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Divorce Does Not Have To Be Difficult

Divorce – Diving Deep and Answering Your Questions

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Change is inevitable. Things comes together, and many times, very naturally, things come apart. This is not to say that change is not complicated, and we all know that those processes can be as intricate and arduous as we see fit. Many times, it is about beginning with the right perspective, and regarding divorce, the way you begin can truly set the tone for the journey ahead.

That is why it is crucial to consult with someone who has experience helping others make divorce work for their life. Marsha Summersill has spent years helping others through the journey, and in this blog, we will take a deep dive into the most asked questions regarding divorce, and how being creative plays a role in the process.

When going through a divorce, what would you say is the top concern for your clients?

It is equally money and kids. If they have minor children that usually would be the big topic of how they are going to work that out. Obviously, if they can work out something ahead of time that is good, but if there is a dispute it can get a little dicey. The finances are comingled with the responsibility of the kids, so they come together in certain aspects. The equitable distribution of the divorce, of the financial piece, might or might not be considered income and can become enmeshed with balancing factors within the divorce. You need to be sure this is the direction you want to go.

What are some determining factors to take into consideration when beginning the divorce process?

Each state has its own laws, and we exist in our own pocket of laws when it comes to divorce. I would say what to consider is exactly how your stuff is going to be split. Really consider the best interests of your kids. If they are elite athletes or a super scholar, really put their needs first with respect to their activities and life. Be flexible and maintain the objective of communicating well throughout the process.

What does the timeline look like for someone filing for divorce?

If you truly do not need to litigate all your issues, then it potentially could take a handful of months. If there are many items to litigate, then it could take years. The more the parties know that is real and legally sound, the faster they will get to a realistic compromise. I think the issue we encounter as family law attorneys, many times, is the friend that wants to chirp in their ear or even the information google gives them. That sends them down an illogical path that does them no favors.

Other determining factors will be the party’s cooperation, compromise, and realistic views on how to get the sorting solved, and then other times it could be their legal counsel. There absolutely has been times when the opposing attorney continued the battle, even when both parties could have solved the situation and walked away.

What are some factors that could prohibit me from retaining rights to my children after the divorce?

You always have rights to your children. The only agency outside of you signing over your rights is the Department of Children and Families. In the state of Florida our public policy is both parents have equal rights to enjoy raising their kids. The judge has about 25 factors that they can consider. They do not have to consider all of them, but what is important to understand is that those factors are common sense stuff. There is no one-size-fits-all approach, and many times I have clients that get super creative. Sometimes they have jobs where they travel, so the family must maximize and divide their time. When thinking about the child first, a two-year-old does not need to go seven consecutive days without seeing their parent.

To establish that bond, it is important that the child spend time with both parents. For older kids, they usually do not like going back and forth. Dicing up a week for a high schooler can be tough, so that is a situation where we may want to divide time differently depending on the needs of the children. Even though you are getting a divorce, you still must be a team when it comes to how you parent. It serves as a great example to other individuals who want to waste time and energy battling each other.

Let us say that I started a business while we were married, and it became successful. Is my spouse entitled to any of that business?

Probably. There are so many factors that we must consider, but the reality is that spouse is going to get something. I had a case where this person worked and worked and grew their business to a highly successful endeavor. The offset of that is really determining what is the marital portion of the business. That is where the fighting can start. The definition of what is marital and what is non-marital, what’s personal good will and what’s enterprise good will can really determine the outcome. Once we discover the amount of money that is the business and then the value that you bring to that business, we can achieve that number but, of course, every business is specifically different.

My recommendation: marry your equal. Then, if they did not earn it, they will not want it. That will simply be their personality type, but of course sometimes it is a complicated, intricate scenario. That is why a prenup can be a completely fair thing. If you do something together, that can become marital property. A prenup does not state that, “You don’t get anything.” What a prenup does say is, “I don’t want to be punished for working hard and achieving a lot of things.” There should be no issue with signing it because it is just being fair.

What about social security benefits? Is there a way I can take advantage of their Social Security benefits if they have always earned a greater amount of money?

Yes. The common law knowledge we operate under is that, if your marriage is ten plus years and the one spouse is not remarried at the time that they decide to select social security and their social security is less than what their spouse’s was, then they will either be able to offset it or get one that is a little bit higher than it would be on their own.

How does mediation play a role in the divorce process?

Mediation honestly saves so much financially, emotionally, and in many other areas. It is a huge benefit. In our location, it is required. Not in all statutes, but in family law, it is. You cannot even go to court without mediating. The question is, “Do you have a qualified mediator working with you?” It is a task to get certified in areas, but it does not take any specialization, so if you are looking at a divorce, post-divorce, or paternity case, it is best to work with someone who has good experience or someone like me, who is a family attorney.

What if I want to move to another state with the kids after the divorce?

No. This is about getting your mindset right from the very beginning. We do have a relocation statute that is automatically the law. If you get a divorce and decide to move later, the best option is that you and the other parent get to an agreement to see if that is something that will work for the kids. It cannot be, “I want to move to live closer to someone I met on the internet,” which has happened before.

 Moving is a tough one because it must be looked at from the child’s best interest. That is how the court looks at it and that is how the law looks at it. If the parents can get to an agreement and have a long-distance parenting plan, then we file with the court. If one parent says no, then you will be required to litigate that. How our law works to calculate maximum distance is – 50 miles as the crow flies. If you go over 50 miles, then you have opened the relocation statute. This is all why it works best when both parties can retain a cordial relationship with each other. Odds are that you will indeed have to work with that person in the future to handle these scenarios. It is all about compromise for both parties involved, and always about what is best for the children.

What are some determining factors when it comes to who will pay child support – and what does that support entail?

That is written in the law. It is how much money your gross income is, accounting for all your deductions, taxes and insurance, mandatory pension, and unions. You do get those credits and deductions. It is important to clarify that you do not get credits and deductions to account for your spending habits. The way time-sharing factors in is that it cost money to take care of kids. Timesharing is based on income incorporated with the amount of overnights, plus the proper credit for child expenses. If the child goes to an expensive school, and they are paying 100% of it, they need some sort of credit for that.

Define equitable distribution and how does it play a role in the outcome of the divorce?

It is huge. A lot of people jump to marital assets, but you also have marital debt. All of that is incorporated, and we do a specified spreadsheet. In cases where I am dealing with a lot of assets and/or a lot of debt, I am going to get the one-sheet, and we go back and forth until there is an agreement. We look at a number that aims at equalizing or offsetting payment or equalizing or offsetting debt.

What determines marital property?

Many times, those are the big items that we will argue over. If you acquire anything during the marriage, then there is a high likelihood that it is going to be considered marital and will be subject to an equal split. There is pre-marital, meaning you had a house before you were married. There is this belief that if you do not put your spouse’s name on the house, then it is not marital. This is not necessarily the case. The equity you have in the house at the date of marriage is yours, but as you make improvements over time, the house becomes marital. Whether or not your spouse’s name is on it is irrelevant, so that is something we would caution someone on.

Inheritance is another item people need to be careful about. Inheritance is technically non-marital until it is deposited into an account that is sharable. You cannot comingle the money or use it for marital needs if you want it protected. If you need to take a portion out, take it out at the time that you receive the inheritance, but make sure to put the rest into an account where it is clearly not being used for marital purposes.

How can a CPA (Certified Public Accountant) be of benefit during the process?

CPAs are highly valuable – I work with two that are amazing. Obviously, as lawyers, we have limits. CPAs know so much about values, stocks, and constructing an in-depth chart that considers all the angles of value for a certain item or category. The CPAs we work with are usually forensic accountants, and they know how to calculate enterprise and personal good will on a high level. I get my spreadsheet, opposing counsel gets their spreadsheet, and we compare to see how close we can get to meeting in the middle. When you find a good CPA, they are literally such a valuable piece of the puzzle.

If someone is thinking about divorce right now, what would you want to be able to tell them?

If you have the resources, always seek therapeutic guidance. Sometimes religion plays a role in helping you be certain, but the point is to find resources to make sure that you feel very secure in the decision you are making, especially if you decide to pursue a divorce. When I do my consults, we talk and make sure that you are confident in the decision that is being made and gain that acceptance before the process begins. That can truly help.

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Clarifying What a Deed Is

Clarifying What A Deed Is – Four Types and Uses

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At The Orlando Law Group, many times, we focus in on the questions we most frequently encounter. Much of what we do is intricate, such as the transferring of property through the use of a deed. In the world of Real Estate Law, many words like deed, title, and mortgage get used without an understanding of their distinctions. In this blog, we will offer you insight into the different ways we utilize deeds to transfer properties and address some confusions on what a deed is and what it can and cannot do.

What does a Deed specifically do?

In common law, a deed is any legal instrument in writing which passes, affirms, or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. As you may expect, what sounds like a simple transference can become overtly complicated. You may need the property to transfer in a specific way. That is why there are different types of deeds that can accomplish a variety of objectives.

What is the Difference Between a Deed and Title?

A deed is a physical document that conveys ownership of a property, while a title refers to the concept of ownership rights. One illustration people use to understand this concept is the idea of owning a book. You can own a physical copy of a book, but you cannot own a physical copy of the title. The title is a concept, whereas the book is something physical. In this way, a deed is a physical item that you must have after you purchase property.  

Why are there multiple types?

The different types of deeds exist to account for what the grantor can convey, what the grantor wants to convey, and what warranties the grantor wants to be encompassed within. The four types of deeds we see most often are the general warranty deed, the special warranty deed, the quitclaim deed, and the ladybird deed. Each of these deeds have a diverse range of conveyance, and depending on your objectives, you will want to narrow it down to the one that matches your goals.

What is a General Warranty Deed?

This is most likely the type you are looking for. It gives the most protection to the buyer, as well as guarantees that the property is owned outright by the seller. Although the exact specification can change depending on the state, the general warranty deed promises that the grantor has a legal right to sell the property, alongside the fact that the property is free of any liens, debts, or encumbrances.

What is a Special Warranty Deed?

A special warranty deed does not provide as much protection as the general warranty deed does. In this situation, the grantor of the deed conveys the property as well as two warranties, or assurances. The first warranty promises that the grantor holds title to the property, and the other assures that the property was not encumbered during the grantor’s time of ownership.

It is very important to note that this type does not guarantee that the property was unencumbered before the grantor took ownership. It makes sense that these are commonly used when the seller does not know what transpired before they took ownership of the property and are mostly encountered when a trust or estate is transferring property. You can also find it is common to have special warranty deeds when working with commercial properties.

What is the Quitclaim Deed?

With the quitclaim deed, the least amount of protection is afforded for the buyer. With limited uses, this deed transfers any interests the grantor may have in the property. For example, if your friend used a quitclaim deed to transfer their property to you, this deed would essentially say that “If I own this property, it is yours.” The grantor quits their right and claim to the property. It is also important to note that this type does not allow for any insurances in terms of liens and encumbrances. It is very often used in divorce because in that situation, both parties have a mutual understanding of the property’s history.

What is the Ladybird Deed?

The Ladybird Deed is used to pass property automatically to one or more recipients at death without the need for Florida probate. Many times, a Lady Bird Deed is also called an Enhanced Life Estate Deed. An important aspect of The Ladybird Deed is that the grantor reserves the right to sell, use, and manage the property during the grantor’s lifetime.

For a normal life estate deed, a five-year waiting period for Medicaid benefits would begin. One of the benefits of using a Lady Bird Deed is that this waiting period can be circumvented since the deed is not considered a transfer of ownership as a gift. One aspect to be careful of is the fact that some lenders will not let you refinance a property that has an enhanced life estate deed. That’s why it’s a good idea to check with us before you utilize one.

Does a Mortgage Convey Title?

This is a point of confusion that we often see. A mortgage does not convey title. For that, you will need a deed. The reason we like to make the distinction is because many times, individuals might think that a mortgage does convey title, but it does not. A mortgage is a loan on the property itself, and it is the deed that will convey title and ownership of the property. They are separate entities with interlocking components, and believe it or not, there are absolutely different types of mortgages. The best way to look at it: a mortgage is not a deed and a deed is not a mortgage.

Using the Right One

The ultimate point is this – each deed has its own specific uses, and picking the right one can have benefits for you in the long run. Therefore, you need to work with attorneys who have experience with their various uses, as well as how to make them work to your advantage. If you need a transference of your deed, make sure to give us a call and we’ll help you pick the one that best serves your goals, whether that is a general, special, quitclaim, or ladybird deed. Each is a tool for a certain time, objective, and purpose. Reach out to us, and The Orlando Law Group would be happy to help you pick the deed that best fits your need.

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Lemon Law

The Lemon Law – Your Comprehensive Guide

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Making Laws Out of Lemons

You cannot make lemonade without lemons, and you cannot be protected as a consumer without The Lemon Law. The Lemon Law is not that old. States began to enact their own lemon laws after the federal government first enacted the Song-Beverly Consumer Warranty Act in 1970. As it pertains to automobiles, the Lemon Law was put into place to allow for some semblance of accountability between consumers, manufacturers, and the products they produce. In this blog, we will take a comprehensive look into how the lemon law protects you as a consumer, best practices if you are involved in a lawsuit where the lemon law is applicable, and everything you need to know about why it exists in the first place.

What Qualifies As a “Lemon”?

On a simple level, the word lemon refers to a vehicle that has not been fixed after a certain period and cannot be fixed and made to work for the consumer. It is a defective item. If you’re vehicle has issues and has been at the dealership for more than 15 days you may have a Florida State lemon law case. The rights to utilize this law do not last forever though. For the first 25 months after the date you take delivery of your motor vehicle, that’s how long we have to act. If you wait, odds are you will end up outside of that time window, and we will be powerless to defend you. If you think your vehicle qualifies as a lemon, and you want to take action, our attorneys will fight for your right to have a working, non-defective product.

How The Lemon Law Protects the Consumer

As you may expect, not all products sold are in perfect, working order. This is why you as a consumer need protection. Lemon Laws work to ensure the consumer has the authority to request that any defects in the automobile they purchased be repaired in a reasonable amount of time. Some documents that the consumer will receive are a “Notice of Arbitration,” a “Consumer’s Trade-in Allowance Form,” and a “Consumer’s Prehearing Information Sheet.” These forms need to be completed and sent to the Board Administrator as well as a copy to be received by each involved manufacturer or manufacturer’s attorney no later than 5 days before the scheduled hearing. It is very important these documents are submitted or the board may not allow your witnesses to testify or may decline to consider any attachments, unless good cause is given as to why there was a failure to comply. 

How The Lemon Law Protects the Manufacturer

Manufacturers need consumers to be able to trust them, and without Lemon Laws, the consumer would not feel empowered to purchase their product. The law understands that not every car is perfect, but it does exist to hold those accountable to the products they sell. The manufacturer should receive a copy of the consumer’s Request for Arbitration as well as any accompanying documents, a “Notice of Arbitration,” a “Manufacturer’s Answer” form and a “Manufacturer’s Prehearing Information Sheet.”

Best Practices for Your Hearing

If you must file for litigation, we want you to have an idea about what to expect. Your hearing will be conducted by a panel of three arbitrators. One of the arbitrators will serve as the chairperson and the other will have a deep knowledge of motor vehicles. All hearings are open to the public, and intimidation or disruptive behavior is not allowed by either party. The process will be broken down into two parts. Part one aims to determine if the vehicle does qualify as being a “lemon” according to the law. If the vehicle is indeed found to be a lemon, the second part of the hearing will determine if the consumer gets a refund or a replacement vehicle to compensate for their damages. Our recommendation is to always arrive ready to testify about all the important aspects of your case, as well as an understanding of the guidelines for calculating the remedy. Those guidelines can be found at http://myfloridalegal.com/lemonlaw.

Changes to the Process Because of COVID-19

Due to the changes brought about by COVID-19 and new procedures to increase productivity at a distance, documents and other evidence will need to be submitted to the Board by close of business Tuesday, the week prior to the hearing for the Board to review those documents. It is also important to note that each participant is required to appear with both video and audio during the zoom hearing.

It may seem simple, but certain practices on zoom are assumed. For instance, when not speaking, it is a good practice to mute your microphone. Each party will receive remedy calculation worksheets via email, which should be printed out and available by the time of the hearing. If you get disconnected at any time, try to reconnect immediately and if you are unable to reconnect, call the Board Secretary so that your hearing can be paused while the problem is solved.

What Our Attorneys Can Do to Help

As you can see, there are a multitude of points to consider for your hearing, so much so that we cannot include them all in one blog. Our recommendation is to never struggle alone. Our attorneys have experience in these matters, and can help guide you and reassure you throughout the process. It’s our job to offer you quality advice given our vast legal experience. We have your best interests in mind, and will help you gather all of the information necessary to make sure your case has the best chance once the board considers all of the data presented.

If you have questions, reach out to The Orlando Law Group right away, and we can help remove the burden that comes from buying a lemon.

 

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Sophia Dean

Why Waiting to File for Bankruptcy Could Cost You

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Bankruptcy is a bad word, but it doesn’t have to be, and it shouldn’t scare us. We at The Orlando Law Group believe in breaking the bad connotations these words grow into by giving you an informed outlook, as well as the information that no one talks about. Sophia Dean has a vast wealth of experience when it comes to bankruptcy, and we wanted to ask her some of the questions we commonly receive regarding the matter.

Why do you think that people wait to file bankruptcy?

There’s a couple of reasons that might be causing someone to wait. I think people tend to avoid their problems. It is a lot of paperwork so some people might be dreading that aspect of filing. Usually, I imagine it is a multitude of things, such as having money coming in that the client does not want to lose. One example I can give is that of the stimulus checks. People keep putting off filing because they keep receiving their stimulus checks. It creates an environment where one might be thinking, “There will be a stimulus check or tax refund around the corner that I don’t want to forfeit.” Through bankruptcy, you can only protect certain amounts of money. This includes $1,000 personal property as well as your home, if you own it. If you do not own a home you get a wild card, which protects $4,000 of personal property. Waiting for any reason could potentially mean that you fall outside of the financial bracket needed to file bankruptcy, and that’s why you need to file at the time when you talk to the attorney, if the time is right.

What are some factors that quality for the time being right?

The first thing we will figure out is if you do qualify for bankruptcy. For example, let us say you have a job where you are making under the threshold, and you qualify for a Chapter 7 Bankruptcy. Step two is, you have debts you cannot pay. You may not be in default yet, but you are struggling to pay your debt, and you are living paycheck to paycheck. The main two factors are your income and your debt. Let us say suddenly you get a raise, and that affects your income. That could potentially put you out of the range for qualifying for bankruptcy. There is a very small window for you to file, and that is why it is so important to commit to the decision if both factors indicate so. When considering criteria, there is a window of six months where we will look back to see what has happened to your income. If you wait to file and something happens to affect that income, you could potentially be exempt from declaring bankruptcy and clearing your debt.

Then on the debt side, your case could go to a debt collector quickly. You can file bankruptcy, but they will still be garnishing your wages. For example, let us say you meet with us to file for bankruptcy, but for whichever reason you do not follow through and times goes by. One day, you could potentially wake up, and all your money could be withdrawn from your bank account because the courts had filed a judgement and garnished your bank account entirely. These are the repercussions of waiting to file for bankruptcy. What we try to help our clients understand is that, at some point, if you do not pay your debts it will result in bank account garnishment. We have no way of knowing when that time will be, but we cannot depend on it happening eventually. We need to act like it is going to happen right now because it could.

How Does Bankruptcy Protect Me?

A lot of people try to continue to pay their debts, and then they come back later and try to file. This does not help because, many times, they do not qualify at that point for bankruptcy, whereas they could have before. Bankruptcy acts as a forcefield, and it is not only a way to wipe clean your debt, but it’s also a way to protect your assets. Filing could be the singular act that stops you from losing money and possessions in the long run.

Why Researching Online Can Mislead You

We spoke to a client who had been doing their own research on google. They moved here from another state and were under the impression that they could not file bankruptcy in Florida for two years. That is wrong, but that is the answer they found on the internet. If you have just moved here, you must be here for 91 days to file in the state. The exemptions, which can all be sorted out with an attorney, is where that client was seeing information about waiting for two years. That has nothing to do with you being able to file for bankruptcy, and because of a misinterpretation of information, they did not qualify for a Chapter 7 because they got a raise in the interim. If they he called me two months earlier, they would have qualified. Therefore, acting immediately can be in your best interest, and why doing your own google research can be misleading.

When I File for Bankruptcy, Are All My Debts Wiped Clean?

Not all debts, but most of them. Exceptions include student loans as well as certain types of tax debt, and certain types of criminal debt. Credit card debt, medical debt, loan debts are all wiped clean. Even mortgage debt is wiped clean, and if you do not want to pay that debt, you do not have to. You will not be able to keep the house, of course, but it will allow you to hit a reset button on your bills. Bankruptcy is a tool that is used to help people who have fallen victim to a circumstantial debt through no fault of their own, and it’s there to help you get back above water.

Should You File Bankruptcy Before You Get A New Job?

Yes. If you are considering bankruptcy, an increase in wages could potentially push you outside of the qualification for filing. We see this many times because there is not enough information educating individuals. Not only that, but you do not want to have to try and stall you getting hired because you are trying to qualify. The best practice would be to go ahead and file, and then begin your job search. Your income level will determine which type of bankruptcy you qualify for, so it is very important that you talk with one of our attorneys before any major changes happen that could affect your income/debt ratio.

Can I File For Bankruptcy If I Am On Unemployment?

One of the questions we get a lot is if you can file bankruptcy if you are on unemployment, and the answer to that is yes, you can. Unemployment does not affect anything regarding filing for bankruptcy. If you are receiving unemployment and you expect to start a job soon, now is the time to give us a call.

Another life change that can alter your ability to file is a change in marital status. Let us say you are getting married, but both of you have debt and want to file for bankruptcy. If you wait and try to file after you are married, then you are counted as having a joint income. This could prohibit your ability to file for bankruptcy and stand in the way of your wiping clean your debt. It may seem obvious, but we have seen situations like this, and because there is not enough education on bankruptcy as a tool, facts like these get overlooked or perhaps are not even considered in the first place.

Can I File Twice?

Whether you can file for bankruptcy does depend on if you have filed before and when that took place. There is an eight-year filing period between two Chapter 7 Bankruptcies. The best practice you can have is to treat this like a one-time situation, even though we have known clients that were looking to file twice. In that situation, unfortunately they would have to wait, but the good news is that, by having the discussion, we can plan in the coming years and work hard to prepare.

In Conclusion

The cost of waiting to file is so much higher than the cost of filing for bankruptcy. Attorney’s fees are small in comparison to the fact that your debts, which you are struggling to pay at the time and may never conquer, could potentially be wiped away. My initial consultation is free, so make sure you have your questions prepared and information ready to discuss in that first consultation, and I would be happy to help anyone erase their debt and start fresh. That is what bankruptcy truly is, not a bad word, but instead a tool to help you reset your ability to live your life free of debt and full of possibility. If you are considering it, let me help you make the journey just like I have for so many others. You are not alone in your struggles, and bankruptcy may just be the solution you are seeking. 

 

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CBD and Marijuana Laws

CBD and Marijuana Laws for Florida are Evolving

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We have a saying here at OLG. “Some laws stay the same, and others are always changing.” For Businesses and Consumers alike the world of CBD and Marijuana Laws are evolving within States and Federally. As of March 2019, a bill was passed that allowed smokable medical marijuana to be sold in state-certified medical marijuana treatment centers to patients with a medical marijuana card. Additionally, as of January 2020, the sale of CBD and Hemp products for consumption or application containing less than 0.3% delta-9-tetrahydrocannabinol (THC) concentration became legal for anyone over the age of 18 and to be sold without a medical marijuana dispensary license.

Marijuana at the Federal Level

Early in December of 2020, the House of Representatives passed the MORE (Marijuana Reinvestment and Expungement) Act. While this act is unlikely to pass in the Senate, the movement towards federal acceptance of marijuana use and sales continues to trend upwards; however, ultimately it should be noted that on a Federal Level, marijuana remains illegal as a schedule 1 drug for high potential for abuse and little to no medical benefit. In 2018, under the Trump Administration, the Department of Justice announced that Federal Prosecutors can pursue criminal cases wherever state and federal marijuana laws conflict. However, this policy has largely been symbolic thus far. Law enforcement officers make a majority of their marijuana arrests under state, not federal law.

Marijuana in Florida

As previously stated, in March of 2019, Florida passed a bill that allowed medical marijuana to be sold in state certified medical marijuana treatment centers to patients with a medical marijuana card. Additionally, Florida legislators are working on drafting regulations to allow edible marijuana to be consumed with a medical marijuana card, but at this time only smokable marijuana is legal. To be a qualified patient, you must be a resident of Florida and receive a diagnosis from a qualifying physician for a qualified medical condition (for example; cancer, epilepsy, HIV/AIDS, PTSD, Crohn’s disease, Parkinson’s disease, etc.). Patients and their caregivers will then be entered into the Medical Marijuana Use Registry by their physician. After this, patients and their caregivers must apply for a Registry Identification Card. Once all these steps are completed, your order for medical marijuana may be filled at a state-approved medical marijuana treatment center upon prescription by your doctor.

CBD and Hemp in Florida

In 2018 the Farm Bill was signed into law bringing sweeping changes to how we grow and consume CBD and Hemp products. The Farm Bill created a process that helped state and tribal governments establish Hemp Programs in which individuals could legally cultivate hemp. CBD and Hemp are legal to both cultivate and consume in the state of Florida for anyone over the age of 18 so long as the product contains less than 0.3% THC content. While no licensing is required to consume hemp products in Florida, licensing is required for those who wish to be grow and/or sell hemp products.

To sell CBD/Hemp in an ingestible manner, whether prepackaged or not you must have a food establishment permit. Additionally, there is further licensing requirements if your products have dairy or frozen components. Topical CBD application is considered a cosmetic and so long as you are selling the topical in or into Florida in its original packaging no license is required to sell. To grow and cultivate Hemp plants, you must not only apply for a license, you must also include fingerprints, environmental containment plans, transportation plans, and follow specific hemp cultivation site statutes, among many other requirements. 

What Does Having a Medical Marijuana License Prevent?

If you’re looking to get a CWFL (Concealed Weapons and Firearms License), there may be some conflicting elements. Florida’s Agricultural Commissioner, Nikki Fried recently addressed the subject on the podcast The Marijuana Solution. Her logic is that, due to many alcoholics and those addicted to prescription drugs owning guns, medical marijuana license holders should be able to as well, but from a legal perspective, this may not be as solid as one might assume. On top of stating that the Department of Agriculture would, “not be taking anyone’s concealed weapons permit, or refusing to issue a CWFL,” Nikki also publicly announced that she herself has both licenses. The incongruency lies in the fact that marijuana is still considered an illegal substance according to Federal Law, and that conflicts with those in possession being able to legally own a gun. Fried did mention that she plans to lobby congress about the issue, but truly only time will tell how the Federal Government plans to treat marijuana as a substance.

We recommend trepidation at every stride, and an innate understanding of your rights. Due to the fact that these laws are changing over time, it’s important that you speak with a lawyer immediately when you have questions. We’re here to help, and will make sure to keep you updated with the laws as they evolve, which we guarantee they will. If you’re ever seeking answers, make sure to contact an experienced attorney for your needs today.

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The Pathway to Citizenship

Citizenship is Possible – An Immigration Attorney’s Perspective

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What does it take to be a citizen of The United States of America? For many, being born into their citizenship means that the process was not complicated; however, for the multitude that are striving to attain it, the pathway to citizenship can feel daunting. These individuals, many times, have very real stakes involved in their case. They have a life here in the United States they maintain or are planning to begin a life here, and they do not want to sacrifice that opportunity and start over somewhere new.

One of our areas that we practice here at The Orlando Law Group is Immigration Law, and we are always surprised to see how much conversation is being had on the topic of immigration, but never much about the actual laws involved. Often, the process only feels daunting due to the fact that so little is known about what goes into getting your citizenship here in this country. For this article, we wanted to ask Nicole Payne, our attorney who has experience handling immigration cases and is very passionate about immigration law, her perspective on the pathway to citizenship. She recently helped a client naturalize and wants people to understand – the American Dream is not dead.

How did you get involved with Immigration Law?

I always say I did not choose immigration law. Immigration law chose me, and that’s because right out of law school, I started my own law firm, and I kind of had to take what came in the door. I speak Hebrew fluently, and so I was getting a lot of calls from the Israelis in the community who heard that there is an immigration attorney who speaks Hebrew, so they felt comfortable reaching out to me to help them with their cases. So I got into it at first because I was getting the calls. I took one or two cases to see how I would like it. I loved it and thought it was a very feel-good area of law for me, and so I just decided to go ahead and stick to it.

You recently helped a client gain citizenship. What was that experience like?

So usually, the clients who I’m helping get citizenship have been my clients for a long time because citizenship is the last step that is part of a very long process – years and years of different milestones along the way that we have to keep working towards and getting approvals for. So when you get to that citizenship we’re at the finish line and so excited to cross it. The clients applying for citizenship are usually ones I have built up a relationship with, so it’s extra special to me.

Even if it’s a new client, it’s very monumental. It’s a big deal to become a citizen of the U.S. This is what everybody’s goal was when they first came here, and it opens up a lot of doors for them. It’s always a great feeling, and I know my clients are very happy as well, which makes it even better.

What are some factors that you believe stop people from progressing or coming to you for help?

I think that there might be some fear involved. I think people are afraid that they might not pass the English test because they might feel like their English is not so good. They may be afraid of the civics history test. They’re trying to put it off because they are afraid that they’re going to fail the test. Other factors may include financial reasons. They don’t know which lawyer to hire and they’re just kind of comfortable where they are because they have their green cards and they’re able to work and they’re able to travel. They may be wondering what’s really the point in getting the citizenship, even though when you have your citizenship, it opens up a whole world of possibilities that you weren’t able to do before. For example, voting, having a U. S. Passport, not risking the chances of deportation if you were to get arrested.

What are some detrimental conditions that can be caused by waiting to talk to you?

I’m sure people know just from watching the news, but immigration laws change daily, so you could have a law that changes overnight that really jeopardizes you. It could be, you know, if you are afraid of taking that test well, they just changed the law that makes the test harder or the fees have increased.

You mentioned recently in a social media post that the American Dream is not dead – what did you mean by this?

I work with people from all over the world. These people have it really rough in their home countries, and all they want to do is come here, have the opportunity to make a better life for themselves and for their families. I watch these people work harder than anybody else that I know. They are working ten times harder because the American Dream is incredibly meaningful to them. So to me, that’s the American dream. It’s still very much people who are immigrating here and having more opportunities to have a better life.

When people complain about their lives here in America, I really wish that I could give them a different perspective because the immigrants that I know are so grateful for that American dream.

What are some common pitfalls you believe individuals fall into that can cause complications with getting their citizenship?

Okay, I’ll give you the most recent example is we just had an election. There’s a lot of false information out there as to whether you’re eligible to vote in election or not, and there are people who are getting terrible advice that if you are a lawful permanent resident, you can vote in a presidential election or any election. You absolutely cannot, and it’s a disqualifier for citizenship.

So right now we’re seeing a lot of that where people who have been here and have done everything that they needed to do, went through the entire legal process to come here legally and work on their path towards citizenship so they can provide this life for their family. Now they are not able to naturalize. They can’t get their citizenship because they were told some false information. That’s the biggest pitfall I’m seeing right now. People don’t really know who to trust, who to believe and there is an abundance of misinformation out there.

Another pitfall I see when it comes to citizenship is people who try to do the cases themselves and don’t submit the required documentation. They are not putting their best case forward, and it could result in major delays in their case. What would normally take under a year now is taking much longer.

What would your advice be to anyone reading this and wondering how they will begin the process?

Well, there is one easy way, and that’s just to consult with the expert like we were just talking about. You know, an expert’s advice is so invaluable. I make it really easy for my clients. I don’t want the client to stress. I don’t want them to worry. I just want them to have a very easy process where I tell them everything I need. I’ll easily lay it out on a piece of paper of what I need from them. Along as I have their documents compiled, I can put everything together, and all we have to do is get them to review. I like to have the client trust me that I will take care of everything, and that they don’t have to worry about a thing. If someone is reading this and needed advice on how to begin, I would say give me a call.

What is the difference between an immigrant petition and non-immigrant petition?

Simply put, a nonimmigrant petition is one that does not lead to citizenship. It’s for people who are here temporarily. An immigrant petition is one that can be adjusted from their current status of whatever that immigrant petition will result in, to become a lawful permanent resident, where you can then naturalized/become a citizen.

When and how can I apply for U.S. Citizenship if I am a lawful permanent resident?

It depends on how you became lawful permanent resident. If you have been a lawful permanent resident for five years, no matter how you got it, you can become a citizen. If you’ve been a lawful permanent resident because you were married and are still married to a U. S. Citizen, after three years of being a lawful permanent resident, you’re able to become a citizen.  So it could be three years or five years, depending on how you got it.

What are some factors that can help my case when it comes to gaining citizenship?

This is something nobody really knows this coming into the country, but if you are a male and you are between the ages of 18 and 26 and you enlist in the military for the reserve – that is something that they ask for, and most often times people don’t do it. The attorney has to explain and justify this mistake that this person made by simply not knowing that it was a requirement of them. If the client has done it, then that’s really good.

Also, if your case is clean, where you don’t have any history of criminal arrests and you don’t have any taxes owed. Other than that, as long as you have the right documentation moving forward and you have been a lawful permanent resident for the required amount of time, then there aren’t really many issues as long as you’re able to go to the interview and pass the tests.

What would you say is one of the biggest myths when it comes to Immigration Law?

One myth that I can think of is some clients believe that showing up to a scheduled interview with an attorney is a bad look. That is a myth. Clients think that if they have an attorney there that the hearing officer will think that they are hiding something. Perhaps that’s why they needed an attorney to come to their defense? That is, quite simply, just one big myth – the idea that an attorney’s presence could have a negative impact on your case.

Rather, it’s the opposite. If you are represented by an attorney and an attorney is present at the interview with you, then you most likely will only be asked questions that are in the scope of their right to ask. I highly suggest always having an attorney present at interviews. It’s not going to jeopardize your case in any sort of way.

Do you expect any changes to occur or see any trends happening in 2021 regarding Immigration Laws?

Well, there have already been a lot of changes in regards to DACA. We’re seeing a lot of positive changes for the DACA recipients and they’re able to now apply again, which hasn’t been possible for them for a long time. So hopefully in 2021 they will provide a pathway to citizenship for all DACA recipients. That would be huge. Do I anticipate that happening? I can’t say one way or the other because it depends on who’s president and whether it’ll pass through Congress. I’m hopeful and I know that there are a lot of lobbyists out there who are advocating for these people and I do get updates on it all the time. Hopefully, we do see a lot of positive changes.

What is one of the most gratifying parts of working in Immigration Law?

The most rewarding aspect is definitely the client’s satisfaction. They seem to be extremely grateful for the success that comes about from their immigration process. When they meet me, they don’t even know if they qualify for citizenship, permanent residency, or visas. The advice that I give them and a little bit of creativity to fit them into a certain category helps to prove their case.

It’s truly rewarding to get that approval because the clients are just so happy. It’s meaningful to them. I’ve had clients invite me to their wedding. I’ve had clients bring me their babies when their babies are born to meet me. It’s really a rewarding area of law and it makes a difference in my life and the lives of my clients.

As you can see, Nicole embodies what it means to work at The Orlando Law Group. We care for our clients because we know our job is tied to their life. Gaining citizenship is a process that begins and ends with commitment. The client must be committed to the journey, and they must take the time necessary to endure. It can be a nerving process, one that may have you feeling uncertain.

That is why we are here to assist. You need someone that has experience in immigration and that will help to persevere alongside you. Nicole and the attorneys at The Orlando Law Group not only are committed to their clients, but they begin by understanding and caring for their client’s story. So very often, that is the story of hope. Many individuals dream of building a life here in The United States and together, we help that dream become a reality. For those that believe, that are willing to work with us and stay the course, their American Dream will never die, and we will never stop helping them achieve their goal of citizenship. If you are in the process of becoming a citizen and have questions – do not hesitate to reach out. Our consultations are free, and a conversation with us can only help.

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The Current State of Foreclosures, Evictions, and Real Estate

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With the changes brought about by the COVID-19 pandemic, families have struggled more than ever – and this is evidenced in the strain put onto the housing industry. We live in a state where many maintain surmountable income through investment properties, taking advantage of a thriving rental market bolstered by tourism. It all works very well on a good day but consider the sudden halt many businesses and staple jobs have come to, and you have a market that for many cannot make ends meet.

Luckily on March 18th, measures were taken to begin to try and help the situation. A moratorium was placed that could legally protect effected renters from being evicted. This moratorium, and its consequent extensions have created a murky environment where many do not understand what applies to them, what the end-goal is, and what they will be responsible for when the moratorium is over. In this article, we want to take a deep and current dive into the state of foreclosures, evictions, and the extended moratorium so that you have a better understanding of how we are moving forward together.

The Extensions Continue

As of the writing of this article, the current extension to the moratorium on foreclosures and eviction processes will run until the end of the year, December 31st. Its purpose is to assist homeowners and renters that have undergone financial hardship because of job loss due to COVID-19. From a legal perspective, whenever we see language like this, we are always thinking of the word proof. Pay stubs and any written evidence that can back and prove that you lost your job due specifically to the pandemic will help strengthen your argument. As one would expect, there will be those looking to game the system, so hiring a lawyer to help you through the process is absolutely be a good idea.

In the lending world The Department of Housing and Urban Development (HUD), the Department of Veterans’ Affairs, and the Department of Agriculture have all extended their foreclosure moratoriums on guaranteed or insured loans covered under the CARES Act until December 31st. Fannie Mac and Freddie Mac also have extended their moratorium on foreclosures for enterprise-backed, single-family mortgages. All of this has one main goal, to help stave off sudden, major deterioration of the housing market. Protecting those who are paying rent alongside those who are paying loans off will hopefully allow for time to adjust, catch up, and recalibrate.

Payments Will Be Due

It is vital to understand the implications of these laws. Payments are not being waived. As a matter of fact, the true definition of moratorium is a temporary prohibition of any activity. It, essentially, is a legal pause button, extending but not absolving the money that you owe. If your finances have been impacted by the pandemic, then pivoting will be essential. For those who are impacted in a way that substantially cripples their finances, bankruptcy will have to be a consideration, and that is where hiring a lawyer could work to your benefit. Sophia Dean, legal attorney with The Orlando Law Group, notices a degree of similarity between now and when she helped individuals through the housing crash of 2008.

“When I would consult individuals who were facing immense financial strife, I would encourage them by helping them understand that they were beginning a journey, and that it would take time to get back to where they needed to be. Honestly, many nights I would lay awake with the weight of their situations on my heart, thinking of creative ways for us to build back a foundation.

My advice is do not wait. People make the mistake of thinking that a lawyer will charge you for every second you spend on the phone or in a zoom when the truth is quite the contrary. My consultations are free. A conversation with me is free, and I encourage those struggling to have that conversation and call me immediately. The most important action we will do during this time is make informed decisions.”

Sophia Dean, Attorney at The Orlando Law Group

The Impact On The Real Estate Market

It is a different time for those working in the field of Real Estate, given the changes brought to what was a market with a steady flow of inventory. With less families and individuals putting their property up for sale, prices have gone up. When inventory is low, the power goes to the seller. Lower interest rates have encouraged buyers to enter the market, and we anticipate buyer competition to be fierce, even throughout the pandemic. For an analysis of how COVID-19 has affected the market, we asked Michael Curtin, Commercial Broker of HIVE Commercial Realty his interpretation of the Real Estate Market.

“We’ve seen inventory go down on the residential side, but many commercial opportunities are still growing. With hardship always comes a shift in the market, and this will be no different. I anticipate that we will see many find difficulty making ends meet, and therefore are forced to turn over their real estate portfolios or alter their plans to accommodate the changes brought about by the pandemic.

My biggest recommendation right now – stay flexible with your goals and expectations. If you can grow your business in a creative way to accommodate social distancing, now’s the time to do it. Elevate your marketing and work hard to innovate. Learn the market so that when it begins to change, you can change with it.”

Michael Curtin, Commercial Broker at Hive Commercial Realty

Our Key Takeaways

We are beginning to circle back around to one year since protections were enacted for individuals impacted by the pandemic. With the extensions stretching to December 31st, owners experiencing financial hardship due to COVID-19 may pause, suspend, or reduce mortgage payments for 180 days. If that owner receives forbearance and decides to apply for a second delay, the maximum number of days they can receive forbearance is 360 days total.

This all hints at an unavoidable, eventual elephant in the room. When the eventual resumption occurs, there will be hardship. Many will struggle to make up the money owed, and there will be situations without easy answers. That is why hiring a lawyer and working with a law firm that has experience will be vital. We are poised and ready to help, to lay away at night coming up with options because we care for our clients. We see ourselves in them. We know they live in a complicated world that seldom takes into consideration their concerns. That is why you have us to help you navigate, no matter how murky the waters may seem.

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CBD and Marijuana Laws

Why Copyrights Could Be The Biggest Area Of Law In 2021

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Why the Resurgence of Relevancy?

Digital content is being shared ALL the time. This transience of information has led to an influx of content being created and shared across all mediums. Once placed into the public domain, as easy as it may seem for us to disseminate an original work, it is even easier for someone to imitate it. This has sparked a new and revitalized relevance for copyright law and understanding how digital mediums have made it more difficult for us to determine who owns what. All of this leads us to believe that, in 2021 and moving forward, copyright could potentially be one of the biggest areas of law for a generation born on the internet.

The Stakes

For many companies, copyright suits can easily involve millions of dollars, simply because the stakes are tied to the company’s branding or the product created.

Additionally, because we are in a new digital era, future copyright cases can set brand new precedence, which may alter the protections that copyright owners have enjoyed for so long. The ability to transform original works, either through parody or criticism, has created an influx of cases that require a factorial evaluation to be conducted by the courts. Was the work transformative enough to make it unique?

Such factors include i) the purpose and character of the use, which includes whether the use is of a commercial nature or is for nonprofit educational purposes; ii) the nature of the copyrighted work, iii) the amount and quality of the work that has been copied; and iv) the harm brought by the transformed work.

For the small-time influencer, this could mean the difference between a few paychecks, but for companies, this can be a determining factor in their ultimate success. To explore how copyright law is being used today, we wanted to break down three cases that could be influential in 2021.

Three Examples of Cases on the Block

  • Google v. Oracle

This is a case involving the application of copyright protection to software owned by Oracle and resolves the question regarding whether Google’s use in creating an android operating system that is comprised of Java coding constitutes fair use. In January of 2019, Oracle initiated a case against Google, alleging improper use of 11,000 lines of Code from JAVA SE, which was found not to be covered under fair use by The U.S. Court of Appeals for the Federal Circuit. This case has made it all the way up to the United States Supreme Court, who heard oral arguments on the issue Wednesday Oct 7, 2020, and has yet to reach a decision on the matter.

The main challenge that lies ahead is in determining whether the specific code used by Google within the Android interface is considered to be an algorithm, formatting, functions, logic or system design, which then would not be covered under copyright law, as they are not considered a means of creative expression. Digital coding, although used widely, can become the subject of stringent copyright criticism. As we move into a more digital frontier, it becomes important to understand if the coding you are using can be fairly used.

  • National Music Publishers Association v. Peloton

Music has generated a multitude of copyright cases as different platforms have been developed and used for streaming purposes. To place this into context, take the case National Music Publishers Association v. Peloton. In this matter, a $370 million lawsuit, which more than doubled the original $150 million lawsuit, was filed by the National Music Publishers Association last March, when it was alleged that Peloton used over 1,000 musical composition without obtaining the proper licenses to use them. A settlement was reached where the creators for the songs were properly compensated for the use of their music included in the Peloton experience. Peloton took the initiative to remove the NMPA protected songs for all workout videos provided to the public.

  • Suess Enterprises LP v. Comic Mix LLC et al

This third case involves our beloved Dr. Suess and a claim brought by his estate against the publisher for a work that mashed up “Oh, the Places You’ll Go!,” and other Dr. Suess works, alongside Star Trek imagery as well as characters from the original fictional franchise. The United States District Court for the Southern District of California found that the comic book’s use of the material was fair use and was treated as parody rather than a complete infringement on the original. This “highly transformative work” allowed for well-known characters to interact in a way that was not so different from their original works.  

This being said, it doesn’t always happen that way. The opposite actually occurred in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), whereby an author used the characters created by Dr. Seuss to retell the story of the O.J. Simpson murder trial. The appellate court determined that the author’s use of such characters in this work created a satirical piece, not a parody. As such, it was not transformative enough to be protected from a copyright claim.

Our Take on the Matter

These cases bring to light how important certain words are when reflected in new, legal light. Gaining clarity on terms like parody and fair use is vital for navigating in a way that avoids legal pitfalls. 

What is parody?

 Miriam-Webster defines parody as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Parody is important to establish, so that some measurable line of difference exists between your work and the work you have utilized.

What is fair use?

Fair use is a doctrine allowing for the use of copyrighted work for transformative purposes, such as for criticism, parody, comment, news reporting, teaching, scholarship and research. Fair use is becoming a common practice, especially given the rise in reaction content – videos and posts that are offering their opinion on a certain song, movie, or work of art.

 Copyrighting is crucial to the protection of your works, no matter the medium.  If you’re creating digital content online, having an understanding of copyrights will help you be confident in your creations. You can rest easy knowing that your work remains original. Not only this, when establishing a business, you need to take into consideration how unique your endeavor is.

What This Means for the Future

With technological changes, come changes to the law. Copyright laws will have to alter and grow to accommodate a market that has become highly digitized, paving the way for possible fair use claims in years to come. As a company or brand’s content gets used by the public, they will have to determine if it is worth litigation or not, especially if it grants them popularity and added visibility. One thing we can be certain of: copyrights have never mattered more than they do right now. That is why hiring a lawyer can offer you armor. It can be the difference in how protected your content, business, or brand remains.

Want to know the difference between trademarks and copyrights?

We’ve got a blog that talks about exactly that.

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Safety Tips

Trick-Or-Treating Safety Tips

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Association Managers and Board Members have been under tremendous pressure and are faced with many unprecedented circumstances this year.

As Halloween approaches, many communities will be filled with little trick-or-treaters, and each Community Association must decide whether they are going to permit trick-or-treating within their neighborhood.

While the Board has the authority to make decisions on behalf of the Association for the safety and wellbeing of its residents, we highly recommend that you consult your Association’s attorney as you evaluate what stance your community will take in regards to trick or treating and ensure that your board follows the proper protocol in implementing your decision.

For those Associations choosing to allow trick-or-treaters within their community, here are a few safety tips that you can share with your residents:

For Residents wishing to hand out candy

  1. Wear a mask
  2. Hand out the candy to the kids individually (do not let the kids pick out the candy)
  3. Use hand sanitizer or wash your hands with soap and water in between handing out candy; or
  4. Set up a treat table outside with the candy spread out or placed in treat bags so that the kids can grab one item without touching the rest

For Kids going trick-or-treating

  1. Wear a mask (not a costume mask)
  2. Take hand sanitizer and use it frequently
  3. Do not travel in large groups and stay with the same group
  4. Stay outside
  5. As soon as you get home wash and change clothes

Remind your residents that your primary objective as Managers and Board Members is the health, safety, and well-being of all residents of the Association. As a community, you must put your neighbor’s health over convenience and discomfort.

Share these tips with your residents so that they are aware of the policy. Speak with your Association attorney as to the best way to adopt any guidelines and share them with your community.

The best way to stay involved is through thorough communication, and as always, we’re here to help in any way we can. Our attorneys are experienced, and ready to help you find solutions. They also care about the communities they are involved in.

Want to read more of our materials on Community Associations and HOA law. Visit the blog section of our website – where all of our articles are posted.

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airbnb

Home Away from Home – the Truth About Airbnb

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     Vacation Rental sites such as Airbnb have exploded in popularity recently, as they provide the experience of a home away from home with prices that often rival hotels. The United States alone has 660,000 listings, making it the Nation with the highest number of Airbnbs. While it may seem like a dream experience, how much do both vacationers, and hosts really know about what they are liable for and what they are protected from? What happens if you are the host, and something happens to the property because of the clients that decided to rent? Conversely, what happens if you are the vacationer, and part of the property becomes damaged based on prior conditions, but you are now being blamed? Airbnb readily makes promises of protection for both parties, but what true, legal armor do you receive when you agree to work with this company?

Who is AirBnb

     The vacation rental market has exploded in popularity recently as renters seek unique experiences in worldwide locations, all at the touch of their fingertips. Airbnb prides themselves on providing just that, and their process is streamlined to make it quick and easy to book. Their origins just so happen to be steeped in speedy resolutions. In 2008, Airbnb (Air Bed and Breakfast) was formed when a conference ran out of hotel space and the founders opened their home to renters in need. The company has come a very long way since then. Today, Airbnb boasts 750 Million all time arrivals, 7 Million Airbnb listings, and 220 countries with listings available. However, it is what Airbnb decides not to tell you that can be even more interesting and applicable to their services.

How Frequently Does Litigation Occur?

     One might be thinking, “Does Airbnb ever undergo complex litigation?” According to an article published by Bloomberg in February of this year, Airbnb has filed 11 lawsuits against an American city or state government since it was founded. It has appealed an adverse decision at least three times. The article states that half of those legal hurdles have occurred in the past two years. Not only this, but litigation against Airbnb has also risen, with the company being involved in 230 cases through the end of 2019. These ranged from video cameras in bedrooms to severe bedbug infestations and even a situation where a guest tossed a lit cigarette into the trash and burned the property down. As one would expect, Airbnb advertises themselves as being expeditious and user-friendly, but complications beg the question, “What protection does Airbnb truly offer?”

Host Protection

     Airbnb readily advertises two different programs to assist Hosts: Host Guarantee and Host Protection Insurance. The Host Guarantee provides protection for property damage to possession, units, or home, against a guest. It is important to note that this does not replace homeowners or renter’s insurance. The Host Protection Insurance program may cover hosts in the event of third-party claims of personal injury or property damage. Airbnb, however, has an extensive list of exclusions to these programs that are important to note.

  • anything related to mobile, aircraft, or auto equipment
  • assault and battery
  • Chinese drywall
  • communicable diseases
  • contractual liability
  • cross-suits
  • employment related practices
  • electronic data
  • distribution of material in violation of statutes
  • expected or intended injury
  • fungi or bacteria; exterior insulation
  • liquor liability
  • nuclear risks
  • pollution
  • product recall
  • sexual assault
  • watercraft
  • war intelligent

   That list is not indicative of all the exceptions included and any host should read into what they are not being covered for before hosting guests.

Renter Protection

     Traveling can be a stressful time for vacationers, so you should always know what will occur if the worst happens. One might assume that traveler’s insurance and Airbnb’s renter protection policies might contain similarities. Ultimately, Airbnb offers no protections that even come close to replicating traveler’s insurance. Airbnb does offer a 24/7 customer support line for reporting instances such as a wrong location listing, an incorrect number of rooms, unknown animals, and more. This comes nowhere close to offering comprehensive protection to a vulnerable individual on vacation.

     Should an incident occur where a guest could even begin to think about considering legal action, they may not be able to. In a recent case in Florida’s Second District Court of Appeals, Doe V. Natt, Airbnb argued that “the Does’ claims were subject to arbitration under Airbnb’s Terms of Service, which the Does agreed to be bound to pursuant to a “clickwrap” agreement they had entered when they first created their respective Airbnb accounts online.” The Court ultimately remanded the case for further decision, however, until that decision is made renters should be aware that any case they wish to bring, may be subject to Arbitration.

Go or No Go?

     You may be asking yourself if Airbnb is worth the risk from either perspective now. As Airbnb says, the best remedy is always to do your own thorough research first. This is very pertinent advice with any company you decide to work with, large or small. Understanding your legal protections from the beginning will set your mind at ease, and if something does go wrong, you will have a familiarity with where to begin. Check out reviews, photos, and guest experiences before booking. If you have specific questions, do not hesitate to ask them. More knowledge allows you to make the best possible decision for your property as well as your family and friends.

     Hosts should make sure to remove objects they are concerned about, as well as vet their homes for potentially dangerous areas. Ultimately, it is important to know that some protections are in place, but the best safeguard for your property and vacation is some good old-fashioned research. Having a law firm on your side, like The Orlando Law Group, for both property projection and personal injury, while also exercising caution as both a renter and host will put you in the best position.

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Personal Bankruptcy

Bankruptcy Could Offer You A Way Out

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There is no question that the U.S. has a financial problem. The statistics are indisputable.  Americans carry an average personal debt of over $90,000. Many times, it’s through no real fault of their own. There are so many factors to consider. The cost of living continues to rise, and as it does so it is becoming easier for people to get credit when they may not have the means to cover their bills.

Additionally, with the unemployment rate skyrocketing due to the COVID-19 pandemic, times are difficult for many people, and that includes the struggle with finances. We’ve all seen the headlines about looming eviction rates and bankruptcy surges, but what those headlines won’t tell you is that for many, these issues are not on the horizon, but rather on their doorstep.

While some people tend to shy away from bankruptcy or think it is a negative thing, that isn’t the case at all – when it’s processed the correct way.

What is Personal Bankruptcy?

Personal bankruptcy is a legal process in which a debtor files with their local court system. As a result, the debtor’s personal assets are evaluated, and some may be sold in order to offer creditors a portion of what they are owed.

The process of filing for bankruptcy also creates something called an “automatic stay,” which means creditors are blocked from collecting your debts until the court proceedings are over. This can give you a bit of breathing room while your case is being reviewed.

Bankruptcy works differently depending on an individual’s financial situation and how the court sees it. In some cases, a financial plan may be worked out that better fits with your income and needs, so you can pay back your creditors at a different rate. Other times, your debt will be completely eliminated.

In the case of Chapter 13 bankruptcy, the debtor will develop a plan based on their personal finances to repay their creditors over a fixed period of time.

Chapter 7 or Chapter 13?

Consumers generally file either a Chapter 7 or a Chapter 13 bankruptcy. Some people believe that a Chapter 7 bankruptcy is the best way to go, but that is not always the case. Everyone has their own unique situation which should be analyzed by a professional to determine whether a Chapter 7 or a Chapter 13 bankruptcy is more appropriate. For example, if you do not have a lot of unsecured debt such as credit card debt or medical bills, but you have a home worth $200,000, a first mortgage of $210,000 and $75,000 on your second mortgage, and you want to keep your house, filing a Chapter 13 bankruptcy may be appropriate for you because you may be able to “lien strip” the second mortgage.

On the other hand, if you have a lot of unsecured debt such as medical bills and/or credit card debt, then Chapter 7 may be more appropriate for you. However, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 made changes to the Bankruptcy Code, which makes filing a Chapter 7 bankruptcy more complicated. To be eligible for a Chapter 7 bankruptcy there is a 2-part test. First, there is the “means test”. This subjects debtors to an income-based test. But if the debtor’s income is below the state’s median income, then the debtor is not subject to the means test. Additionally, debtors with primarily (more than 51%) business debts (including investment properties used as rental properties) may file a Chapter 7 bankruptcy regardless.

However, even if you pass the means test, you still have to pass a second test known as the “abusive test”. The United States Trustee or any creditor can move to have your case dismissed. The bankruptcy Court could dismiss your case if the Court finds that you have the ability to pay back a significant portion of your unsecured debts.

If you are eligible to file a Chapter 7 you are looking to liquidate your debt. You are able to keep some property and may have to let other property go. You can keep exempt property.

A Chapter 13 bankruptcy is a form of reorganization. The debtor proposes a plan to pay his creditors over a 3 to 5-year period. Generally, the debtor keeps property and the creditors get less money than they are owed. However, the unsecured creditors must receive at least as much through the Chapter 13 plan as they would have received in a Chapter 7 liquidation.

The Benefits of Filing for Bankruptcy

One of the biggest benefits to working with a bankruptcy lawyer well before filing is the knowledge about the process that professional counsel can share. Because there are time restrictions on how often you can file for bankruptcy, you’ll want to make sure you are in a position to get rid of the maximum amount of debt.

Also, it is essential to consider what might happen if your financial position changes between now and filing for bankruptcy. If your situation improves, should you back out of filing? If it worsens, should you file more quickly?

Working with an experienced attorney will help clarify the answers to those questions and give you peace of mind as you move forward.

Is Bankruptcy Right for You?

Unfortunately, bankruptcy has been stereotyped in a negative light over the last several years. While it certainly is something that should be used as a last resort to get out of debt, it doesn’t mean your credit will be ruined forever, and it isn’t something you should be embarrassed about. Bankruptcy exists for a reason – to help you get back on your feet.

If you are buried in debt, no matter the reason, and you’re not sure what else to do, bankruptcy could be your best option to get a fresh start with your finances.

Feel free to contact the Orlando Law Group for more information on our bankruptcy services and how we can go to work for you to start the process. Our years of expertise with bankruptcy law will make the entire experience as easy on you as possible, so you can focus on eliminating the debt from your life and starting over with your finances in a healthy and responsible way.

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trademark

Trademarks – What You Need To Know

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Trademarking the logo and name of your business is essential to maintain its originality in a world where people have the tendency to see an idea that works and try to make it their own. Not everyone takes the appropriate steps to ensure that their company name is registered to only be used by them. Not only this, Trademarking is commonly used as a catch-all phrase and its definition becomes ambiguous. In this article, we will provide clarity on the matter. Let us start by defining what Trademarking really is.

What is Trademarking?

Trademarking is the registration process that prevents others from not only using the name of your business, but the symbol that accompanies it and/or the design you worked so hard to create. This process also compares your mark alongside all other previously registered marks to verify whether it is already taken or is similar to an existing mark. Trademarks allow you to exclusively use of your own symbol and name in your ordinary course of trade (the sale of goods or services), within a certain geographic area.

A Tale of Two Businesses

It is important to note that even after trademarking your logo, there will always be others who attempt to use the likeness of your business and even downright attempt to sell the same product and/or provide the exact same services you do. Take the case of Paris Banh Mi Café Bakery as an example in Orlando. The original registered trademark owner has sought to stop a former partner from using almost the exact same name for his business, Paris Banh Mi & Tea Cafe. When this type of infringement occurs, depending on how the mark is registered, mark owners can bring a civil action in state or federal court against those who attempt to replicate their name.

If the first mark owner is successful in proving that he owns a valid, protectable trademark, and that there is a likelihood that confusion will be caused by the copycat’s use of his mark, an injunction may be ordered. This will require the copycat to cease all use of the name. There are other remedies that the Court may order, such as destroying or turning over of any product that uses the mark owner’s name, monetary relief including profits made by the copycat, any damages sustained by the mark owner, and any costs sustained as a part of the action being brought or an order requiring that the copycat pay for the mark owner’s attorney’s fees.

In this case, the former partner was second in line to register his mark and therefore, Paris Banh Mi Café Bakery has a stronger likelihood of obtaining an injunction against Paris Banh Mi & Tea Café.

Trademark Infringement Factors

There are several factors that the court will take into consideration when determining that a party has infringed upon an already existing trademark. Those factors include:

  • The resemblance between the marks
  • The similarity of the marketing methods and channels of distribution
  • Characteristics of the prospective purchasers and the degree of care they exercise
  • The degree of distinctiveness of the senior user’s mark
  • Where the goods or services are not competitive
  • The likelihood that prospective buyers would expect the senior user to expand into the field of the junior user
  • Where the goods or services are sold in different territories, the extent to which the senior user’s designation is known in the junior user’s territory
  • Intent of the copycat user
  • Evidence of actual, legitimate confusion

Source: Anderson v. Upper Keys Bus. Grp., Inc., 61 So. 3d 1162 (Fla. Dist. Ct. App. 2011)

What about Dilution?

Dilution occurs when a business of a different trade begins to use a famous mark, which then causes the uniqueness of the famous mark to diminish or tarnishes the mark’s reputation. When this happens, the court investigates how distinct the service or product containing the similar mark is compared to the original mark holder’s service or product. They will also consider how long and to what extent the product or service is used and advertised, as well as the degree in which prospective purchasers can recognize one from the other.

In an action for dilution, an injunction may be brought against the user of a mark if said mark has become widely recognized by the general public, and if the use of the mark is likely to cause the diminishment of its distinctness. In other words, if a mark is so well know that it is instantly associated with a product, anyone who tries to replicate the mark and place it on a good or service that is different from the famous mark holder’s good or service, may be prohibited from doing so, based on the fact that it may cause confusion.

Where is the Line?

Trademark Law, which is notably different from copyright law, does indeed have gray areas. Where copyright law encompasses original works of authorship, such as books, musical compositions and artistic pieces, Trademark law provides ownership of a phrase or name of a good/service. The line, many times, falls between whether the infringement marks a significant business venture. That is why, if you’re considering creating a business of any kind, your trademark is going to matter, and how your business is protected will minimize any gray areas that can potentially exist.

How to Register Your Trademark

Registering a trademark can be done individually by state or on a federal level. For example, Florida charges $87.50 per classification, which is essentially the area that you would like your trademark to encompass (clothing, mugs, gaming, advertisement, or services providing for food or drinks). A Federal Trademark is sought from the United States Patent and Trademark Office and costs between $225.00 – $275.00 per class of goods or services, which will allow you to stake your claim in your own name, throughout the entirety of the U.S. When you go through this process, it is a good idea to seek an attorney to not only help you to not only navigate uncharted waters, but to ensure that all due diligence is maintained.

Our Advice

Start your business on solid ground. If you are going to plan and spend time formulating a company, you deserve to get the foundation to a level where you can feel confident and comfortable. When Paris Banh Mi Café Bakery created their company, the partnership was strong, but that did not last forever. The owner of the store is fortunate he filed the trademark early. That action created legal armor that will protect the rights to his business name, which may encompass the products being sold. That is why trademarks matter, and that is why you must get it right from the very start.

As always, our attorneys can help make sure you have that legal armor. They know the pitfalls, and know how to avoid them so that when you are ready to begin your next business venture, you know who to call.

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tiktok

For TikTok…The Clock Is Ticking

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Social Media is much more than a tool. It is even more than a product. It is, simply put, a way of life. Just like mobile phones slowly became standard, everyday technology, so too have platforms such as Facebook, Instagram, and now – TikTok. The premise behind the app is simple, short video content that rewards syncing the action to music combined with a “for you” page that tailors what you find based on your interests. A slow yet steady pace of growth has allowed TikTok to rise as a platform of choice for young adults, but nothing could have prepared the app for the notoriety it is receiving now.

The Time Frame

Trouble arose when the stream of data aggregated from the platform was put into concerning crosshairs. The company that owns TikTok, ByteDance, was called into controversy when President Trump stated that he would consider banning the app, given the fact that it could potentially make US user data accessible to the Chinese government.

Instead of immediately banning the app, the President instead, on August 8th, gave a time frame for the company to become compliant.  This executive order gave TikTok about a month and a half to successfully locate a buyer. This time-frame was later extended to 90 days, and ByteDance was ordered to delete any data obtained from U.S. TikTok users.

An Uptick in Users

For TikTok, business has been booming. With the pandemic creating a sense of isolation for many individuals, the app has surged in popularity. This being said, the U.S. isn’t alone in its trepidations. India has already banned the app, and Australia is said to be considering it as well.

The significance of this executive order cannot be understated. It marks an important, invisible currency that apps attain: your data. Apps like TikTok can attain large tracts of information from their users, such as location data and browser history. It’s a new world we live in, one where this transaction of data happens so frequently that we have become accustomed to it. How many individuals do you think truly read the terms of service?

Predictive Precedence

You may be thinking to yourself, “I don’t use TikTok, so how does this apply to me?” The truth is that we all use social media to some degree. It has become a way of life, and with that comes the sharing of swaths of data that used to be harder to attain. We need to know that with this sharing comes a potential vulnerability to so much transparency. Without the full understanding of how that information is being used, it can set dangerously complex legal stages that are difficult to navigate. Although there is no proof yet that the Chinese owned company ByteDance has relinquished any personal data to the Chinese government, understanding that the potential exists is a reality we must confront.

Our prediction, as a Law Firm, is that companies will come under more scrutiny in the future. Even those that are owned domestically are not without their faults. Facebook was in the spotlight this year for its decision to abstain from fact-checking. Notice a similarity? Both cases carry the concern about the passage of information, and how that information is put to use.

We can absolutely attest to the fact that court cases take into consideration social media presence. Photo evidence, especially photographs that contain vital information such as where the photograph was taken and when, are powerful and can culminate in a decisive moment for the client’s case. The old adage, “With great power comes great responsibility,” remains true. With so many users giving their information so freely, there is a great deal of responsibility placed upon the company to be transparent with how that information is handled.

Buyers Coming to the Rescue

Still, you don’t have to delete your TikTok account just yet. The fact remains that, for the app to remain viable in the United States, the clock is ticking to find a buyer for the company. Corporations like Microsoft, Walmart, and Oracle have expressed interest in ownership, and this would be a significant solution in keeping the app usable. If that sale does not happen, the government could act by eliminating the downloading of the app from the Apple and Google store.

Many tech specialists believe this will not stop the use of TikTok, mainly because users can still install rogue apps on Android devices without accessing the Google Play Store. The precedence this sets is for the U.S. Government to have executive power over the download and use of applications, regardless of cause. It is a complex scenario, given the fact that by waiting to prove that information has been compromised, we run the risk of losing data that could have been protected.

The Potential Victor

Microsoft announced on Sunday that its bid for ByteDance has been rejected.  The announcement stated, “We would have made significant changes to ensure the service met the highest standards for security, privacy, online safety, and combating misinformation. We look forward to seeing how the service evolves in these important areas.” It would appear that, based on this language, Oracle has emerged as the potential victor and, barring negotiations that are planned to take place this week, will be forming a partnership with TikTok to ensure the application remains viable in the United States.

How this can improve data control and confidence that information is not being ascertained in a potentially destructive way remains to be discovered. Oracle is expected to make an announcement later with discussions evolving this week on the matter. The clock is ticking to finalize a deal, but TikTok may be one step closer to finding a viable avenue to sustain their presence in the United States market, a rumored 100 million monthly active users.

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Personal Injury Lawyer

Need a Personal Injury Lawyer to Fight for You?

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There are 6 million car accidents each year in the U.S. alone. Some tragically end with fatalities, but many others end with injuries – both great and small. Many individuals make the mistake of thinking to themselves, the odds of me being in a car crash are so low that it will most likely not happen to me and preparing could potentially be unnecessary.

Worse than this, sometimes individuals even get into an accident and do not realize they have been injured until later, and do not take the necessary actions that could allow us to move quickly and get them the relief they need.

While experiencing a car accident for yourself can be terrifying, there are a few things you should always do immediately after an accident.

First, it’s important to make sure that everyone is okay, including your passengers and the people in the other car(s) involved. Then, you should always call the police and make sure a report of the accident is filed. This legitimizes your circumstances in the eyes of the law.

This next step is very important, and because of the stress involved in an accident, it can often be overlooked. If you sustain any type of injury from the accident, your next call should be to a personal injury attorney.

Why Work With a Personal Injury Lawyer?

If you are injured in an accident, you might be feeling lost and confused as to what to do next. This is especially true if you believe you should be given some type of compensation for your injuries.

An experienced personal injury attorney understands your situation and will be able to answer any legal questions for you, as well as go over your rights and what you can expect from a personal injury case. Personal injury lawyers understand the case law and can lay the groundwork for you, so you don’t have to do it on your own. It is not only about the groundwork they can lay down, but also about how they can utilize their prior experience of working cases, many of which most likely contain similarities to your situation. Lawyers have teams and resources that can work together to help make your case successful and fair.  

Additionally, personal injury attorneys have experience and rapport working with insurance companies, as well as the lawyers for those companies. Insurance companies may want to limit the amount of compensation you receive or attempt to not allow you anything at all.

If your insurance company still doesn’t want to budge, then your personal injury lawyer can weigh out the evidence in court, proving your case and helping you to receive what you really deserve in order to cover the costs of your medical bills. You may even be able to bypass going to court altogether. Many times, simply working with a personal injury attorney can help you to avoid going to court with your insurance company. In order to avoid a court battle, the insurance company may be more likely to settle with you. The unfortunate fact is that they are less likely to settle if you choose to fight them on your own. 

When to Contact a Personal Injury Attorney?

If you’ve been injured in a car accident and you believe that you deserve some type of compensation for medical bills, don’t feel as if you have to go through it alone. You have already been through enough.  

Our personal injury attorneys at the Orlando Law Group have the experience you need to handle difficult insurance companies who have been unwilling to give you the compensation that you deserve. By working with our team, you will let your insurance company know that you’re taking your case seriously. That’s what we’re here for: to be the team that fights for you. Feel free to contact us today to discuss your accident. We will go over the evidence with you and make sure justice is served and that you get the relief that you deserve.

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Eviction notice and gavel on a table.

The Tidal Wave of Evictions Begins to Break

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With COVID-19, there has been a blanketed feeling of stress brought about by financial strife. Many individuals and businesses are struggling to make their normal payments. This has caused all eyes to stay locked on the monthly moratorium that keeps getting extended every month. This acted as a barrier for many, but also increased the unknown moment of when we would begin to see the ripple effects brought about by a fractured market. We may be at the beginning of the tidal wave of evictions.

What makes the latest Moratorium different?

In the latest extension, which brings the new date to September 1st, new language seems to allow eviction filings to resume. It may even allow for some residents to be removed from their living conditions. The statewide moratorium that was put into place before encompassed more protection for renters, suspending, “any statute providing for an eviction cause of action.” Even though the interpretation of that statement was thought to prohibit landlords from filing, many began the process anyway. A staggering statistic: about 400 commercial and residential evictions have been filed in Orange County as of this time. In terms of what exactly the newest extension suspends, it only halts the “final action at the conclusion of an eviction proceeding” and only for tenants who have been “adversely affected by the COVID-19 emergency.”

It seems that language may open the floodgates, and we may begin to see the onslaught of evictions begin to move forward. A standard amount for Orange County is 1,000 evictions filed every month. With the amount that has built up, we could see at least 5,000 cases filed.

Why is Central Florida vulnerable?

Central Florida is particularly a vulnerable location, being that it relies heavily on the tourism industry. Homelessness, industries on the brink of shutting down, and a wave of restaurants closing permanently are all a part of the predictions being placed at this time. With the language of the new moratorium, landlords will see much more success with their filings. Not only this, but the fact that so many tenants, who are accustomed to the moratorium being unaltered, will not realize the differences and when they are summoned to court may chose to ignore it. If so, this could result in them having five days to reply. If they do not, they could lose their case and automatically be kicked out.

Many have faulted the fact that this extension has been put forward without more clarity on how it differs from the ones that have come before it. Not only was this placed days before the prior moratorium was set to expire, it also came without comment or clarity from the governor. It was not until later that he stated that the order would only effect those who have not been financially impacted by the pandemic.

Caught between difficult dilemmas, the change was implemented to help give landlords and property management companies assistance when their tenants refuse to pay. Sifting through those who have been affected by the pandemic and those who have not may be a tough task. In June alone, 1.02 million Florida residents were still without work. This is a frightening figure, and one that indicates that Florida will be heavily impacted economically for some time.

A Truly Difficult Dilemma to Solve

Even still, the waters are made murky by those who would take advantage on the pause in evictions. For the month of June, property management executives as well as mom-and-pop landlords wrote the Orange County Commission stating that some tenants are using the situation as an excuse to not pay. Chip Tatum, CEO of the Apartment Association of Greater Orlando, mentioned that 65% of its members have been in negotiation to pay, while about 27% have been unresponsive or unwilling to work towards a plan.

For the eviction process, normally a three-day notice is taped on the tenant’s front door. If the tenant does not comply within that time, the landlord may file a complaint with the court, in which case the tenant will be served a summons. To get a hearing, the tenant would normally have five days to deposit the owed rent into the court registry. One of the defenses that tenants may utilize revolves around paying this court registry. If a tenant was adversely affected by the pandemic, they may not have to pay this fee. If a tenant can illustrate loss of employment, diminished wages, business income or other monetary loss, then this could work in favor for the tenant. Saving emails from your supervisor, pay stubs or any evidence of collecting unemployment compensation may be helpful, even though unemployment compensation may indicate a tenant’s ability to pay rent.

The lasting Repercussions

Even if the tenant’s case is dismissed, they will still have an eviction filing on their record, which could make funding for housing in the future very difficult. Orange County is working hard to create a diversion program to stave off the tidal wave of evictions, and Mayor Jerry Demings said that a plan is set to be presented to commissioners on Tuesday, August 11th. No details on how the plan will work were given, but in the meantime, landlords and tenants will have to survive in a situation that excludes easy answers. Our recommendation is that you have a plan, and paperwork to provide legal foundation for your plan. When hardship arises and you feel you have been treated unfairly, our lawyers will be there to help.

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dog

Emotional Support Animals & Community Association Rules: What Does the Law Say?

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Many Community Associations adopt rules and restrictions to limit pets within a community. When purchasing a home, this can be especially appealing to those who suffer from allergies, those that have animal phobias, or those who just simply dislike animals in general because of the noise they make or the mess they sometimes leave behind.

However, it has been well established that service animals, “trained to do the work or perform a task for an individual with a disability, whether physical, sensory, intellectual, or other,” cannot be kept out of a community based on a Community Association’s “pet restriction policy.” This is because the Fair Housing Act, which was adopted in 1968, was modified in 1988 to include persons with disabilities as a protected class. In summation, the Act states that no person can discriminate against another with a disability when renting, buying, or selling a house. Since the service animal is an accommodation for the disability, not allowing the animal would be considered discrimination. Also, since the Fair Housing Act is a federal law, this law supersedes any rules and regulations or any restriction within the declaration of the Association.

THE DIFFERENCE BETWEEN A SERVICE ANIMAL AND AN EMOTIONAL SUPPORT ANIMAL

The next question to consider is if there is a difference between a service animal and an emotional support animal. The answer is yes! Service animals require a high level of training and are typically trained to provide specific tasks for their owner. Emotional support animals on the other hand do not require any specific training. Their sole purpose is to provide, as their title suggest, “emotional support.” Service animals are easy to identify as they tend to be dogs and perform very specific tasks such as seeing eye dogs that provide guidance for the blind. However, with emotional support animals, Community Associations continue to see an increasing number of owners who claim to need emotional support animals with no outward demonstration of a need for support nor the animals demonstration of anything other than being a household pet.

This has left most Associations asking the quintessential question, “what criteria do we use to validate any claim from an owner as to the need for an emotional support animal or animals in some cases?” This is a difficult question to answer and has become a much-abused provision of the law in recent times.

THE AMERICANS WITH DISABILITIES ACT

But we are not without any legal support. The law does provide Associations with some guidance.  The Americans with Disabilities Act limits support animals to dogs and miniature horses. The law also imposes penalties for false claims, although we do warn Associations that it is very difficult to prove such a claim. Associations can also require supporting documentation from an authorized physician or therapist stating the need for the animal. The law protects an individual’s right to privacy as to their specific disability but does not prevent an Association’s right to request proof of the need for an emotional support animal or the need for multiple animals if the case presents itself. The Association can also adopt reasonable rules that the owners must follow so that these animals do not interfere with the peaceable enjoyment of the community by the rest of the residents. For example, one such rule could include that all emotional support animals must always be on a leash when outside an owner’s residence or fenced in yard. Another rule could be that all owners are responsible for picking up after their animals and properly discarding all animal waste.

NAVIGATING THE FINE LINE

There is no denying that animals definitely provide therapeutic healing for those who need it. However, more often than not, we have seen many owners try to get their pets into communities that have “no pet” polices under the guise of them not being a pets but rather emotional support animal with a certificates printed off the internet. This has, in turn, created a very negative connotation and atmosphere surrounding emotional support animals.

As a community, we cannot let the selfish acts of some affect the true medial needs of others. So, Associations can arm themselves by knowing the laws regarding emotional support animals, require owners to provide proper documentation and implementing reasonable rules and regulations for emotional support animals within your community. This will allow those who truly need the support of a fury friend to receive the aid they need and hopefully deter others from violating the laws and instead choose to live in a pet friendly community instead.

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covid-19

CDC Guidelines for Businesses Grappling with COVID-19

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With the world of change that we have been afforded, it is very easy to feel inundated with information regarding COVID-19. Businesses are clamoring for data that is not only useful, but also valid and from a source they can trust. The CDC has released a document detailing information that will help you understand practical protocols when someone has tested positive or could be a potential carrier of the Coronavirus, and we have broken that document down for you.

We at The Orlando Law Group understand that each business is unique, and the handling of an office may differ than the response of a restaurant. A plan that involves CDC Guidelines is a perfect defensive strategy in terms of keeping your employees confident and safe, your customers comfortable with how you are reacting, and your liability very low. You may never be sued over someone catching COVID-19 at your establishment, but not following proper guidelines could land you in a world of social media slandering that you could have preemptively avoided if you had utilized these methods of protocol.

What qualifies as exposed to the virus?

We have all seen the social media posts or heard whispers from our “In the know” neighbors saying, “Did you know someone tested positive at that location.” CDC guidelines state that persons deemed “exposed” are those who have been within 6 feet of a Positive Covid-19 person for more than 15 minutes.

What happens if an employee has been exposed to COVID-19?

If an employee has been in direct contact with a Positive COVID-19 employee, but is asymptomatic and has not been tested, they will need to quarantine from the date of exposure for 10 days. If symptoms appear within 10 days of isolation, a symptom-based strategy will implore an employee to not report back to work unless they are asymptomatic and without medication for symptoms.

What if an employee tests positive?

If an employee does test positive, then that employee will need to quarantine for ten days from the date of their positive test. After this, they will need to show that they have recovered fully from the effects of the virus. The CDC recommends that businesses take action if an employee has tested positive. Shutting down indefinitely is the last option you want to take, but there are many precautionary steps you can achieve that will put your customers at ease. If it has been less than 7 days since the sick employee went home, it is a good idea to close off any areas or stations where that employee might have spent a prolonged period of time working at. That employee should not return to work until they are in full recovery.

What defines recovery from the coronavirus?

In order to show recovery from the coronavirus, the employee will need to retest two more times, greater than or equal to 24 hours apart, in order to show that they have received two tests that were negative before returning to work. At least three days need to have passed since recovery, which is defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms. One important aspect to remember is that, if an employee has visited a physician for care, the physician’s requirements supersedes the CDC guidelines.

What actions should you take to disinfect the store?

The CDC recommends waiting 24 hours before cleaning and disinfecting. This will minimize other employees being exposed to respiratory droplets. It is the best practice to open doors to the outside in order to allow as much air flow as possible during this 24-hour waiting period. If 7 days have passed since the employee that is sick has worked there, additional cleaning is not necessary outside of the usual routine process of cleaning and disinfecting of all high-touch surfaces in the facility.

What is the proper way for our business to fully disinfect?

 It is very important to clean surfaces with soap and water before disinfecting them. When disinfecting surfaces, the CDC recommends using products that meet the EPA criteria for use against SARS-Cov-2, the virus that causes COVID-19. Make sure to wear gloves and gowns that will protect you while you use these chemicals to clean. If you want to make the cleaning process more thorough, the CDC recommends hiring a cleaning company. Reach out to us on our Facebook, and we can recommend the one that we used.

Requiring current employees to get tested for COVID-19

Subject to the rules of the federal Americans with Disabilities Act (ADA) and similar state laws, requiring someone to get tested for the coronavirus is not in accordance with the law unless a manager must do so to preserve the safety of the workplace as well as the ability for that employee to perform their job. The EEOC has recently detailed that those with the virus, “will pose a direct threat of others.” When deciding to test, the CDC recommends using a resource that is accurate and reliable by checking the U.S. Food and Drug Administration and other public health authority websites for the latest information, including their own.

Should we close the Business?

The CDC has made it up to the store’s discretion as to whether they should close. We are certain that businesses will work hard to maintain safety protocols and keep their facilities clean. It is very important to remember that, beyond anything else, you are not alone in this. With change always comes discomfort, and it is going to take a long time to adjust to the differences of these new conditions. When the world changes, we must change with it.

The Orlando law Group is here for you. We take each conversation, each client, and each situation as they are presented to us. If you are looking for updates on COVID-19, make sure to check out our Coronavirus Legal Update Panel. We know that no two circumstances are exactly alike, and there may still be lingering questions you want answered. We will figure this out together one day at a time, doing the best we can for those we care about.

Stay focused, stay safe, and if you ever have questions, The Orlando Law Group is here to help. Never hesitate to reach out to us.

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houses

You Should Never Make These Real Estate Mistakes

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The Real Estate industry is filled with victories, losses, and mistakes. The fact that there are so many Realtors and so much business being conducted means that there is a high propensity for ingenuity as well as massive opportunities for pitfalls. You may have passed the Real Estate exam, and you may have a handful of experience on your resume, but that does not mean you have experienced it all. That does not mean that you are infallible. Whether you’re a Realtor working in the industry for the first time helping someone sell their home and upgrade or a seasoned investor looking to gain your next big investment property, these are great reminders of what not to do.

Over the years, many real estate and small business owners across the U.S. have witnessed numerous mistakes that have cost them thousands of dollars in overpaid taxes. We at The Orlando Law Group do not want that to be you (if it ever is call us). We want you to have a deep understanding of the mistakes people make before you must litigate. If you are looking to invest or simply finding ways to run your business like a business, never make these Real Estate mistakes:

Personal funds used for business and real estate expenses are nondeductible

If you are going to use your own personal funds to pay for real estate or business-related expenses, it is important that you are clearly tracking the expenses. Any expenses that are incurred for the business or for real estate are generally deductible, even if you use your personal money. The line between the two should be quite bold, and there should be distinct differences between personal finances and business finances. We have all heard of

Overpaying (Tipping) the IRS will make me “Audit Proof”

Rather than go over, or under, when dealing with taxes it is best to get it right. Err on the safe side and always pay exactly what you owe to the IRS. If you constantly under pay your taxes or cannot substantiate your deductions, then the IRS starts to take notice.

Even if you tip the IRS in one area, it does not necessarily mean the IRS will not make you pay penalties if you underpay in another area. Additionally, it is important for you to make sure to track everything correctly and have the right documentation. To ensure this, it would be best to have a knowledgeable tax advisor to help you with the process.

You are allowed more deductions by being incorporated

If you have a legal entity to operate your real estate business from, make sure to use it correctly. Forming a legal entity does not actually mean that you get more tax deduction. Real estate or business-related expenses may be deductible regardless of where it is paid from. Make sure that your income is being paid to your legal entity. If you need help setting one of these up, we are here to assist you. So many individuals think that they can run a business without being incorporated, but there are real advantages to going through the necessary steps. We can show you how.

Utilizing the Home Office Deduction Incorrectly

Currently, the above statement no longer applies. In fact, since there are so many people that work from home, the IRS cannot audit all tax returns claiming home office deduction. The key is to keep excellent records to satisfy the IRS’s requirements and you should avoid an audit. Make sure to benefit from the home office deduction, and if you have any questions about grey areas, reach out to us. We have worked with many individuals who run their business from a home office, some for many years of their life.

Claiming Deductions That Are Out of the Scope of Your Business

There are still ways to claim many deductions from your real estate business even if you do not take the home office deduction. Some of the items that you can still take deductions for include: real estate maintenance supplies, business-related phone bills, travel expenses, wages paid to contract workers for property improvements, depreciation of equipment used, and other home-based related expenses. Claiming items on your deductions can sometimes be treated like an art rather than a science. We recommend having a scientific, consistent, and tested approach. Never make assumptions by yourself, and include others’ perspectives to make sure you’re claiming the right items.

Filing an extension gives you an extension to pay any taxes owed

Even though filing an extension allows you to extend the filing date of your tax return, it does not extend the time you have to pay the taxes that are due. You still might be charged penalties and interests from the date your taxes are due if you have not submitted them on time. Make sure you set a schedule and keep to that schedule. If you need to, set reminders. Have business partners hold you accountable, and do not let taxes owed build up over time.

You Cannot Deduct General Expenses

Real estate investors have proven to be great at deducting property specific expenses such as mortgage interests, management fees, property taxes, and insurance. However, a lot of investors miss out on general and overhead expenses that real estate businesses have. These include car or travel expenses, marketing expenses, cell phones, and meals. If these expenses are directly related to your business, then they can be deducted. The key is having them planned and managed. With a good budget and great records, you will be able to successfully communicate where your business falls in terms of deductions.  

Everyone is used to filing taxes every year, but big businesses try to look at their expenses quarterly. Attaining tracking practices that will maintain good habits and records is vital to understanding what occurs financially over time. Without systems and processes that you hold onto, it becomes easy to have details fall through the cracks.

We at The Orlando Law Group want you to stay aware of the mistakes that others often make. They may seem simple, but when you are running your business, it is easy to get lost in the day-to-day tasks and forget about these overarching items. As always, when there are grey areas involved, it is best to consult a legal professional. We take taxes seriously, and so will the government. We have seen cases where, if the business had been more preemptive and planned better, they would not be in the middle of an audit. This is only meant to encourage you to have a plan, know the pitfalls, and when you need advice, call us. We want to help, and we are here to make your life easier and your business that much better.

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commercial leases

Commercial Leases: What You Need to Know Right Now

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Courts have been slow to reopen and deal with eviction issues. Commercial lease evictions are able to continue, but practically they will still take time to get through the courts, so now is the time to try to work things out if possible to save time, money, and stress. Some considerations to think about with your commercial lease are as follows: 

Considering How Shopping Center Commercial Leases are Unique  

The fact that shopping center leases have co-tenancy provisions makes them unique and could grant tenants more options in court. The goal of this co-tenancy is to ensure that stores do not miss out on opportunities because other stores are closing and causing a continual downswing in foot traffic. In terms of the battle between landlords and tenants, tenants may have a potential argument that the landlord has not fulfilled its co-tenancy obligation. 

It is important to note that one of the factors that many tenants’ arguments will stand upon is whether COVID-19 indeed prevented them from paying their rent. One of the considerations that many landlords are taking is the potential to fill the spot that would be left vacant.

Factors that will affect such decisions include supply and demand as well as how desirable the location is. It may even be more advantageous for landlords to settle disputes out of court, but we are certain once the moratoriums subside, the courts will see an influx.   

What Exactly Is Co-tenancy and How Could It Apply?  

When more than one entity has an interest in a property, co-tenancy agreements usually apply. In commercial property, many times increased traffic will cause businesses to be more successful over time. The inverse is true as well, with businesses that are forced to shut down causing damage to the potential of the stores that are left.

Many times, to assist with the finances of these stores, landlords will lessen the rent of the co-tenants. It is all up to the landlord and the documents that the businesses signed when they first decided to become situated in that location.

Complicating matters more is the fact that PPP Assistance may give a business the appearance of operating at a standard level when foot traffic is drastically lowered because of rising positive COVID-19 tests.  

With a lack of pandemic provisions written into leases, landlords and tenants are having to get creative with the options that they are afforded. Co-tenancy has often been used to help businesses that are suffering due to the lack of success from an adjacent commercial listing.

However, what happens when an external factor is causing many of the businesses to suffer? It may just be that a battle is looming on the horizon between landlords and tenants, and every month we get a little bit closer to that battle becoming our reality.  

What Options do Landlords Have? 

Although landlords are in a predicament when it comes to shouldering tenants that are not paying rent, there are many points to take into consideration before filing for eviction.

For the high-end shopping centers, they may have the footing to stand on, mainly because filling the empty location will not be as difficult. For areas with less foot-traffic, landlords may be encouraged to work with their tenants.  

Depending on the language found in the contracts signed between the owner and the occupant, some owners have been able to offer concessions to assist their tenants during this time; however, many are not going to be able to make such offerings.

Some have speculated that eventually, owners may turn to lenders to try and gain permission to offer concessions. The fact remains that all three parties are in a mode of cautious speculation over what options they may have to maintain some semblance of the bottom line when it comes to their businesses.

Although insurance does not usually cover pandemics, that could change down the line. Lenders are looking at options that involve insurance that would help landlords and, in turn, help their tenants through difficulties that are out of their control, such as a pandemic.  

An important factor is assistance afforded by the PPP loans from the Cares Act. Even with an extension and another assistance check, the potential ending point could be early August when the program is set to expire.

We could be looking at many agreements being modified and tensions rising between landlords and their tenants as that time approaches. Once the PPP loans expire, we will be seeing an entirely different operating pattern for landlords and the businesses they rent to. That dreaded conflict could create many vacancies and fluctuations in the commercial market. We must be ready.   

A Wave of Litigation on The Horizon  

We believe that, although you can stave off conflict, many times it is only buying time that will eventually run out. With difficulties being placed on both sides, we certainly predict a wave of litigation concerning these issues.

Our recommendation is to cross these bridges before they are at your feet. One of the best practices you can have with the businesses you work with is to have open lines of communication. Of course, when relationships become too contentious to resolve certain complications, it becomes necessary to have a legal professional help.  

Being situated where we are, The Orlando Law Group is keeping our focus on what we can do to help commercial businesses and their landlords through this difficult time. It could be the simple act of looking at your documents to have a deeper understanding of the potential you will have when facing mounting litigation. 

When there is no easy answer, the law is there for us to rely upon, and we are remaining cautiously hopeful for the future. Businesses will have to adapt as well as their landlords, and as we go through this change, we will find new ways to protect the financial future of our endeavors.   

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paid leave

Navigating the Gray Areas of Paid Leave: What You Need to Know

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One of the goals of the Families First Coronavirus Response Act is to help assist families who are having to alter their normal ways of living due to canceled plans. One of the big areas to cover is paid leave, and what situations can qualify for effective paid time off. 

  1. Summer Camps Cancelling their Plans

If the parents were planning to send their child to summer camp, and that camp canceled due to COVID-19 complications, how can the parent take care of their child? The U.S. Department of Labor said Friday that workers could indeed take Federal Coronavirus Leave, up to ten weeks off at partial pay. Wage and Hour Division Head, Cheryl Stanton, mentioned this in a letter discussing possible employer violations. A complicated matter on both sides, there will most likely be parties trying to take advantage during this time, and clarity will be a powerful factor in determining if the worker does qualify. In this article, we discuss the details that go into qualifying for paid leave.  

  1. Setting a Clear Stage of Planning 

One of the biggest ways to get this right is by showing true proof that, if the current situation had been normal, your child would be enrolled and attending a summer camp. With the Families First Coronavirus Response Act, the first Federal Mandate was established, stating that employers with fewer than 500 employees must give workers short-term paid sick time for reasons associated with COVID-19, as well as long-term paid leave in order to care for children whose schools or childcare facilities are closed. The ruling took place on April 1st and will expire at the end of the year. 

  1. Getting the Exact Numbers Right

According to the FFCRA, if an employer has 500 or fewer workers, they must provide them with up to two weeks of sick leave at full pay, up to $511-per-day cap, if they are directly affected by COVID-19, and at partial pay, up to $200 a day, to care for affected family members. According to the law, there are six qualifying reasons for leave. The employee may qualify for sick leave if the employee is

  1. Subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. Has been advised by a health care provider to self-quarantine related to COVID-19
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis
  4. Is caring for an individual subject to an order described in (a) or self-quarantine as described in (b)
  5. Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19
  6. Is experiencing any other similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury. 

As the level of cases fluctuates, these rules are having to be executed to give direction to a nuanced situation. The importance is being placed upon clarifications, and many individuals are still not certain about what rights to utilize to take time away from their job and care for loved ones.  

  1. Adding Clarity to the Situation

One of the important clarifications made was that the FFCRA’s 10-day emergency paid leave can be taken on top of any existing paid leave that an employer already provides. An area where they have expanded the law is the age of the child that is being cared for by the parent. Although the statute says that workers are eligible if they have to be home to care for a child who is under 18, the Department of Labor clarified and stated that the law will also cover children who are over 18 but have a physical or mental disability that requires a kind of care that is made unavailable because of the recent COVID-19 related shutdowns. 

These alterations are in accordance with being able to successfully carry out the law. The law does state that the individual whom the worker is taking care of must be a family member, someone living in the same household, or someone with a quality of personal relationship where there would be an expectation of care from the employee. 

As you can see by the detailed, specific language utilized, the propensity for someone to game the system could be high, and that is why having all of the facts aligned in your favor will be so very important. Establishing the concrete details that solidify the individual as having a personal relationship and needing your care will be vital to receiving your payment. 

  1. Does the child have to be fully enrolled in the camp? 

Not necessarily. Although it is encouraged to not rely on any grey areas, it is potentially acceptable if your child is on the waiting list to get into a camp. However, it is very important to note that simply having the desire to send them to camp will not suffice. There needs to be a plan, and evidence that the plan was to be carried out until mitigating circumstances prohibited the camp from occurring. 

Another option the law allows for is up to 10 weeks off at partial pay, up to $200 per day, to care for children whose schools or childcare centers have closed due to COVID-19. For the employers that are covered under the law, they are encouraged to seek reimbursement of the qualifying leave through tax credits. 

  1. What about companies with 50 or fewer employees? 

For those companies that have 50 or fewer employees, they may be exempt in terms of having to provide leave. This is stipulated upon how essential the worker being present is in terms of upholding vital business operations. 

As you can see, and as there usually is with new, unprecedented legislation, there are many angles and grey areas to consider. The catch 22 of having businesses struggle alongside their coworkers could potentially place them at odds with one another, and this is something that we want you to be aware of and ready for. 

Having your information in alignment and accordance with the latest laws will be to your benefit. As always, The Orlando Law Group is here to help you through your specific situation. Although similarities exist, your world is your own and will require a specific interpretation of how the law applies. Our attorneys treat you as an individual, and we will not stop fighting for your rights to the time and money you deserve. 

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