THE FLORIDA LAW BLOG

Alimony and Custody Changes in Store For Florida Law

The new Alimony Reform Bill passed in the Florida House by the vote of 85 to 31. The Bill will now go to the Governor for his signature in order for it to become law.

The Florida Legislature has passed a bill that will drastically change if not eliminate permanent alimony payments and even allow the courts to modify existing alimony orders between ex-spouses. The bill would also affect child custody arrangements and require judges to award divorced parents equal custody of their children, unless there were extraordinary circumstances.

Florida Governor Rick Scott has not said if he will sign the bill, which would not eliminate alimony but would severely limit it. The bill passed the Senate by a 29-11 vote.

Many Florida family law lawyers are opposed to the bill, as are current alimony recipients.

The bill would limit alimony payments from lasting more than half the length of the marriage. The amount of alimony would be capped based on the paying spouses income, and could terminate upon retirement.

The custody provision for shared custody may be equally troubling. Judges have traditionally avoided a split custody arrangement because it can be hard on the children as well as the spouses. Children end up going from house to house every other week or twice a week, which becomes disruptive to school and after school activities and lacks continuity.

Stay tuned to see if the Governor signs the bill into law and then look for the legal challenges to be filed by divorce lawyers. Click the link below to see the full text of the bill;

http://www.flsenate.gov/Session/Bill/2013/0718/BillText/e2/PDF

FLORIDA SENATE CONSIDERS MANDATORY BODILY INJURY LIABILITY

The Florida senate is considering a bill to replace the states antiquated PIP no fault insurance law and instead implement mandatory bodily injury liability insurance. At the present time Florida residents are not required to carry mandatory bodily injury insurance coverage which would cover liability for injury to another driver or pedestrian as a result of negligent operation of a vehicle. The only coverages required at this time in Florida are PIP and property damage (damage to the other persons vehicle).  

The Senate Banking and Insurance Committee voted to support the measure (SB 7152), and would abolish the current PIP law and require bodily injury coverage instead.

In the past Insurance companies opposed mandatory BI but may be having a change of heart after the mess that the new PIP law has created. Insurance companies were supposed to lower insurance rates however rates haven't gone down and fraud is still prevalent.

Most of the states do not have no-fault laws, and only 12 states do have PIP or no fault laws. At this moment, the District of Columbia and the following 12 states have adopted some form of "no fault" automobile insurance laws: Florida, Kentucky, Kansas, Hawaii, Michigan, Massachusetts, New Jersey, Minnesota, New York, Pennsylvania, Utah and North Dakota

Below is a summary of what coverages are required on a state by state basis. As you can see, Florida is one of the only states that does not require mandatory bodily injury liability coverage besides New Hampshire. In the list below BI means bodily injury liability coverage, PD means property damage, UM means uninsured motorist coverage, and PIP means personal injury protection coverage. It seems timely that Florida join the rest of the states and do away with "no fault" and implement mandatory bodily injury coverage.

Alabama BI & PD Liab

Alaska BI & PD Liab

Arizona BI & PD Liab

Arkansas BI & PD Liab, PIP

California BI & PD Liab

Colorado BI & PD Liab

Connecticut BI & PD Liab, UM, UIM

Delaware BI & PD Liab, PIP

District of Columbia BI & PD Liab, UM

Florida PD Liab, PIP

Georgia BI & PD Liab

Hawaii BI & PD Liab, PIPIdaho BI & PD Liab

Illinois BI & PD Liab, UM

Indiana BI & PD Liab

Iowa BI & PD Liab

Kansas BI & PD Liab, PIP, UM

Kentucky BI & PD Liab, PIP

Louisiana BI & PD Liab

Maine BI & PD Liab, UM, UIM

Maryland BI & PD Liab, PIP, UM, UIM

Massachusetts BI & PD Liab, PIP, UM

Michigan BI & PD Liab, PIP

Minnesota BI & PD Liab, PIP, UM,UIM

Mississippi BI & PD Liab

Missouri BI & PD Liab, UM

Montana BI & PD Liab

Nebraska BI & PD Liab

Nevada BI & PD Liab

New Hampshire FR only, UM

New Jersey BI & PD Liab, PIP, UM, UIM

New Mexico BI & PD Liab

New York BI & PD Liab, PIP, UM

North Carolina BI & PD Liab, UM, UIM

North Dakota BI & PD Liab, PIP, UM, UIM

Ohio BI & PD Liab

Oklahoma BI & PD Liab

Oregon BI & PD Liab, PIP, UM

Pennsylvania BI & PD Liab, PIP

Rhode Island BI & PD Liab, UM8

South Carolina BI & PD Liab, UM

South Dakota BI & PD Liab, UM

Tennessee BI & PD Liab

Texas BI & PD Liab

Utah BI & PD Liab, PIP

Vermont BI & PD Liab

Virginia BI & PD Liab, UM, UIM

Washington BI & PD Liab

West Virginia BI & PD Liab, UM

Wisconsin BI & PD Liab, UM, UIM

Wyoming BI & PD Liab 25/50/20

Dont Text and Drive Bill Passes Fla Senate

The Florida Senate has passed a texting while driving bill outlawing texting while driving and sent the bill to the house for approval.

The bill was sponsored by Sen. Nancy Detert, R-Venice. Known as SB52, the bill was approved by a 36 to 0 vote and will make texting while driving a secondary violation, meaning a motorist would have to commit another violation such as careless driving in order to be pulled over.

The driver could then receive two citations one for the traffic infraction and one for texting while driving. The bill includes any hand held device and is not limited to phones, but would include ipads, and other devices upon which a text can be sent. The fine would be $30 for a first offense, and $60 for a second offense within five years. The first offense would be a non-moving violation, however a second offense in five years would carry three points. Additional penalties would be imposed if texting occurs within a school zone. Texting would be allowed in cars that have high-tech devices built in that allow for hands free operation, or when the car is stopped at a red light or in stopped traffic.

Scott and Fenderson has been campaigning against texting and driving for several years. You can get a free "don’t text and drive" bumper sticker at our office, just stop by or give us a call at 727-321-0099 or visit http://www.scottandfenderson.com

SUPREME COURT - WARRANT NEEDED FOR BLOOD DRAW IN DUI CASES

The US Supreme Court decided Wednesday April 17, 2013, that the fact that alcohol dissipates from the bloodstream over time does not by itself give police the right to draw blood without a warrant in drunken-driving investigations.

The Court heard that case of Missouri versus Tyler G. McNeely, who was pulled over for speeding in Missouri and exhibited signs of intoxication, including bloodshot eyes, slurred speech and the smell of alcohol on his breath. He also performed poorly on a field sobriety test and was arrested for DUI.

McNeely refused to take a breath test and, after being taken to a hospital, to consent to a blood test. A blood test was performed anyway, about 25 minutes after he was pulled over. It showed a blood alcohol level of 0.15 percent, close to twice the legal limit. 

The lower court suppressed the evidence, ruling there had been no "exigent circumstances" that excused the failure to obtain a warrant. The State court said "Warrantless intrusions of the body are not to be undertaken lightly" .

Justice Sonia Sotomayor, Antonin Scalia, Ruth Bader Ginsburg, Elena Kagan and, Anthony M. Kennedy, affirmed the state court's decision. Sotomayor said factors had to be considered in deciding whether a warrant was needed.

Among the relevant considerations, Sotomayor said, are "the practical problems of obtaining a warrant within a time frame that still preserves the opportunity to obtain reliable evidence." Sotomayor said technological developments made promptly obtaining a warrant possible in many circumstances.

Justice Clarence Thomas dissented, stating "Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue,"

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com

FLORIDA PIP LAW - IT'S HERE, THEN IT'S GONE, THEN ITS BACK!

A Tallahassee Judge issued a temporary injunction against certain provisions of the state’s no-fault personal injury protection (PIP) law, ruling that it is no longer a "reasonable alternative" to a tort system because of recent changes to it. The injunction temporarily blocked further implementation of several limits on benefits and the exclusion of some medical professionals from the list of approved healthcare providers.

The State of Florida has appealed. Because of Florida Rule of Appellate Procedure 9.310(b)(2), the State has been granted an automatic "stay" of the injunction, meaning, that as of right now, the new law is in effect. Until that stay is lifted, the PIP law is still in effect and we advise all clients to operate under the new guidelines.

Second Judicial Circuit Court Judge Terry Lewis in the case [Myers v. McCarty Case No. 2013 CA 73] had issued the temporary injunction, targeting a number of changes enacted in 2012.

In a statement after the ruling, Gov. Rick Scott vowed to "continue to fight" to keep the changes that he said have saved motorists money. He said the changes to PIP have resulted in more than 70 percent of insurance rates approved by the state insurance commissioner either decreasing or holding steady. The insurance industry also criticized the ruling.

The case came about after a group of acupuncturists, massage therapists and chiropractors sued the state because the law changes prohibit them from being able to receive PIP payments.

The law states that unless an individual injured in an accident seeks medical attention within 14 days they are no longer eligible for medical benefits. Further, the law for the first time differentiates between "emergency" injuries where the accident victim receives the full $10,000 in PIP benefits and "non-emergency" injuries where PIP benefits are restricted to $2,500.

Another law change excluded massage therapists and acupuncturists from the list of approved PIP medical providers.

Lewis based his ruling on an analysis of the state’s no-fault law dating back to 1974, when the Florida Supreme Court in a landmark case [Lasky v. State Farm Insurance Co. 296 So.2d 9 1974] upheld the state’s no-fault auto law as a "reasonable alternative" to a purely tort system on the basis that it benefited consumers.

"Proponents argued that the tradeoff was a ‘good deal’ because it would provide speedy payment of medical costs, lost wages, of any accident victim regardless of fault and would avoid the alleged uncertainties and inequalities of the tort system," wrote Lewis.

However, Lewis said, the recent changes in the law had essentially ended the court’s line of reasoning in Lasky and the restrictions on medical benefits and medical providers made the state’s no-fault law an inadequate alternative to a tort system.

"Is the no-fault law still a good deal?" opined Lewis. "The answer to those questions is probably like beauty, in the eye of the beholder, and reasonable people may disagree. From my perspective, however, the revisions to the law make it no longer the ‘reasonable alternative’ that the Supreme Court found in Lasky."

Based on that line of reasoning, Lewis granted the temporary injunction, saying that the law as currently written unfairly prevented the medical providers from accessing the courts and having their grievances heard.

The Office of Insurance Regulation (OIR) it plans to appeal the ruling as early as this week.

"The OIR has notified Florida auto insurers about it and does intend to file an appeal," said OIR spokesperson Amy Bogner. She said the appeal would stay the order but only until the First District Court of Appeals rules on this issue.

Insurance representatives vowed to take any necessary action to overturn the ruling.

Donovan Brown, Florida counsel for state relations for Property Casualty Insurers Association, said the association is currently assessing the legal, regulatory and possible legislative steps to combat Lewis’ ruling.

"We are highly disappointed with this injunction, which temporarily invalidates the crux of the reform and thereby reopens the door to the fraud and abuse that the law was designed to counteract," said Brown.

The Coalition of Insurance Fraud likewise expressed disappointment over the ruling, which it said ignores the harm done by fraudulent medical providers that led to the law changes to begin with.

"Curbing crooked medical providers in this manner is a reasonable way to reduce runaway fraud," said Dennis Jay, executive director of the coalition. "Its constitutional validity has a strong basis."

Lewis’ ruling comes just months after a federal court judge refused to approve a similar motion brought forward by the same group of health care providers.

U.S. District Court Judge Richard Lazzara in that case [Myers et al v. McCarty Case No. 8:12] denied the medical providers request for an injunction, saying they failed to show how they would be irreparable harmed under the new law or how an injunction would serve the public interest.

As such, Lazzara said, he was denying the providers’ motion on the grounds that it would ultimately fail in the courts.

"The plaintiffs have not met their burden of establishing the essential element necessary for the issuance of a preliminary injunction- a substantial likelihood they will prevail on the merits," wrote Lazzara.

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com

ALIMONY - LAW MAY BE CHANGING IN FLORIDA

Tampa Bay Times April 4, 2013

Alimony Law

A proposal on its way to the Senate floor could force her to find an additional source of income. Lawmakers are considering a bill that would put an end to permanent alimony payments and allow the courts to modify existing arrangements between former spouses. The bill would also require judges to give divorced parents equal custody of their children, unless one parent could make a convincing case otherwise.

Proponents of the proposal say it would not end alimony altogether but make it more fair.

"This is something that has been horrible for people for so many years," said Alan Frisher, co-founder Family Law Reform, a nonprofit organization based in Lake County. "People have been stuck paying an order that ties them to their ex-spouse for the rest of their lives, even through retirement."

But the idea has met fierce opposition from lawyers and people who stand to lose their alimony benefits.

David Manz, a Marathon lawyer and immediate past chairman of the Family Law Section of the Florida Bar, called the bill "antifamily" and "antiwoman." He said it punishes women who stay at home by pushing them back into the workforce in the aftermath of a divorce.

Manz also believes the proposed legislation is unconstitutional.

"People have entered into agreements in which they gave up property in order to receive alimony benefits," he said. "To take those rights away would be unconstitutional."

Alimony-reform proposals have come and gone in Tallahassee, but this year may be different. The Senate is scheduled to take a final vote on the bill, SB 718, today. Its companion in the House, HB 231, has cruised through two committees and is awaiting a hearing on the floor.

If the bill were to become law, alimony benefits could no longer last more than half the length of the marriage. There would be new caps based on the paying spouse's salary, and the benefits would stop when the paying spouse retired.

"I want to make this so people can get divorced and get on with their lives," said Rep. Ritch Workman, R-Melbourne, who is sponsoring the bill in the House. Workman himself is divorced but says he is not paying or receiving alimony.

Workman pointed out that family court judges would have discretion to go outside of the guidelines when necessary.

Still, the proposal has sparked emotional testimony from people on all sides of the debate.

At a recent hearing in the House, Guido Albarran of Deerfield Beach likened his alimony payments to "financial enslavement." He said he gives half of his salary to his ex-wife, making it nearly impossible to support his aging mother and disabled brother.

"It's hard enough to retire in this day and age, let alone to retire and take care of two parties, one of whom has no stake in the game to control costs," Albarran said.

The custody provision has also been intensely debated, with opponents saying equal time sharing would limit the child-support payments made to some parents.

Frisher, of Family Law Reform, believes the critics are mostly family court attorneys who would lose business if the bill passes. He said his group and other opponents "are not against alimony," but rather "the perpetual use of it."

"Divorce is stressful enough," Frisher said. "At least with this legislation, there will be some consistency and predictability to the law."

LEGALIZING POT - THE DEBATE

WASHINGTON — A majority of Americans support legalizing marijuana, a new poll shows, with the change driven largely by a huge shift in how the baby boom generation feels about the drug of their youth.

By 52 to 45 percent, adult Americans back legalization, according to the survey released Thursday by the Pew Research Center. The finding marks the first time in more than four decades of Pew's polling that a majority has taken that position. As recently as a decade ago, only about one-third of American adults backed making marijuana legal.

Two big shifts in opinion go along with the support for legalization and likely contribute to it. Most Americans no longer see marijuana as a "gateway" to more dangerous drugs, and most no longer see its use as immoral. As recently as 2006, half of Americans said in a Pew survey that marijuana use was "morally wrong." Now, only one-third do, while half say that marijuana usage is "not a moral issue."

By an overwhelming margin, 72 to 23 percent, Americans say the federal government's efforts against marijuana "cost more than they are worth."

Similarly, by nearly 2-to-1, Americans say the federal government should not enforce its antimarijuana laws in states that allow use of the drug. The Obama administration has been vague on what stand it will take on federal law enforcement in states such as Washington and Colorado, which have legalized marijuana for recreational use, or in states such as California that allow medical use.

So far, 24 states and the District of Columbia have decriminalized personal use of marijuana, legalized it or allowed it to be used for medical purposes. Federal law currently treats marijuana as a dangerous drug with no legitimate medical uses.

The Pew survey was conducted March 13-17 by telephone among 1,501 American adults. The results have a margin of error of plus or minus 2.9 percentage points.

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com

St. Pete Law Cracks Down on Synthetic Marijuana or Spice

Tampa Bay Times

Friday April 5, 2013 

ST. PETERSBURG — Less than a block from City Hall is a place people call Spice City.

With a decision the City Council made Thursday morning, that place — Williams Park — may not have that name much longer.

Council members unanimously voted to ban synthetic marijuana, a drug commonly referred to as spice and smoked in abundance at the downtown park. By next week, shop owners will no longer be able to carry it and people will be prohibited from possessing or selling it to each other.

"You just have to take it one step at a time and this is a good step," council member Bill Dudley said before the vote. "I hope we send a message out that this will not be tolerated in our community."

A February story in the Tampa Bay Times illustrated how alcohol and drugs — especially spice — have overwhelmed the park. The smoke there is often so oppressive that it gives headaches to passers-by.

Spice joints have even become the park's currency. Each morning, people pool money and head to a grocery mart, where cashiers sell 10-gram packs, like "Mad Hatter" and "Scooby Snax Potpourri" to people they know. One $20 pack turns into 30 joints that sell for $1 each. Profits go to bus passes, booze, pills, marijuana or, often, more spice.

Soon after the Times story published, council members vowed to once again make the park a safe, welcoming space for families and downtown professionals.

Within weeks, Mayor Bill Foster moved forward with the proposed spice prohibition.

Although a 2012 Florida law banned the possession of many chemicals found in synthetic marijuana, council members believed the local ordinance was necessary because manufacturers have continually adjusted the formula, rendering the state statute useless.

The local law casts a far broader net in its ban of all "illicit synthetic drugs." It also mentions manufacturers who write "not for human consumption" on packs of drugs clearly meant to be smoked.

Beyond Williams Park, the new law also should help combat the drug's spread among young people. Some have believed its legality meant it was safe. Others have used it, as opposed to other drugs, to avoid failing drug tests.

"Up to this point," Foster said, "a 10-year-old could buy it."

Spice has made the job of street cops especially difficult. When officers have caught people with the drug, they could confiscate it and take the person's information but weren't able to make an arrest until weeks later when a lab showed the drug contained one of the banned ingredients.

Calling it synthetic "marijuana" is, in many ways, a misnomer. Unlike the mellow high caused by marijuana, spice often sparks paranoia, irritability and violence.

"This spice is unbelievable," downtown deployment team Officer Rick Kenyon said recently. "We've had some guys for 10 years and we've never had a problem with them. Now, the same guys are on this spice and they want to fight us."

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com