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Monday, October 24, 2016

10 Reasons Waterfront Property Buyers and Sellers Need a Real Estate Lawyer

10 Reasons Waterfront Property Buyers and Sellers
 
Waterfront Property issues?
Buying and selling waterfront properties can be a confusing path to navigate.  If you are thinking of buying or selling property that borders a body of water, you must understand the purchase and sale of waterfront property involves more complex issues than purchasing property which is not waterfront.  The added complexity of waterfront property normally centers around the location of the waterline and riparian rights.   An attorney with experience in riparian rights and waterfront real estate can provide you with invaluable counsel regarding whether your land is really waterfront as advertised, whether others may have rights to use the land between your property and the water's edge or whether someone besides the State of Florida owns the submerged land you want to put your dock on.
          Significant issues to consider when buying or selling waterfront property include:
  1. Does the property really extend to the water's edge?  You might think this is a dumb question, but I cannot tell you how many people have been in my office with “waterfront property” that isn’t really waterfront property.  Your deed only conveys the property described in the legal description.  In many instances, we find filled lands in between the waterline and the platted or surveyed lot lines.  Or, in less frequent instances, we find old easements, dedications, walkways etc.  If the property being conveyed does not extend to the waterline for any of these reasons, you may not have “waterfront property”.
  2. Does someone other than the State own the submerged land adjacent to your waterfront property?  The State of Florida owns the vast majority of the submerged lands throughout Florida.  However, it is not uncommon to find instances where a third party owns the bottom land immediately adjacent to waterfront property.  Depending on the particular circumstances, third party ownership could create a significant problem locating your dock, or worse yet, how about if the submerged land owner tries building a dock on his submerged property?  
  3. Are there existing or potential riparian rights issues with the neighboring properties? The main reason most people purchase waterfront property is for riparian rights.  These rights include the right to ingress and egress by boat, the right to build a dock, the right to fish, and the right to view the water to name a few.  Is your neighbor’s existing dock blocking your view of the water? Is your neighbor’s dock located such that when he wants to add a boat lift, your ingress and egress will be blocked? Does the location of your neighbors dock impact how you will have to construct your new dock?
  4.  Are your neighbors using your land?  Is there a path or walkway across the lot that extends to the water?  Does someone other than the seller maintain a dock or moor boats on or adjacent to the property?  If so, further investigation is required before you buy, to determine what legal rights, if any, such users might possess.
  5. Are there pre-existing issues with neighbors or the association?  Buyers always need to talk to the homeowner's association.  Many waterfront areas have homeowner's associations that may have valuable information regarding issues that have confronted riparian owners.  Are there current disputes, past issues, that may remain unresolved or understandings regarding rights to use waterfront areas?  Owners of adjacent lots may have similarly valuable information
  6. Will erosion or accretion be an issue for the property?  Erosion and to a lesser degree accretion, are big concerns for waterfront property owners. Over time, you can actually lose property (erosion) or gain property (accretion) if the shoreline has not been appropriately protected and buffered. If a sea wall or bulkhead of some type already exists, then you should invest in an inspection to determine if it’s sufficient, has been properly maintained, etc.
  7. What questionable documents are contained in the title search or commitment.  If there are covenants, restrictions, declarations or similar encumbrances to which the land is subject, they must reviewed and analyzed.  Does you deed properly convey riparian rights?  Have they been severed by a previous owner?
  8. What about the waterbody and future permitting? How deep is the water adjacent to your property?  That will directly affect your ability to build a dock and/or determine how long your dock will need to be.  Are there any water quality issues?  Are the existing in water structures properly permitted?  What is the likelihood you can add a slip, or a roof to a boathouse or bring in a larger boat?  Local permitting knowledge is essential and all these questions need to be addressed before you buy waterfront property.
  9. Do any local ordinances restrict or otherwise control the use of the waterfront?  Some municipalities have enacted ordinances to regulate docks and the mooring of boats.  Some areas have significant building setback requirements on the upland.  Some areas don’t allow new seawalls.  Aside from regulating in water structures, most areas have specific engineering requirements for waterfront property. 
  10. What will insurance cost?  Check out insurance carefully, as there are different types of policies and coverage that are important when purchasing waterfront property. Flood insurance and hazard policies address different things and can be complicated. Be sure to investigate wind damage to see if additional riders are required. 
There is no substitute for expert advice and specific information when it comes to buying waterfront property.  Due diligence is the key, don’t let yourself down.  If you think you are buying waterfront property confirm that fact by investigating BEFORE you buy.  Equipped with the right expertise, guidance and knowledge, you’ll be ready to turn to your waterfront dream into a reality. Call Guy Yudin & Foster, LLP. at 772.286.7372 for help with your waterfront property transaction.

Tuesday, October 11, 2016

Real Estate Lawyer Stuart, FL – 9 reasons why you need one

Real Estate Lawyer Stuart, FL –
9 reasons why you need one
Buying or Selling Real Estate in Stuart, Florida?

For many people home ownership is their most significant financial investment.  In order to protect your investment, hiring a real estate attorney is a smart choice whether you’re buying or selling.  A real estate lawyer can protect your rights and interests in the transaction; protect you against the unexpected; ensure a smooth and low-stress closing; and is the only one involved in the transaction who is qualified to provide you with legal advice.

What happens if the property has an illegal structure, termites, lead paint, asbestos, or other potentially hazardous conditions? What If there is an issue with your deal, what are your legal obligations?  Can you back out of the contract? Can you get your earnest money back? Will you owe the other party any money for changing your mind? Do you have sufficient time under the contract to get inspections done? Are there mistakes in the contract documents? Are there mistakes in the closing documents? And will that cost you money?

Your real estate attorney will keep an eye on all these different areas of concern and many more.  Knowing you have an independent, and experienced real estate attorney on your side will give you peace of mind and help you get your through what is often times a stressful situation.



1. Buyers need to know if the property has an unpermitted addition or improvements. If a seller has failed to obtain permits for an addition or other improvements to the property, it can be extremely difficult for a buyer to obtain any sort of satisfactory resolution after the closing. In order to protect themselves, buyers need to know if local codes and state regulations have been followed, and if they haven’t, what to do about it.

2. No matter how experienced you are at buying or selling residential property, any commercial real estate transaction involves complications which do not arise in simpler residential real estate deals. A real estate lawyer is important in commercial transaction so that these additional legal issues such as easements, corporate ownership, leaseholds, environmental issues, structured financing, tenant claims can be resolved in a timely and satisfactory manner.

3. Out of town buyers are particularly in need of a real estate lawyer. As a buyer you need someone local on the ground and familiar with the particular nuances of the area in which you are purchasing. Not only can your real estate attorney be your local point of contact for participants in the transaction, they normally are aware of specific municipal, county, state, or even federal regulations that may apply to the property.

4. Are you concerned the seller and/or real estate agent aren’t telling you something about the property? As difficult as it may be to believe, not every seller or real estate agent is honest and above-board; if you are suspicious, then a real estate lawyer can help you get answer to questions or suggest contract language to address specific concerns.

5. Are you buying or selling a property that is part of a trust or is in a probate administration? If so, it is not always clear who is representing the interest of the beneficiaries. Is the trustee or personal representative or perhaps one of the other heirs acting on behalf of the estate? Your real estate lawyer will help in jumping through the hoops associated with wills, trusts and probate courts.

6. Your real estate attorney will read everything. The volume of paperwork is insane. It’s tempting to throw up your hands and stop reading after the fifth page of your contract but that’s the way money gets wasted. Your attorney will read through your paperwork and raise any concerns. Even if there are no obvious red flags, your attorney will know the details of your transaction and can easily deal with issues if questions come up.

7. Do you want your attorney to hold your deposit just in case there is a problem with the transaction? Or do you want an unknown 3rd party holding your earnest money deposit? Real estate lawyers can act as escrow agents and most handle title insurance as well.

8. Are you concerned that you may not qualify for financing and you may lose your deposit? Your real estate attorney can suggest contract clauses to address this issue, including returning the deposit to the buyer if the buyer is unable to obtain prevailing market financing.

9. Do you what to make sure when you arrive at the closing you aren’t required to sign documents you are not obligated to sign under your contract? An experienced real estate lawyer will review the closing documentation before closing to be sure you only sign those documents called for in the contract.

Your real estate attorney has no personal interest in the outcome of the transaction other than making sure you, the client is taken care of. All other parties assisting you in the transaction have a financial interest – namely, commissions and payments which are far greater than your attorney Don’t wait until you receive an offer to sell your property. Contact a real estate attorney today to discuss how they can protect your interests from the outset.


Monday, September 12, 2016

The Ten Biggest Mistakes Made by Business Owners


10 Biggest Mistakes Made by Business Owners

The Small Business Administration estimates at least half of all new businesses fail within the first five years, and only about one third of new businesses last ten years.  The major factors which play in to the high failure rate of small businesses include a variety of economic and operational risks which are faced to one degree or another by every business.  In cases where those inherent risks of operating a small business are compounded with legal mistakes, the chances of business failure rises significantly.  Below is a list of ten of the most common mistakes our firm sees when we consult with new businesses.


1. Doing business without a corporate entity.
In more instances than you would believe, small business owners start conducting business without first forming a business entity.  Each case is different, some are afraid of the expense.  Some think they can sidestep the tedious corporate formalities.  Some don’t realize the purpose of creating a business entity and some people feel like corporate structure is only for “big” business.  Like it or not, the reality is that EVERY business doing business in Florida (ie. domestic and foreign) needs to register a corporate entity with the Florida Division of Corporations, if for no other reason, than to protect your personal assets from your business liabilities. 

2. Lack of a business plan.
Every business should have a business plan. Unfortunately, the vast majority of business plans are hardly worth the paper they're printed on.  It is not uncommon to see plans that are sloppy, poorly written or incomplete.  A good business plan presents an overview of the business in both the short and long term.  It should explain how you will get from point A to point B.  The plan should be a "roadmap" for your business. It should contain attainable milestones and targets and layout the steps you need to reach those goals. 

3. Outside investors.
Many small business owners bring in outside investors when they are desperate for cash. Shortly thereafter, the investor gets impatient and begins clamoring for a return on his investment.  This almost invariably leads into a dispute between the owner and investor as to how to operate the business, which ultimately ends up in a lawsuit.  To a prudent business owner, the identity and character of the investor is as important as how much money they are willing to invest. The bottom line -- choose investors very, very carefully.

4. Failure to do a shareholder or buy/sell agreement.
Every small business with more than one owner needs a shareholder or buy/sell  agreement.  This type of document specifically lays out how the business will operate,  how the owners will govern the business, management, voting rights, profit-sharing, new owners or investors, succession plans and perhaps most importantly, how dispute between owners will be resolved.  It is more likely than not the ownership group of the business will expand or change and, much like a will that provides for an orderly disposition of assets upon death, having a well-considered agreement among the owners can head off or limit disputes down the road and promote harmony among the owners.

5. Treating Independent Contractors as Employees
Many startup businesses make use of independent contractors, and with good reason.  They provide the ability to get tasks completed and don’t tie you to the requirements that come with having employees.  Use caution in how you deal with independent contractors. The IRS provides detailed information and a multiple point test to determine whether the independent contractor you’ve hired is actually a W-2 employee in disguise. It is important to review that test and understand the legal risk and consequences of not complying with the rules related to independent contractors.

6.  Using Online Contracts
Many business owners seek to skimp on legal services using contract templates they find online.  For small things like maybe advancing an employee an extra week salary, online contracts can be fine.  However, for anything which could have more drastic consequences down the line, contract templates are not a good idea at all.  Worse yet are those business owners who believe they are sophisticated enough to cut and paste clauses from several different online contracts.  In most instances, enforcing these types of contracts is a very difficult and expensive prospect.  Online contracts are generic contracts.  They do not take in to account the unique circumstances which exist in almost every contractual relationship, and such contracts almost always filled with legal loopholes.  The sad part is those legal loopholes can be closed by an experienced attorney for a couple hundred dollars.  Instead, the business owner winds up spending thousands of dollar litigating the meaning of ambiguous terms.   In short, the internet can make you feel like you are an expert, but you aren’t.  Find a local experienced attorney or eventually you will be reminded of the old adage, “you get what you pay for”.
  
7. Signing personal guarantees.
In almost any new business, access to credit is conditioned upon a business owners personal guarantee for the loan.  The reason for this is simple, new businesses do not have the resources to repay a loan.  Unfortunately, many business owners do comprehend the potential negative impact of guaranteeing their company’s debts, or personally guaranteeing other contractual obligations.  If you are one of the 50% of all small businesses that fail within the first five years, you are on the hook for all the debt the company incurred.  The potential hardships are obvious, and drive many people to bankruptcy.

8. Failure to avoid costly litigation.
As a business litigator, take it from me, litigation is expensive and causes a significant drain on the time and efforts of the business owner and any involved employees.  I always council my clients that business litigation should only be considered as a last resort.  Before getting involved in litigation, any small business should try to temper the emotions that are caused by a dispute and consider the costs and benefits of the litigation, just like they would any other business decision, and determine any collateral effects of the litigation as well.

9. Talking trash about their competition.
The temptation for small businesses to talk trash about their competitors publically or anonymously on the web is growing. Be careful not to libel them. What to do: Seek the advice of an attorney for what is libel and what is freedom of speech.

10. Failure to consult a lawyer.
A bit of self-serving advice, to be sure, but sensible nonetheless. Many business owners in general resist working with attorneys mainly due to the expense — they download contracts or  incorporation documents, which is fine until there is a problem.  One a problem erupts you can generally count on spending thousands of dollars to correct the problem which could have been averted by spending a few hundred dollars working with an attorney who has practical experience.




Keep in mind this list is by no means an all-inclusive list of all the possible legal mistakes business owners can make; just some of the most common. If you are a business owner or have the dream of opening your own business and would like some sound legal counsel from an experienced team of attorneys, the lawyers at Guy Yudin & Foster, LLP. are here to help! Feel free to contact our business lawyers here, or give us a call at (772) 286-7372.

Wednesday, August 17, 2016

Property Tax Time Again!



Property Tax Time Again!

Its property tax time again! 

TRIM Notices

If they haven’t done so already, all property appraiser offices around the State of Florida will be sending out their Truth in Millage (TRIM) Notices in the next few days.  TRIM Notices of course are the process by which each county property appraiser’s office informs taxpayers about their proposed ad valorem (property) taxes.  TRIM Notices are otherwise known to most of us as our “Notice of Proposed Property Taxes”


Many property owners simply ignore their TRIM Notice.  If you are one of the many and ignore your taxes until November you will lose your right to file an appeal of the valuation of your property. Therefore it is very important for all of use to review our TRIM Notices just to be sure nothing out of the ordinary.  In the event you do feel like the listed market value of your property is out of line, you must act before the deadline which should be noted at the bottom of your TRIM Notice. 

Be forewarned.  For the normal everyday homeowner, it is not usually cost effective or practical to contact an attorney to contest your proposed property taxes.  Thus, in more cases than not, a homeowner will be left to argue with the property appraiser’s office by himself.  Conversely, with many commercial and industrial properties the dollar amounts are far greater and it makes a lot of sense to contact an attorney with experience in dealing with the property appraiser’s office.

Informal Meeting

The first step in contesting your valuation normally consists of scheduling an informal meeting with the property appraiser.  However, given the fact there is precious little time between issuance of TRIM Notices and the deadline to file an appeal, you must act fast in order to schedule a meeting before the appeal deadline.  When you call to schedule a meeting, you should always request a copy of any and all documents which the property appraiser has prepared, or has relied on in setting your valuation.  Obtain this material as soon as possible, as this will give you guidance as to where you can focus your request for a reduction. 

The next step is to either hire someone or do your own research in order to document a lower valuation. Surprisingly enough, if you have done your homework and can provide the property appraiser with appropriate documentation to substantiate an incorrect valuation, it is not unheard of to reach an agreement reducing your valuation.  The key to a productive meeting with the property appraiser is providing documentation to support a reduction in your valuation.  Without adequate documentation you stand little or no chance of success.  

In the event you are unable to schedule an informal meeting prior to the deadline cited on your TRIM Notice, it is absolutely imperative you file an appeal before your informal meeting.  This create a placeholder for your claim and preserves your rights in the event you cannot reach an agreement at your informal meeting.  You can always withdraw your petition after your informal meeting if need be.

VAB Appeal

If you were not able to reach an agreement with the property appraiser, your next step is to pursue your petition with the value adjustment board (VAB).  This is of course, assuming you have already done your homework and can document an incorrect valuation of your property. If you can’t provide documentary proof the property appraiser is wrong, you are simply wasting your time.  Petition forms are usually available from the Clerk of the Court website or the property appraiser office.  Again, deadlines for filing petitions are usually set forth on the TRIM Notices with the deadline being the 25th day after the property appraiser mails the TRIM Notice.  You are permitted to be represented by an attorney at your VAB hearing, but it is not required.

Parenthetically, there is always the option of filing a lawsuit in circuit court, however, that option really only makes financial sense for very few property owners.  In the vast majority of instances, going to the VAB is the only practical option. 

The VAB is a five member quasi judicial board with two county commissioners, a school board member and two appointed citizens.  In most counties, your hearing will be scheduled in front of a Special Magistrate rather than the VAB itself.  Special Magistrates are hired by the VAB to conduct the hearing and provide recommended orders to the VAB. 

Prior to the VAB hearing, there is a mandatory exchange of evidence so again, you must have spent the time doing your homework and have the ability to document a reduced valuation.

On the day of the hearing, the Special Magistrate will probably begin by going over the rules.  Petitioner then goes first presenting his case, followed by the Property Appraiser, and Petitioner then gets a final chance to reply.  Plan on having all witnesses attend and testify at the hearing as frequently you find affidavits, letters and other extraneous documents will not be admitted in to evidence without being authenticated by live testimony.

At the conclusion of the hearing, the Special Magistrate will normally not render his decision verbally, but will issue a written recommended order to the VAB shortly thereafter.  You will be copied on everything that issued by the Special Magistrate or the VAB.  In the vast, vast majority of cases, the VAB will simply rubber stamp the Special Magistrates recommended order.  After all, that is what the VAB is paying him to do.  If you do not prevail in the VAB appeal, you always have the right to appeal that decision to the circuit court.  But again, going to the circuit court in pursuit of a VAB appeal really only makes sense in a very few limited circumstances, as there is no means to recover attorneys fees incurred to contesting your property valuation.

 Conclusion
If it isn’t apparent above, the key to succeeding in contesting your TRIM Notice (whether it be at an informal meeting, a VAB appeal or in circuit court) is to be able to adequately document an incorrect valuation.  Without the appropriate documentation to support your claims you might as well forget about contesting you tax assessment.  With the right documentation however, it might just be worth your time.





Friday, July 15, 2016

Florida Worker’s Comp Costs Going through the Roof Next Month!

                                 Florida Worker’s Comp. Costs                             Going through the Roof Next Month!


     In April of 2016, the Florida Supreme Court issued two opinions which will, by themselves, cause the cost of worker’s compensation insurance to go through the roof starting this fall.   In Castellanos v. Next Door Company the Supreme Court ruled that a law passed in 2009 creating a mandatory attorneys fee schedule for workers compensation cases was unconstitutional under both the Florida and United States Constitution. 

     Prior to the Castellanos decision, attorneys’ fees had to be commensurate with the damages received by the plaintiff in a workers’ compensation case. In this case, Mr. Castellanos was seeking benefits in the amount of $822.70.  His attorney billed 107 hours and sought a fee of $36,817.50.  However under the 2009 fee system, Castellanos’ attorney was awarded attorney's fees of only $164.54.

     Writing for the majority, Justice Barbara Pariente said the law creating the fee schedule violated Castellanos' due process rights under the state and U.S. Constitution because it prevents challenges to the “reasonableness” of legal fees in workers-compensation cases.   “Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or to raise multiple defenses, as was done here,” Pariente wrote.“Virtually since its inception, the right of a claimant to obtain a reasonable prevailing party attorney’s fee has been central to the workers’ compensation law.”  By replacing the former “reasonable” standard with a sliding scale of legal fees, Pariente said, “the Legislature has thus eliminated any consideration of reasonableness.”
     In the second ruling, Westphal v. City of St. Petersburg  the Florida Supreme Court struck down the two year cap on workers’ compensation temporary benefits, re-establishing the cap at five years.
     Mr. Westphal was a firefighter who was seriously injured on the job, needing multiple spine surgeries. Under Florida’s workers’ compensation system, Mr. Westphal was barred from bringing a legal action for his injuries against his employer, and instead was required by statute, to apply for workers’ compensation benefits. Under the workers compensation system, Mr. Westphal was required to agree to his employer’s choice of physicians and to abide by those physicians’ advice.  After 104 weeks (2 years) of treatment by the employers physicians, Mr. Westphal’s temporary disability benefits ran out.  Despite the fact Westphal was still unable to work the employers physicians opined Westphal’s condition was still improving, and as such, he did not qualify for permanent disability benefits.   Thus, Mr. Westphal was completely cut off from the ability to receive any workers comp benefits until such time as he qualified for permanent disability.
     Based on the fact Westphal fell through the statutory cracks and was ineligible for continuing benefits, the Supreme Court held the eligibility time limit in the workers' comp law unconstitutional “as a denial of the right of access to courts.”   Then, rather than invalidating the entire statute, the Court employed the judicially created remedy of “statutory revival” replacing the 104 week temporary benefit cap with a 260 week benefit cap which existed in a prior version of the statute.  The Court further stated 260 weeks of temporary benefits “passes constitutional muster”.
     As a direct result of these two rulings, insurance industry analysts are predicting a 20% increase in workers’ compensation insurance premiums beginning this fall.  The increase being mainly to cover increased attorney’s fee awards resulting from the Castellanos decision, and to cover three additional years of benefits now allowed by the Westphal decision.

     With an increase of 20% in worker’s comp insurance, it goes without saying Florida consumers and homeowners alike can expect to pay a lot more for goods and services starting this fall as many companies, predominantly in the construction sector, go out of business.  

     For instance, companies such as roofers will see their premiums escalate so much that homeowners simply won’t be able to afford to have the work done and work will dry up.  With homeowners being unwilling to afford to pay licensed and insured roofers, you can then expect unlicensed and uninsured roofers to come in and fill the void at substantially lower prices.  Why is this a problem for homeowners?  Well, aside from the fact the quality of work will suffer with unlicensed and uninsured companies, if a homeowner hires an unlicensed and uninsured contractor there could be serious financial repercussions if a worker is hurt on their property.

         These two opinions also expose the inherent problems with the current workers compensation system.  For instance, the Supreme Court correctly recognized in Castellanos the current system encourages abuse by insurers since, without the fear of large attorney’s fee awards, there is no incentive for insurers to do the right thing on an $822 claim and just pay it.  However, on the flip side, I can think of no other court or administrative proceeding where anything approaching $36,000 would ever be found to be a reasonable amount of attorney’s fees on an $822 damage claim.  Thus, this ruling will only serve to encourage unscrupulous billing practices and file churning by plaintiff's attorneys.

         The same sort of conundrum is also apparent in Westphal.  Clearly, if a man is legitimately unable to work due to a work injury, but has yet to qualify for permanent disability his benefits should not be terminated.  However there is also no doubt that raising the time cap from 2 to 5 years will be another avenue of abuse of the system by workers, as there will be no incentive for them to settle their claims and return to work.

That all being said, perhaps the most disturbing part of both of these opinions to me are the legal red flags which are exposed.  In each of these decisions, the Supreme Court has yet again taken a judicial activist role, ignoring the separation of powers which is key to the workings of our government. 

Under the separation of powers, the legislature is empowered to make policy determinations and enact the laws of the state.  The judiciary is empowered to interpret the constitution and laws of the state, not pass judgment upon the wisdom of legislature's policy decisions.

In both Castellanos and Westphal, the Supreme Court has strayed from simply interpreting the law but rather, has taken it upon itself to encroach in to the legislature’s realm of deciding what constitutes good policy for the state.  In fact, in Castellanos and Westphal Justices Canady and Polston politely take their colleagues to task for ignoring separation of powers and invading the legislature’s authority to make policy determinations. 

In the Castellanos dissent, Justice Canady recognized that it was a policy determination, and the Legislature was fully within its authority to establish a relationship between the amount of benefits obtained in workers’ compensation cases and the amount of attorney’s fees awarded.  He went on to chastise the majority for declaring the law unconstitutional simply because they disagreed with the wisdom of the Legislature's policy determination.

Canady and Polston also penned a similarly themed dissent in Westphal because essentially the majority of Justices arbitrarily decided 260 weeks of benefits was constitutional, yet the 104 weeks of benefits authorized by the Legislature was not.

 We know almost for certain that since this an election year, there will be no special session called to deal with the workers comp insurance.  Thus, it seems likely the Legislature will deal with amending the workers comp statute as soon as the 2017 legislative session begins.

We can only hope this time, when the Legislature comes up with its fix, the Supreme Court will respect the principle of separation of powers regardless of whether they concur with the wisdom of the Legislature or not.  





Tuesday, July 5, 2016

"AN OUT AND OUT PLAN OF EXTORTION"

"AN OUT AND OUT PLAN OF EXTORTION" 


As we roll in to July, it has not been widely publicized but a new set of amendments to the Martin County Comprehensive Plan are set to go in to effect later this month.  These amendments are numerous, and will eventually prove shocking and troublesome to many residents of Martin County.  
For those having the patience to sit, read through and understand all these amendments it becomes clear these latest changes are not part of a coherent “plan” for Martin County.  A “plan” would clearly lay out the big picture with regard to how residents want Martin County to evolve.  The bulk of these amendments do not address big picture items.  Rather, they are specific new local governmental regulations which are being improperly injected in to a “planning” document..  What is the difference you ask?  It’s simple, local ordinances and/or regulations are the method by which the “plan” is implemented.  Logically this makes sense since we want the process of changing the “plan” to take longer so we don’t change the  “plan” on a regular basis.  To the contrary, we DO want the ability to change regulations and ordinances in a timely manner because we may, from time to time, stumble upon better or more appropriate ways to implement our “plan”.
That having been said, there is only one motivation for placing specific  regulations in the “plan” where they don’t belong.  That motivation is………….wait for it………………to make it as difficult as possible to undo the continuing and unabashed assault upon the private property rights of the citizens of Martin County. 
For instance, one of the more objectionable provisions in the amendments is laid out in Policy 8.1C.1(1), providing for the creation of a new seventy five foot (75’) shoreline protection zone (SPZ).   This new 75 foot SPZ is, or will now be, required for “all new development”.  Thus, as of the effective date in July, “no construction” will be permitted in Martin County within 75 feet of the waterline on any waterfront property within the County.   In other words, in Martin County no waterfront real estate owner will be permitted to make any use of a 75 foot wide strip of land which abuts the water.  There is no scientific justification cited in the "plan" for this regulation, rather, the 75 foot SPZ is premised upon a generalization and presumption "that of course a 75 foot buffer will help water quality". 
This type of regulation, which denies a limited group of property owners the right to use their property is not new by any means in Martin County.  It is simply a perpetuation of the problematic mindset which all to often goes unchallenged because citizens believe a burdensome regulation will only affect someone else.  After all, why would any voter object when there is a governmentally identified "public purpose" that is being advanced solely by burdening a small minority of property owners?     
            Looking at it  purely from a fairness perspective I think we would all agree if there is some truly legitimate “public purpose” to the community, the cost or burden of achieving that"public purpose' should be borne by the entire community, not just by a small minority of property owners. So for instance, (leaving aside the issue of 75 foot SPZ being improperly injected in a planning document) if there truly is a “public purpose” to the community to be achieved in enacting a 75 foot SPZ, then Martin County should pay all waterfront property owners for taking their 75 foot strip of land.  To be fair, Martin County should then turn around  and assess all County residents their fair share of the cost of buying the land needed to achieve this "public purpose".  
This type of governmental regulation which takes property without providing just compensation violates the United States Constitution’s Fifth Amendment’s Takings Clause which states: “nor shall private property be taken for public use without just compensation.”
Uncompensated regulatory takings of private property have become an immense problem not just in Martin County but all across the nation.  This, notwithstanding the fact the US Supreme Court has recognized it is inappropriate for governmental regulation to act as a substitute for the power of eminent domain, calling it an“out and out plan of extortion” 
With any luck however, the tide many be turning on uncompensated regulatory takings.  There is currently pending before the US Supreme Court the case of Common Sense Alliance v. San Juan County which is a case from San Juan County in Washington State.  The most interesting factor in Common Sense Alliance  is that the unlawful regulation which precipitated this case is eerily similar to the 75 foot SPZ in Martin County.    
As is the case in Martin County, San Juan County’s “growth management approach" to regulating land-uses adjacent to environmentally sensitive lands relies almost exclusively on presumptions and generalizations. 
In 2012, San Juan County enacted a regulation stating that as condition of obtaining local government approval, a waterfront property owner must dedicate a portion of their property as an on-site conservation area.  So, just as with Martin County’s 75 foot SPZ, San Juan County shoreline property owners are required to set aside “water quality buffers” as a condition of development.   Again similar to the 75 foot SPZ in Martin County, San Juan’s “water quality buffers” are not based on any harm the proposed land use itself might cause, but based on the county’s general efforts to reduce pollutants and improve water quality.   
            The San Juan regulation was challenged as a taking without just compensation by a local property owners’ association called the Common Sense Alliance. Unfortunately, at each level the Washington state courts ignored the Fifth Amendment and sided with San Juan County finding the ordinance was permissible because it was a generally applicable ordinance instead of a case specific  regulation.  Because the Washington State courts ignored well established federal precedent with regard to the federal Takings Clause, the case has been appealed to the United States Supreme Court.
The Washington State courts logic flies in the face of several U.S Supreme Court decisions, such as Nollan v. California Coastal Commission and Dolan v. City of Tigard, which  hold the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause.  Put another way, permit conditions are legal only when they mitigate identifiable development impacts caused by that permit applicant. Permit conditions cannot be imposed to cure problems not created by the permit applicant, or be disproportionate to the impact.
In 2013, following along the rationale of Nollan and Dolan, the Supreme Court said in Koontz v. St. Johns River Water Management District that government is forbidden from pressuring citizens into forfeiting their constitutional rights by coercively withholding benefits (i.e., giving up property to obtain a permit).
            With any luck the Supreme Court will grant review to Common Sense Alliance v. San Juan County, and there is hope the case could be heard by the Court before the end of 2016, so perhaps by 2017 private property rights in Martin County and across the country can begin to be restored as the Constitution intended..   

Tuesday, June 21, 2016

LICENSED CAPTAIN OR NOT?

LICENSED CAPTAIN OR NOT?

I recently received a call from a long time marine business client looking for some help resolving a problem that had arisen regarding the need for a licensed captain.
For the past several years, this particular client has operated a camp for kids with cancer at his waterfront property.  The camp is free for all children who are referred through a particular well known local non profit.   The entire cost of the camp is underwritten by this particular client so campers pay nothing. 
Not surprisingly, one of the favorite activities for the kids is going on their daily boat trip.  Trips vary each day taking campers fishing, water skiing, eco tours, trips to a waterfront restaurant for lunch, etc.  These boat trips have always been conducted by volunteer (but very experienced) boat operators. 
Based upon the outstanding feedback received from camp attendees and their parents, my client decided this year he would offer a similar summer camp for local kids.  This summer camp however, includes a minimal fee to cover expenses for the week.  My client arranged to use the exact same experienced volunteer boat operators whom he used for his free camp, but was told by his insurer they would not issue an insurance policy unless licensed captains were operating the boats taking campers out on their daily boat trips.
His question of course, was why do I need a licensed captain for my summer camp when I never needed one before.
I must admit I have never encountered an insurance company refusing to issue an insurance policy for not using licensed captains, but as a business lawyer in an admiralty and maritime firm, every year I do get the same basic question from at least a couple of my clients, that being: am I required to have a licensed captain operating my boat?
The Coast Guard provides a very good and detailed explanation of when a licensed captain is required.   
Under Coast Guard rules, a licensed captain is required for all charter operations.  Charter boats are referred to as uninspected passenger vessels (UPV).   Coast Guard regulations make it illegal for a UPV to engage in “passenger for hire” operations without a Coast Guard licensed captain.  
A passenger for hire is a “passenger for whom a consideration is contributed as a condition of carriage whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person interested in the vessel is a passenger for hire.”  Basically, anyone who is required to contribute something to get on the boat.
Thus, in my client's case I had to break him the bad news.  Coast Guard regulations demanded he get licensed captains to operate the boats for summer camp because attendees were required to pay a fee to attend camp.  Conversely, since attendees at his kids with cancer camp were not required to pay anything to attend, this would be classified as a recreational excursion and volunteer boat operators were acceptable (I’ll leave for another day a discussion of the propriety of volunteer boat operators from a boating accident and boating injury perspective).
Aside from the importance of the question for my client, locals up and down the east coast need to understand this is an important issue for every weekend warrior. 
It's no secret the Coast Guard has been cracking down up and down the east coast on what they perceive to be unlawful charter boats.  It is not uncommon for a small center console type boat with several individuals aboard heading in from a day of fishing to be stopped by the Coast Guard.  Questions usually begin with an eye towards a safety check, but then quickly transition in to questioning the vessel operator and passengers separately regarding how the voyage was financed.  
In fact, there appear to be instances where the Coast Guard has determined an illegal charter to exist where a boat owner basically said to one of his buddies Hey Joe, if you pay for half the fuel, food and drinks we can go out trolling for dolphin.  The logic presumably being that Joes buddy felt he was required  to pay for half the fuel, food or drinks to go fishing.  Illegal charters can subject a vessel operator to criminal and civil liability of up to $40,000.00 per violation. 
Given the high degree of confusion surrounding the issue, the Coast Guard has published guidance specifically stating it is not an illegal charter when passengers freely and voluntarily contribute to the voyage.  Thus, for anyone who fishes recreationally, the lesson to be learned is if your fishing buddies don't feel they are freely and voluntarily sharing the expenses of the fishing trip, an otherwise fun day of fishing could end up as a very costly nightmare.