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U.S. Work Visas

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

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Immigration for Foreign Workers Coming to the US

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

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

E-2 Visa 

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

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

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

L-1A Visa 

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

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

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

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

H-1B Visa for Employee with a Specialty Occupation

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

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

PERM / Green Card

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

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

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

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

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

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

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

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

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Individualized Education Plan

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

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

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

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

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

Parental consent for Individualized Education Plan implementation

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

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

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

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

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

Not all students are eligible

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

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

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

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

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

Parents are the most important advocates for Individualized Education Plans

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

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

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Law Day 2019

Law Day 2019 – Free Speech, Free Press, Free Society

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Each year, on May 1, we celebrate Law Day. This is a national day that was established to celebrate the rule of law. On Law Day, we seek to better understand how our liberty is protected through the legal process and the practice of law. Also on Law Day, we explore how the American society works to achieve justice and builds the freedoms that every American shares.

Free Speech, Free Press, Free Society

Law Day is always accompanied by a theme. The theme for Law Day 2019 is Free Speech, Free Press, Free Society. This year we reflect on the many ways the laws established by our government protect our freedom and ensure these rights. The protection of free speech and free press work to guarantee our Constitutional freedom of “the blessings of liberty for ourselves and our posterity.”

The foundation of a free society anywhere in the world is based upon the freedom of speech and the press. In the practice of law, free speech and free press are common topics found in proceedings and litigation. It is unthinkable to conceive of a free society without the pillars of free speech and free press, but as a society witnessing the most rapid changes in the way we communicate, these liberties are often challenged and debated. The boundaries of free speech and free press are much less precise than just a decade ago because the technology of communication has reshaped how these individual liberties affect the daily lives of the people in our society.

The blurring of free speech

“Congress shall make no law respecting an establishment of religion, or prohibiting the freeexercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” 

That passage is, for the most part, the entirety of the First Amendment of the Constitution. It is straightforward and, at the same time, comprehensive. It’s also commonly misunderstood. 

Most people understand that there are cases where someone’s words could put others in danger, the often used “you cannot yell ‘fire’ in a crowded theater,” comes to mind. In the age of the internet, we are presented with new challenges. 

What happens when your Facebook account is temporarily disabled because of something you posted. You’ve been put in “Facebook Jail,” but is this a violation of free speech or free press?

The short answer is, no. It’s not a violation. The First Amendment protects you from the government censoring or punishing you because of your speech. The First Amendment does not protect you from censorship by private organizations. So when you do find your social media account in Facebook Jail because of something you posted that you believed fell under free speech, there’s not a lot you can do but wait for your account to be freed up again.  

Now that you understand that your protection from the Facebook censors does not exist, you’ll think twice before you post what might be considered “hate speech” in the comments of someone else’s post. 

But what about a case where the online world and the real world intersect. Does the First Amendment’s protection of free speech cover you if you are fired from your job because of something you posted online? This is a complex question that could have a variety of answers. Put simply, if you work for a private company, it is unlikely that you will be protected. Now, this does not mean that a private company can do whatever they want. Depending on the situation and what was said online, the firing could violate laws prohibiting discrimination,contract laws or privacy laws. Things get increasingly complicated if you work for a government organization. 

For local, state, and federal government employees, social media posts should not interfere with the employee’s ability to do their job. This becomes a delicate balancing act for those charged with regulating social media activity of government employees. 

Another hot topic since the rise of social media is on line reviews.  Many businesses become victims of false reviews from competitors or people who just like leaving bad reviews without even being customers. Social media platforms are struggling with how to balance the free speech rights of users to make comments and businesses which are attempting to protect their reputations.  More case law will be developed in this area over the coming years.  On-line bullying on a personal level will also be discussed by the Courts as it is a growing concern especially with educators and parents.

The blurring of the freedom of the press

Some might argue that the press has less freedom today than at any time in history. Being a journalist, whether for a media outlet or on the internet, has become a dangerous profession. According to the Committee to Protect Journalists, between 2002 and 2012, five hundred and six journalists were killed globally. Now, this certainly goes beyond the freedom of the press protected by the US First Amendment, but it does highlight a form of censorship, namely fear of reporting, that evades the traditional protection of liberties that our Constitution provides.

Additionally, we hear more and more about “fake news” and its introduction into the American and global conversation. The term “fake news”, which gained popularity in 2017, is the creation of misleading information, hoaxes, or other untrue news stories that are specifically written to deceive the reader into believing they are true. 

Fake news exists at all levels of journalism and has little barrier to entry. Anyone with an internet connection can create a false story and spread it around social channels hoping it will catch a viral wave and spread to thousands of users. 

At the highest levels of the press, fake news takes the shape of inaccuracies in reporting, intentional or not. These untruths can be subtle in their presentation but can have a dramatic impact on the perception of the news-consuming public. Sometimes, fake news is so convincing that national networks will pick up a story and report it as true. 

Fake news can easily spread due to the availability and speed of communication and social channels.

The introduction of fake news into the contemporary dialog blurs the effectiveness of the protection of the free press. At a deeper level, it causes the news-consuming public to be less trustworthy of any media outlet.

Reflecting on Law Day 2019, are we still a free society?

As we participate in Law Day 2019 and spend time considering how the protection of freespeech and a free press has changed so dramatically since their origin, we have to wonder if society is a free as it once was which is ironic with all of the available ways to spread information.  The short answer is yes because of the protections granted to us by the Constitution and the First Amendment. 

However, we live in a time of hyper-change. Day to day information is transmitted faster and with higher levels of convenience. It is natural that the protection of our liberties will need to evolve with these changes. It is up to everyone to help make sure that happens through public service and facilitating awareness. We can all play a part. 

While you might not be planning a “Law Day Party,” everyone at the Orlando Law Group hopes that you’ll join us in considering how important the rule of law is in maintaining our freedom. Happy Law Day 2019!

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gopher tortoise

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

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

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

What is a gopher tortoise?

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

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

Gopher tortoise habitats

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

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

A threatened wildlife species

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

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

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

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

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

Getting help developing land with gopher tortoises in Florida

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

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

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

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

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

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

Avoiding problems with gopher tortoise

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

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

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

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PACE Program Florida Solar

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

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Jarrod Ethridge on the PACE Program in FloridaBy Jarrod Etheridge

What is the PACE Program? 

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

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

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

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

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

Are there problems with the PACE program? 

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

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

Should I use the PACE program?

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

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

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

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online notary public

The Online Notary Public – Just One Click Away

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By Jarrod Etheridge

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

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

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

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

Benefits of an Online Notary Public

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

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

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

Advances in Technology Change the Way A Notary Public Can Operate

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

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

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

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

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What NOT to Include in Your Last Will and Testament

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OLG LEGAL COMMENTARY:

Attorney Christina Miner

What NOT to include in your Last Will and TestamentIt’s important to understand that even though there are things that you should leave out of your will, drafting your last will and testament is one of the most important steps one can take. The will identifies how you want your property and assets divided and who you want to get them when you are gone. While a will can include a variety of terms, there are some things that should not be included in your will.

1. Funeral and or Burial Instructions

A will is often not located until after the funeral or burial. If you include these types of instructions in your will, most likely these wishes will not be discovered until after your funeral. It is usually better to convey your wishes ahead of time by speaking with the loved one who will most likely be responsible for handling this task or by purchasing a prepaid funeral/burial plan.

2. Leaving Gifts to a Beneficiary with Special Needs

A parent may think that leaving a large gift to a child or other loved one with special needs will ensure that the loved one will be able to live their lives to the fullest or that they will have the ability to receive all the care they need. The last will and testament is not the place to bequest an outright gift to someone with special needs. A person with special needs receiving public benefits often times can only have a limited income and limited assets. Anything over the designated amount can disqualify someone with special needs from continuing to receive benefits. There are certain types of trusts, such as a special needs trust, that specifically address the management of the specific needs of a person with special needs. The trust can be a standalone special needs trust or even a trust created within the last will and testament.

3. Leaving gifts or money for an illegal purpose

This does not happen very often, but it could be that someone tries to make a gift that says “to Joe, so long as he uses my car to transport immigrants over the border.” Inserting an illegal purpose could invalidate the entire will.

4. Assets with named beneficiaries

Life insurance, retirement plans, and financial accounts usually require a designated beneficiary be identified. Upon your death, those assets will be transferred to the named beneficiary, so they cannot be distributed by your will.

5. Jointly Owned Property

Tenants by the Entirety and Joint Tenants with Right of Survivorship mean that when you or the other joint tenant dies, the survivor automatically owns the property in full. If a gift of joint tenancy or tenants by the entirety is made in a will, it will fail. It can’t be done.

6. Property owned by a Trust

The last will and testament cannot make a gift of any assets that are owned by the trust. The property owned by the living trust automatically goes to the beneficiaries and is managed by the trustee. If you want to leave the asset to someone else or change the terms, it must be done by an amendment to the trust, not the will.

7. Conditions placed on Gifts in your Last Will and Testament

Some people want to put conditions on gifts, and that can be okay, but one must be careful. Putting conditions such as “to Mary, so long as she marries a (insert religion) man” or “to Mary, so long as she divorces her bum husband” are not allowable and the will may be held invalid. Conditions such as “to Mary, so long as she finishes college” are okay.

If you are going to take the time to create a last will and testament, make sure that your time has not been wasted. Speak to an estate planning attorney who will ensure that the will is drafted properly and will be upheld in court.

Christina Miner is a Wills and Estate Planning Attorney with The Orlando Law Group. Her practice focuses on estate planning, guardianship, probate and trust administration. She has worked for private law firms, was assistant regional counsel for the Office of Criminal Conflict and Civil Regional Counsel – 5th District, and was senior attorney for the Florida Department of Children and Families. She earned her Juris Doctorate from FAMU College of Law, and earned her bachelor’s and master’s from the University of Central Florida.

To contact Christina, visit www.TheOrlandoLawGroup.com or call (407) 512-4394.

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Lady Bird Deed – Estate Planning’s Best Kept Secret

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

What is a Lady Bird Deed?

Also known as an enhanced life estate deed or a ladybird deed, a Lady Bird Deed is a way to transfer property to someone else outside of probate, and it allows the original owner to retain control of the property and pass it to exactly who he or she wants to after death.  Basically the original owner (grantor) signs a deed stating when he or she dies the person who the property is deeded to (grantee) will automatically receive the property.  In the meantime, the grantor has all right over the property including the ability to sell if he or she wants to.

Further, because you retain the rights to your property during your lifetime, the deed is simply disregarded for Medicaid purposes.  This means that a transfer of Lady Bird Deed will not negatively affect your Medicaid eligibility.

Lady Bird Deed Advantages

A Lady Bird Deed has many advantages that should be considered, including:

  1. Avoiding probate since the transfer of property can happen outside of probate.
  2. Better control by the property owner who is allowed to, for example, sell or gift the property at will.
  3. Since Lady Bird Deeds are not considered a transfer of property and the property owner retains the right to use the property, the Lady Bird Deed typically does not affect qualification for Medicaid benefits.
  4. There are several tax benefits to a Lady Bird Deed, including the avoidance of filing a gift tax on the property transfer.
  5. Many of the advantages of a transferring property under a living trust are similar to those achieved with a Lady Bird Deed. The advantage of the latter is that establishing a Lady Bird Deed is much less costly than creating a living trust.

In the state of Florida, it is also important to know that homestead or primary residence is exempt from creditors’ claims.  Not only does a Lady Bird Deed protect this aspect of Homestead property and retain the homestead exemption, it can also potentially protect the property from a divorce settlement in certain cases.  As the property remains Homestead it also retains the Homestead exemption for property tax as long as it is drafted appropriately.

While a Lady Bird Deed should not be a replacement for a full estate plan, it is a good place to start and it often belongs as part of an estate plan unless your only heir is your spouse in which case Homestead passes directly to him or her in the event of death without the need for probate. Without this type of deed even a Homestead property will need a Judge to sign off on the transfer in a probate proceeding unless it is passing to your spouse who is still alive.

How was the Lady Bird Deed named?

You might be wondering how the Lady Bird Deed got its name. When the deed was created in Florida in the 1980s, the creator used President Lyndon Johnson’s family names in the example of how the deed works. President Johnson’s wife’s name was Lady Bird and from that example, the deed was named.

The probate and estate planning team at The Orlando Law Group has this and many other strategies at its disposal to protect you and your family assets.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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Is Digital Tracking Invasion of Privacy and the Carpenter Case

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

In today’s society, cell phones are like an appendage.  People sleep with their phone by their side and rarely leave home without it. Unsurprisingly, police utilized this ever present companion as a significant investigative tool, with help from the Third Party Doctrine. In brief, the third party doctrine states that a person has no right to privacy when they voluntarily turn over information to a third party, such as a cell phone company, so the police do not require a warrant to access the information. But what about cell phone location data? Should a demand for a person’s location without a warrant constitute invasion of privacy?

The Carpenter Case

Such was the case while investigating Timothy Carpenter for a series of robberies at Radio Shack and T-Mobile. Mr. Carpenter’s investigation was not unusual; cell phone companies received tens of thousands of demands for location data in 2016. In June of 2018, the Supreme Court changed the rules of engagement in a highly debated 5-4 ruling; cell phone location data is subject to the protection of the Fourth Amendment of the constitution.

The Supreme Court stated in the ruling that their decision was a narrow one, but it has tremendous implications for privacy in the digital age. Carpenter’s case before the Supreme Court brought to attention the hole in the 4th Amendment. Although the Third-Party Doctrine properly addressed the concerns at the time of its conception 40 years ago, it does not sufficiently rectify the growing rift between law and technology.

Is Digital Location Tracking Invasion of Privacy?

One such flaw addressed by the court is the lack of voluntary conveyance, which is required for the Third Party Doctrine. Cell phones log a location data without affirmative acts on part of the user. The committee for Justice went on to say “Incredibly deep reservoirs of information are constantly collected by third-party services providers today… This trend will only accelerate as the ‘Internet of Things’ supplies data revealing more and more of our activities – even use of our household appliances – to third party providers.”

While deciding on warrants and cell phone tracking, the court’s also touched on individual’s reasonable expectation of privacy. Justice Sonia Sotomayor went on to say “Most Americans, I still think, want to avoid Big Brother. They want to avoid the concept that government will be able to see and locate you anywhere you are, at any point in time.” Justice John Roberts also described cellphone location information as “a near perfect tool” for surveillance. This does not preclude law enforcement from accessing this data, but it does require a warrant to prevent the acquisition of the location data from being invasion of privacy.

Therefore, legitimate law enforcement tools are being eliminated, so much as safeguards are put in place for the population in general. If law enforcement could constantly track subject’s every movement with such ease and accuracy without legal implications, constitutional rights, such as freedom of assembly, would be heavily threatened. In this decision, voted on across party lines, the Supreme Court created a landmark decision which protects individual’s privacy in the modern era.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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Florida COA and HOA Restrictions on Solar Panels; What You Need To Know

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Whether you are a member living within a development governed by a homeowners association (“HOA”) or a condominium owners association (COA) and interested in installing solar panels on your home, or a member of the Board of Directors of a HOA, COA, or its respective architectural review committees, (ARC), in Florida, it would behoove you to become familiar with Florida Statute 163. It is essential that you understand what F.S. 163 says about COA and HOA restrictions on solar panels in so far as its governance and application to energy saving devices such as solar panels and F.S. 163’s effect on the governing documents of your association.

Clearing the confusion about COA and HOA restrictions on solar panels.

As one would guess, the primary area of dispute in an association controlled development is not usually the use of solar panels or whether energy saving devices are permitted or not, but rather, where those panels may or may not be located on the roof of the home or condo. May the solar panels be seen from the street? May the solar panels face the street or fence line? These are some of the questions about HOA restrictions on solar panels that Florida Statute 163 governs and attempts to answer. Florida Statute 163.04(2) expressly prohibits homeowner and condo associations from preventing its members from installing “solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Id. However, that very same statute and subsection does permit associations to “determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.” Id.

Recommendations for homeowners interested in installing solar panels in a COA or HOA governed community.

Clearly there are limits to HOA restrictions on solar panels. With this being stated, it is recommended that even though the association cannot deny the homeowner the ability to install energy saving devises such as solar panels on their property, that the member should still follow the applicable procedures set forth by the architectural review committee before any such installation. In conjunction with this issue, the architectural review committee of each association should also develop a well thought out Solar Policy. This policy should address solar and roof energy saving issues within an application to be submitted by all homeowners/condo owners before the installation of such devices. The application should address, among other issues particular to your development, a satellite or aerial image of the roof with the proposed locations of the solar panels; roof slope and angles; north/south orientation; clear illustration of any shading issues; manufactures product information for the units to be installed on the home; and for those homes intending to install the solar panels on a street-facing front roof that is not within 45 degrees of due South and faces the street, an explanation of why installing the solar panels on the other available roof space would not be equal to or more efficient than, that the street facing roof. Ensuring that the home/condo owner and the association are all on one page and at least attempt to resolve any disputes prior to the installation process can potentially save both the association and member thousands in litigation expenses, noting here that F.S. 163.04(3) does award the prevailing party to any such litigation, its attorney’s fees, and costs.

If you are a member of an association or on the Board of an association and are having problems with Florida Statute 163 and its applicability to your governing documents, please contact The Orlando Law Group and schedule an appointment to speak with one of our outstanding attorneys about your problems and concerns.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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As Aretha Franklin’s family might soon be finding out, failure to file legal documents prior to one’s death can cause turmoil.

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OLG LEGAL COMMENTARY:

Attorney Christina Miner

At a recent speaking engagement, I shared my own personal family story about the dangers of not being prepared for one’s own mortality – and how that lack of preparation effects one’s family.

My grandparents, you see, were in a horrific car accident in 1994 in South Florida. My grandmother was killed on-scene. My grandfather was declared brain-dead.

They had four kids, my mother being the oldest one. When they all went to Miami, they learned that my grandfather did not have a living will, or any documentation that said what he would want if ever in such a life-threatening position. So, as such, it was left to the four children to decide.

After discussions, they agreed that my mother would make the final decision as to what to do with my grandfather. And after speaking with all doctors, and seeing that there was no possibility whatsoever for him to survive, my mother made the difficult decision to take him off life support.

And then, after he died, one of her siblings said that — had it had been left up to them — they never would have done that. That sibling blamed my mother for killing my grandfather.

More than 20 years later, there is still a rift in our family that was caused by that decision. Yet if he had a Living Will, then he would have been able to have made the decision himself, while alive. And that is what I tell people – that YOU are making the decision as to what happens to you. And in doing so, you are not putting that on anybody else. All you are doing is telling people to carry out your decision that you have already made, should that ever happen to you.

I share that story because, unfortunately, most people tend to wait too long before they consider officially filing the appropriate documentation with regard to Living Wills, Trusts, and Estate Planning. So many of us wait, not thinking that tragedy will strike, and then when it does, we are legally all for the worse.

It is not just the average citizen, though, that acts – and/or reacts – that way. It is the rich and famous, too.

Aretha Franklin’s family will most likely be finding that out now themselves.

The legendary singer, who passed away last week from a battle with pancreatic cancer at the age of 76, had no will or trust at the time of her death.

According to her attorney, in a report in the Detroit Free Press, Franklin just “never got around to it.”

Due to that inaction, Franklin’s family might potentially have a long legal road ahead of them – similar to when Ike Turner passed away. He, too, did not have a will, and his estate has been in litigation for 11-plus years.

With regard to Aretha Franklin, the laws in Michigan say that her estate is supposed to go to her children. But since she did not have a specific will or trust, other relatives can technically come in and try to get something from her estate. By not having a Will in place, it opens the door for other people to come in and argue that they should have a piece of the pie. They can go potentially go to court and argue that they have an interest and deserve a cut of the estate.

The cost to do so, though, is not just time. Many dollars are uselessly spent by families on attorney and other legal fees, in order to contest the estate and go through litigation matters. Depending on how much time respective attorneys need to put into various matters, it can cost thousands of dollars each year for families to go through the process. And how do those fees get paid? By monies held in the estate. Thus, the estate value lowers with each dollar spent on those fees.

Throughout my career, I have seen too many examples of families arguing over what many would perceive as petty issues. I have heard of family members feeling like they deserved more money than was left for them, so they spent thousands and thousands of dollars on challenging the Will, with the case still being in court. I have seen families arguing with one another about estates that had nary a dollar in it. And I have seen heartbreaking cases where a young loved one passes away, and estranged family members receive monies that other family members feel that they do not deserve.

And virtually all of this – be it with regard to the families listed above, your family, or even Aretha Franklin’s family potentially — could be prevented by simply finding the 30 minutes to visit with an attorney and fill out the proper Wills, Living Wills, and/or Trust documents.

As for my respective family?

Well, after both grandparents died in that crash, almost my whole entire family got Living Wills.

And as for me? It helped lead me here, to help you with yours.

Christina Miner is a Wills and Estate Planning Attorney with The Orlando Law Group. Her practice focuses on estate planning, guardianship, probate and trust administration. She has worked for private law firms, was assistant regional counsel for the Office of Criminal Conflict and Civil Regional Counsel – 5th District, and was senior attorney for the Florida Department of Children and Families. She earned her Juris Doctorate from FAMU College of Law, and earned her bachelor’s and master’s from the University of Central Florida.

To contact Christina, visit www.TheOrlandoLawGroup.com or call (407) 512-4394.

Members of the media wishing to contact Christina or any other OLG attorney should call 20 A-M COMMUNICATIONS at (407) 917-20AM (2026).

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If You’re Sick and Have No Idea What’s Causing Your Symptoms, Could It Be Your Home or Workplace?

OLG LEGAL COMMENTARY:

Attorney Brian Dunmire

Photo of Brian T. Dunmire - Attorney at The Orlando Law GroupOne of the most frustrating and frightening experiences you can go through is getting chronically sick with symptoms that linger indefinitely and having no idea what’s causing your illness. Everyone gets sick now and then, but we’re accustomed to a cycle where the symptoms start gradually, peak after a day or two, then slowly get better until you’re fully recovered. Imagine, however, coming down with a cough, tightness in the chest, fever, aching muscles, fatigue and chills and they just never get better.

One possible explanation for this could be Building Related Illness (BRI), a condition where the patient suffers from an infection or allergic reaction and the source of the contaminant is known to be the patient’s home, workplace or other building. Typically, the cause of BRI is the presence of bacteria, mold, fungus or viruses in the air supply inside the building. Usually, symptoms related to BRI persist in the patient, even when they are not physically in the building.

In a BRI case, the source of the illness must have been identified as a building or structure the patient spends time in regularly. This is in contrast to another condition, commonly known as “Sick Building Syndrome,” or SBS, during which some of the same cold- and flu-like symptoms as BRI are present, but the cause is unknown. Also, symptoms of SBS tend to get better once the patient leaves the building and return when he or she returns.

The Legionnaire’s disease outbreak of 1976

The best-known example of BRI is Legionnaires’ disease, which became well known more than 40 years ago after the first documented, and highly publicized, outbreak. In July 1976, the American Legion held its annual three-day convention in Philadelphia, attended by more than 2,000 Legionnaire’s from across the country. Shortly after the convention, several of the attendees became ill and died of what was thought to be heart attacks. Within a few weeks, however, 221 attendees had been impacted, 34 of whom had died.

Coincidentally, three of the initial victims had the same doctor, who was aware that all three had been at the convention, so he contacted the Pennsylvania Department of Health. This led to an investigation by the U.S. Centers for Disease Control and Prevention, which discovered that the most likely source of the disease was a strain of bacteria, which would be named “Legionella,” that was breeding in the air conditioning system at the hotel where the convention was held, allowing it to spread throughout the building.

While most cases of BRI are not potentially deadly like Legionnaires disease, to say that it should be taken seriously is clearly an understatement. For many sufferers of BRI, coping with the persistent physical symptoms and the emotional toll it causes can completely disrupt the quality of their lives. It can also mean exorbitant medical costs and missed time at work, creating a financial burden that lasts for years.

Where you could be exposed to BRI conditions

A common misconception is that Building-Related Illness plagues only older buildings, such as the hotel where the Legionnaires disease outbreak in 1976 occurred, which was built in 1904. According to the U.S. Environmental Protection Agency, however, up to one of every four new or renovated structures can be classified as “sick,” meaning conditions that cause BRI are present.

Still, if you’re the proud owner of a recently built new home, this can be an unsettling prospect that’s difficult to accept. Imagine being a new homeowner who has just spent months working with a contractor to design and build their dream home, then you move in and start experiencing coughing, headaches, nausea and other aches and pains. Typically, your home is a place where you’re supposed to feel safe and protected, so it isn’t the first place you’d think to look for answers about why you’re sick.

However, even in new and renovated homes, mistakes are sometimes made. Some mistakes are obvious and easy to fix, like a piece of crown molding that isn’t perfectly aligned or light fixture that doesn’t work. The mistakes we’re talking about, though, are hidden inside walls and in attics. Some areas that can be the source of BRI symptoms include:

  • The HVAC system. Like most living organisms, mold, bacteria, and other compounds need water to survive, and a poorly functioning HVAC system can create a lot of moisture that, if not drained properly, can stagnate in the ductwork. If you add dust – which is made up mostly of skin, pollen, pet dander and other organic material – you’ve added a source of nutrients, creating an environment where mold can thrive and spread.
  • Insufficient ventilation. Even when the HVAC system is working properly, it may not be able to overcome the humidity and moisture found in a poorly ventilated home. There is actually a well-known example of this from the 1970s, when contractors started building homes more airtight to save energy during the energy crisis. As an unintended consequence, they built homes that also retained their humidity too well, allowing mold and bacteria to thrive and making many of the inhabitants of these homes sick. The recent charge towards energy efficient building standards has resulted in the same issues occurring again as they did in the 1970’s.
  • Plumbing. Obviously, if the plumbing in a new home leaks due to poor construction, water ends up in places it’s not supposed to be. If the leak is just a slow drip, it might be enough water for mold or other bacteria to grow even though the water is hidden inside walls where the homeowner can’t see it. Another way that poorly constructed plumbing can cause air quality problems occurs when the entry and exit points of the pipes are not sealed correctly, allowing pests to enter the home and leave feces, which can dry out and become airborne or serve as an added nutrient source for mold and bacteria. Also, there is a possibility that the installation of the septic lines were accidentally placed by the contractor above the potable water lines. When the septic lines leak, this can cause harmful matter to seep into the potable water lines.
  • Chemicals. Known as “volatile organic compounds” or VOCs, we are exposed to these chemicals at low levels every day, usually with no health consequences. They come from the cleaners, paint, sealants, permanent markers, dry-cleaned clothes and air fresheners we are around all the time. In a new home, however, high levels of VOCs like formaldehyde can be released by new carpet, new furniture, paint, finishes, sealants and more. If the new home is not allowed to off-gas these chemicals and air out sufficiently before the new owner moves in, it’s likely to cause some worrisome health problems.

Unfortunately, when the source of a BRI case is a brand new home, it can often take months, if not years, for the true source of the health problems to be identified. Ironically, this is not because it’s difficult to find mold and bacteria in a new home. In fact, a fairly simple, straightforward investigation by a trained professional can easily find mold, bacteria, VOCs and other contaminants. The reason it goes unidentified for so long is that a new home is the last place people think of as the possible cause. They have an expectation that their contractor will provide quality service, workmanship, and materials and that they will follow all the applicable building codes. Plus, most homeowners feel that their home is part of their identity, a reflection of who they are. And with new homeowners, you can add excitement to the emotions they feel about their new home.

In that context, it’s difficult for most people to accept that the home they are so proud of and that they love so much is causing them serious harm.

While recently constructed homes are a clear area of concern for BRI, renters are also at risk. And for renters, it doesn’t matter if the structure is old or new because a rental contract is a business transaction, wherein the property owner is providing a home, condo or apartment in exchange for money. If that property causes harm to the occupant in the form of a BRI, the renter may be entitled to legal protections, assuming the problem amounts to a breach of the rental contract. Also, renters in an apartment complex may be even more at risk because the activities of adjacent neighbors, including those above and below them, could create air quality issues in their unit if a neighbor has pets, causes water leaks, leaves food out that attracts pests, or is a heavy smoker.

Finally, your workplace is another area that can cause you to develop symptoms associated with a BRI. This is not limited to factory and mine workers who could be exposed to harmful airborne dust. Even if you work in a corporate office, all the potential contributors found in homes can be present. In fact, VOCs may be even more prevalent in a work environment because of some office supplies like printer toner. If you find that multiple employees seem to be developing the same persistent symptoms, that could indicate a BRI problem

What to look for

The first question when you are suffering from symptoms that don’t seem to go away is if their onset coincided with the start of spending a lot of time in a building that you hadn’t previously spent much time in. This could be moving into a new home or apartment, or starting a new job. If you’re a college student starting a new term and your classes are all in the same building, that may point to the source of your symptoms. Observe the other people you work or go to class with and see if they have similar health issues.

If that doesn’t narrow your search down, it’s possible that a building that isn’t new to you has undergone renovations, installed a new air conditioning system or had plumbing work done recently, any of which could result in air quality problems.

The symptoms that you should watch for are similar to those typically associated with cold, flu or allergies, except that they persist longer than you would expect. They include:

  • Irritation in the eyes, nose, throat
  • Sinus congestion
  • Headaches
  • Confusion
  • Dizziness
  • Nausea
  • Physical and/or mental fatigue
  • Feeling like you can’t take a deep breath
  • Exacerbation of existing conditions, like asthma
  • Lung pain
  • Skin irritation
  • Reactive Airway Disorder (in infants and toddlers)

These symptoms can range from chronic, nagging discomfort to severe, acute pain, depending on the severity of the symptoms’ source. The damage to your health can also range from chronic to acute. Carbon monoxide, for example, can cause severe brain damage and even death at 800 parts per million (ppm), even if the exposure is only for a few minutes. However, at exposure levels as low as 35 ppm, it might only produce flu-like symptoms after a few hours, but can cause serious injuries over a matter of months or even weeks.

What should I do if I suspect I am suffering from Building-Related Illness?

The most important thing to remember if you’re suffering from severe symptoms, especially chest pain or difficulty in breathing is to get immediate medical attention. If you’re in doubt, call 911.

If your symptoms are not severe, your next step should be to call an attorney for a consultation. Because these cases are extraordinarily complex, be sure you talk to an attorney who has experience investigating BRI cases and getting positive results. Finally, never give any statements to insurance companies or their representatives without your attorney present.

Brian Dunmire is an attorney for the Orlando Law Group in Orlando, Florida. He has successfully represented multiple clients with Building-Related Illness claims and other personal injury matters.

He can be reached at:
(407) 233-3194
bdunmire@www.theorlandolawgroup.com

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Perilous situations can arise between separating parents when homeschooling children

OLG LEGAL COMMENTARY:

Managing Partner Jennifer Englert

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law GroupFlorida has garnered a reputation as being one of the most amicable states for homeschoolers, with numerous statutorily recognized options that place homeschooling on the same legal footing as public or private schools.

As of November 2016, Florida boasted 75,000 students being homeschooled, and, according to an article published recently in the Florida Bar Journal, the number is growing.

These students are following the path of Abraham Lincoln, Thomas Edison, and Tim Tebow, to name a few. Homeschooling is not merely an educational choice, but a lifestyle which has a considerable weight attached. Numerous studies – including those found on National Home Education Research Institute — have demonstrated that homeschoolers perform as well as their traditional counterparts in categories such as standardized tests, college, and socialization, if not better.

Furthermore, homeschooling is arguably one of the best ways to create a unique educational experience, which is specifically designed to suit your child’s needs. Although homeschooling does require significant time and dedication, it is easy to understand why parents would opt for the pedagogical method.

The situation become perilous, however, when parents separate.

In the United States, approximately 40 percent of marriages end in divorce. Unfortunately, Florida is in the top 10 states for divorce, behind Alaska and Nevada. The subject of children tends to breed disagreement among separating parents, especially when it comes to education. While it might be tempting to seek educational decisions through sole custody, here in Florida, courts have a strong propensity to grant shared parental responsibility. Florida Statute §61.13 enacted in 1982 states “The court shall order that the parental responsibility for a minor child shall be shared by both parents unless it finds that shared parental responsibility would be detrimental to the child.” The language remains nearly identical today, with plenty of support from case law. This is largely due to the well-supported belief that children benefit from the involvement of both parents in their lives, even in cases of separation.

Fortunately, as of 2008, Florida’s family statutes allow for parenting plans which create timesharing scheduling that permits homeschooling, while optimizing the other parent’s time with the children. Language such as “the parents have agreed to homeschool the children” is recommended. This way, there is no ambiguity and a party cannot later claim a substantially changed circumstance. The ideal situation is to have a parenting plan which directly gives the homeschooling parent the ultimate decision-making authority regarding education. At the very least, a parenting plan should not accept or imply that the children will attend a private or public brick-and-mortar school. Once accepted, courts will be extremely reluctant to change the status quo, especially considering the parent voluntarily yielded authority in terms of education.

Mediation is highly recommended to facilitate the negotiations. The other party will likely have concerns about their ability to have a full relationship with their child. It would be wise to follow the example of a homeschooling father in Virginia [Brown v. Brown], who was praised by the court for his agreement to allow the former wife to join the occasional homeschooling class, as well as his efforts to keep her updated as to the child’s progress. Compromise will be crucial, so it’s important to give leeway on other important issues being discussed.

If litigation becomes necessary as a result of a deadlock at mediation, here are some things to keep in mind. The amount of time a child was homeschooled impacts how much weight a judge will give to the practice. Many judges will have preconceived notions about homeschooling and it will be up to you to dispel them. Expert witnesses will be invaluable to a case to demonstrate the educational and social benefits. There are even organizations which specialize in such testimony, like Homeschool Legal Defense Association. Involving children in outside extracurricular activities to develop social skills is highly recommended, so the other party cannot claim the child is being deprived of a fundamental experience provided by brick-and-mortar schools. And keep meticulous records which comply with all aspect of the state’s home education laws, or there will be little chance to continue homeschooling. When going through a separation, an attorney can be an invaluable aid, particularly when children are involved.

 

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located in Altamonte Springs, Dr. Phillips, Lake Nona, and Waterford Lakes. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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Photo of Brian T. Dunmire - Attorney at The Orlando Law Group

What is it like being a personal injury attorney? Far from glamorous, but oh-so rewarding

OLG LEGAL COMMENTARY:

Attorney Brian Dunmire

Photo of Brian T. Dunmire - Attorney at The Orlando Law GroupI have had big cases before, and, with those, big victories for my clients. But truth be told, as a personal injury attorney, some of my largest victories were on low-value cases.

That, in of itself, can be surprising to people – especially those who might have preconceived notions as to what a personal injury attorney is and does.

It is not glamorous. It is not television. It is not multi-million-dollar judgments day in, day out.

It is real life. It is working for the client, whether for $10,000 or $100,000. It is working for – and protecting – YOUR rights.

Do you want to know what it’s like being a personal injury attorney? Every day, I go to work at The Orlando Law Group and speak with colleagues, staff, clients, insurance adjusters, and defense attorneys about cases, scenarios, and injuries. I coordinate medical care for my clients and make sure that they have transportation to get to their visits. I speak with my client’s medical doctors so that I can understand their injuries better. I speak with insurance adjusters to convince them of the life-changing damages my clients have sustained because of someone else’s negligence. And, most importantly, I fight – I fight for the people who have decided to put their trust in me. Because whether a case is worth $10,000 or $100,000, that trust is something that I never take for granted.

It is a consistent challenge. So often, for example, I am faced with $10,000 in available insurance to cover the injuries that a respective client has sustained in an automobile accident. To my client, and to me, it is obvious that their injuries are worth far more than $10,000. However, seemingly more often than not, I find myself fighting with insurance companies to get them to pay even just that $10,000.

Those are the fights, done on behalf of my clients, that you will never see on a billboard. In fact, I often wonder just how many personal injury attorneys do not even put in the effort it takes sometimes to get even a full $10,000 settlement for a client.  Truth be told, there’s no less work to be done on a $10,000 case compared to a higher value case.  In fact, there could be more work.  I could see where many attorneys may just accept a $4,000 or $6,000 offer since it’s the easy thing to do.

I am proud to say that I put in the effort to maximize settlement value – even if the case is worth “only” $10,000. I am proud to say that, every day, I fight tooth-and-nail for my clients and for the opportunity to help make our community safer. I do this to hold people and companies accountable for their actions. Companies that fail to properly maintain their premises that cause a patron to fall should be held accountable. That company should be held liable as much as the person who runs into the back of your automobile should be held liable.

It is because of my client’s tremendous courage to retain an attorney, and their trust in me and The Orlando Law Group to represent them that only then are we able to hold people and companies accountable for their actions that cause unnecessary harm.

No, it is not glamorous. And it is not Hollywood. But when someone asks what it is that I do for a living, there is no hesitation in my response – “personal injury attorney.”  I am here for you, to fight for you, whether for $10,000 or $100,000. Because, quite frankly, when someone places their trust in me to represent them — well, that is truly my biggest victory.

Brian Dunmire practices in the area of personal injury representing clients who have been injured in automobile accidents and slip and falls. Prior to joining The Orlando Law Group, Dunmire represented insurance companies and Fortune 500 corporations in litigation — thus his unique experience and knowledge of how insurance companies and major corporations litigate and value claims. To contact Dunmire, or for more information about The Orlando Law Group, please visit TheOrlandoLawGroup.com or phone 407-512-4394.

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Protect yourself with an attorney when insurance companies look to undervalue your hurricane claims

OLG LEGAL COMMENTARY:

Since Hurricane Irma hit just a few months ago, Florida has seen a continuous increase in attorney advertisements for “hurricane damage” claim denials. By now, for example, you have likely seen billboards up and down our roads stating, “Claim Denied? … Hurricane Lawyer.”

For many a homeowner, it may seem obvious to seek assistance through an attorney for an insurance claim denied by the carrier. But did you also know that you should seek legal counsel when an insurance company [carrier] undervalues your claim, which can – and does – happen quite often?

Keep in mind that, by undervaluing your claim, the carrier is not denying the claim, but instead telling you [the insured] that your claim is not high enough to make it past the deductible and/or depreciation value of your property.

Essentially, it is their way of getting out of having to pay any monies to you that you might rightfully be owed.

As has most commonly been seen in several cases The Orlando Law Group has recently reviewed, the insurance company will send a letter to the insured stating that they will issue payment in the amount of $0. For example, let’s say you have damages to your home costing $8,000 to repair.  After review, the insurance company [carrier] then tells you the depreciation of your property is $4,000. Then they apply your deductible – let’s say, for this example, $4,000. Suddenly, all monies you thought you would receive from your carrier have dwindled to zero.

And, technically, they have not denied your claim.

But, realistically, with their math, they offered – and, under this example, will pay you – nothing.

If and when this happens to you, you do not have to accept this. You do not have to agree to this. And you do not have to sign off on this.

In the end, the carrier claims that it properly evaluated your claim and that you were not owed any money under your insurance policy, or an amount that was less than a reasonable amount to repair your property.

As a property owner, do you have to take the insurance carrier at its word as to the value of your property damages? Even if the adjuster was nice to you and told you [either in person or on the phone] that the insurance would pay your claim? The answer is an emphatic no. You do not have to assume that the insurance carrier properly determined the value of your insurance claim and/or even appropriately determined and/or applied the depreciation value of your property.

It is not uncommon for the property owner to obtain damage repair or replacement estimates more than the amounts determined as the “correct” amount according to the insurance carrier. So, you might be wondering how this can be.

First, the insurance carrier may hire independent claims adjusters to review your property. These are typically the “nice” people who visit your property and make statements to you that the insurance carrier should pay your claim. Unfortunately, those statements do not bind the carrier, and oftentimes will later be recanted by the adjuster, meanings/he will later deny making those statements — leaving you in he said/she said situation.

Second, the adjusters use an automated program that uses pre-determined amounts for a standard product which will produce an estimate that is often well below the standard charges in your community for property repairs and replacement.

Whether your claim has been denied or undervalued [meaning: you received a reduced or no payment in response to your claim], you should find competent counsel who you trust to challenge the insurance carrier’s evaluation and treatment of your insurance claim. A carrier’s denial or reduced valuation of your claim does not mean that the insurance carrier properly adjusted your claim.

Remember: Even if the carrier ends up paying you nothing in response to your claim, the claim will remain on your insurance record as having been made. This means that in the future, should you make another claim of any kind, this original claim can be used against you – particularly if you did not make the necessary repairs in response to the claim. It might also be used to increase premiums [or to continue providing insurance coverage to you] in the future. You may have received zero [or reduced] dollars for your insurance claim and yet still take the penalty of showing that claim on your record moving forward.

It is in your best interest not to let the carrier’s decision stand without review from a legal expert.

 

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Photo of Sophia Dean - Attorney at The Orlando Law Group

Don’t let stigma of bankruptcy stop you from doing the right thing for you and your family

OLG LEGAL COMMENTARY:
Attorney Sophia Dean

Photo of Sophia Dean - Attorney at The Orlando Law GroupI often use the analogy that choosing to file for bankruptcy is like choosing to get liposuction.

When you want to lose body fat, you have a choice: You can continue to work out, and keep trying to lose the weight, or, you can go get liposuction, and lose the weight quickly.

It’s the same thing with bankruptcy. Many people will call me, not sure if they are quite ready to pull the trigger on filing for bankruptcy. They say, “I’m going to just keep trying to pay all these bills, or settle them,” when, clearly, the best thing for them to do would be to just get the liposuction – to just pull the trigger on bankruptcy and get rid of all their debt that they cannot afford to have.

What I tell people who are struggling with that decision is that: If you are struggling to pay, and struggling to keep up, and feeling the pressure, and losing sleep at night, then consider pulling the trigger on bankruptcy to give you peace of mind, to be done with it.

And, for many people, the early part of the year – January through March, i.e. the start of tax season – is the best time to consider doing just that.

It is the first few months of each year that most people think about filing for bankruptcy, because they have extra money – thanks to their tax return – to pay the legal fees that come with it.

We find, though, that bankruptcy, for whatever its reasons, is very cliché, and not in a good way. Even knowing that they should, and even with their tax return in hand, many people are afraid to move forward with bankruptcy because they do not want to have a bankruptcy on their record. What they must consider is that, if your credit is already in the toilet, filing for bankruptcy is not going to hurt you anymore.

I have been working in bankruptcy on behalf of clients for almost seven years. Many of my clients are not just people who want to get out of their bills. They are mainly people who have fallen on tough times, be it job loss, death, disability, divorce, something of the sort, and now cannot keep up with their financial obligations. Not because of anything they have done, but just because circumstances of life happened to them.

And I understand that embarrassing stigma. But bankruptcy is not meant for people who go on 20-day tours of Europe, and then decide to file for bankruptcy because they do not want to pay for their trip. Nobody comes to me for that reason. Ninety-nine percent of my clients come to me because of circumstances in life. Things did not go how they expected. Maybe they had no problem paying their bills prior to the circumstance, but then something happened, and they just can’t keep up.

Filing for bankruptcy allows you the chance to get your life back in order. And, especially at this time of year, you have a choice to make. Are you better off using your return to try and pay off some debt? Or are you better off filing for bankruptcy and getting rid of all your debts?

It is no easy decision. And a bankruptcy lawyer will not [should not] make it for you. Only after discussing with my clients their debt and their overall household bills and finances, do I give them the pros and cons of bankruptcy. I will not tell you whether you should – or should not – file. I give you all the options for you to make that decision.

I will ask you questions that you need to truthfully answer, such as: If you are considering using your tax refund, do you want to use it to settle your debts? If so, are you going to be able to settle your debts with that money? Or, would it be better invested with a bankruptcy attorney to help get rid of all your debts once and for all?

That is the real kicker. Don’t try to keep spinning wheels while hoping you’ll catch up. Because maybe you’ll pay back some loans, but you’ll still be in debt with other things, such as credit cards. Or, you can pay one fee, one flat-rate fee, and get rid of all your debts. That is the big kicker. That is what people are trying to decide what to do at this time of year.

But no matter your answers to those questions, and no matter your situation, I do strongly suggest people remember this advice: There is no shame in giving yourself an option that can free you from all that, and give you your piece of mind back. None whatsoever.

Sophia Dean’s practice focuses on bankruptcy and foreclosure defense. She has represented debtors in all stages of debt collection. She is the co-chair of the Orange County Bar Association’s Bankruptcy Committee. To contact Dean for a free consultation, or for more information about The Orlando Law Group, please visit TheOrlandoLawGroup.com or phone 407-512-4394.

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