FLORIDA CONTRABAND PROCEDURES ACT or How the State can seize your assets in civil forfeiture proceedings.

We have a new procedure in the Second Judicial Circuit!

Since my last post, I just want to say how happy I am that in the Second Judicial Circuit we now have an update procedure announced in Administrative Order 2017-11.

Unfortunately, my success with petitioning our local circuit may dry up my future business prospects, but that is the price you pay when you care about justice. I was very happy to say that all parties involved realized that there was a problem and that our Circuit needed a uniform approach and the wisdom of our Judiciary made it so that the forfeiture procedures are in accord with the principles of justice.

Essentially, it is going to be a lot harder for law enforcement to seize and forfeit one's assets without hurdling a higher standard of proof.

In the unlikely event that you or your friends and family have an asset in a forfeiture proceeding, please contact our firm immediately. There are still very strict time-limits involved in contesting the forfeiture!

https://cvweb.clerk.leon.fl.us/public/clerk_services/official_records/download_document.asp?book=5132&page=1688

Stop-Work Orders/Penalty Assessment For Companies Not Based In Florida Can Be A Big Surprise

DATE: June 2, 2019

POSTED BY: Kris Dunn

Hello friends, this scenario happens quite often in Florida.

A good case that I like to relate is the case of U.S. Builders, L.P. v. DFS, DoAH Case#07-4428 (see docket at: https://www.doah.state.fl.us/ALJ/searchDOAH/docket.asp?T=12/11/2012%202:59:36%20PM).  This case actually has FOUR fascinating components; Today, I will talk about the issues involved regarding U.S. Builders, L.P.’s (hereafter, “USB”) reliance on their Texas workers’ compensation insurance policy. The other component is USB’s Request for Hearing, this is also very interesting, but since it happens so rarely, I will talk about that issue in my next blog post. Another component, not mentioned in the case above, is what happens when one of your subcontractors fails to get a valid form of workers’ compensation coverage. The final component is how USB narrowly avoided a Stop-Work Order and got an Order of Penalty Assessment, instead (This will be talked about in another blog entry later.).

So the basic facts behind this case are pretty simple: USB is contracted to build a Walgreens in the Jacksonville area. Because it’s a relatively large construction project it brought the attention of the Division of Workers’ Compensation Compliance Bureau (“DWC”). The DWC investigators stopped by and checked to see if the general contractor, USB, and its various subcontractors had valid workers’ compensation insurance policies (“WC policy”). The investigators contacted the USB foreman and he showed the investigators his WC policy/ The WC policy was from a Texas insurance company and it was a valid WC policy for Texas, included on the policy was an “all-states endorsement.” An “all-states endorsement” appears to be one of those insurance salesman things that they pitch when they don’t really know what they are talking. This type of endorsement allows you to work in a lot of states, but not all of the states, it covers about 35 of the 50 states (It should be called a “some-states-endorsement”.).

So we have a company, USB, with a WC policy that’s valid in Texas and quite a few other states. They come to Florida to work. They get the permit to begin construction. They start working, then they get issued a Order of Penalty Assessment (“OPA”) for even though they have a WC policy (Why they did not receive a  Stop-Work Order is another topic). What went wrong?

Well, I was the prosecutor in this case, so I am very familiar with the details.

1. The Texas WC Policy was valid in Texas and in many other states. When we deposed the insurance carrier, the carrier even said “that were an accident to happen in Florida, USB would be covered.” This seems pretty much good for the righteous intent and purpose of the law, right? Not quite, see #2.

2. Florida has a zero tolerance policy for those companies who come here to work and don’t have workers’ comp coverage. In the DWC’s viewpoint, USB had NO coverage. USB and it’s good faith belief that it did have coverage was inconsequential. The fact that the insurance carrier, under oath at the deposition, stated that any industrial accident would be covered made a hill-of-beans worth of difference.

3. What needed to have happened for the DWC to have been satisfied, is for the WC policy to have contained a Florida Specific Endorsement. The problem lies at the foot of the insurance salesman. The insurance salesman did not know enough about workers’ compensation coverage requirements, outside of Texas. If he did, he would have sold USB the Florida Specific Endorsement.

So the moral of the story is: you are on the hook for bad choices/ ignorance of your insurance agent. Florida is not a reciprocal state for “all-state” WC policies. Certain states like Florida, New York, California, and a few other “big union” or large population states require their own state-specific endorsements.

The good news is that an error committed by your insurance agent will usually be covered by his “errors and omissions” policy, which they are required to have. This is why the case went to trial in retrospect, because without that judgment against USB, they probably would not have been able to recover from it. I’m am pretty sure in the end that is why we spent nearly a year litigating a $14k case. I would be sure that USB’s legal bills were covered by the insurance agent’s policy.

Now on to the interesting part:  Why doesn’t Florida accept other states WC coverage? After all, if the insurance carrier mentioned in their deposition that they would have covered any industrial accident that occurred, whether or not the policy was valid in Florida, is not that want the spirit of the law wants: workers to be covered in case of an accident? My personal understanding of the issue which was confirmed when the opposing counsel asked a similar question to our Jacksonville Bureau Chief. Essentially, there are several reason: most insurance companies are not as generous as the carrier that answered the deposition. If they are not legally required to cover an accident, then the insurance is operating on charity’s sake. Florida lawmakers don’t believe that insurance companies will be as charitable as that company, that means if a worker did get hurt, he could become a burden to the public as he check’s into the emergency room and is then forced to take unemployment, the medical bills may not be covered by any insurance but if the workers’ comp policy is in effect all of those things are covered. A second rationale is that certain states outside of Florida have lower WC policy rates than Florida. This means that the out-of-state company may actually have a competitive advantage if the home state has a lower WC insurance premium rate (each state has their own rates assigned due to various factors such as litigation, payout amounts, etc.). So imagine a scenario when a hurricane hits Florida and part of the recovery efforts include having out-of-state contractors come to Florida for the rebuilding effort (Dept. of Business Professional Regulation will waive the license requirements if you are licensed in another state); you don’t want to have a large number of inexperienced crews of roofers falling off roofs, getting denied by their out-of-state carriers and then have a giant public expense incurred by the residents of Florida.

Well, I hope that helped, and as I mentioned there are several other parts of this case which merit discussion, stay tuned!

Stop Work Order Case; The Potential Benefits Of Not Producing Records. DFS v. ALL PHASE CONSTRUCTION AND DEVELOPMENT, LLC

This is a neat case about the benefits of not producing records and going to trial. All Phase Construction and Development, LLC (“All Phase,” hereafter) received a Stop Work Order and a Penalty Assessment totaling $34,141.15. The full docket can be accessed via https://www.doah.state.fl.us/ALJ/searchDOAH/docket.asp?T=11/29/2012%202:43:27%20PM.

According to the Recommended Order, the DFS investigator received an anonymous complaint alleging that All Phase did not carry any Workers’ Compensation Insurance Coverage “WC coverage”). The Investigator arrived at the office of All Phase and met a Receptionist. The Principal was not in the office. The investigator asked about the number of employees All Phase had and the nature of WC coverage, if any. The receptionist said there six total employees. The investigator was able to find, through his computer database, that All Phase had used a payroll company for one year, but that coverage had already expired. The investigator returned the following day and posted a Stop Work Order along with a Request For Production of Business Records. No records were ever produced by All Phase. The only records the investigator was able to find was the one year-long coverage with the payroll company.

After much legal rigmarole, this case finally entered the Division of Administrative Hearings and was heard in early September 2012. After the hearing, the Administrative Law Judge (“ALJ”) ruled that the Department could only sustain $18,263.29 worth of penalty. The Department did not prove that all the workers named by the secretary were employed by All Phase. The Department could not prove that the workers listed on the payroll company’s ledgers were employed by All Phase at times when the coverage lapsed. The ALJ could only sustain a penalty against the receptionist and the Principal.

The moral of the story: Sometimes you have to go to court to get the right answer. The Department is the enforcing authority, sometimes they believe your version, sometimes they don’t.

However, the lack of records did benefit the company if one assumes a “worst case scenario” of having four other construction workers on the clock for two years (remember there was coverage for one year of the three year period). Again, I entitled this post the POTENTIAL benefits based on the fact that assuming the worst case scenario the company could have been liable for a lot more. The likelihood in Florida’s tepid construction climate that all four workers were putting in 40 hour weeks for three years straight is unlikely and their potential liability for penalty may have been lower than what the Judge ordered. The real moral of the story is that if you do have records let a professional look at them (me!) to determine what the true penalty really is. If the true penalty is higher than the imputed penalty, then the withholding of records may be a good strategy!

*Please note, that as I look at this blog post again, I mentioned the three years’ worth of records requirement in this post written in 2012. In 2015, the Division of Workers’ Compensation amended their rules and now only asks for two years’ worth of records. They also now offer a 25% reduction in penalty assessment if the records are timely produced. Two very different factors from when this was posted in 2012.

If you ever have any questions about how to handle your business records, please feel free to call the office at 850-583-5380, and we can help you out with handling your SWO and business records issues!

Florida Contraband Forfeiture Act, Part 2

Date: October 26, 2017

Posted By: Kris Dunn

The Law Office of Dunn & Harvell is very proud to say that we have been the driving force in the Second Judicial Circuit to get a procedure in place to help out victims of criminal asset forfeitures, also known as, as the Florida Contraband Forfeiture Act.

Together with local law enforcement agencies, Mr. Dunn petitioned our Circuit to adopt a procedure that was fair and complied with the new statutory language that was adopted in 2016, by the legislature.

It’s not many times that a criminal defense firm will agree with the Tallahassee Police Department and the Leon County Sheriff’s Office, but there was strong agreement that the safeguards that the legislature intended were codified in an administrative order.

Dunn & Harvell are happy to say that once this administrative order is adopted, on how the forfeiture process works; there will be uniformity and protections in all counties of the Second Judicial Circuit.

If you ever have any questions about any type of forfeiture resulting from a criminal act or think that someone else’s activity is putting your property at risk, please call us immediately.

An ounce of prevention is worth a pound of cure, as they say!

Florida Contraband Forfeiture Act, Part 1

Date: October 26, 2017

Posted By: Kris Dunn

If you are a victim of civil asset forfeiture, contact us!

What are your rights when the “Law” takes your stuff?

Before we go into the question, let’s start off with a little background. Florida and every other state in the nation has a law on the books to civilly seize someone’s assets if they can link that asset to the commission of a crime. The image in a lot of people’s heads is that of a Lear jet carrying bundles of cocaine and landing in a rural airport with no passengers. That makes sense because it is very apparent that the “trafficking of cocaine” would only be possible if it were being flown from Colombia to the USA on that Lear jet and the amount of cocaine on the jet would be indicative of the whole crew knowing and conspiring to import cocaine. Obviously, the drugs are seized as part of the criminal case and the local law enforcement agency MAY seize the Lear jet as a “civil forfeiture.”
For years the civil forfeiture proceeding was a tough legal hearing to beat and often the only time you were able to win it, was by showing that there was an innocent owner. The innocent owner exclusion from forfeiture meant that they had no clue, idea, or premonition that the pilots (to continue our example) flew down to Colombia to buy drugs and were going to import them. This is the one sure-fire way to win the hearing.
So, now that we understand the general dynamics of the concept, we can further discuss how the law evolved. If you scroll the news feeds you might have even seen this from Justice Clarence Thomas, where he is quoted:
This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up. These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

Read more at: https://www.nationalreview.com/article/448942/civil-asset-forfeiture-police-abuse-clarence-thomas

Fortunately, Florida was never one of the top abusers of forfeiture, but when a Supreme Court Justice mentions that the system needs to be redesigned, that’s exactly what happened in the legislative session of 2016.

There are now more protections for your seized items.
The law changed substantially in 2016 to give the asset owner great protections. Most importantly, the law now requires the state to prove beyond a reasonable doubt that your belongings were used in the commission of a crime.

If this is happening to you, please contact our firm. We have the legal knowledge and experience to fight for your property!

Can The Police Stop Me From Filming Them?

Date Posted: August 12, 2017

Posted By: Kris Dunn

Q: Can the police stop me from filming them? I saw an article on Facebook that said this is now illegal.

A: The recent case of Akins v. Knight has received quite a bit of publicity. In Akins, the plaintiff filed a civil lawsuit against five Missouri police officers claiming that his civil rights had been violated in several different ways, including denying him the right to videotape the police during an arrest. Akins disagreed with the ruling of the trial judge dismissing his case and finding for the police. Akins appealed the decision to the U.S. Appeals Court for the Eighth Circuit, which includes Missouri and other midwestern states, but does not include Florida. Therefore, the court’s decision does not apply to Florida.

The appellate court did not address the legality of the public filming the police as they execute their duties. Instead, the appeals court decided not to hear the case. Some legal commentators have interpreted the decision not to hear the case to mean that the Eighth Circuit agrees with the trial judge that the public cannot film the police. However, the decision does not specifically say that.

In any case, it is well settled in Florida that citizens may film the actions of the police so long as those actions take place in public and the persons being recorded are aware of the recording. While the police may make reasonable time, place, and manner restrictions in the way they are photographed, they cannot completely prohibit you from filming their conduct. Put simply, you can film an arrest, but you cannot allow your filming to disrupt the arrest. The mere act of filming is not disruptive, but disobeying an order to move back and film the arrest from elsewhere could be disruptive and may place you at risk of your own arrest.

Your First Amendment rights include the right to gather information about what public officials do on public property and record matters of public interest, including the actions of police when arresting a subject. However, state wire tapping laws may apply to certain types of recording of the police, so we encourage you to contact this law firm before you undertake any type of recording or surveillance of the police.

Please contact the office of Dunn & Miller, P.A. with any further questions you may have regarding your rights to video tape an officer.

Is My Soon To Be Ex Entitled To Half My Inheritance?

DATE: 02/08/2019

POSTED BY: Kris Dunn

In Florida, if a spouse is the sole recipient of an inheritance in the form of money or property, either before or during the marriage, the inherited asset is nonmarital and not subject to the equitable division of property in a divorce. However, there are circumstances that can cause all or part of an inheritance to transition into a marital asset that is subject to division during a divorce.

NONMARITAL INHERITED FUNDS

A common issue in divorce arises when the owner of nonmarital money deposits the funds in the same bank account as marital funds. The nonmarital funds could have been directly inherited or, if an inheritance was in the form of real estate or personal property, if the owner sold the inherited property, the money received in the sale remains nonmarital since it was acquired in exchange for a nonmarital inheritance.

The question becomes whether in this situation, the spouse who separately owns the inherited money intends to share it as a gift to his or her spouse during the marriage. If so, the money becomes a marital asset and is therefore subject to division in divorce.

If the nonmarital, inherited money is kept in a separate account and no marital money is deposited there, it shows evidence of intention to keep the money nonmarital. However, if marital funds are also deposited there and marital and nonmarital money is comingled, Florida cases have held that this creates a presumption that the owner of the inheritance intended to gift half of the inherited funds to the other spouse.

At this point, the spouse who inherited the money has the burden to argue the presumption by showing evidence that he or she did not intend to gift half of the inheritance to the other spouse.

OTHER SITUATIONS

When an asset inherited by one spouse has its value enhanced because of the effort of either spouse during marriage, or because marital funds were spent to do so, the appreciation in value of the nonmarital asset becomes marital. This appreciation value, not the entire value, then becomes subject to equitable division in the case of a divorce.

For example, if marital funds such as wages earned during marriage are used to repair or improve an inherited building owned by one spouse, in divorce, the cour may find that the resulting increase in value to the building may be a marital asset subject to equitable division.

Similarly, if one spouse separately owns a piece of furniture that he or she inherited, but one of them during the marriage refinishes and/or repairs the item, increasing its value, the added value would become a marital asset.

BOTTOM LINE

Even if an inherited asset appears to have remained separate during the course of the marriage, nonmarital property can be a complex legal and factual issue in a Florida divorce. It is always in your best interest to speak to a lawyer with questions about inheritance and divorce. The earlier in the relationship a person seeks legal advice, the better. For example, the parties may decide to sign a prenuptial agreement before marriage in which they agree an inherited asset will remain nonmarital under any scenario.

As unfortunate as the circumstances may be, often times we find clients facing this exact problem. While your situation is always unique to your individual case, it is important to contact an experienced attorney regarding any legal questions that may transpire. Please do not hesitate to contact our law office of Dunn & Miller, P.A. today.

Your Marital Home May Not Be Sacred During Divorce

Date: 02/04/2019

Posted By: Kris Dunn

In family law cases, the firm of Dunn & Miller, P.A. recognizes that this is probably one of the most emotional events of one’s life. The possibility that one might have to move from their home is a distinct and intimidating one. The phrase “You can’t buy happiness,” may or not be true, but the old adage that more money allows one to suffer less is also true. The marital home is one of your family’s biggest investment, but when the possibility of divorce comes along… it still is an asset and may be subject to division. It’s a tough hurdle to leap because it represents both a financial and emotional decision. But it’s one that has to be made, however. Here are some options to consider:

  1. Sell the house immediately. This is the best option if both spouses are ready to leave the home or if neither party can afford the mortgage, taxes, and upkeep on one income. Use a neutral real estate agent, meaning one who has no pre-existing ties to either spouse.
  2. Buy out the other party, refinance the mortgage and have the ex-spouse removed from the deed. This requires having the property appraised to measure the property value. Deduct all outstanding loan costs, then subtract the costs and fees associated with the transfer of property from the market value. Split the remainder in half, and that’s the number to begin your negotiations with your ex.
  3. Surrender your interest in half of the house without receiving any compensation. This could be attractive if the one spouse can afford all the payments, and there is little to no equity in the property. Make sure to have all transfer documents legally executed, so the spouse who moves out can’t claim an interest in the property later on.
  4. Think about birdnesting. That ’s where couples acquire a second place to live – think small apartment – and each person rotates between the house and the apartment. This is beneficial if you have children you don’t want to disrupt. The kids stay in the house on a full-time basis. It’s the parents who shuttle in and out.
  5. Agree on a time to sell in the future and decide who will live in the home and how to share costs. This puts off making a decision about selling and allows you to wait until the kids are older or until you build more equity in your home.

While all of these options should be up for consideration by both parties, it is critical to avoid making any legally binding decisions before consulting with an attorney. At Dunn and Miller, P.A. we will review with you all potential options and help determine what route you should take in order to benefit you and your children.

Is My Soon To Be Ex Entitled to Half of My Inheritance?

In Florida, if a spouse is the sole recipient of an inheritance in the form of money or property, either before or during the marriage, the inherited asset is nonmarital and not subject to the equitable division of property in a divorce. However, there are circumstances that can cause all or part of an inheritance to transition into a marital asset that is subject to division during a divorce.

NONMARITAL INHERITED FUNDS

A common issue in divorce arises when the owner of nonmarital money deposits the funds in the same bank account as marital funds. The nonmarital funds could have been directly inherited or, if an inheritance was in the form of real estate or personal property, if the owner sold the inherited property, the money received in the sale remains nonmarital since it was acquired in exchange for a nonmarital inheritance.

The question becomes whether in this situation, the spouse who separately owns the inherited money intends to share it as a gift to his or her spouse during the marriage. If so, the money becomes a marital asset and is therefore subject to division in divorce.

If the nonmarital, inherited money is kept in a separate account and no marital money is deposited there, it shows evidence of intention to keep the money nonmarital. However, if marital funds are also deposited there and marital and nonmarital money is comingled, Florida cases have held that this creates a presumption that the owner of the inheritance intended to gift half of the inherited funds to the other spouse.

At this point, the spouse who inherited the money has the burden to argue the presumption by showing evidence that he or she did not intend to gift half of the inheritance to the other spouse.

OTHER SITUATIONS

When an asset inherited by one spouse has its value enhanced because of the effort of either spouse during marriage, or because marital funds were spent to do so, the appreciation in value of the nonmarital asset becomes marital. This appreciation value, not the entire value, then becomes subject to equitable division in the case of a divorce.

For example, if marital funds such as wages earned during marriage are used to repair or improve an inherited building owned by one spouse, in divorce, the cour may find that the resulting increase in value to the building may be a marital asset subject to equitable division.

Similarly, if one spouse separately owns a piece of furniture that he or she inherited, but one of them during the marriage refinishes and/or repairs the item, increasing its value, the added value would become a marital asset.

BOTTOM LINE

Even if an inherited asset appears to have remained separate during the course of the marriage, nonmarital property can be a complex legal and factual issue in a Florida divorce. It is always in your best interest to speak to a lawyer with questions about inheritance and divorce. The earlier in the relationship a person seeks legal advice, the better. For example, the parties may decide to sign a prenuptial agreement before marriage in which they agree an inherited asset will remain nonmarital under any scenario.

As unfortunate as the circumstances may be, often times we find clients facing this exact problem. While your situation is always unique to your individual case, it is important to contact an experienced attorney regarding any legal questions that may transpire. Please do not hesitate to contact our law office of Dunn & Miller, P.A. today.

Your Marital Home May Not Be Sacred During Divorce

In family law cases, the firm of Dunn & Miller, P.A. recognizes that this is probably one of the most emotional events of one’s life. The possibility that one might have to move from their home is a distinct possibility. The phrase “You can’t buy happiness,” may or not be true, but the old adage that more money allows one to suffer less is also true. The marital home is one of your family’s biggest investment, but when the possibility of divorce comes along… it still is an asset and may be subject to division. It’s a tough hurdle to leap because it represents both a financial and emotional decision. But it’s one that has to be made, however. Here are some options to consider:

  1. Sell the house immediately. This is the best option if both spouses are ready to leave the home or if neither party can afford the mortgage, taxes and upkeep on one income. Use a neutral real estate agent, meaning one who has no pre-existing ties to either spouse.
  2. Buy out the other party, refinance the mortgage and have the ex-spouse removed from the deed. This requires having the property appraised to measure the property value. Deduct all outstanding loan costs, then subtract the costs and fees associated with the transfer of property from the market value. Split the remainder in half, and that’s the number to begin your negotiations with your ex.
  3. Surrender your interest in half of the house without receiving any compensation. This could be attractive if the one spouse can afford all the payments, and there is little to no equity in the property. Make sure to have all transfer documents legally executed, so the spouse who moves out can’t claim an interest in the property later on.
  4. Think about birdnesting. That’s where couples acquire a second place to live – think small apartment – and each person rotates between the house and the apartment. This is beneficial if you have children you don’t want to disrupt. The kids stay in the house on a full-time basis. It’s the parents who shuttle in and out.
  5. Agree on a time to sell in the future and decide who will live in the home and how to share costs. This puts off making a decision about selling and allows you to wait until the kids are older or until you build more equity in your home.