enforcement agency that has stopped you, the outcome might vary.

The Florida Highway Patrol has released a statement suggesting that they will be issuing warnings until January 1, 2020. They are considering the time between now and then to be an “educational period.” Meanwhile, in Volusia and Orange Counties, the Sheriff’s Offices have stated that will begin ticketing offenders immediately.

Our suggestion is to simply obey the law, regardless of where you happen to be driving.

Can I still text while stopped at a red light?

The law does not specifically state that you cannot check your phone while parked on the side of the road or at a red light; it is not advised. Ultimately, when you are behind the wheel of a motor vehicle, your attention should be on your surroundings and making sure you and those around you are safe.

Can I be exempt from the texting while driving law?

There are a few instances where you might be exempt from this law. These include if you are reporting an emergency or criminal activity to law enforcement, if you are operating an autonomous vehicle in autonomous mode, or if you are receiving messages that are related to the operation or navigation of the vehicle. You could also be exempt if you are using the device for system or navigation purposes.

These are certainly not “get out of jail free” cards, so be smart with how you use technology and put safety first always.

Under the new law, can I legally press a button on my phone to answer a call?

Outside of a school or work zone, according to the law, you are allowed to activate, deactivate, or initiate a feature or function on your phone, as long as it doesn’t require multiple key presses.

In a school or work zone, the law suggests that you can use only hands-free features to activate, deactivate, or initiate a feature or function on the phone. So, using Siri on an iPhone or “Ok Google” on an Andriod phone is permitted.

Focus on Driving Campaign

While there are groups who worked to prevent this law, it’s essential to consider that the spirit of the law is to keep people safe. These include the driver, the car’s occupants, other drivers, and pedestrians.

The State has created a “Put It Down” campaign to bring awareness to the new law. You can follow hashtags #PutItDown and #FocusOnDrivingFL for more information.

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New FREC Team Advertising Rules; What you need to know.

New FREC Team Advertising Rules; What you need to know.

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Jarrod Ethridge on the PACE Program in FloridaBy Attorney Jarrod Etheridge

The Florida Real Estate Commission (FREC) has published the final version of Rule 61J2-10.026, which governs group or team advertising. This new FREC Team Advertising Rules impact office procedures and team advertising.

New FREC Team Advertising Rules go into effect July 1, 2019

Effective July 1, 2019, this rule is set to create some serious changes in the real estate industry. The reasoning behind the rule is that FREC was receiving complaints from the general public who were often being confused or misled as to who, or what they were dealing with during a real estate deal.

Group/Team names were often being mistaken to be the name of the real estate brokerage, and clients were often unable to determine whether they were dealing with an agent, a broker or brokerage. Under Florida law, only a broker is allowed to use a fictitious name. For example, Keller Williams, Coldwell Banker, Tavistock, etc. A sales or broker associate operating under a Florida entity is required to name the entity after themselves. By creating team names including certain words, FREC believes realtors are crossing this line. 

What are some of the words no longer allowed in real estate team names?

Under the new rule, FREC has released an extensive non-exhaustive list of words that are no longer allowed to be included in team names. Whereas realtor teams are allowed to use the words “team” or “group,” almost every real estate team in existence uses one of the now prohibited words: (a) Agency (b) Associates (c) Brokerage (d) Brokers (e) Company (f) Corporation (g) Corp. (h) Inc. (i) LLC (j) LP, LLP or Partnership (k) Properties (l) Property (m) Real Estate (n) Realty (o) Or similar words suggesting the team or group is a separate real estate brokerage or company. 

If your team name still meets the above, you are not out of the woods yet. The new rule also provides that on any advertisements containing the team name of any form, registered brokers must maintain a design where “the name of the team shall not appear in larger print than the name or logo of the registered brokerage.

All advertisements must be designed in a manner in which reasonable persons would know they are dealing with a team or group.” Check your business cards, website, mailers, etc., if your team or group advertising contains a name that is in a bigger font than the name OR logo of your brokerage, you are out of compliance with the new rules.

This is certainly a good time to be in the business of promotional items because almost every real estate agent in Orlando is going to be scrambling to get new business cards and other promotional items.

Do the new FREC Team Advertising Rules affect teams made up of agents from multiple brokerages?

For those very few teams whose names are still valid, the rule also adds a component requiring all real estate teams to be comprised of members of the same brokerage or under the supervision of the same broker. FREC is no longer going to allow agents from multiple brokerages to act under a single team. 

What to do right now…

The Orlando Law Group is here to help if you need someone to review your current advertising schemes to make sure you are in compliance with the new rules. Judging by the drastic changes pushed forward with this rule, we do not recommend continuing to use any advertisements that are out of compliance starting July 1, 2019.

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U.S. Work Visas

An Overview of U.S. Work Visas for Foreign Workers

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Immigration for Foreign Workers Coming to the US

Global marketing is no longer reserved for brands with deep pockets. Many Foreign businesses are expanding into international markets, and all of them eventually find themselves at the doorsteps of the United States, the world’s largest market. With this comes the relocation of employees, and the process of obtaining work permits suitable for those individuals to become employed in the United States.

This article will go into detail about the various visas and how to determine which are best suited for foreign employees who wish to emigrate from their home countries to work in the United States.  

E-2 Visa 

To obtain an E-2 visa for a temporary worker, a foreign national must be from an E-2 treaty country. However, one does not need to reside in an E-2 treaty country to qualify, many Brazilians fall under this exception.  Brazil is not a treaty country; but many Brazilians retain Italian citizenship since Italy is a treaty country, they too become eligible for an E-2 visa. The foreign investor must also own at least 51% of the company for it to qualify as an E-2 entity.

If this criterion is met, the applicant may go ahead and submit their application to their nearest U.S. Embassy. The applicant will then go through a visa interview and screening process to obtain a visa valid for five years.

Each E-2 temporary work visa holders may stay for a maximum of two years from the date of entry, leaving before that expiration. The spouse and children of an E-2 Visa Holder can obtain work authorization while in the United States. It is important to note that E-2 Visa Holder’s children who are 21 years of age and younger can attend school but cannot work.

L-1A Visa 

The L-1A visa is for managers, executives, or specialists of a foreign company who are being transferred to their company’s U.S. offices. The regulations for the L-1A visa states that applicants must within three years preceding the time of their application been employed continuously for more than a year by a qualifying entity.

The applicants must seek to enter the United States temporarily in order to render his or her services to a branch of the same employer parent affiliate or subsidiary of the qualifying entity. 

If a company is established in both countries, the L-1 can be valid for three years. If a foreign entity is forming a new company in the U.S., the applicant can receive a one-year visa and renew in increments of three years, until the employee has reached the maximum of seven years.

The spouse of an L-1 Visa Holder can obtain employment authorization while in the United States. Children (21 years and younger) can attend school but cannot work. The main concern with L-1’s is that they do not readily apply to small businesses.

H-1B Visa for Employee with a Specialty Occupation

When applying for the H1-B visa, the job must be classified within a DOL (Department of Labor) code in order to know what general job duties will be as well as determine what the prevailing wage will be. An Example of a position would be an Agricultural and Food Scientist (19-1012.00). This is an appropriate example as it requires a minimum of a bachelor’s degree.

For employees requesting H-1B status for the first time, please keep in mind a few things. The effective date for the H-1B is October 1 of each year, which is the government’s fiscal year start date. The applicant cannot file a visa application until April 1st of each year. Preliminary work takes a minimum of one and a half months to complete, so it’s imperative that they give enough time before that filing date to do the required. 

PERM / Green Card

There are three steps to undertake for permanent residence based on employment.

1.    The first step is to file an application for labor certification under the PERM provisions.

2.    The second step is to apply for the immigrant visa petition. Once this is approved, the process can move forward with the petition to classify the beneficiary as an immigrant worker professional. 

3.    The final step is an application for permanent residence or consular processing. 

The employer is legally required to pay for all fees and costs associated with the PERM process during the initial step. The second and third steps can be paid by either by the employer, the employee, or both.

It is important to note that candidate eligible for an H-1B may not necessarily qualify for permanent residence. One does not have to be in H-1B or have an educational degree to qualify for the PERM process.

Unless the employer can demonstrate that it cannot find a suitable US worker qualified and willing to fill the position, the labor certification application will not be approved. If this occurs, the employer can begin to advertise the position and hope that the attempt will not bring forth any willing and qualified U.S. workers applying for the position.  

Planning ahead for your employees and their families who might also want to come to the US and become citizens makes all the difference.  If you require assistance when the time comes to apply for a visa consult a professional who specializes in citizenship and immigration services and can expedite the process and prepare you for any bumps in the road.

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Individualized Education Plan

Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida

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Depending upon your child’s needs, obtaining the initial Individualized Education Plan or sometimes known as an Individualized education program (IEP) may be a simple process or a little more challenging, depending on specific conditions. Regardless, the first step is to begin gathering medical records and samples of your child’s work, which may include tests, graded homework, and notes of your observations.

Once you have collected the records and samples, contact school personnel to request a formal evaluation from your child’s public school. The Individual with Disabilities Education Act, or IDEA, applies to educational institutions that received funding from federal sources which include most public schools.

Make sure your request is in writing and include all the relevant demographic information in addition to your concerns and corresponding documentation to support your concerns. If the school district agrees to evaluation and your child is found to have one or more of the 13 disabilities listed in IDEA and needs special education services or accommodations, (s)he will qualify for an IEP.

Within thirty calendar days after a child is determined eligible, a team of school professionals and the parents must participate in an IEP meeting to write an IEP for the child. The team members might meet in the school’s resource room or other appropriate location. The IEP might evaluate the levels of educational performance, set annual goals, and forecast transition services for the future of the child.

Parental consent for Individualized Education Plan implementation

Before the school system may provide special education and related services to the child for the first time, the parents must give consent. The child begins to receive services as soon as possible after the IEP is developed and this consent is given. 

If the school district denies your request, they must send you a “prior written notice” containing action proposed or refused by the district, explanation of the decision, description of other options and resources for you to better understand your rights under IDEA. At any point, but especially at this juncture, you may have your child evaluated privately.

Most likely, you will have to pay for this private evaluation. The school district may also opt to continue targeted interventions through “response to intervention.” It is important to note that a child does have to have a particular diagnosis to be eligible for services, or in the alternative, more than one disability and/or diagnosis can be documented in a child’s IEP. 

If the parents do not agree with the IEP, its goals, and placement, they may discuss their concerns with other members of the IEP team and try to work out an agreement. If the team still cannot come to an agreement, parents may request mediation, or the school may offer mediation.

Parents may file a state complaint with the state education agency or a due process complaint, which is the first step in requesting a due process hearing, at which time mediation must be available. 

Not all students are eligible

Not all students will be eligible for exceptional student education (ESE) services under IDEA. Similar to the IEP eligibility process, parents and or school staff members may raise concerns about the child’s strengths and performance at school and the team will consider whether the child has a disability that requires accommodations via a Section 504 plan in the school setting.

Section 504 is part of a federal civil rights law known as the Rehabilitation Act of 1973 which specifically prohibits discrimination against students with disabilities and guarantees them a free and appropriate public education (FAPE).

As defined in Section 504, discrimination is the failure to provide students with disabilities the same opportunity to benefit from education programs, services, or activities as provided to their nondisabled peers. Therefore, schools cannot exclude students with disabilities from facilities, programs, benefits, activities, or services that are provided to students without disabilities. Schools must make sure that all students receive equal access to educational opportunities. 

A Section 504 plan details the accommodations that the school should provide to support your child’s education. While Section 504 does not require a written plan, it does require documentation of evaluations and accommodations and you must ensure the team writes a plan to provide clarity and direction to the individuals delivering services or making accommodations.

Similar to the IEP process, annual reviews are highly recommended and Section 504 accommodation plans may be updated at any time to reflect changes and recommendations by the team. 

Parents are the most important advocates for Individualized Education Plans

As the parent, you are one of the most important members of your child’s team at school and if you believe or know your child has special needs and is having problems in school, the team should be contacted to discuss these concerns. Building a strong parent/school relationship begins with effective communication and clearly set goals and objectives.

Document all communication with school staff, preferably via email and most importantly follow-up on all action plans to ensure accommodations listed in your child’s Individualized Education Plan or Section 504 plan are being effectively implemented.

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gopher tortoise

The Florida Gopher Tortoise – A Slow Set-Back to Development

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

When purchasing a piece of property, it is important to consider a variety of factors, including the animals, like the gopher tortoise, that inhabit the landscape. If any endangered or threatened species reside on that property, be prepared for a long and potentially expensive process. This includes the gopher tortoise, who are commonly known for digging burrows in their home range in Florida, Georgia, and other southern states.

What is a gopher tortoise?

The gopher tortoise is a large terrestrial reptile that has front legs perfectly suited for burrowing. The rear feet of the gopher tortoise are often referred to as “elephantine” because of their size and shape.

The front legs are protected from sharp rocks while burrowing by a layer of scales. the scales are usually dark brown, gray, or black in color. They also have a yellow lower shell. You can easily distinguish a male or female gopher tortoise. Male gopher tortoises having concave lower shells, while females’ lower shells are more are flat in appearance.

Gopher tortoise habitats

Gopher tortoises occupy various habitats throughout Florida. They use their front legs to dig burrows many feet deep for shelter and forage on low-growing plants. You may have seen them in a patch of woods or walking down the road. 

Gopher tortoises share their burrows with more than 350 other species. They are referred to as a keystone species because of the Florida natural ecosystem’s reliance on the burrows.

A threatened wildlife species

In Florida, the gopher tortoise is listed as a Threatened Wildlife Species by the states fish and wildlife conservation commission. Both the tortoise and its burrow are protected by state law. Gopher tortoises must be relocated before any land clearing or development takes place within twenty-five feet of either a gopher tortoise or a gopher tortoise burrow. Property owners must obtain permits from the Florida Fish and Wildlife Commission (FWC) before capturing and relocating tortoises. 

Developers, builders or landowners who develop within the protected area of a gopher tortoise or its burrow commit a crime under Florida law. It is a level four violation, as defined in §379.401(4)(b) is a felony of the third degree which if convicted could result in (1) a term of imprisonment not exceeding five years, (Florida Statute § 775.082) and/or (2) a fine of $5,000 (Florida Statute § 775.083). 

If you buy a piece of property that has an existing gopher tortoise habitat or gopher tortoise burrows, you might have some work to do. The prohibitions related to gopher tortoise burrows will not be applied if you can demonstrate that those burrows are no longer used by gopher tortoises. To prove this, at your expense, a gopher tortoise survey will have to be conducted in accordance with the guidelines of the FWC.

Most activities associated with residential lawn and landscape maintenance do not require a permit provided the activities must not collapse gopher tortoise burrows, cause habitat loss, or harm gopher tortoises. Prescribed burning requirements vary from county to county and should be explored before burning near a gopher tortoise habitat.

Even if the collapse of the burrow’s sandy soils is accidental, the landowner could be held criminally or civilly liable for disrupting the tortoises. This is more likely if the person knew that their actions could harm the tortoises.  It’s advisable to check with the fish and wildlife service professionals if you have any concerns.

Getting help developing land with gopher tortoises in Florida

P.A.W.S. (Peoples Alliance for Wildlife Survival) is a non-profit organization that helps landowners with the development of land containing Gopher Tortoise burrows. The organization’s primary concern is for the welfare of the animal during the stressful relocation process. According to its website, the organization can provide four options to help homeowners:

Option 1: Develop the property while staying at least twenty-five feet away from the Gopher Tortoises. This is advertised as the least expensive and most favorable open for both the landowner and the tortoise. The organization will help study mark the areas to avoid developing, and they suggest placing signs up that notify the public of the existence of the tortoises.  

The cost for this service is around $100.00 through this non-profit organization. Using a private company could potentially cost hundreds or thousands of dollars. Many Florida builders have employees certified in detecting and protecting the Gopher Tortoise as they could be held criminally liable for disturbing them as well.

Option 2: Onsite Relocation. In some cases, you potentially have the option to relocate the tortoise to a different part of the subject property.  “This process generally involves trapping or excavating the burrow, and once empty, completely collapsing it.

The tortoises are moved to the predetermined location elsewhere on the property. They are enclosed in a temporary pen and supported while starter burrows are created and they are eventually released.” P.A.W.S., https://www.pawsfloridachapter.com/Tortoiserelocationinfo.html. The cost for this service is $250-350.00 through this non-profit.

Option 3: Offsite Relocation. Offsite relocation is considered to be a more time consuming and costly alternative to the previously listed options. This route requires the highest levels of permits and oversight by government agencies such as the FWC. P.A.W.S. typically charges between $400.00 and $600.00 to oversee this service, which is compared to Private companies which can run up to $6,500.00 for comparable services. 

Avoiding problems with gopher tortoise

A gopher tortoise problem can be easily avoided, but it can be a very costly and time-consuming problem if it is missed during the inspection period. Should you or your client have any issues relating to gopher tortoises, it is highly recommended that you address the problem as soon as possible.

Any attempt to relocate or otherwise remove the tortoises on your own could result in very significant fines and/or criminal penalties against you.  Other types of wildlife have similar protections in Florida through an endangered species act and have their own experts to help landowners with mitigation.  

Protected species include Bald Eagles, which are the most well-known. It’s also worth knowing about gopher frogs and burrowing owls. If you are in doubt if a species is protected, it is advised to ask a professional before you begin your project. 

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PACE Program Florida Solar

The PACE Program – Are Solar Panels Worth The Trouble in Florida?

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

What is the PACE Program? 

When a homeowner is looking to upgrade their home to solar energy, the first step is to determine exactly how the project will be paid for Since most people typically do not have thousands of dollars in their rainy day fund, many people will require a loan to finance the upgrades. The PACE program will provide the loan for the homeowner. 

PACE, which stands for property assessed clean energy, is a new concept in financing home and commercial property improvements. PACE financing is an easy and effective way to finance a range of upgrades that save energy, conserve water, harness renewable energy, and protect against natural disasters such as hurricanes and earthquakes. While PACE programs are enabled by state legislation and approved by local governments, PACE financing is not a government discount or incentive program. 

PACE financing is a loan that is available in areas where the local government has allocated funds to be used for financing improvements on residential and commercial properties. An authorized PACE lender provides the funds to the homeowner, and the property owner repays the financial institution through an assessment attached to their annual property tax bill. The specific amount of money you qualify for is dependent on the amount of equity in your house. Hundreds of home and commercial improvements qualify for PACE financing. Among the more common are solar photovoltaic (PV) systems, roofing, HVAC systems, impact-resistant windows and doors, drought-tolerant landscaping and many more. 

The PACE program provides many benefits such as no money down with 100% financing and no payments for up to twelve months. A PACE loan is different than traditional loans because it attaches to the property, not the person. This means that the person who takes the loan can sell their house, and the loan is then paid by the new owner of the house. 

A loan with zero upfront costs attaches to the property rather than the person, and provides upgrades such as Solar panels, almost sounds too good to be true. Are there any downsides to a PACE program loan? For many homeowners, there have been. 

Are there problems with the PACE program? 

Ygrene Energy Fund is one of the bigger PACE program lenders in Florida. A typical PACE loan financed through Ygrene Energy Fund Florida lasts about 20 years with an average interest rate of about 7 percent. The PACE program has a higher interest rate than other green mortgage alternatives such as FHA loans. Borrowers can expect to repay twice the project cost over the payback period. As with any other type of loan, failure to make payments to a PACE loan will end up in a lien, which eventually could result in foreclosure. A property assessment automatically becomes the first lien on any property, putting both the borrowers and the mortgage lenders at risk of losing their money. With the risk incurred by the mortgage company, many lenders will not finance a purchase of a property holding a PACE loan. 

Many issues have arisen with contractors recommending a PACE loan to homeowners. It has been reported that some contractors charge more money for services that are financed through a PACE loan. There have also been reports of contractors stating that the price of payments on the loan would be offset by the amount of money the homeowner saves in utility bills, which for many homeowners was not accurate. In many instances, the homeowner relies on what the contractor has told them, regardless of whether this information is factually accurate. 

Should I use the PACE program?

Many homeowners did not take the time to read the full contract for a PACE loan, nor did they do the appropriate research to determine if this program was the right program for their specific situations. Some homeowners have alleged that they did not even know that failure to repay the loan would result in a lien on their property. If the house is foreclosed upon, the homeowner will have to pay the PACE loan off in full. If there is any money left over, the lender of the mortgage (if there is one) will be entitled to the surplus. This would leave the homeowner with a very unlikely chance of receiving any money from the foreclosure sale of their home. 

Is it worth getting a PACE loan for solar in Florida?

Yes, and No. The PACE program is not a one-size-fits-all program and should be scrutinized by each homeowner BEFORE they sign the contract. If you understand the PACE program, there are certainly ways to use it to your advantage. The real issues with the program seem to stem from homeowners jumping into a program without fully understanding the long-term contract. After the Solar panels are installed, the reality sets in that the PACE loan is a 20-30-year commitment that can potentially cost twice as much to repay, if the homeowner can make the payments at all. If you are the type of person who reads the terms of service on products you purchase, you should not have any problems with the PACE program, however, the PACE program is not a commitment in which you want to agree to the terms of service without first reading them.

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online notary public

The Online Notary Public – Just One Click Away

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By Jarrod Etheridge

A new House Bill, if passed, would allow for Online Notary Public services

If you have ever been involved in a lawsuit, filed for divorce, bought or sold a house, etc., you have probably had a few interactions with a Florida Notary. A Notary Public is an official appointed by the Governor of Florida, to serve the public as an impartial witness to the signing of important documents, as requiring the signor to appear in front of the Notary helps deter fraud. However, in 2019, the requirement of physically appearing before a Notary may become a thing of the past. House Bill 409, if passed, would allow for online Notarization of your important documents: 

“An online notary public physically located in this state may perform an online notarization that meets the requirements of this part regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization.” See House Bill 409, Page 34, Lines 826-830. “An online notarial act performed in accordance with this chapter is deemed to have been performed within this state and is governed by the applicable laws of this state.” See House Bill 409, Page 34, Lines 835-838. 

The Bill, proposed by Rep. Daniel Perez, will be considered in the next Judicial Committee, which is the final step before a House Vote. Since proposing the Bill, there have been outbursts of mixed feelings with many people applauding the use of modern technology in the Notary field, and others arguing that Fraud is already on the rise, and this Bill will make it that much easier to commit Fraud. 

Benefits of an Online Notary Public

There are many benefits to this system, such as allowing people who are sick or bedridden to have important estate planning documents notarized without having to leave the house, or without having to have a mobile notary come into the home. The Bill would also allow someone on vacation to execute necessary documents without having to wait for days or weeks until they return home. 

House Bill 409 lays out specific criteria, including on-camera identification of the signor, that an online Notary will have to comply with before they are allowed to issue their seal: 

“In performing an online notarization, an online notary public shall confirm the identity of a principal and any witness appearing online, at the time that the signature is taken, by using audio-video communication technology and processes that meet the requirements of this part and of any rules adopted hereunder and record the two-way audio-video conference session between the notary public and the principal and any witnesses. A principal may not act in the capacity of a witness for his or her own signature in an online notarization.” See House Bill 409, Page 34, Lines 839-847. 

Advances in Technology Change the Way A Notary Public Can Operate

Historically a Notary was required to physically, in person, view a form of identification of the person signing such as a driver’s license or other governmental identification. The Notary Public either makes a copy of the license or records the identifying numbers in their Notary books in case the Notarized document is ever involved in litigation. Due to the importance of the document(s) being Notarized, litigation may arise many years later, so preservation of the Notary record is vital. With modern technology allowing cloud storage, these recorded identifying conference sessions could be stored forever electronically. This would allow people to later judge whether the documents provided were, in fact, sufficient because the viewable record would be exactly the same as it was at the time the notary witnessed the signing. However, if you continue scrolling the Bill, paragraph (9) raises some concerns: 

(9) Any failure to comply with the online notarization procedures set forth in this section does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of this chapter or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes. See House Bill 409, Page 36, line 888. 

This section states that if an online Notary fails to record the Identification conference (or any of the others procedures not discussed in this article), the Notarization is not per se invalid. The Notarization would first have to be discovered, challenged, and then successfully argued and proven to be forged, fraudulent, or otherwise invalid. This would allow for a situation where someone has a friend perform an online Notary without any verifying documents and without recording the conference. The Notarization is not invalid until it is ruled as such; however, the Notary did not record or preserve any of the documents they relied upon. How exactly is a person supposed to prove whether a Notarization is fraudulent if there is not any record? This section could potentially create many nightmares in areas such as Wills and Trusts where the signor may not even be alive, and the Notary did not preserve the record. Perhaps this should be reversed, in that the online notarization should be considered per se invalid unless there exists proper documentation or record to support the identity of the signor. 

With the help of technology such as video conferencing, many areas of society are moving into electronic means. With the importance of Notarization, and how heavily our society leans on the verification of a signature, perhaps proposed House Bill 409 is a little less restrictive than it should be as the first round of Electronic Notarization in Florida. Whichever way the Florida legislature decides, it will be an interesting story to follow.

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Lady Bird Deed

What you need to know about the Lady Bird Deed benefits

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What is a Lady Bird Deed and why is it beneficial?

Florida is one of only a handful of states that recognize a Lady Bird Deed. A person who creates a Lady Bird Deed, also known as an Enhanced Life Estate Deed, transfers property to himself for his lifetime, creating a life estate in the original owner, and names one or more people, entities, trusts, or organizations to inherit the property.

The life estate retained by the original owner of the property is enhanced, meaning that the owner retains actual ownership of the property until death, and can change the deed, mortgage, or sell the property as desired during their lifetime without permission or involvement of the remainder beneficiaries. When the owner of the property dies, the property is automatically transferred to the new owner(s) listed on the ladybird deed. A house that transfers through a life estate deed completely avoids probate because it transfers at death, and therefore does not become a part of the Grantor’s estate. 

Benefits of a Lady Bird Deed

  • Ensures that the property passes to the person or people of the Grantor’s choosing by avoiding probate of the property. 
  • Grantor maintains the right to use and profit from the property for their lifetime
  • Grantor maintains the right to sell, mortgage, or even execute a new lady bird deed to the property at any time, without having to obtain the permission or authorization of the grantee on the previously executed lady bird deed. 
  • Grantor avoids making a gift that might be subject to federal gift tax
  • Does not risk the Grantor’s Medicaid eligibility because it is not considered a “transfer” until the Grantor passes away.
  • Prevents the property from being sold upon your death to repay the Medicaid benefits conferred upon the Grantor, because the property passes to the Grantee(s) upon the death of the Grantor and does not become an asset in the estate of the Grantor.
  • You keep your homestead real estate tax exemption, and the county will not reassess the property to raise taxes. 

The Lady Bird Deed and Medicaid

Medicaid is a government program that provides Florida residents with long-term health care coverage. Medicaid benefits are intended for people who can’t otherwise pay for their medical care. To apply for Florida Medicaid, the state’s Institutional Care Program, an individual must provide the Department of Children and Families with a detailed list of all assets.

The purpose is to ensure that all available financial resources are used to pay for care before Medicaid funds are used. The value of all qualifying assets, called countable assets, is calculated and used as the basis for creating a Medicaid eligibility waiting period.

If a time should come when you require long-term care and you apply for Medicaid, the government will impose a five-year “look back” period on your eligibility. This means you cannot transfer ownership of property within five years of making the application. The extent of your eligibility depends on the value of assets you own at the time you apply.

Less is more, and many people erroneously believe they can simply give property away before applying, however, transfers are subject to this five-year period, and assets given away during this time can be pulled back into the value of your estate. Because an enhanced life estate deed allows you to retain control over the property during your lifetime, it doesn’t qualify as a transfer until the death of the Grantor. 

If you receive Medicaid benefits during your life, then after your death the State will make a claim for repayment from any assets in your estate. The State will not be able to make a claim against any property with a valid lady bird deed because the property doesn’t become part of the decedent’s estate. The property automatically transfers into the ownership of the Grantee listed on the lady bird deed. 

Tax Planning and Benefits with a Lady Bird Deed

There are a few tax benefits for a Lady Bird Deed in Florida, such as avoidance of the Federal gift tax. The Lady Bird transfer is an incomplete gift, meaning there is no requirement to file a gift tax return. There has not been an effective transfer during the owner’s lifetime. Moreover, the Florida Department of Revenue assesses minimum documentary stamp taxes on Lady Bird Deed property transfers as long as the grantor of the deed is the same person who retains the life interest. This means that your documentary stamp taxes would only be based upon a sum of $10.00 consideration, instead of the value, or sales price of the home. This can potentially save your heirs a few thousand dollars. If the deeded property is a homestead, there will be no loss of homestead tax exemption and the county will not reassess the property to raise taxes. 

Estate Planning with a Lady Bird Deed

A lady bird deed, if done correctly, can be a very useful estate planning tool. There are many advantages of using a Lady Bird deed over other types of deeds. If you feel that this type of deed may be beneficial to you, would like more information or would like to discuss other possible options, please give The Orlando Law Group, PL a call at (407) 512-4394. 


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How to handle a narcissist in court during a divorce

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By Attorney Marsha Summersill

What is a narcissist?

A narcissist is someone characterized as having a narcissistic personality disorder. This disorder is defined by psychologists as a mental condition in which an individual has an inflated sense of self-importance, an insatiable need for outside attention has difficulty in relationships, and has a clearly defined lack of empathy for others.

One of the lesser-known defining elements of a narcissist is that despite the outward impression of self-confidence, they possess delicate self-esteem and are easily hurt by even small amounts of criticism.

Someone with a narcissistic personality disorder will often have problems in many areas of their life. Narcissists have difficult times in relationships, at work or school, and those difficulties can find their way into other important parts of their life.

Because of the narcissist’s need for constant outside admiration, they will often be disappointed in normal relationships and will find them unfulfilling. Because of this, the narcissist will typically seem unhappy, dissatisfied, and disappointed.

What does narcissistic mean?

To be narcissistic means to possess the characteristics of a narcissist. This means they have a constant and unrealistic need for affirmation and lack empathy for others, even those closest to them.

It can be difficult to identify someone’s personality as narcissistic. It’s important to understand that narcissism is a scientifically defined mental condition. While it might be easy or convenient to anecdotally classify someone as being a narcissist, for this article, we advise our clients to refrain from using that term unless there has been a clinical diagnosis.

Signs you are in a narcissistic relationship

While it is important to have someone diagnosed as a narcissist to best understand the situation, there are some signs you can look for if you believe you are in a narcissistic relationship. Here are some of the most common.

  1. Your partner or ex has to dominate the conversation. This is because the narcissist wants all of the focus and attention to be on them, with little regard for how others feel.
  2. Your partner or ex continually interrupts without consideration for your feelings. Remember, a narcissist lacks empathy and understanding of other’s feelings so they will barge in on the conversation without care.
  3. Your partner or ex feels that boundaries or rules don’t apply to them. A narcissist believes they live outside of the rules of appropriate behavior. This means that they will go beyond the boundaries of what is appropriate and feel that they are justified in breaking any rules that govern basic human-to-human relationships.
  4. The projection of a false, exaggerated appearance. The narcissist so badly wants to impress those around them that they will often exaggerate many things about their lives. What’s happening here is that they want to convey the message that they are better than everyone else.
  5. The narcissist is manipulative. They will use situations and other people to their advantage and strengthen their belief that they are better than those around them. Even under pretense, someone with narcissistic tendencies will “use” people and environments to elevate their position and draw out the attention and admiration of others.
  6. Your partner or ex is grandiose. The narcissist has a false sense of self-importance and will portray themselves in kind. Their behaviors will be exaggerated. They will imply that they are heroic and others simply could not survive without them.
  7. Your partner or ex isolates you from your friends and is highly controlling. Remember, to the narcissist, it is all about them, and they do not want you to share your attention or affection with others.
  8. Your partner or ex likes to spread negative emotions. One of the most potent ways to get attention is to spread negative emotions. These negative emotions could be caused by the smallest of circumstances, real or perceived. This behavior will often throw-off people around them and direct attention to the narcissist.

Can a narcissist change?

There is much debate between psychologists about whether a narcissist can change. The root of the argument is that narcissism is a personality disorder and typically these types of disorders have more permanence. They are increasingly resistant to change over time.

One position is that if a person is diagnosed with narcissistic personality disorder and desires to change strongly enough, they can change.

However, we are dealing with the complexities and variances of the human mind, and each person and situation is different. The short answer is that it is not clear if a narcissist can change.

How to deal with a narcissistic husband, wife, or ex.

Dealing with a narcissist is another complicated question. There are many experts who believe that, especially in the case of an ex, you should completely avoid dealing with a narcissist at all. Especially if you feel that you can change their behavior. The experts suggest keeping the narcissist at arms-length and deal with them as little as possible or as is necessary, in the case of co-parenting.

The key to dealing with a narcissistic husband, wife or ex is to understand what you are dealing with. Your partner or ex lives in a world that is all about them, and your feelings or existence have little meaning unless you are paying attention to them, giving them accolades, or giving them affection. If you are comfortable living in that condition, you can then deal with it accordingly.

How to handle a narcissist in court during a divorce

Dealing with a person with narcissistic issues or traits during the divorce process or in an adversarial setting is difficult but doable. The following suggestions are helpful methods as the divorce process alone is daunting, and adding the narcissist as an opposing party escalates the level of difficulty to extremely high.

  • Be prepared to receive several motions and pleadings that will be inaccurate, inflammatory in nature, and in abundance. The first reaction is to respond in anger and try to counter the accusations with your own flurry of emotional responses; however, this type of response may be counterproductive to your goal for the divorce. The best method is to maintain a calm, cool, and collective stance. Meet with your attorney and formulate a game plan to tackle the motions and filings in a manner that places you in a better position when you do need to be in front of a judge.
  • Make certain to choose an attorney with a good skill level to deal with a narcissist. Your lawyer that is drafting your responses, motions and pleadings must be knowledgeable on how to deal with an opposing party that has narcissistic traits. The narcissistic party believes they know more than a lawyer and will attempt to manipulate your attorney. Your lawyer should have the ability to identify the narcissist’s tactics and respond accordingly that will benefit you and get you closer to your desired outcome in the case.
  • Keep your attorney INFORMED. This cannot be stressed enough. Do not doubt your knowledge of your partner or spouse.
  • Because of the increased problems and high emotional stress involved in a divorce with the added issue of divorcing a narcissist, it is suggested that you participate in therapy with a licensed mental health professional that has advanced working knowledge on addressing the ramifications of dealing with a narcissistic partner or spouse. Really try to use the methods and strategies recommended by the therapist to help get through the process.
  • Only use documented or written forms of communication. This is advised for all contentious divorces, but more so in a divorce with a narcissist. You will receive hostile, inaccurate, and harassing communications from the narcissistic party. Don’t respond while you are reeling in anger. WAIT! Consult your lawyer and keep that calm and collective stance that was previously suggested. Remember, every communication has a possibility of being used in court. Communicate in a manner where you think a judge or third-party decision maker is watching and listening.
  • Gather your support together! Your support is your legal team, your mental/emotional support team, and your friends, family and other reliable and trustworthy sources or groups.
  • Meet with your attorney before any hearings or trial. Review methods with your attorney on how to address any triggers that the narcissist may attempt to use to rattle you and impact your ability to get your testimony heard.

Co-parenting with a narcissist

Unfortunately, co-parenting with a narcissist will require ongoing diligence on your part to ensure the children are insulated as much as possible from the self-serving goals of the narcissist. You will need support. It is strongly suggested to have a mental health professional involved. The therapist or counselor also should be skilled in dealing with narcissistic tendencies or traits from the other parent.

Make certain to keep the therapist informed of the issues regarding the narcissistic parent. Ask for help on how to address the problems associated with the narcissistic parent.

You will receive information from the children on what the other parent is discussing with them or saying about you. The narcissist will most likely engage in a smear campaign against you and inappropriately share litigation information or adult topics or issues with the children. It is critically important not to respond in a “correction” mode or tell your children the real facts. I know it is hard, but do not involve your children in the parenting aspect of your case.

Document what the children are saying to you and discuss it with your therapist and your attorney. Remember, keep your lawyer informed. Encourage your children to be open, honest, and to share. Also, let them know that those conversations are adult problems and the children should not be involved at all. The therapist will have insight on how to address the parenting side of the problems the narcissist will create, and your lawyer will guide you on what to do legally. Use the resources of your support teams.

Moving on from a marriage with a narcissist

Moving on from a relationship with a narcissist can be difficult, even more so if you’ve spent years in the narcissistic environment. You might have feelings of low self-worth, you might doubt your ability to make others happy, you might unfairly judge yourself.

First, realize that it’s not your fault. You were in a situation that actively contributed to making you feel this way about yourself. You’ve gotten out. Now it’s time to move on.

You should take time for yourself. It’s time to reconnect with yourself and find the value that you bring to your own life and that of others. Engage in activities that help you regain balance in your life and help build your self-esteem. Sign up for a class that you’ve always wanted, increase physical activity, spend time with family and friends. Reintroduce yourself to the beautiful things life has to offer.

In some cases, you might want to consider getting help through therapy. Sometimes just having someone to speak with about the situation can help ease the process of moving on. A professional who can specifically address the situation can be a valuable resource.

No matter what, you must move on. You will find “yourself” again and realize that you are the beautiful, miraculous person you were meant to be.

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judge is biased

What you can do if you think your judge is biased.

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Christie Mitchell Attorney at the Orlando Law GroupBy Attorney Christie Mitchell

When you go to court, you can expect that the judge that is hearing your case is impartial and will treat both sides in a fair manner. While having an unbiased judge is almost exclusively the case, there could be a time where you believe your judge is biased.

The bias could be towards you or your situation. The bias could also be towards your attorney. You might also believe that the judge displays a lack of impartiality that might favor the other lawyer or litigant.

In a situation where a judge is biased or prejudice, the result could be a decision that is not fair or impartial to one party in the case.

Often, a judge will identify their own inability to be fair, neutral, and impartial and will recuse themselves from the case. As it relates to the judge, the word “recuse” means that the judge will excuse themselves from the trial or case because of potential bias or conflict of interest and another judge will be appointed in his or her place.

When might a judge recuse themselves from a case?

An example of when a judge might recuse themselves from a case might be if the judge formerly held a position as a lawyer at the same law firm as one of the attorneys involved in the case. In this example, the professional relationship with one attorney could imply that the judge is biased. Having identified the relationship and potential bias, the judge will recuse or excuse themselves from the case.

Can you ask a judge to recuse themselves if you think your judge is biased?

The second use of the word “recuse” involves a condition where one party in a case believes the judge is biased and a motion is made to recuse the judge. For instance, if it is learned that a member of the judge’s immediate family could benefit economically from the outcome of a case, the judge might have conflicted loyalties that would make it difficult to be impartial in the case. In this scenario, an attorney could make a motion to disqualify the judge, which asks the judge to recuse himself or herself.

The Orlando Law Group obtains a Writ of Prohibition after a denied motion to disqualify a judge

In a recent case, attorney Christie Mitchell from The Orlando Law Group won an appeal in a case where a motion to disqualify the judge was denied. Ms. Mitchell filed a Petition for Writ of Prohibition asking the appellate court to remove the judge after the judge declined to recuse herself. The Fifth District Court of Appeals, found the appeal well-taken, finding that “the facts alleged in Petitioner’s motion would place a reasonably prudent person in fear of not receiving a fair and impartial hearing.”

The Court of Appeals went on to grant the Petition for Writ of Prohibition stating “we grant the petition, quash the order denying Petitioner’s motion to disqualify and remand the case with directions that the underlying case reassigned to a different judge.”

Steps you should take if you think your judge is biased

The right to a trial by a fair and impartial judge is a right to all citizens. While the vast majority of the time a litigant can expect a fair and impartial judge on occasion, a litigant and his or her attorney may have a reasonable fear that the judge is or may be biased. You and your attorney should be in agreement that the judge assigned to your case may not be impartial.

No matter what, it’s important to work with an attorney who knows the strict requirements and timelines in seeking the recusal of a judge believed to be biased, and the steps necessary if the judge fails to recuse himself or herself. Your right to a fair trial is paramount and we will protect that right.

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student loans in Chapter 13

What happens to student loans in Chapter 13 bankruptcy?

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The phrase “student loans” strikes fear in the hearts of most people nowadays. Many are facing high payments coupled with employment that doesn’t pay as expected or as the student had hoped it would. Now what? Chapter 13 bankruptcy may be an option. 

Why student loans in Chapter 13 bankruptcy could provide relief.

It’s a well-known fact that except in rare circumstances, student loans cannot be discharged in bankruptcy. However, if you are struggling to make your student loan payments, filing for Chapter 13 bankruptcy will allow you to reduce your monthly obligation by combining all of your unsecured debt into one category. Your payments to your unsecured debt are then based off what you can afford to pay, given your other living expenses and assets. 

Keeping student loan companies from garnishing your wages.

This can be extremely beneficial for someone who is being harassed or having their wages garnished by their student loan companies. When you file Chapter 13, a hold goes on all creditors while you are in the bankruptcy which provides a 3-5-year repayment plan. You can still pay back some of your student loans in Chapter 13 bankruptcy, but it is only based on what you can afford. If you cannot afford your regular student loan payments, lowering your obligations by paying a smaller amount through your Chapter 13 plan, may be the way to go. This allows you time to increase your income, deal with your other unsecured debt, such as credit cards and medical debts so that your payments to the student loans are more affordable after your bankruptcy. (Keep in mind the interest continues to accrue while you are in the bankruptcy). 

Increasing debt limits could help Graduate or Doctorate level degrees with student loans in Chapter 13 bankruptcy.

It is not uncommon for Graduate or Doctorate level degree to come with $250k worth of student loan debt which only increases when payments are put into income-based payments which barely pay the interest. Debtors may find themselves nearing the debt limits for a Chapter 13 bankruptcy between student debt and long overdue credit card debts or Judgments. The good news is that beginning April 1, 2019, the debt limits in a Chapter 13 Bankruptcy will increase to $419,275 for a debtor’s noncontingent, liquidated unsecured debt. This opens the door for more people to qualify for such a beneficial option when dealing with unmanageable debt. If you think Chapter 13 might be an option to help you deal with mounting student loan debt, contact me for a free consultation.

About Sophia Dean

Sophia Dean is an experienced attorney who focuses on bankruptcy and foreclosure defense. She has represented debtors in all stages of debt collection. She is also the co-chair of the Orange County Bar Association’s Bankruptcy Committee. She can be reached by phone at (407) 512-4394, 

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bankruptcy attorney Orlando

Bankruptcy Might Not Be as Difficult as You Think

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How Bankruptcies Work

By definition, bankruptcies are legal and financial arrangements designed to provide a person or business with temporary relief from their debt. The bankruptcy gives the individual or company (referred to as the debtor) time and flexibility to better organize their ability to pay their debt and other financial obligations. Part of the process typically includes the creation of a plan to fulfill certain financial obligations. There are also specific situations where debts are entirely eliminated. 

Clearly, bankruptcies should be considered as an option after other opportunities to relieve the debt have been explored. For example, it is usually advisable to attempt to negotiate with creditors before considering bankruptcy. 

While bankruptcies are incredibly complex, there are things that individuals and businesses can do to make the process less complicated. It’s critical that those considering bankruptcies go through a detailed planning process. Also, a recommended first step is enlisting the professional help of an attorney and a financial advisor.

What is bankruptcy protection?

In the US Legal System and in bankruptcy court there is an essential difference between bankruptcies and bankruptcy protection. Put simply; bankruptcy is the process a person or business follows when they can no longer satisfy their debts. Bankruptcy protection refers to the condition where. During and after the bankruptcy, a company or individual has financial protection from their creditors. 

What steps should I take before filing for bankruptcy?

When preparing to file, the more organized you are, the easier things can be for you and your attorney. Here are the efforts we recommend doing, and in some cases, not doing, as you prepare. 

Do: Determine the type of bankruptcy you should file. Bankruptcies come in several types, including Chapter 7, where most of your debts are forgiven and Chapter 13 which involves restructuring your debt into a manageable payment plan. Your lawyer is the best source of advice on determining which makes sense for your situation. Your lawyer may have you take a Bankruptcy Means Test to assess your ability to pay your debts. The results of this test could eliminate your qualification for filing Chapter 7 bankruptcy.

Do: Enroll in a credit counseling course. You may be required to take a credit counseling course either in person or online. Work with your attorney to determine which is best for your unique circumstances.

Do Not: Go on a spending spree. Many people inaccurately believe that all debt will be forgiven when you file for bankruptcy. The reality is that all of your debt will be examined and an appropriate course of action will be determined. When your debt is reviewed, the bankruptcy court will become aware of any significant spending you might have done before filing. A large amount of what could be seen as unnecessary spending might not work to your advantage. 

Do Not: Conceal the truth. Ultimately, the only way to get out of an impossible financial situation is to be truthful and honest about how you got there. When you work with an attorney, the more they know about your situation, the better they will be able to help you. 

Can bankruptcies be avoided?

It is entirely possible for many people to avoid bankruptcy and bankruptcy court. The most significant benefit to avoiding bankruptcy court is that you will preserve a higher credit rating. One of the ways you can avoid bankruptcies includes working directly with your creditors to organize a plan to satisfy your debt. Another strategy might be to sell non-essential items that you own and use the money to pay off debt. There are other tactics that should be explored, working with an attorney can help uncover all options that might exist for you.

Do I need a lawyer to file?

Facing overwhelming debt can be a frightening experience and could be a source of embarrassment for many people. You might not want to share details with family and friends, and that’s ok. But you don’t have to deal with the situation alone. Because bankruptcies can be quite complex, it can be to your benefit to hire an attorney early on. The attorney can help guide you through the process, work with you on deadlines and paperwork, negotiate with your creditors, and help make the process easier than going at it alone.

Ready to speak with an attorney about your options? You can contact us to schedule a consultation.

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bullying

Bullying – Stand Up For Your Rights

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Brian T. Dunmire handles bullying and personal injury cases throughout FloridaNobody is ignorant of the fact that the internet and social media is dominating this generation.  Virtually every age group spends hours online each day whether it is for work or scrolling Facebook or Instagram.  Unfortunately, there are many people who use the internet and social media to bully others.  Far too often these bullies are children trying to be “cool” by bullying another student or child.  This is referred to sometimes as “cyberbullying.”

Bullying comes in many forms

Over the years I have received countless inquires from parents whose child has been bullied at school.  There is never a specific formula, and the results of the being bullied are always different.  Sometimes the acts are verbal, sometimes it is cyberbullying, sometimes it is physical, and in a few cases, the bullying has involved allegations of sexual assault.

Regardless of the type, bullying is not right.  Nobody deserves to be bullied.  Nobody.  It does not matter if you act differently or if others view you as an outsider – nobody deserves to get bullied ever.  Florida passed an anti-bullying law in 2008 as a measure to prevent bullying.  See Fla. Stat. Chap. 1006 et. seq.  This law requires schools to establish anti-bullying programs and policies aimed at reducing bullying in schools.

The effects of being bullied are more than physical

Any parent who has seen their kid get bullied can see the physical and emotional strain that bullying puts a child through.  Further, if there are threats or a physical touching (including hitting, shoving, or sexual assaults), then there is a potential criminal aspect to the bullying.  Unfortunately many times it is difficult for law enforcement to prove that a crime happened, so they pass on pressing charges against the bully.

However, just because there are no criminal charges brought against a bully, there is a possibility that the victim can bring a civil claim against the bully.  My office has handled numerous cases of bullying and prides itself in giving a victim a voice. 

The liability of bullying extends beyond the bully

Many times bullying claims involve multiple parties who can be held liable for the bully’s actions.  This includes the bully, his or her parents, a school, or any other individual or entity who permits bullying to occur (including a daycare, afterschool care, babysitter, etc.).  There may also be multiple causes of action that can be brought such as negligence, negligent misrepresentation, and negligent supervision.  Many victims and their families are unaware that schools and daycares have a responsibility to supervise children and to take specific measures to safeguard the students that they watch.  When a school or daycare fails to protect a victim, they can be held liable for the child’s injuries.

A bullying case can become very complex quickly.  Often there may be a claim against a governmental entity that should be brought in connection with a claim against the individual bully.  Florida’s sovereign immunity statute (Fla. Stat. 768.28) applies in cases brought against a public entity (such as a school) which could limit the liability of the school.  The statute also imposes certain notice requirements that a victim must provide to the state before bringing the claim.

Standing up for your rights against being bullied  with the support of an attorney

Having an experienced attorney on your child’s side after they have been bullied can level the playing field.  Although no amount of compensation can serve to fix the wounds incurred by bullying, a successful claim can help to pay for future therapy or other treatment to help the victim deal with both the emotional and physical scars from bullying.  Further, and perhaps most importantly, bringing a claim against a bully will serve to make a statement against other bullies and, hopefully, cause others to rethink their actions.  The ability for a victim to bring a civil claim against a bully is one tool that we can use in the fight to end bullying.  Further, many times bullying claims can be brought confidentially so that the general public does not know the identity of the victim.

What to do if you or someone you know has been bullied

If you, a loved one, or someone you know has been bullied, I would invite them to contact our office for a free and confidential conference with an attorney who can assist with their claim.  It is never too soon to call as many times time is of the essence in these cases.  Further, there is no obligation to speak with an attorney.

About Brian Dunmire

Brian Dunmire is a personal injury attorney with The Orlando Law Group specializing in the representation of injured parties.  Brian only represents clients who have been injured as a result of someone else’s actions.  Before devoting his practice to personal injury, Brian represented large insurance companies in defending their insureds when they were sued.  Brian takes a particular interest in bullying claims and would invite you to contact him to discuss your potential claim.  Please feel free to contact Brian at (407) 512-4394 or bdunmire@www.theorlandolawgroup.com.  Brian handles bullying and personal injury cases throughout Florida.

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Orlando Probate Law

What is Probate Law?

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How Probate Law works

People hear the words Probate Law and automatically get fearful of what they think it means.

Probate law is a court-supervised process where often the courts will appoint an administrator. They are responsible for administering the estate. This includes identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.

An example of distributing an asset might be where a decedent has a real estate asset that is granted to a family member. That family member will take legal possession of the real estate asset.

What is the purpose of estate planning?

Estate planning organizes for the distribution of a person’s estate once they pass away. Put simply, all of the assets owned at the time of death will be distributed based on the will, trust or estate plan. Assets in a person’s estate might include real estate such as houses and investment properties. Assets might also include personal property like stocks, bonds, bank accounts, cars, jewelry, etc.

Estate planning is a complex endeavor and is most appropriately handled by a professional, like an estate planning lawyer who will work collaboratively with financial advisors, insurance specialists, accountants, and other professionals in the planning of the distribution of assets.

Why is estate planning important?

Estate planning benefits people with estates of all sizes in that it allows the individual to decide exactly how their assets will be distributed upon their death. Regarding personal property, the individual can decide who should get specific assets, like a house or bank account. This makes everything very clear and prevents unnecessary arguments between the estate’s beneficiaries.

Further, estate planning can benefit the children of the decedent. With proper planning, the children of the deceased can be taken care of to ensure they maintain their quality of life.

More about the probate process

Typical questions that our probate lawyers hear include: Does probate mean I have to wait years for the distribution of assets? Does this mean I will be responsible for debts of my loved one?  Will the courts make me do something I don’t want to do? Will this cost me even more money?  I lost my loved one why do I have to go through this?

If a will does exist it may make probate run smoother. However, if a person dies in Florida without a valid will, all assets will have to be decided by the court and state laws once heirs are established.

What are claims against the estate?

A “claim against the estate” references a claim for money, assets, or other property that an individual has against the estate of a decedent. For instance, if the deceased person owes money to a person or entity, it is the responsibility of the executors or administrators of the estate to pa that debt.

Claims against an estate must be filed with United States Court that is handling the local probate or with the estate administrator.

What is the role of a probate attorney?

The attorney will file motions, guide and advise the client (Personal Representative) how to proceed. The attorney is the communicator to the court on behalf of everyone involved.

A probate attorney will need to assist with the following as well:

1.    Collecting and managing life insurance proceeds.

2.    Getting the decedent’s property appraised.

3.    Finding and securing all of the decedent’s assets.

4.    Advising on how to pay the decedent’s bills and settle debts.

5.    Obtaining an Estate Tax id number and estate bank account.

6.    Determining whether any estate taxes are owed.

If you die without having written and signed a will, you are said to have died “intestate.”

What happens if there is no will?

When there is no will your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. The law does not always follow the path you would expect especially in situations where there are blended families.

Is it possible to avoid probate?

In some situations involving probate law, a probate is not necessary when there are IRA’s, 401 K’s, Life Insurance and other investments with beneficiaries. Some people also use Lady Bird deeds, trusts, accountants that are payable on death and other vehicles to avoid probate entirely.

In short, there are many different scenarios that go into an estate plan and probate, and each circumstance has exemptions especially in situations with blended families or extended families.  It is wise to get your estate plan done by an attorney rather than getting forms on line so that you can look at all the scenarios and plan appropriately. Then at the time of probate, an attorney for the estate is required by the Court.

We highly recommend talking with a probate law and estate planning attorney to make sure the wishes you have for your estate should you pass away are fulfilled.

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airbnb Miami Beach

The Airbnb Miami Beach Battleground is Heating Up

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Airbnb Miami Beach property owners face another setback

An appeals court in Miami Beach has overturned a temporary injunction that prevented the city from cracking down on short-term rentals like Airbnb Miami Beach properties. The injunction was a small victory for Airbnb in a bigger fight against the city that has the potential to put hundreds of home-sharing hosts out of business. With the injunction overturned, the city of Miami Beach Code Enforcement can now investigate and fine home owners who offer part or all of their property as short-term rentals through websites like Airbnb and other home-sharing portals.

As of the end of 2017, the city had issued more than $6 million in fines, but only managed to collect a small fraction of that, totaling just over $100,000.

Recently the action against homeowners has taken a bizarre twist and crossed beyond monetary values. 

airbnb Miami Beach

Miami Beach shuts off a home’s water and electricity over delinquent Airbnb fines

Miami Beach homeowner, Ralph Serrano, recently had his home’s water and electricity shut off by the city of Miami Beach when he refused to pay fines for operating an Airbnb in the city. 

In November, Serrano filed a lawsuit against the city and cited that the city used “strong-arm tactics” in their efforts to collect “constitutionally excessive fines” that summed to more than $200,000. In early December a district judge ordered the city of Miami Beach to restore the utilities to the property. 

Before filing the lawsuit, Serrano attempted to communicate with the city about getting his utilities restored. When he did, city officials demanded he, among other things, ask Airbnb and other short-term rental websites to permanently remove his rental listing. Serrano notes that in the city zoning ordinance that permits Miami Beach to target homeowners who list their properties on Airbnb, nowhere does it say that the city can terminate utilities or request homeowners remove their rental listings on home-sharing websites. 

What is Airbnb?

Airbnb is the world’s largest home-sharing or accommodation-sharing website. Through the website, property owners  list their spare rooms or entire homes for rent to website visitors. The properties are listed in the Airbnb marketplace and are accompanied by descriptions, pictures, ratings, and reviews. 

The website launched in 2009 and as of last year, helps over six million travels a year find accommodations among the 800,000 properties spread across 35,000 cities in close to 100 different countries. 

airbnb Miami Beach

How does Airbnb work?

Through the Airbnb marketplace, people rent out their properties to guests. The transactions are handled through the marketplace and Airbnb profits by taking 3% commission on each booking from the owners. Airbnb also takes between 6% and 12% from guests. 

This arrangement allows homeowners with spare space, or unused homes, to make a substantial income while guests can stay in desirable locations for a fraction of the cost of high-end hotels. 

Airbnb is used by a variety of demographics, from the average traveler to celebrities. For example, in 2016, celebrity Kylie Jenner rented a Miami Beach villa from Airbnb. The Hibiscus Island villa is worth more than $12 million, and the Airbnb rate is $8000 per night during the city’s Art Basel event. We’re guessing nothing was available on Star Island. 

What are the legal issues with Airbnb Miami Beach?

According to the city of Miami Beach, vacation and short-term rentals are those in which the accommodations for a guest or group last less than six months and one day. While a popular alternative to traditional accommodations at hotels and resorts, there are some limitations that need to be considered. 

Pursuant to the Miami Beach City Code (Sec 142-1111), home-sharing, vacation, and short-term rentals are prohibited in all single-family homes and in a majority of multi-family homes in certain zoning districts of Miami Beach. Here’s a map showing the short-term rental limitations. 

In order to become an approved vacation or short-term rental, the owners must organize the proper authorization and zoning approval for operating residential short-term rentals

If a property is discovered to be illegally operating a short-term rental, the guests and owners will be immediately evicted. From there, fines starting at a wallet-thinning $20,000 will be levied. 

Why does Miami Beach want to prevent short-term rentals like Airbnb?

Many people wonder exactly why the city of Miami Beach is working to criminalize residential short-term rentals. In short, it’s difficult to pinpoint. Miami Beach Mayor Dan Gelber has said that “Airbnb’s business model is not compatible with the kind of recognition that short-term rentals are not broadly in the public interest in cities…so they’re either going to fight or they’re going to change.”

There’s a heated political conversation about wither services like Airbnb are harmful to the economies of urban areas. At the same time, others are shining the spotlight on Miami-area officials who are driving to protect the area’s behemoth hotel industry. That’s a position that might have some traction. In 2017, leaked emails from then-Mayor Thomas Regalado’s office showed evidence of coordination with hotel lobbyists looking to implement a ban on short-term rentals. 

In any case, the bans, restrictions, and fines appear to be here to stay.

airbnb Miami Beach

Where does Airbnb go from here?

At this point, Airbnb appears to be on the losing end of this battle with Miami Beach. But the company might want to take an optimistic approach. There are many indicators that the fines for short-term rentals in Miami Beach are unrealistically high. Miami Beach commissioner John Alemán was quoted as saying that the city’s $20,000 fines are “grossly disproportional.” 

Could that be the foothold Airbnb and others need to gain traction in this scrimmage against the city of Miami Beach? Time will tell.

While we wait for the outcome, our advise to you, if you are planning a trip to Miami Beach, is to be excessively cautions if you elect to use Airbnb. The last thing you want is to come back to your crash-pad from a stroll on the Lincoln Road Mall to find the power out and your belongings, and you, evicted from your accommodations. Chances are slim that Kyky will let you crash with her and her entourage on Hibiscus Island. 

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© 2019 The Orlando Law Group.