Issuu

A Publication of the Orange County

Inside this Issue: President’s Message Honoring Our Veterans Wiley S. Boston, Esq.

November 2016 Vol. 84 No. 9

Chief ’s Column “Open Ninth” Embracing Social Media in the Ninth Judicial Circuit The Hon. Frederick J. Lauten

Bar Association

Construction Law Committee Why Design Professionals and Construction Contractors Should Be Aware of Florida’s 2016 Revised Public Records Act Rouselle “Bo” Sutton, III, Esq.; Natalie Bunnell Labor & Employment Law Committee The Florida Whistleblower Act: Adding Uncertainty to an Uncertain Claim Luis Roberto Amadeo, Esq.

March 2016 Vol. 84 No. 3

3 Business Jury Trials So Far in 2016

3 Verdicts Awarding 100% Damages

The Contingency-Fee Business Litigation Attorneys January 29, 2016

May 13, 2016

March 22, 2016

Max King Realty, LLC v. Ramar LLC, et al.

Safe American Security, Inc., et al. v. Security Systems, Inc., et al.

Florida Outdoor Properties, Inc. v. American Citrus Products Corp., et al.

Description:

Damage to Real Property

Breach of Contracts

Real Estate Commission

Damages Requested:

Jury Verdict:

$423,000

$782,560

$423,000

$784,898

$427,800

Refer Your Clientâ€™s Business Dispute to a Firm that Tries Cases and Wins!

BUSINESS TR IAL GROUP Contingency-Fee Litigation

407.245.3505

w w w.ForThePeople.com/BTG

PRSRT STD U.S. POSTAGE PAID MID-FL FL PERMIT NO. 581

880 North Orange Avenue Orlando, Florida 32801

DELAYED DIAGNOSIS: EVERY DAY COUNTS…

OVER 20,000 PEOPLE DIE OF CANCER EVERY DAY. Early detection is the single most critical factor to successfully beating many cancers. If early indicators and symptoms are ignored or misdiagnosed that can be the difference between life or a death sentence. Our law firm serves as a trusted guide for law firms who need help with their medical malpractice clients. TO LEARN MORE ABOUT HOW WE CAN HELP, CALL TODAY

407.540.0122

M E D I C A L

M A L P R A C T I C E

A T T O R N E Y S

3117 EDGEWATER DRIVE | ORLANDO, FLORIDA 32804

PaulAndPerkins.com

Craftsmanship.

Just as a watchmaker carefully assembles and adjusts the movement of a fine timepiece, our highly qualified mediators and staff attend to the details and timing of your individual resolution. When you put your dispute in our hands, you can rest assured the gears will continue to turn toward settlement.

For more information about Upchurch Watson White & Max, visit UWW-ADR.com or call (800) 863-1462.

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 1

the Briefs

Contents 3

President’s Message Honoring Our Veterans Wiley S. Boston, Esq.

Legal Aid Society GAL Teaching Tips More than Hope: Missing Dependent Children Can Be Found Elizabeth J. Johnson, Esq.

Hearsay Columnist Vanessa A. Braga, Esq.

18-19

Chief’s Column “Open Ninth” Embracing Social Media in the Ninth Judicial Circuit The Hon. Frederick J. Lauten

Side Bar Columnist Kimberly A. Lopez, Esq.

OCBA September 2016 Luncheon

20-21

YLS on the Move Jennifer A. Smith, Esq.

25th Annual YLS Charity Golf Tournament

Professionalism Committee Our Professionalism Makes a Difference Ashley Wells Greene, Esq.

Associate Editor C. Andrew Roy, Esq.

25 .

Board of Governors Report Report from The Florida Bar Board of Governors Mary Ann Morgan, Esq. Paul L. SanGiovanni, Esq. Wayne L. Helsby, Esq.

Clerk’s Corner Clerk’s Office Working to Make a Difference Tiffany Moore Russell, Esq.

Construction Law Committee Why Design Professionals and Construction Contractors Should Be Aware of Florida’s 2016 Revised Public Records Act Rouselle “Bo” Sutton, III, Esq. Natalie Bunnell

Labor & Employment Law Committee The Florida Whistleblower Act: Adding Uncertainty to an Uncertain Claim Luis Roberto Amadeo, Esq.

YLS on the Move Jennifer A. Smith, Esq.

Paralegal Post Meet Our Members... Meredith Gibson Zornek, FRP

29 Side Bar

Kimberly A. Lopez, Esq.

30 Hearsay Vanessa A. Braga, Esq.

Announcements

New Members

Classifieds

40 Calendar

Communications Assistant Darshini Ramkarran

Legal Aid Society What We Do... Legal Aid Presents 2016 Guardian ad Litem Awards Catherine A. Tucker, Esq.

Marketing & Sponsorship Manager Amanda Nethero

Residential Mortgage Foreclosure Program 407-649-1833 880 North Orange Avenue • Orlando, FL 32801 (407) 422-4551 • Fax (407) 843-3470 Legal Aid Society 407-841-8310 Citizen Dispute 407-423-5732 Family Law Mediation 407-422-4551 Lawyer Referral Service 407-422-4537 Orange County Foreclosure Mediation 407-422-4551 Young Lawyers Section 407-422-4551

DEADLINE INFORMATION

Advertising – 10th of the month prior to the month of publication Copy – 15th of the month six weeks prior to the month of publication If the deadline falls on a weekend or holiday, the deadline is the next business day. Publication of advertising herein does not imply any endorsement of any product, service or opinion advertised. The opinions and conclusions, including legal opinions and conclusions contained in articles appearing in The Briefs, are those of the authors and do not reflect any official endorsement of these views by the Orange County Bar Association or its officers and directors, unless specifically stated as such. All contents ©2016 Orange County Bar Association. All rights reserved. Designer: Catherine E. Hébert Cover photo: Adobe Stock ISSN 1947-3968

w EXECUTIVE COUNCIL Jared A. Brooks, Esq. Philip K. Calandrino, Esq. William A. Davis, Jr., Esq. Eduardo J. Fernandez, Esq. LaShawnda K. Jackson, Esq. Kristopher J. Kest, Esq. Eric C. Reed, Esq. Gary S. Salzman, Esq. Anthony F. Sos, Esq. William D. Umansky, Esq. Ryan Williams, Esq. Jamie Billotte Moses, Esq., Ex Officio Brett R. Renton, Esq., YLS President w EXECUTIVE DIRECTOR Kimberly Homer, Esq. w Communications Manager Peggy Storch

PAGE 2

w OFFICERS Wiley S. Boston, Esq., President Elizabeth F. McCausland, Esq., President-elect Richard S. Dellinger, Esq., Treasurer Mary Ann Etzler, Esq., Secretary

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

President’sMessage

November 2016 V Wiley S. Boston, Esq.

Honoring Our Veterans

eterans Day is on Friday, November 11. There are many veterans in the Orange County Bar Association, including many of our most distinguished members, and the Legal Aid Society of the Orange County Bar Association, Inc. makes it a priority to assist veterans. The Veterans Advocacy, Legal Outreach and Representation Project – or VALOR – is a pro bono project administered by the Legal Aid Society, which originally arose from the Veterans Committee of the Orange County Bar Association. The VALOR Project is currently coordinated by Jay Mobley, Esq., on the Legal Aid staff. Jay is an Air Force and Gulf War veteran. He was involved in the formation of the local Veterans Court described briefly below, and served on the Homelessness & the Courts Committee. He is also the chair of the legal committee of Mission United, which can be accessed by dialing 2-1-1 and is a central coordinating contact for veterans to access community support with legal needs, social services, employment, housing, education, or other needs. Jay has been with Legal Aid for four years, mainly doing consumer work, such as debt collections and garnishments. He runs the homeless advocacy project. He coordinates a panel of more than fifteen volunteer attorneys who visit homeless populations in various locations, including the Salvation Army, Coalition for the Homeless, Orlando Union Rescue Mission, Daily Bread Downtown, and Daily Bread West in Ocoee, and performs intake reviews. Jay mentions there are a lot of homeless veterans, and the intake services provided for veterans, therefore, overlap very closely with the general services provided by Legal Aid for the homeless. The mission of the VALOR Project is to provide free civil legal assistance to low-income veterans, their family members, and caregivers in Central Florida. Assistance is provided primarily in the areas of family, juvenile, housing, consumer, welfare/income maintenance, VA benefits, sealing and expungement of criminal records, and immigration law. Legal Aid also assists with the preparation of simple wills, advance directives, and power of attorney. The Legal Aid Society and the VA Medical Center in Orlando have a medical-legal partnership which allows the VALOR Project to hold three legal clinics per month at the VA medical centers at Baldwin Park and Lake Nona. The walkin clinics provide veterans, family members, or

theBriefs November 2016 Vol. 84 No. 9

caregivers the opportunity to meet face to face with a VALOR Project pro bono attorney and discuss their legal needs. Many times the initial consultation is all that is needed. However, if additional assistance up to and including full representation is needed, the project will often assign either a staff attorney or pro bono attorney to the case. Referrals to non-legal community resources can also be made. Jay Mobley describes the intake function of the VALOR Project as comparable to performing triage, with approximately one-third of the veterans requiring a non-lawyer referral, such as referral to the clerk’s office or another agency. Onethird of the veterans have a legal issue, but it may be a fee-generating type of case, so those are classified for referral to counsel on a contingency basis. The remaining third of cases are matters that are taken on by Legal Aid or are referred by Legal Aid Referral to pro bono counsel. For pro bono referrals, applicants are screened for income and assets, and for the type of case. If the area of need is a type of case that is not served, or the prospective client has income that exceeds Legal Aid’s limits, direct assistance cannot be provided, although efforts are made to send the applicant to someone else who might be able to help. Legal Aid is able to serve veterans with income levels that are slightly higher than normal cutoff levels. One hundred twenty-five percent of federal poverty level is the normal Legal Aid income guideline, but for a veteran the cut-off is two hundred seventy-five percent – in either case – counting and including a veteran’s pension or social security. The top three areas in which assistance is sought by veterans are divorce, child custody, and landlord/tenant. Veteran applicants also occasionally seek assistance with regard to VA benefits. The VALOR Project is currently funded for another year, though in the longer term a robust funding source must be identified for the project to continue. Grants are actively being sought. The VALOR Project is one way the Legal Aid Society attempts to repay veterans for their service to our country. In addition, the Ninth Judicial Circuit operates a Veterans Court in Orange County. Some of the cases involving veterans may involve a common theme of post-traumatic stress or difficulty re-integrating into society, potentially

www.orangecountybar.org

continued page 35

PAGE 3

REPRESENTATION OF HEALTH PROFESSIONALS

WEBSITE

Available to accept referrals, consult or co-counsel on cases involving physicians, nurses, health professionals or health facilities. Referral fees paid in appropriate cases.

George F. Indest III, J.D., M.P.A., LL.M. • Board Certified by The Florida Bar in Health Law • More than 30 years of legal experience • LL.M. from George Washington University • Admitted in Florida, Louisiana and D.C.

Michelle L. Bedoya, J.D. • B.A., Florida International University • J.D., Barry University School of Law • Licensed in Florida

• Medical Board Cases

• Administrative Hearings

• Opinion Letters

• Contracts & Contract Litigation

• Disciplinary Hearings

• Medical Resident Rep. • DEA Defense

• Medicare/Medicaid Audit Defense • Professional Licensing • Medical Malpractice Defense

• Baker Act Defense

• DOH Investigations

• Peer Review Defense

• HIPAA Defense

• Commercial Litigation • Nursing Board Cases • ALF Defense

• Home Health Defense

Main Office • 1101 DOuglas avenue • altaMOnte springs, fl 32714 telephOne: (407) 331-6620 • (850) 439-1001 • telefax: (407) 331-3030 By appOintMent • 37 n. Orange ave., ste. 500 • OrlanDO, fl 32801 By appOintMent • 201 e. gOvernMent street • pensacOla, fl 32502 By appOintMent • 155 e. BOarDwalk Drive, ste. 424 • fOrt cOllins, cO 80525 www.thehealthlawfirM.cOM PAGE 4 www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

Chief’sColumn “Open Ninth” Embracing Social Media in the Ninth Judicial Circuit

lorida courts have struggled with how best to use social media. Can judges “friend” lawyers? Should smart devices be allowed in a courtroom where they can secretly record testimony? Can a pro se litigant admit photographs or texts from a smartphone without moving the phone into evidence? The Honorable Frederick J. Lauten The court wrestles with these and other issues perChief Judge taining to social media, and it should. At the same Ninth Judicial Circuit Court time, social media can also play an important and powerful role in educating the community about the function of the court and the people who play a role in it. My colleagues in the Ninth Judicial Circuit, within the bounds of ethics, have embraced social media. Like most courts, we have a web page. Unlike many courts, however, we also have a Facebook and a Twitter account. We post information on both social media platforms, including both formal instructions and personal interest stories. And, starting a few weeks ago, the Ninth Judicial Circuit became the first state court in Florida and the nation to podcast special interest stories about our court system. “Open Ninth,” the court’s podcast, features stories that help humanize the judiciary by providing the public with a behindthe-scenes look at our judges and justice system partners. Our first podcast was an interview with Florida’s Chief Justice Jorge Labarga about his journey from a communist country, Cuba, to the highest position in the Florida State Courts System. Justice Labarga describes the challenges he and his family faced as they fled their homeland and arrived in America to start a new life. He shares his journey from elementary school to becoming Florida’s first Cuban-American chief judge. Podcast interviews have also been done with: Circuit Judge Mark Blechman about climbing Mount Kilimanjaro; Circuit Judge Bob LeBlanc on his morning radio show;

theBriefs November 2016 Vol. 84 No. 9

AVVO CEO Mark Britton about technology and its impact on the practice of law and the court system; Orlando Sentinel reporter Elyssa Cherney about the challenge of covering the court system in today’s environment; and Orange County Judge Faye Allen’s unexpected life as a Trekkie. We have received positive feedback from across the state and nation about our podcasts and are continuing to plan other educational podcasts for the future. Recently, the Florida Supreme Court released its Long Range Strategic Plan for the Florida Judicial Branch for 2016 through 2021. An integral part of the plan includes improving understanding of the judicial process by communicating with citizens and justice system partners about the role of the court. The Long Range Strategic Plan is available at www.flcourts.org/administrationfunding/strategic-planning/. Our podcasts are part of a branch-wide effort to improve communication with the public about its court system and the people who work within it. Please check out all of our social media sources! We welcome your feedback. Do you have a topic you’d like us to explore? A court procedure you’d like us to explain? Please contact me or Karen Levey at ctadkl1@ocnjcc.org and let us know how we can better communicate the role of the courts in Central Florida. And please visit our website at www.NinthCircuit.Org. Once there, you will be able to click on the icons at the bottom of the screen so you can “like” our Facebook page and follow us on our Twitter account, @NinthCircuitFl. From the website you can also listen to our podcasts. Or access our podcasts at http://OpenNinth.fm, the court’s YouTube or Vimeo channels, or by iTunes subscription. We look forward to hearing from you soon! The Honorable Frederick Lauten is the Chief Judge of the Ninth Judicial Circuit Court. He has been a member of the OCBA since 1993.

www.orangecountybar.org

PAGE 5

ProfessionalismCommittee

W Ashley Wells Greene, Esq.

Our Professionalism Makes a Difference

ith the events of the last few weeks and the death and devastation in our own country and around the world, I must reflect on our responsibility as lawyers to resolve conflict with professionalism and civility. We have so little control over much that is going on around us: the hatred, the violence and the sadness. But, there’s something we can control: ourselves. As the world seems to deteriorate around us, we as lawyers are in a unique position to be examples and guides to the community on ways to respectfully navigate adversarial situations. This may not seem like enough, but with over 100,000 lawyers in the state of Florida – each touching the lives of clients, businesses and families – our actions undoubtedly make a difference. It is the very nature of our work that we are opponents – we are always fighting over something – sometimes property and sometimes innocence. How do we fight? How do we adamantly disagree, but still move forward and come to a resolution without destruction? Our oath requires that we do so with professionalism. There are so many articles about professionalism. What does it really mean to be professional? I tritely return to the Golden Rule – “do unto others as you would have them do unto you.” Could it really be that simple? I believe it is. In preparation for this article, I reviewed the “Professionalism Expectations” drafted by The Florida Bar Standing Committee on Professionalism and adopted by The Florida Board of Bar Examiners on January 30, 2015. Each and every expectation comes back to the Golden Rule. The “unto others” includes our clients, colleagues, opposing counsel, judges, support staff, clerks, judicial assistants, witnesses, pro se litigants, the indigent, and all with whom we interact. We must have morality in our practices. There are wonderful examples of lawyers who exemplified professionalism such as Mahatma Gandhi and Abraham Lincoln or the fictional character of Atticus Finch. But our sights do not have to be so lofty. You and I can start smaller and make changes. For example, I want others to be honest with me, so I must be honest with them. I do not want the other side to engage in dilatory or delay tactics, so I must not use such practices. I want others to be prepared, so I must be prepared. I want my emails

and phone calls returned, so I must do the same. I do not want to be yelled at, so I cannot yell either. I want the other side to be reasonable in responding to my requests, so I must too be reasonable. This is not complicated. Yet, judges and lawyers are seeing serious professionalism violations continuously in and out of the courtroom. I am hearing stories of attorneys who just do not show up to court and tell their clients to let the judge know; stories of lawyers taking phone calls during court; lawyers screaming at each other; stories of dishonesty and win-at-all-costs attitudes. This type of behavior is unfathomable and has no place in our judicial system. Actions like these only perpetuate lawyer stereotypes and denigrate the justice system. They make orderly resolution of conflicts impossible. When we respect each other, we move cases forward. We show our clients and society that lawyers serve an honorable purpose, which is to resolve conflicts peacefully with the least amount of collateral damage. Our clients see that it is possible to navigate adversarial situations without animosity, hatred and violence. If each client takes a little of our professionalism back to their families and businesses, we as lawyers have made a difference. The day-to-day news is debilitating. Hatred. Violence. War. It is our honor and responsibility as lawyers, as professionals, to set an example for the rest of society. The example starts with demonstrating the highest standards of professionalism within our profession, and outside of our profession, which will effect change in the greater community. That gives me hope. Ashley Wells Greene, Esq., is an attorney at Bedell, Dittmar, DeVault, Pillans & Coxe, P.A. in Jacksonville, Florida. She graduated from Northwestern School of Law in 2002. She represents clients in disciplinary matters before The Florida Bar, criminal defense cases, and family law matters. Prior to working at the Bedell firm, she was an assistant state attorney in the Fourth Judicial Circuit from 2004-2006 and a Skadden Fellow attorney at Atlanta Legal Aid Society from 2002-2004. She is the Jacksonville Bar Association Bench and Bar Professionalism chair. “Our Professionalism Makes a Difference” originally appeared in the Financial News & Daily Record on July 25, 2016. Reprinted with permission.

PAGE 6 www.orangecountybar.org

ttheBriefs November 2016 Vol.84 No.9

Board of GovernorsReport

Report from The Florida Bar Board of Governors

T Mary Ann Morgan, Esq.

Paul L. SanGiovanni, Esq.

Wayne L. Helsby, Esq.

he Florida Bar Board of Governors met on September 30, 2016. The major actions of the board and the reports received included: The Florida Supreme Court approved a threehour increase in CLE requirements for each three-year reporting cycle and a new mandate to take technology-related CLE courses. With the September 29 opinion in case No. SC16-574, The Florida Bar becomes the first mandatory bar in the nation to require a CLE technology component because of the increased use of technology in law practices. Florida Bar members can take advantage of free technology courses offered by the Practice Resource Institute. In addition, 197 Florida Barapproved CLE courses have been awarded technology credit representing 437 hours currently available. As of the release of the opinion, more than 2,386 bar members have already satisfied the new technology requirement as part of their mandatory hours. For continuing education courses and information, visit www.floridabar.org/CLE. In addition to current member communications tools, bar members will soon be able to view brief weekly news-style videos highlighting key The Florida Bar News stories. Recognizing that video provides more engagement and awareness and is easily sharable and accessible, the Board of Governors Communications Committee began launching this project through social media, the website, and digital platforms in late October. President Bill Schifino, Esq., has appointed a Special Committee on the Constitution Revision Commission (CRC) to focus on developing and delivering member and voter education about the process that occurs every 20 years in Florida. The chief justice, governor, and senate president have announced that they are now considering their CRC appointments. For appointment applications and other CRC information, visit www. floridabar.org/CRC. Scott Richardson, Esq., vice chair of the Florida Board of Bar Examiners, praised increased cooperation between The Florida Bar and the bar examiners on a variety of issues. He said that law

theBriefs November 2016 Vol. 84 No. 9

students are being encouraged to apply for the bar exam during their first year so that all investigations can be concluded before they graduate or seek legal internships. The Florida Bar is working with a software developer to study the possibility of deploying an optional trust accounting software for members. The software would assist with trust accounting technical compliance issues (see Rules Regulating The Florida Bar 5-1.1 and 5-1.2) that many small and medium size law firms have. More information will be available in future issues of The Florida Bar News. eFileMadeEasy, a new member benefit that helps law firms with the state court system’s electronic filing system, was approved by the board. For a list of the more than 40 member benefits and discounts on bank programs, insurance, business needs, auto rentals, and more, please visit www. floridabar.org/memberbenefits. The Florida Supreme Court received eight comments on proposed revisions to for-profit lawyer referral service rules that would create “qualifying providers.” A response was filed by The Florida Bar on Oct. 5. Filings are available on the case docket. Additional details on the proposed revisions are posted at www.floridabar.org/proposedLRSamend. Important Links Pro bono service awards nomination deadline: Nov. 9. The Florida Bar: www.floridabar.org. Ninth Judicial Circuit Board of Governors representatives: Mary Ann Morgan, Esq., Billings, Morgan & Boatwright, LLC; Paul L. SanGiovanni, Esq.; Morgan & Morgan, and Wayne L. Helsby, Esq., Allen, Norton & Blue, P.A. They have been members of the OCBA since 1987, 1985, and 1986, respectively.

www.orangecountybar.org

PAGE 7

2017 Liberty Bell, Liberty Shield & Liberty Apple Award Nominees Sought

he OCBA invites you to submit your nomination today for a person or organization in our community outside the traditional legal profession who best demonstrates a deep commitment to the rule of law and has worked to promote civic responsibility among our citizens. The honoree will be awarded the Liberty Bell Award at a ceremony held during the OCBA Law Week Luncheon on April 27, 2017. As you make your nomination, please consider those whose work meets the following criteria: Promoted a better understanding of the rule of law; Encouraged a greater respect for law and the courts; Stimulated a sense of civic responsibility; and, Contributed to good government within the community. We are pleased to recognize again this year individuals in two professions in our community that do not often receive the recognition and gratitude they so richly deserve. Recipients of the following two annual awards will also be honored at the OCBA Law Week Luncheon on April 27, 2017: The Liberty Shield Award will be given to a first responder in our community who meets the criteria listed above. The Liberty Apple Award will be given to a teacher in our community who meets the criteria listed above. Please submit a one- to two-page nomination letter that enumerates the ways your nominee exemplifies the qualities above. Current submission deadline: February 28, 2017. Please mail or e-mail your nomination to Kim Homer, Executive Director, Orange County Bar Association, 880 N. Orange Ave., Orlando, FL 32801, or khomer@ocbanet.org.

For further information, contact Bart Vickers (bartley.Vickers@ csklegal.com) or Randy Bock (randy@heatwolelaw.com).

PAGE 8

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

Clerk’sCorner

O Tiffany Moore Russell, Esq. Orange County Clerk of Courts

Clerk’s Office Working to Make a Difference

ne of my passions has always been to give back to our community to make a difference in the lives of the people I serve. That’s why I am excited to share with you the latest community outreach initiatives my office has been working on to make a positive impact. First, the final numbers are in, and we are happy to announce that our Clerk’s Office United Way campaign has surpassed its goal of $25,000! To be precise, the grand total of donations raised by our staff and volunteers is $25,754.80. We couldn’t have reached this milestone without the hard work and dedication of our employees, who either made pledges or helped with events to secure donations. The Clerk’s Office has participated in the Heart of Florida United Way campaign for more than a decade now. Second, like many of you, I was saddened by the flooding in Louisiana. The stories about residents in Baton Rouge – some of whom had survived Hurricane Katrina a decade before – trying to piece their homes and lives back together was heartbreaking. Thanks to an initiative by the Louisiana Clerk’s Association called “Cards for Clerks,” many in

Orange County Bar Association

our office were able to help fellow clerks in need by purchasing gift cards to Walmart, Lowe’s, and Home Depot that allowed flood victims to buy basic necessities to begin the rebuilding process. I am happy to say our deputy clerks pitched in and donated nearly $600 worth of gift cards to the initiative. Finally, we just completed the American Cancer Society’s Making Strides Against Breast Cancer walk in late October. Our “Clerks for a Cure” team joined tens of thousands of walkers and runners at Lake Eola to help raise awareness and funding to fight this terrible disease. With the initial goal of $2,500 for 2016, the team has raised more than $67,000 since the first year the Clerk’s Office participated in the walk in 2010. This event is near and dear to our hearts, since breast cancer has impacted many of our team members and their families. I am proud of everything our employees, their families, and volunteers have accomplished to make a difference and serve our community. Tiffany Moore Russell, Esq., Orange County Clerk of Courts, has been a member of the OCBA since 2004.

Nominations are now being accepted for officer and/or board positions for the

Orange County Bar Association (President-Elect, Treasurer, Secretary, and 2 Executive Council Seats)

Legal Aid Society of the Orange County Bar Association, Inc. (2 Three-Year-Term Board of Trustees Seats)

Young Lawyers Section of the Orange County Bar Association (5 At-Large Board Seats) Nominating petitions are available on the OCBA website homepage. The nomination deadline is January 31, 2017 If you have any questions, please contact Kimberly Homer, Executive Director, at 407-422-4551, ext. 222 or khomer@ocbanet.org

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 9

Construction LawCommittee

F Rouselle “Bo” Sutton, III, Esq.

Natalie Bunnell

Why Design Professionals and Construction Contractors Should be Aware of Florida’s 2016 Revised Public Records Act

lorida’s Public Records Act (“the Act”) was recently revised to make prior amendments to the Act easier to comply with for public agencies, as well as those acting on their behalf. Its other purpose was to curb litigation and liability for attorneys’ fees from public information requests. For these reasons, those that may be subject to the Act should be aware of the recent amendment. To better understand the recent amendment, a brief discussion of the Act is helpful. Florida’s Constitution and the Act require records made or received in connection with the transaction of official business by a public agency be made available for personal inspection and copying by any person. Historically, it has been the responsibility of each public agency to house and provide ongoing access to its public records. However, this could change a bit with the recent amendment. There are several important questions to address with regard to the recent amendment: first, is there a public agency involved in the contractual chain; second, is a private entity acting on behalf of the public agency; and third, what does the contract say about ongoing responsibility for maintaining the public records? First things first, what is a public agency? Florida considers a “public agency” to include a state, county, district, authority, municipal officer, department, division, board, bureau, commission, or other separate unit of government. However, because public agencies are permitted to hire “contractors” to provide services or to act on behalf of the public agency, private contractors may also be required to comply with the Act. A “contractor” includes “an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency.” (emphasis added) Who is or is not a “contractor” in the eyes of the Act is the critical piece of the puzzle. In the design and construction world, this could include the architect, engineer, general contractor, or whomever had a direct contract with the public agency for a construction project if they are determined to be “acting on behalf of a public agency.” To be clear though, providing services to or for a public agency does not, by default, constitute “acting on behalf of a public agency.” More is required. What constitutes “acting on behalf of the public agency?” Unfortunately, the Act does not address this directly. This determination has been left up to case law. Since 1992, Florida’s courts

PAGE 10

www.orangecountybar.org

have applied a “totality of the factors” analysis, set forth in the case News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) to determine whether a private entity is acting on behalf of a public agency and falls within the purview of the Act. These factors include, but are not limited to: (1) the level of public funding; (2) commingling of funds; (3) whether the activity was conducted on a publicly owned property; (4) whether the services contracted for are an integral part of the public agency’s chosen decision-making process; (5) whether the private entity is performing a governmental function or a function which the public agency would otherwise perform; (6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity is functioning. At the conclusion of the analysis, if it is determined a private entity is acting on behalf of a public agency, the Act applies to that entity and triggers access to public documents requirements and penalties for failure to comply. In 2013, with a goal of clarification, the Act was amended to create Section 119.0701, Florida Statutes, which required provisions to be included in public agency contracts with contractors “acting on behalf of the public agency” to contain contractual provisions clarifying the public record responsibilities of the contractor. Among other things, the affected contractors were to provide open access to the public records in their possession, the same as the public agency would, during the pendency of the contract, but required the public files be transferred to the public agency at the termination of the contract. Unfortunately, the 2013 amendment to the Act led to more litigation for agencies and their contractors. On March 8, 2016, Governor Scott approved CS/ HB 273, which enacted changes to contractors’ duties to provide access to public records relating to contracts with a public agency. The goal is to soften the effect of the 2013 changes. It can now be easier for construction contractors and design professionals to comply with the Act’s requirements. The 2016 amendment applies to contracts with a public agency entered into or amended on or after July 1, 2016. Importantly, now the contractor can be required theBriefs November 2016 Vol. 84 No. 9

to keep the public records upon termination or completion of the contract instead of the public agency maintaining those public records. The contract between a public agency and a contractor must address which of the two will retain the public records. This is a critical distinction that carries additional compliance efforts, as well as legal implications. As a result, if the contractor keeps the records upon termination or completion of the contract, it must comply with all requirements under the Act or face penalties for failing to timely produce the public records. Additional Information The amendment creates new procedural requirements for public information requests. It also provides a safe harbor for contractors undergoing such a request. Now, requests for public records must be made directly to the public agency, but if the public agency does not possess the records, because they were kept by the contractor, the public agency must notify the contractor, who, “within a reasonable time,” is obligated to either produce the records to the public agency or allow for the inspection of the records. A contractor’s failure to perform one of the two options may subject it to penalties. If a public agency or contractor fails to timely provide a requested public record, the person making the public records request may sue to have the request enforced. Because contractors deemed to be “acting on behalf of the public agency” are bound to the same public records requirements as public agencies, they, too, can be held liable for the cost of a lawsuit to produce public records as well as the requestor’s attorneys’ fees, in the same manner a public agency would be liable. Further, it is a misdemeanor of the first degree to willfully and knowingly violate the Act. If the party making the public records request is unable to obtain the records in a timely manner, it must provide notice to both the public agency and the contractor at least eight days before filing its civil lawsuit. A contractor who complies with a public records request within eight business days after the notice is sent is not liable for the costs of enforcement. Once a civil lawsuit is filed, and provided the filing party gave proper notice,1 the court will determine whether the contractor unlawfully failed to comply with the public records request. If the court finds the contractor failed to timely comply with the public records request in an “unlawful”2 manner, it may award reasonable costs of enforcement, including attorneys’ fees, theBriefs November 2016 Vol. 84 No. 9

against the contractor. For these reasons, it is important for contractors to be aware of requirements to retain and produce public records when entering into a contract for services with a public agency, as they may face liability and fines if they fail to comply with the Act. When negotiating a contract, or if already working on a project, either directly or indirectly involving a public agency, design professionals and construction contractors should be aware of the following issues: 1). Is the contract with a public agency? If so, the Act applies to the public agency, but whether it applies to the contractor is determined by the “totality of the factors” analysis. Contractors should be familiar with these factors. Because the test is subjective, with no clear answer, contractors should review their contract and scope of services with legal counsel; 2). Does the contract state whether or not the Act applies? The contract’s failure to include the requisite statement of applicability could lend itself to excusing a contractor’s failure to timely comply with the Act. Contractors should confer with their attorney for confirmation; 3). Does the contract mandate what is to be done with the file upon completion of the project? If the contractor must keep it, long-term organization and file management are critical to ensure timely responses and access, so as to maintain compliance with the Act. Simply delegating this to an employee may not suffice. For example, what happens if that employee leaves, taking with him or her the institutional knowledge about public records from long ago?; 4). What about subconsultants or subcontractors to a contractor who have a direct contract with a public agency? Be aware if there is a flow down provision in the subcontract, which could require compliance with the Act, and what may be required; and 5). How long must public records be maintained? The answer depends on what public agency is involved. For example, the Florida Department of State, Division of Library and Information Services, has created General Records Schedules that set different retention requirements for certain records. However, not all records are covered by these General Records Schedules. To be sure, contractors

should confer with the public agency directly and get the answer in writing. As discussed by the Court in the News and Sun-Sentinel Co., in the typical construction scenario, an architect, engineer, general contractor, etc. is usually not “acting on behalf of a public agency.”3 In that case, however, the Florida Supreme Court cautioned that this may not always be so. Given the subjectivity of the Act’s applicability, contracts and scopes of work are worth a closer look with legal counsel, or at a minimum, the “totality of the factors” analysis is something to be aware of going forward. Bottom line, the new amendments to the Act help reduce compliance risks by providing public records request procedures and creating a safe harbor window in which to respond. By the same token, the amendments expand compliance risk by allowing the public agency to require its contractor to retain the project file. This record keeping headache can be alleviated if the project file is turned over to the public agency. To be safe, when initially negotiating the contract, design professionals and construction contractors’ default request should be for project file turnover to the public agency upon the contractor’s completion of the services to be provided under the contract. Rouselle “Bo” Sutton, III, Esq., is of counsel with GrayRobinson, P.A. His practice entails representing architects, engineers, contractors and subcontractors in addressing the legal challenges of conducting business in Florida, including litigation, contract negotiation, and drafting, as well as risk management to prevent claims. He is Florida Bar Board certified in construction law and has been a member of the OCBA since 2006. Natalie Bunnell is a summer associate at GrayRobinson, P.A. Notice is proper if it is sent to the public agency’s records custodian and to the contractor or the contractor’s registered agent. If notice is sent to the contractor, it must be sent to the contractor’s address listed in its contract with the public agency. 2 Note that in construing the term “unlawful” in the public records context, the Florida Supreme Court in Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) held that “unlawful” equates to simply failing to provide the public record. Acting in good faith, bad faith, or unreasonably is of no consequence. 1

News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So. 2d 1029, 1031 (Fla. 1992).

www.orangecountybar.org

PAGE 11

Labor & Employment LawCommittee

T Luis Roberto Amadeo, Esq.

The Florida Whistleblower Act: Adding Uncertainty to an Uncertain Claim

om Petri once said of Watergate, “It isn’t the original scandal that gets people in the most trouble – it’s the attempted cover-up.” With employment-related claims, it isn’t the alleged discrimination or other putative violation that most often gets employers in trouble – it’s the retaliation claim. Defense counsel often encounter clients to whom the notion of protected conduct may be novel. Private sector employers may perceive a whistleblower’s disgruntled motivation as a defense, though such matters are largely irrelevant. A client may be unaware that an employee filing a legal claim or internal grievance is protected under the law, and may even view the employee’s claim as frivolous and a wrongdoing worthy of discipline. Yet, a claimant need not prevail in his underlying discrimination claim in order to assert a colorable claim of retaliation. It is therefore no surprise that the least meritorious discrimination claims often create the hardest retaliation claims to defend. In fact, retaliation is the most frequently alleged basis of discrimination in the federal sector and the most common discrimination finding in federal sector cases investigated by the Equal Employment Opportunity Commission (EEOC).1 In 2013, 48% of EEOC charges involved allegations of retaliation and 42% involved a finding of retaliation.2 During fiscal year 2009-2010, retaliation was the number one basis for cases closed by the Florida Commission on Human Relations (FCHR) in the employment setting.3 During fiscal year 2014-2015, retaliation accounted for 655 out of 2,545 cases received by the FCHR, more than any other basis, including age (295 cases), color (89 cases), disability (485 cases), family/ marriage (37 cases), national origin (157 cases), race (400 cases), religion (53 cases), or sex (374 cases).4

Plaintiff’s counsel who wish to avoid summary judgment, avoid exhausting administrative remedies, or avoid removal based on a federal question will frequently choose to frame a wrongful discharge as a retaliation claim pursuant to Florida’s Private Sector Whistleblower Act (FWA).5 The FWA provides, inter alia, that “[a]n employer may not take any retaliatory personnel action against an employee because the employee has … [o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.”6 ObPAGE 12

www.orangecountybar.org

jection to the underlying allegedly discriminatory employment practice will frequently form the basis of a FWA retaliation claim, and burden shifting under the FWA is relatively simple. A claim under Section 448.102(3) requires proving that the plaintiff (1) engaged in statutorily protected expression; (2) suffered an adverse employment action; and (3) the adverse action was causally linked to the statutorily protected activity.7 Short temporal proximity may suffice to establish that the first and second elements were not wholly unrelated.8 Once the prima facie case is established, the employer must proffer a legitimate, non-retaliatory reason for the adverse action.9 Thereafter, the plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.10 And it is no surprise that state court dockets contain large numbers of such claims. From the gas station to the grocery store, nearly every type of business, industry, or job requires some form of legal or regulatory, compliance. Even a grocery clerk throwing away expired food can state a colorable claim by alleging opposition to an illegal practice.11 This, of course, can lead to uncertainty as to the potential exposure of making personnel decisions, especially considering the statute is “no model of clarity.”12 Partly for that reason, until recently most courts held that in order to constitute protected activity under the FWA, the policy or practice opposed by an employee must constitute an actual violation of a law, rule, or regulation.13 However, in Aery v. Wallace Lincoln-Mercury, LLC, the Fourth District Court of Appeal applied the “good faith, objectively reasonable belief ” standard used in Title VII claims to an FWA claim.14 The court held that “all that is required is that the ‘employee have a good faith, objectively reasonable belief that his activity is protected by the statute…’” and that the conduct or activity at issue is one that the employee-plaintiff, “could have reasonably believed [was] illegal.”15 Several federal courts have adopted Aery’s “good faith belief ” standard as the new FWA standard. In Odom v. Citigroup Global Markets, Inc., the Northern District of Florida held that although Aery’s “reasoning is minimal, and its logic is questionable, it is the only binding statement of authority” among appellate courts in Florida, and

theBriefs November 2016 Vol. 84 No. 9

therefore, the federal court was bound to follow it.16 In Hernandez v. Publix Super Markets, Inc., the Southern District of Florida similarly held that “Aery is the only Florida intermediate appellate court to have addressed the standard of proof in a FWA claim.”17 Naturally, “a federal court applying state law …is ‘bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.’”18 Aery, of course, did not remain the only statement on this issue for very long. In 2015, in Kearns v. Farmer Acquisition Co., the Second District Court of Appeal declined to follow Aery, holding that the “actual violation” standard applies.19 In April 2016, in Evey v. Creative Door & Millwork, LLC, the Middle District of Florida, Fort Myers Division, recognized the split among the district courts of appeal and various federal cases supporting Aery, but found it unnecessary to resolve the issue because the plaintiff’s allegations did not meet either standard.20 The Evey court recognized that, “[t] here appears to be a split of authority as to whether § 448.102(3) requires plaintiff to allege an actual violation of law… .”21 Conversely, in Burns v. Medtronic, Inc., the Middle District of Florida, Tampa Division, held that no split exits among the district courts of appeal.22 The Burns court held that the Second DCA’s pronouncements in Kearns (on the actual violation standard) were dicta and that, “Aery remains controlling law on the issue” because “Kearns presented evidence that …establishes an actual violation of the law.”23 The court pointed out that the Kearns opinion specifically noted that it was not determining what standard applied.24 Consequently, there is a lack of consensus among divisions in the Middle District of Florida on whether a split even exists. Thus, plaintiffs’ attorneys wishing to avoid a legal conundrum at the pleadings stage should make certain their FWA complaints meet the actual violation standard, at least when filing outside the Second DCA. Employers should memorialize performance deficiencies and disciplinary incidents through dated, signed, welldocumented steps of progressive discipline, since prior corrective action (or subsequent action that forms part of an earlier pattern of progressive discipline) can break the causal link between protected conduct and subsequent adverse action.25 Human resources personnel should inquire of supervisors and managers about any meaningful disclosures, internal complaints, objections to business practices, or internal correspondence that could constitute protected conduct prior to carrying out terminations of employment or materially adverse personnel actions. Finally, where economically feasible, materially adverse personnel actions involving potential exposure should be reviewed with legal counsel to avoid potential claims.

workplace law issues, with an emphasis on preventive practices. He has been a member of the OCBA since 2014. 1

EEOC, Facts About Retaliation, https://www.eeoc.gov/laws/types/facts-retal.cfm.

EEOC, Retaliation – Making it Personal, Summer 2015, https://www.eeoc.gov/ laws/types/retaliation_considerations.cfm. 3 Source: Florida Commission on Human Relations, 2009-2010 Annual Report, p. 9. 4 Source: Florida Commission on Human Relations, 2014-2015 Annual Report, p. 11. 5 Fla. Stat. § 448.102 (2016). The summary judgment standard in Florida state courts is higher than the federal standard established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). See, e.g., Byrd v. BT Foods, Inc., 948 So. 2d 921, 923-24 (Fla. 4th DCA 2007), citing Visingardi v. Tirone, 193 So. 2d 601, 604 (Fla.1966) (“Florida places a higher burden on a party moving for summary judgment in state court… .”). 6 Fla. Stat. § 448.102(3) (2016). 7 Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 462 (Fla. 2d DCA 2015); Aery v. Wallace Lincoln Mercury LLC, 118 So. 3d 904 (Fla. 4th DCA 2013); White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 2005). 8 Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir. 2000), cert. denied 531 U.S. 1076 (2001). 9 Aery, 118 So.3d at 916, citing Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1133 (Fla. 4th DCA 2003). See also, Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). 10 Id. 11 See, e.g., Hernandez v. Publix Super Markets, Inc., 11 F.Supp. 3d 1177 (S.D. Fla. 2014). 12 Kelder v. ACT Corp., 650 So. 2d 647, 649 (Fla. 5th DCA 1995). 13 See, e.g., White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1338-39 (M.D. Fla. 2005) (“Allowing for the expanded reading of the statute… would place an onerous burden on the employer to anticipate all of its conduct that an employee may reasonably believe is proscribed by a law, rule or regulation. Even if the employer knows the conduct is perfectly legitimate, it would be left with the Hobson’s choice of terminating the employee and defending suit against the 2

continued page 31

Luis Roberto Amadeo, Esq., senior associate at Cole, Scott & Kissane, P.A., practices employment litigation, including employment discrimination, retaliation, benefits, whistleblower claims, overtime and unpaid wages claims, sexual harassment claims, leave and disability issues, employment contracts, workplace torts, and other employment law claims under various state and federal laws. He also provides clients with legal advice and counseling, policy development, and compliance training on various

EXPERT WITNESS - CPA • Business Valuation; Pension Valuation; Collaboration and Litigation Support • Lifestyle Analysis; Financial Affidavit; Alimony; Equitable Distribution Contact:

Thomas J. Gillmore, CPA, CFE, CVA 407-716-4795• tomg@FloridaDivorceCPA.com theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 13

Help Your Clients Protect Their Loved Ones

JAMES W. SEARS Attorney at Law Certified Circuit Civil Mediator

515 North Ferncreek Ave. Orlando, Florida 32803 (407) 896-9068 jim@jimsearslaw.com www.jimsearslaw.com

Rated A/V Preeminent Over 20 Years

Every adult who owns property in his or her name alone needs the following documents at a minimum: 1) Last Will and Testament, 2) Living Will, 3) Designation of Health Care Surrogate, and 4) Durable Power of Attorney. Depending on their circumstances, they may also need: 5) Trust for Minors, 6) Living Trust, or 7) Designation of Health Care Surrogate for a Minor Having the Durable Power of Attorney and Health Care Surrogate documents in place can avoid the need for a guardianship if the person becomes incapacitated. They can also help unmarried couples to have access to their partner in a hospital setting where access may be denied because they do not have a familial relationship. These documents need to be in place before someone becomes incapacitated – otherwise they will need a guardianship which will be more expensive. If people plan ahead, they can designate the person(s) they choose to make the important decisions for them.

EVERYTHING’S BETTER IN

•Catering•

GRAPHIC DESIGN & PRINT SERVICES

Preferred Caterer to the Orange County Bar Association 407-947-4036 www.catheebradycatering.com

15% off of any of event booked before the end of the year (12/31/16)

Corwin’s Personal Chef & Catering Services Corwin Cowart Corwincowart@gmail.com

Annual Reports • Booklets • Brochures Forms • Calendars • Catalogs • Deskpads Direct Mail Advertising • EDDM • Flyers Presentation Folders • Postcards • Notepads Stationery • Envelopes • Business cards Labels • Wide Format Digital Posters

Proud Printer of

407-883-6295

The business listed herein (the “Vendors”) are not affiliated with the Orange County Bar Association (OCBA) and shall not under any circumstances be deemed to have any authority to act on behalf of the OCBA. The OCBA does not make, and expressly disclaims, any warranty, representation, responsibility, or guarantee as to (a) the quality or suitability of the Vendors, their products, or services, and (b) the duration or validity of any discount or other promotion offered by any of the Vendors.

QUALITY OFFSET PRINTING SINCE 1968

407.290.5800 thebakerpress.com

PAGE 14 www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

Legal Aid SocietyWhat We Do...

Legal Aid Society Presents 2016 Guardian ad Litem Awards

t the September 22, 2016, OCBA luncheon, the Legal Aid Society of the Orange County Bar Association, Inc. recognized four attorneys for their outstanding pro bono work in the Guardian ad Litem Program: Susan M. Budowski, Esq.; Marc A. Consalo, Esq.; Carolyn Haslam, Esq.; and Carrie Ann Wozniak, Esq. The annual Elizabeth Susan Khoury Guardian ad Litem Award of Excellence is named after Susan Khoury, Esq., the Legal Aid Society’s longtime Guardian ad Litem Program coordinator. 2016 Elizabeth Susan Khoury Guardian ad Litem Award of Excellence Recipients Susan Budowski, Esq., was admitted to The Florida Bar in 2004 and began her work on the Legal Aid Society’s pro bono panel in 2007. Susan primarily accepts Guardian ad Litem cases and has donated more than 215 hours on 16 closed cases. She currently has five open cases. Susan has been especially vigilant on a case that went to a termination of parental rights trial, staying on top of all the parties and hearings and connections. She has been a member of the OCBA since 2010. Susan Budowski, Esq. Marc Consalo, Esq., graduated from the Fredric G. Levin College of Law at the University of Florida in 1999, earning his juris doctor with honors. He began his legal career at the law firm of Zimmerman, Shuffield, Kiser & Sutcliffe. He later worked for the state attorney in Orlando before opening his own practice. Marc found his true passion, however, in teaching. In 2014 he became a full-time faculty member in the Legal Studies Department at the University of Central Florida, where he continues to teach and serve as the faculty adviser for the trial team program. Marc has been a memMarc Consalo, Esq. ber of the OCBA since 1999. Marc became part of the Legal Aid Society’s pro bono panel in 2002 and primarily selects Guardian ad Litem cases. He has devoted more than 312 hours on 23 closed cases and is handling three additional cases. Reflecting on his pro bono work, Marc states: “The hardest and best part of my experiences in the courtroom have revolved around my time as a GAL in dependency cases. Being able to ensure that the court knows a child’s wishes enables me to protect those who truly need the law on their side!” Carolyn R. Haslam, Esq., Akerman LLP, was admitted to The Florida Bar in 2010. Her practice focuses on representing owners and developers in all aspects of land use, including due diligence, entitlements and concurrency, and environmental law, including the redevelopment of contaminated properties. She theBriefs November 2016 Vol. 84 No. 9

earned her undergraduate and graduate degrees as well as her juris doctor from Florida State University before obtaining an LL.M. in land use and environmental law from the University of Florida. Carolyn began her work on the Legal Aid Society’s pro bono panel in 2011, primarily taking Guardian ad Litem cases. She has four closed cases, representing more than 257 hours, and has one open case. Carolyn also contributes to Legal Aid’s annual Breakfast of Champions fundraiser. “My pro bono work,” says Carolyn, “has been a life changer for me. It has opened my eyes to the struggles of others, made me aware of some of the needs of our Carolyn R. Haslam, Esq. community, and emboldened my commitment to community service, both in and outside of the legal profession. I have been blessed to see families reunited and children find their forever homes, including a child that now calls me her fairy godmother. I am hopeful that all attorneys, young and old, transactional and litigation alike, will serve the community in a capacity which is meaningful to them, because it enriches your life as much as it does the lives of those you help.” Carolyn was the only party to recognize a dangerous scenario that a potential adoptive mother attempted to hide. The children were removed and ultimately adopted by a family that was an ideal match. She has an unbreakable bond with the family to this day. In addition to serving as a Guardian ad Litem, Carolyn is a board member with Teen Alternatives, Inc., which raises money and provides scholarships to Teen Court student volunteers. She is also an active member of the Junior League of Greater Orlando, currently serving as it Provisional Education Committee co-chair and is a member of the issue-based Community Impact Task Force. She and her husband Zach have an 11-month-old daughter. Carrie A. Wozniak, Esq., was admitted to The Florida Bar in 2005 and has been a member of the OCBA since 2007, when she began serving on the Legal Aid Society’s pro bono panel. Carrie Ann has primarily accepted cases from the Guardian ad Litem Program. She has three closed cases with 75 hours and maintains three open Carrie A. Wozniak, Esq. cases. In addition, Carrie Ann participated in Teen Court from 2012 to 2015, has organized a fund drive on behalf of Legal Aid’s GAL children, and has organized a luggage drive for foster kids. Carrie Ann actively encourages her colleagues at Akerman to take on Guardian ad Litem work. Submitted by Catherine A. Tucker, Esq., Pro Bono Coordinator at the Legal Aid Society of the Orange County Bar Association, Inc. She has been a member of the OCBA since 1998.

www.orangecountybar.org

PAGE 15

Legal Aid SocietyGAL Teaching Tips

Elizabeth J. Johnson, Esq.

More than Hope: Missing Dependent Children Can Be Found

range County’s warm climate, thrilling attractions, and proximity to beautiful beaches contribute to Central Florida’s reputation as a beautiful vacation getaway for people from all over the world. Those same attributes, however, contribute to our community’s growing reputation as a human trafficking and missing children hotspot. Children are lured by the promise of wealth, belonging, and acceptance – all of which children in the dependency system often lack. The Florida Department of Children and Families (“the Department”), the state agency charged with protecting Florida’s families, publishes a list of missing children which is updated daily. This list of known missing children currently contains nearly 200 names, including those children who are the subjects of Orange County dependency cases. While these children may be missing for a variety of reasons, the fact remains that dependent missing children are a highly vulnerable population that is disproportionately over-represented on the missing children’s list. However, Guardians ad Litem (GALs), as members of the child’s dependency team, can make certain every step is taken to bring these children home safely. You are notified that your dependent child is missing. What do you do? Chapter 39 of the Florida Statues, Rule 65C-30.019 of the Florida Administrative Code, and Rule 8.300 of the Florida Rules of Juvenile Procedure directly address this issue. Your first step is to inform the Department attorney and the dependent child’s case manager that the child is missing. The Legal Aid Society’s (LAS) GAL staff can provide you with this contact information, as well as help you make these contacts directly. The Department will then contact the local law enforcement agency to file a missing child report. When a child goes missing, the Department, the community-based care provider, or the law enforcement agency must make “reasonable efforts to locate the child.” Local law enforcement must be contacted immediately when: • The child is under age 13; • The child has a physical or mental incapacity, or a developmental or behavioral challenge that renders the situation more dangerous; • The child is with others who may endanger his or her safety;

• The child is missing under circumstances inconsistent with established behaviors; or • The child is known or believed to be in a life-threatening situation or there is any other reason to believe that the child is in a dangerous situation. If local law enforcement is not contacted immediately, the Department may take up to four hours to make reasonable efforts to locate the child before contacting law enforcement. The Department must make efforts to look for the child on a weekly basis for the initial three months and monthly thereafter. While confidentiality in dependency cases is highly important, the Department may release information to the public when it believes the release of the information is likely to assist efforts in locating the child or to promote the safety or well-being of the child. It is important to note that the GAL or other party to the dependency case may file an affidavit or verified petition to obtain a “take into custody order,” also known as a TICO order. This order directs law enforcement to take the missing child into custody and transfer the child to the Department or other designated place. Obtaining a TICO order is vital, particularly in cases when the local law enforcement agency will not agree to take a missing child report. If case management has not done so already, the GAL may file a report to notify the court of the child’s missing status. Use the child’s social media and other online accounts as a means to locate a missing child. A child who actively uses social media will at least notify you, through his or her media posts, that he or she is accessible. Searching for nicknames, relatives, and friends may also provide information on the child’s whereabouts. Just this year, Legal Aid Society staff was able to locate a missing dependent teen, Tessa, after securing a TICO order and regularly monitoring Tessa’s social media pages. Tessa went missing after her group home staff, with whom she had a strained relationship, attempted to wake her for school but she was nowhere to be found. Case management reported Tessa as missing and an investigative officer was assigned to her case. GAL staff then immediately contacted the Department attorney, requesting – and then insisting – that the Department obtain a TICO order. While the TICO order was obtained within a couple of days, continued page 26

PAGE 16 www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

Thursday, November 17, 2016 ///// 5:30 p.m.-8:30 p.m. World of Beer ///// 431 East Central Boulevard, Orlando, Florida 32801 Enjoy a selection of unlimited draft beers and wines, a variety of hors d’oeuvres, and a silent raffle. Registration deadline: November 15, 2016 /// Registration fee: $15 /// Late registration and at the door: $25 Silent raffle sponsored by the participating voluntary bars. To provide a raffle item, contact Sheila Sullivan at sheila@mensdlf.com. Each attendee will receive a raffle ticket. Additional raffle tickets may be earned with the donation of a non-perishable item, to be donated to the Second Harvest Food Bank. 1 non-perishable item = 1 additional raffle ticket.

Sup port the oCBA! r eCommend thi S CourS e!

Save the Date!

Florida Online Traffic School • Fast, easy, convenient • Available 24/7 • Online instructions • Telephone support

Basic Driver Improvement 4-hour course (Traffic Ticket - TCAC) First-time Driver 4-hour course Advanced Driver Improvement 12-hour course (ADI / Judge-ordered class) Florida Mature Driver Program 6-hour course All traffic courses are approved by the Florida Department of Highway Safety & Motor Vehicles and sponsored by the American Safety Council. Register: orangecountybar.org.

Thursday February 2, 2017 5:30 PM - 8:30 PM Winter Park Farmers’ Market 200 W. New England Ave. Winter Park, FL 32789 Craft beer by Black Cauldron Brewing Appetizers by Every Occasion Catering Raffle – you must be present to win! $15 – OCBA Members $25 – Non-members RSVP by January 31, 2017 at the OCBA Store Sponsored by: Men’s Divorce Law Firm U.S. Legal Support

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 17

Recipients of the Legal Aid Society’s 2016 Elizabeth Susan Khoury Guardian ad Litem Award of Excellence: Marc Consalo, Esq,; Susan Budowski, Esq.; Carolyn R. Haslam, Esq.; Carrie A. Wozniak, Esq.

100% Club Recipient – The Orlando Law Group: Kristina Paulter, Esq.; Maytel Bonham, Esq.; Jennifer Englert, Esq.; Kimberly Hosley, Esq.; Pamela Martini, Esq.; Heather McLeod, Esq.; Jeffrey Smith, Esq.

Photos: Flo Boehm

Hispanic Bar Association of Central Florida with Senator Darren Soto, Esq.

PAGE 18

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

Senator Darren M. Soto, Esq.

OCBA July Luncheon September 22, 2016

The Ballroom at Church Street Co-hosted by the Hispanic Bar Association of Central Florida Sponsored by Data Analyzers, First GREEN Bank, Lexis Nexis

Wiley S. Boston, Esq. OCBA President

Henry Lim, Esq., Hispanic Bar Association of Central Florida President

The Hon. Frederick J. Lauten Chief Judge, Ninth Judicial Circuit

Camara Williams, Esq., OCBA Foundation President Brett Renton, Esq., YLS President

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 19

PAGE 20

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

25th Annual YLS Charity Golf Tournament September 30, 2016 Orlando World Center Marriott Hawk’s Landing Golf Club

to our sponsors...

Hole Sponsors Beusse Wolter Sanks & Maire, PLLC Dellecker Wilson King McKenna Ruffier & Sos, LLP Discovery Litigation Services Embrace Home Loans, Inc. FBC Mortgage, LLC First Choice Reporting & Video Services, Inc. Legal Talent, LLC LexisNexis Lit & More Lynx Legal Services Milestone Reporting Orange County Bar Association Orange Legal Orlando Orthopædic Center Parks Lincoln of Longwood Ron Fleming Video Productions, Inc. Special Counsel, Inc. SunTrust The Fighter Law Firm U.S. Legal Support, Inc.

Contest Sponsors Bennett Law Group Judge Bob LeBlanc Shannin Law Firm

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 21

Watch Clients Come to YOU FLEXIBLE MONTH-TO-MONTH CONTRACTS SERVING CENTRAL FLORIDA AND SURROUNDING AREAS

PAGE 22 www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

THE ART OF THE REFERRAL

Where Would You Turn

for a tried and true solution that has already stood the test of time?

Intellectual Property Law can be arcane and confusing to the uninitiated. If your firm is without an Intellectual Property Department or the adequate expertise or resources, you and your clients’ I.P. legal issues could be best served by working together with us, a highly-recognized, well-established, well-practiced Intellectual Property law firm. Every attorney in our firm is an Intellectual Property attorney. Most are Shareholders, Registered Patent Attorneys, many are Board Certified, all are dedicated professionals. Consider protecting your clients‘ brainstorm with the brain trust of Allen, Dyer, Doppelt, Milbrath & Gilchrist, an Intellectual Property law firm established in 1972. ADDM&G

Add the LRIS number to your playbook:

407-422-4537

has protected the intrinsic rights of clients’ original ideas and unique technologies through the application of patents, trademarks, copyrights, licensing, infringement, trade secrets and unfair competition protection, business litigation and counseling for 44 years. ADDM&G serves clients locally, statewide, nationally and internationally.

Your support of LRIS helps fund member benefits, bar programs & community outreach activities. The OCBA LRIS is the only Florida Bar Approved Lawyer Referral & Information Service in Central Florida

Orlando  4078412330 | Jacksonville  9043987000* | Miami  3053748303 Tampa  8136394222* | Winter Springs  4077965064 | www.addmg.com Listed in Intellectual Property Today as: 22ND in the nation for trademarks issued Top 100 in the nation for patents issued

 Patents  Trademarks  Copyrights  Litigation  theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 23

PhotoOp Brown Bag Series Comes to a Close

The Honorable John M. Kest wrapped up his very popular and valuable Brown Bag Lunch series in September with the topic “Tips and Tactics from the Masters.” Judge Kest created the series to provide young, and not-so-young, lawyers with tips on “how to” approach certain legal matters. During the past seven years, Judge Kest held seventy-two lunches and presented on seventy different topics. The outlines remain available in electronic format from Judge Kest’s judicial assistant, Diane Iacone.

Left to right: David King, Esq.; Bud Kirk, Esq.; Dennis O’Connor, Esq.; John Bussey, Esq.; Judge John Kest; Darryl Bloodworth, Esq.

PAGE 24 www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

YLS on the move

Jennifer A. Smith, Esq.

here are a lot of things to be thankful for as we head into the holiday season, including good friends, great events, and charity causes. Here are a few of the things we have been up to: On Saturday, September 17, 2016, YLS members teamed up with the Volusia County Bar Young Lawyers Section to participate in the annual International Coastal Cleanup in New Smyrna Beach. Immediately following the cleanup, YLS, our Volusia County friends, and volunteers met for lunch and drinks at Barracudas Bar and Grille. On September 22, 2016, YLS hosted an end-ofsummer happy hour at Sideshow in downtown Orlando. Fun was had by all at this FREE social event! The 25th Annual Young Lawyers Section Golf Tournament was held at the beautiful Hawk’s Landing Golf Club in Orlando, Florida. All proceeds raised by the tournament went to benefit YLS events and its charitable endeavors, including its scholarships. The weather was beautiful, and both golfers and non-golfers had a fantastic time. Thanks to our sponsors and our committee chairs, Will Mathews, Esq., and Paul Jezierny, Esq. on a fantastic event! On Friday, October 21, 2016, YLS kicked off its Mentoring Program at the Citrus Club during our monthly lunch. Anthony Sos, Esq., former YLS president and 2015 winner of the Lawrence G. Mathews, Jr. Young Lawyer Professionalism Award, made introductory remarks. Afterwards, mentors and mentees enjoyed networking and socializing. On Thursday, October 27, 2016, YLS hosted its fourth annual Halloween party for the children residing at the Women’s Residential Counseling Center. The WRCC is a 138-bed transitional liv-

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

ing program for single women and women with children. At the party, volunteers provided the children with new Halloween costumes, followed by a fun evening of games, candy, and other treats. Volunteers also performed a mock trial to teach the children about our courts system. The YLS would like to thank the many volunteers who helped with the event. Stay tuned for these upcoming YLS events: November 18, 2016 – Mark Wilson, CEO and president of the Florida Chamber of Commerce, will be speaking about a “Changing Florida.” What will Florida look like in 2030? Who will its citizens be? What industries will dominate the Florida business community? Who will be the typical client? Come and hear the preview and ask questions regarding some preliminary results of this two-year study the Florida Chamber of Commerce has commissioned, which will issue its final report in 2017. December 8, 2016 - YLS Holiday Party January 21, 2017 - Charity Putt-Putt Tournament February 25, 2017 - OCBA GALA If you’re not already on the YLS email list, contact me at jsmith@southerntrialcounsel.com so you can get all the current YLS news! Jennifer A. Smith, Esq., of counsel at Southern Trial Counsel, PLC, has been a member of the OCBA since 2008.

PAGE 25

Legal Aid Society/GAL Teaching Tips

Maria E. Espinosa, Esq.

continued from page 16

Mediation ServiceS Florida Attorney since 1987 Florida Supreme Court Certified Family Mediator since 2005 Florida Supreme Court Certified Circuit Mediator since 2009 Florida Supreme Court Certified Appellate Mediator since 2015 Bilingual English/Spanish

407-733-3662 espiesq@aol.com

Have Clients with IRS Problems?

Look No Further than the Team at Heinkel Tax Law Group!

The Team at Heinkel Tax Law Group includes a former IRS Appeals Officer; a CPA; EAs; a tax attorney and a criminal tax attorney. The Heinkel Tax Team has a combined average experience of over 30 years fighting the IRS and DOR. You can trust YOUR clients to the Heinkel Tax Team. Make the referral and make your clients happy you did. We deeply appreciate all of our many referral relationships built over the years, and strive to establish trust and confidence in your clients, that we will try to resolve their tax dilemmas. You can trust in our skills, and having a rewarding referral relationship with us.

weeks passed and efforts to locate Tessa were unsuccessful. LAS staff began to check Tessa’s social media accounts, including Facebook, Instagram, and Snapchat. We searched for Tessa’s nicknames, relatives, and friends in the hope that we would discover a picture or post that disclosed her location. It was not long before Tessa began posting outdoor pictures with discernible landmarks. She was ultimately located, and today Tessa is back safely in the care of the Department. While it is important to be aware of the procedures used to find dependent missing children, it is just as important to ensure that there are measures in place to prevent dependent children from going missing. Counseling and mentoring are ideal for children who are at-risk of running away. One can obtain referrals for these services by speaking to the assigned case manager or by order of the court. Most importantly, make attempts build a good rapport with the child. By building a strong rapport, the child may seek out the GAL as a point of contact while the child is missing. If it worked in Tessa’s case, it can work in your case. Elizabeth J. Johnson, Esq., staff attorney in the Legal Aid Society’s Guardian ad Litem department, became a member of the OCBA in 2016.

Major Seminars

Orlando - Daytona - Melbourne:

(407) 629-5923

Mark Your Calendars Nov. 4

Intellectual Property Committee Major Seminar

Intellectual Property Updates: What IP Attorneys Need to Know 10 A.M. • OCBA CENTER Dan H. Honeywell

Nov. 10

Criminal Law Committee Major Seminar Anatomy of a Criminal Case 8:45 A.M. • OCBA CENTER

Jan. 10

large

Many a small thing has been made by the right kind of advertising.

– Mark Twain

The Briefs has plenty of room for your large ideas: Call Amanda @ 407-422-2551, Ext. 244 PAGE 26

www.orangecountybar.org

Social Security Committee Major Seminar TBD 10:00 A.M. • OCBA CENTER Details regarding topics, CLE, speakers, and fees will be posted online and included in e-blasts as information becomes available. orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

ParalegalPost

Meet Our Members...

eanette Mora, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., has been a wills, estates, and trusts paralegal for three years. She is currently pursuing her dream to become an attorney. Anne: Why did you choose a paralegal career? Jeanette: Though I had been working in the financial advisory and financial planning industry for many years, I always had a desire to work in the legal field. I was named executor of the estate Meredith Gibson Zornek, FRP of a friend who passed away, and I was in a time of career transition. I decided to enroll in an ABAapproved paralegal certification program to gain more knowledge. This allowed me to gain legal experience in the form of an internship and work with an attorney before joining my current firm. Q: What is the favorite part of your job? A: My favorite part of what I do is that I get to fully utilize my background in finance as well as my background in working with clients. Matters involving financial assets, accounting, and tax issues come up in almost all of our cases, and I enjoy being able to add value to our work product and client relationship because of that deeper level of understanding. Also, there have been several cases in our practice where I needed to fully handle a case in Spanish. Being able to provide this service adds a tremendous value to the firm. Q: What has been the highlight of your career? Jeanette Mora A: The highlight of my paralegal career was being recognized for a service award at my firm a year after I joined the firm. It was a pleasant validation of the work and value that I brought to my team and the firm. Q: If someone approached you regarding career advice, what would you tell him or her? A: I would tell someone that it is never too late to pursue your passion or try something new and redefine yourself. We are meant to evolve in life,

theBriefs November 2016 Vol. 84 No. 9

and if you’ve had a desire to pursue something or grow from where you are, stay conscious of the opportunities that present themselves to you. Sometimes these may come in the form of what seems to be a hardship or adversity. However, I believe that these are the knocks on our door that mean we are to do something different, change something, or begin something new. If we are open to those calls, we are open to further growth in our career. Q: What single event or person do you attribute your success to? A: I attribute my success to my parents, who came from very humble beginnings. They were immigrants in the late ’60s and had many obstacles stacked against them. What I have always remembered was that no matter how challenging times were, or what struggles they were going through, they always ensured that our household was one of faith, love, encouragement, and support. The values and examples of hard work and perseverance they’ve instilled in me and my siblings are priceless and carry through in the work we do and the interactions we have. Q: Is there a quote that inspires you? A: This quote was introduced to me by a colleague and I have since had it at the forefront in everything I do: “Too low they build who build beneath the stars.” – Edward Young. Q: If you were not a paralegal, what would be your dream job? A: Well, interestingly enough, in pursuit of my dream job as a lawyer, I am now in law school while working as a paralegal. It is a challenging yet invigorating time in my life, and I look forward to what the next chapter holds. Periodically, “Paralegal Post” will feature a member of the OCBA Paralegal Section. If you know a member who deserves recognition, please feel free to contact a Paralegal Section board member at orangecountyparalegalsection@gmail.com Meredith Gibson Zornek, FRP, BakerHostetler, is president of the OCBA’s Paralegal Section. She has been a member of the OCBA since 2013.

www.orangecountybar.org

PAGE 27

PhotoOp Dog Gone Good! Small Business Counsel Greyhound Volunteer Event

Left to right: Jordan Jarvis; Melanie Johnston; Amy Calandrino; Phil Calandrino, Esq.; Tom Dolney, Esq.

Left to right: Tom Dolney, Esq.; Melanie Johnston; Phil Calandrino, Esq.; Amy Calandrino; Jordan Jarvis

PAGE 28

On September 28, Small Business Counsel volunteered at the Greyhound Pets of America Greater Orlando. When race dogs age out or suffer injury, GPA cares for them until they can find their fur-ever home. A large number of the dogs are infected with hookworm and other infectious illnesses and require quarantine. The temporary quarantine area, however, held a large amount of exposed soil, which promotes the spread of illness. The Small Business Counsel decided to fix it. With materials and staff at the ready, the Small Business Counsel team removed the existing foundation and excess dirt, leveled the area, and quickly poured a new concrete slab. While the concrete dried, the team spent time snuggling with the greyhounds, giving them all lots of love.

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

SideBar

G Kimberly A. Lopez, Esq.

ood news, bad news... Bad news first: the annual Joint Voluntary Bar Associations Happy Hour scheduled for last month was postponed because Hurricane Matthew was knocking at our doors the day of the event. Good news: the happy hour has been rescheduled for November 17, 2016, from 5:30 p.m. to 8:30 p.m. at World of Beer, 431 E. Central Boulevard in downtown Orlando. You can enjoy a selection of unlimited draft beers and wines, and a variety of hors d’oeuvres for only $15 if you register by November 15, or $25 for late registration and at the door. If you registered previously, there’s no need to register again; your name will be kept on the RSVP list. If you need to cancel, please contact the OCBA office (407-422-4551) for a refund. The event will also feature a silent raffle, with items donated by our local bar associations. You can earn extra raffle tickets if you bring items for Second Harvest Food Bank. So please register by November 15 at the OCBA Store, where you will also find a list of items to donate.

CFAWL On August 3, 2016, the Central Florida Association for Women Lawyers (CFAWL) hosted its first-ever political hobnob with smashing success!

More than two hundred people were in attendance to eat barbeque, meet the thirty-eight candidates, hear them make their pitch, and participate in a straw poll of local, state, and national candidates. This hobnob was the only one in Orange County put on by an organization for women. CFAWL netted more than $5,500 on the event, which will be used for member benefits and to support CFAWL’s charities. To see the results of the straw poll, visit the CFAWL hobnob event Facebook page. The straw poll results were reported by the Orlando Political Observer as “some of the most balanced results we’ve seen this year in the region with Republicans and Democrats splitting the victories in many of the races up and down the ballot.” Remember, “SideBar” is for you! Please send news about past or future events, along with photos and IDs, to my attention at Kimberly.lopez@akerman.com. Kimberly A. Lopez, Esq., Akerman LLP, is an associate in the firm’s Litigation Practice Group. She focuses her practice on diverse commercial and business litigation matters. She has been an OCBA member since 2008.

CFAWL August Hobnob Celeste Thacker, Esq. Amanda Carl, CFAWL President Megan Malec, Esq. Kimberly Hosley, Esq.

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 29

Hearsay... Your attitude will go a long way in determining your success, your recognition, your reputation, and your enjoyment in being a lawyer. – Joe Jamail

W Vanessa A. Braga, Esq.

elcome back to another exciting edition of “Hearsay,” as we recognized the successes and accomplishments our fellow OCBA members. Nicole Latham Carolan, Esq., a shareholder with Winderweedle, Haines, Ward & Woodman, P.A., recently received an AV Preeminent rating, which is the highest rating available to attorneys by the nationally recognized Martindale-Hubbell Law directory. Nicole practices in the areas of real estate, land use and development, government, and commercial real estate litigation.

Thomas A. Cloud, Esq., a veteran city attorney and shareholder in the Orlando office of GrayRobinson, was named president of the Florida Municipal Attorneys Association (FMAA) at the organization’s 35th annual seminar. He will serve a one-year term leading the FMAA. The FMAA, organized in late 1981, strives to provide a permanent forum for municipal attorneys to identify and address legal problems among Florida’s municipalities, as well as to study and analyze court decisions, legislation, and administrative rulings that affect municipal operations. In other GrayRobinson news, Jason W. Searl, Esq., a shareholder in the firm’s Orlando office, was selected to serve a one-year term on IBERIABANK’s Central Florida advisory board, where he will give legal counsel to the bank’s senior members. Jason has extensive experience with real estate and corporate law, as well as insight into local market conditions, which made him a prime candidate for appointment to the board. John A. Boudet, Esq., also of GrayRobinson’s Orlando office, was named to the Florida Hospital Foundation Cardiovascular Institute board, which helps Florida Hospital achieve its goal of being one of the top 10 “Heart Hospitals” in the country in the next three years. Twenty attorneys of GrayRobinson’s Orlando office were included on the 2017 Best Lawyers in America list, which consists of 55,041 attorneys in 140 practices areas across the 50 states and the District of Columbia: Trevor B. Arnold, Esq.; R. Lee Bennett, Esq.; John A. Boudet, Esq.; William A. Boyles, Esq.; John M. Brennan, Esq.; Michael J. Canan, Esq.; W. Michael Clifford, Esq.; Thomas A. Cloud, Esq.; Mayanne Downs, Esq.; Phillip R. Finch, Esq.; Kent L.

PAGE 30

www.orangecountybar.org

Hipp, Esq.; Jeffrey D. Keiner, Esq.; Byrd F. “Biff” Marshall, Jr., Esq.; Tracy A. Marshall, Esq.; Michael E. Neukamm, Esq.; Pamela O. Price, Esq.; Paul S. Quinn, Jr., Esq.; Richard M. Robinson, Esq.; Susan T. Spradley, Esq.; and Thomas J. Wilkes, Esq. Two Holland & Knight partners, Suzanne Gilbert, Esq., and Scott Johnson, Esq., were named 2017 “Lawyers of the Year” by the Best Lawyers in America guide. Suzanne was recognized in banking and financing law, and Scott was acknowledged in litigation – real estate. Philip K. Calandrino, Esq., of Small Business Counsel in Winter Park, was honored by the Florida Supreme Court for his pro bono work through the Legal Aid Society of the Orange County Bar Association, Inc. Also of Small Business Counsel, Phillip K. Moeller, Esq., was recognized for his public service through the Volunteer Income Tax Assistance (VITA) program. Joseph M. Percopo, Esq., of Mateer & Harbert, P.A., has been selected as chair of the Estate, Guardianship, and Trust Law Committee of the Orange County Bar Association. Mychal Katz, Esq., of Roetzel & Andress, LPA, was elected to the Southwest Orlando Jewish Community Center’s board of directors. In the “On the Move” segment, John Y. Benford, Esq., has joined the Orlando office of Wilson Elser Moskowitz Edelman & Dicker LLP as of counsel. Jaclyn C. Blumenfeld, Esq., moving from the Miami-Dade area, joins N. Diane Holmes, P.A., practicing family law. Scott Kiernan, Esq., a board-certified construction attorney, has become a shareholder with Becker & Poliakoff. Michael A. Gumula, Esq., has joined The Dill Firm as an associate attorney. As always, please feel free to send your news and achievements (or the news and achievements of your OCBA friends and colleagues) to vanessa. braga@qpwblaw.com. And, have a wonderful month and a fantastic Thanksgiving. See you in the new year, “Hearsay!” Vanessa A. Braga, Esq., is an associate attorney with Quintairos, Prieto, Wood & Boyer, P.A., practicing in the areas of premises liability, nursing home and assisted living defense litigation, and medical malpractice defense. She has been a member of the OCBA since 2014.

theBriefs November 2016 Vol. 84 No. 9

Labor & Employment Law Committee

Mya M. Hatchette – Mediator

· · · ·

Experienced, Knowledgeable & Respected Over 16 years litigating complex business and real estate disputes A solid understanding of the multiple layers of issues and concerns facing all parties Served as counsel for both insureds and insurance companies Available throughout Florida

continued from page 13

employee’s reasonable belief or allow the employee to refuse to meet the requirements of the job with no consequence. In apparent recognition of this dilemma the legislature declined to include in the relevant section of the Act this protection for employees.”). 14 118 So. 3d at 916. 15 Id.(quoting Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1343 (S.D. Fla. 2008). 16 Odom v. Citigroup Global Markets, Inc., 62 F. Supp. 3d 1330 (N.D. Fla. 2014). 17 11 F. Supp. 3d at 1183. 18 Id.(quoting Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014). 19 157 So.3d. at 465. 20 Case No. 2:15-cv-441-FtM-29MRM, 2016 U.S. Dist. Lexis 46011, *11-12 (M.D. Fla. April 5, 2016). 21 Id. 22 Case No. 8:15-cv-2330-T17-TBK, 2016 U.S. Dist. LEXIS 90435, *11 (M.D. Fla. July 12, 2016). 23 Id. 24 Id. (“The Kearns court states that ‘the issue of which standard applies is not determinative... .”). 25 Mathis v. City of St. Augustine Beach, Case No. 3:13-cv-1015-J-34JRK, 2015 U.S. Dist. LEXIS 41649, 2015 WL 1470762, *72 (M.D. Fla. 2015) (“[T]he Court is particularly doubtful of Mathis’s ability to establish a causal connection between her protected activity and her termination where her complaints came on the heels of the initiation of the internal investigation… .”); Wofsy v. Palmshores Ret. Community, 285 Fed. Appx. 631, 635 (11th Cir. 2011) (“Because Wofsy received warnings months before he made his request for accommodation… Wofsy failed to establish a causal connection… .”); Uche v. St. Lukes-St. Vincent’s Healthcare, Case. No. 3:12-cv865-J-32JBT, 2015 U.S. Dist. LEXIS 13846 (M.D. Fla. 2015) (“Where a plaintiff has received repeated warnings that continued misconduct could result in a negative employment action, the causal connection is broken.[Internal citations omitted.]. Indeed… when an employer contemplates an adverse employment action before… protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation.”). Notice that the FCRA’s retaliation provision “is almost identical to its federal counterpart” under Title VII. As such, “Florida courts follow federal case law when examining FCRA retaliation claims.” Mathis, 2015 U.S. Dist. LEXIS 41649 at 47 (citing Carter v. Health Mgmt. Assocs., 989 So.2d 1258, 1262 (Fla. 2d DCA 2008)).

Let us remember that, as much has been given us, much will be expected from us, and that true homage comes from the heart as well as from the lips, and shows itself in deeds.

Florida Certified Circuit and County Court Mediator

(407) 246-8696 mhatchette@whww.com www.whww.com Winter Park, Florida

Consult an Expert Comprehensive Employment Services Vocational Assessments Wage Earning Capacity Labor Market Surveys Vocational Testing Job Analysis

Call 407-401-9745 or visit www.vocexpertservices.com. Fax: 844-639-9658 | devin@vocexpertservices.com 2431 Aloma Ave., Ste. 303, Winter Park, FL 32792 W O R K E R S C O M P E N S AT I O N • P E R S O N A L I N J U R Y • F A M I LY L A W

CREATED BY LAWYERS

FOR LAWYERS,

The only insurance company that was created by The Florida Bar!

•Rated “A” Excellent by A.M. Best

•Free Risk Management Hotline

•10% Discount for Board Certified Attorneys

•Personal Service That No One Can Match

– Theodore Roosevelt on Thanksgiving Call or visit us online today! flmic.com 800.633.6458 theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 31

PhotoOp Where in the World is The Briefs? It’s with Liz McCausland, Esq., OCBA president-elect, at Gullfoss Waterfall in Iceland! Send your photo with The Briefs magazine to Amanda at amandan@ocbanet.org for OCBA’s social media use. Promote the OCBA and become famous all at the same time! Or, post using: #BriefsAroundtheWorld. Think holiday pics – either here or abroad!

PAGE 32

fs November 2016 Vol. 84 No. 9

www.orangecountybar.org theBrie

Events Nov. 3 – 9th Annual Breakfast of Champions. Legal Aid Society Annual Fundraiser. 7:30 a.m.-9:00 a.m. Presidential Ballroom at Church Street Station. Contact Donna Haynes, Development Director, Legal Aid Society, at 407-515-1850. Nov. 17 – 2016 Joint Bar Associations Happy Hour. Social Committee. 5:30 p.m.-8:30 p.m. World of Beer, 431 E. Central Blvd. Fee: $15 for registrations by Nov. 15; $25 late registration or at the door. Register by Nov. 15 at the OCBA Store. See ad in this issue of The Briefs, page 17.

Seminars Nov. 1 – Least Restrictive Means: Leveled Placements and Medications. LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Marks Street Senior Center, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speaker: Marie Priebe, Esq. Contact: Marilyn Carbo at mcarbo@legalaidocba.org. Nov. 1 – Civility Matters. Professionalism, Appellate Practice, and Criminal Law Committees Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 (approved). Free (members); $15 (nonmembers). Speakers: Hon. Robert Egan; Thomas Feiter, Esq.; and Ryan Williams, Esq. Register by Oct. 28 at the OCBA Store. Nov. 3 – Attorneys’ Fees. Labor & Employment and Solo & Small Firm Committees Seminar. 12:00 p.m.-2:00 p.m. OCBA Center. CLE: 2.0, including 2.0 ethics (approved). Free (members); $15 (non-members). Speakers: Hon. Donald A. Myers, Jr., and Hon. Kevin B. Weiss. Register by Nov. 1 at the OCBA Store. Nov. 4 – Intellectual Property Updates: What IP Attorneys Need to Know. Intellectual Property Committee Major Seminar. 10:00 a.m.-1:00 p.m. OCBA Center. CLE: 3.0, including 3.0 intellectual property law (approved). $40 (members); $50 (non-members);$25 gov’t/student. Speakers: Terry M. Sanks, Esq.; David W. Henry, Esq.; and Donna Chesteen, Esq. Register by Nov. 2 at the OCBA Store. Nov. 10 – Anatomy of a Criminal Case. Criminal Law Committee Major Seminar. 8:45 a.m.-5:00 p.m. OCBA Center. CLE: 7.5, including 1.0 ethics (pending). $40 (members); $50 (non-members); $25 gov’t/student. Speakers: Hon. Frederick Lauten; Hon. James Craner; Hon. Brian Duckworth; Hon. Mike Murphy; Hon. Julie O’Kane; Jeffrey Deen, Esq.; Matthews Bark, Esq.; Matthew Olszewski, Esq.; Richard Hornsby, Esq.; James Smith, Esq.; William Ponall, Esq. Register by Nov. 8 at the OCBA Store. Nov. 14 – VA Benefit and Medicaid Planning. Estate, Guardianship & Trust Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 (approved). Free (members); $15 (nonmembers). Speaker: Randy Bryan, Esq. Register by Nov. 12 at the OCBA Store.

Nov. 15 – Ethics Questions from Pro Bono Cases and Attorneys. LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Marks Street Senior Center, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speakers: Angel Bello-Billini, Esq., and Catherine Tucker, Esq. Contact: Marilyn Carbo at mcarbo@legalaidocba. org. Nov. 15 – How Handle Difficult Clients While Maintaining Ethical Considerations. Solo & Small Firm Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0, including 1.0 ethics (approved). Free (members); $15 (non-members). Speaker: Anthony J. Diaz, Esq. Register by Nov. 13 at the OCBA Store. Nov. 18 – Business Valuation for Family Law. Family Law Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0, including 1.0 business litigation (approved). Free (members); $15 (non-members). Speakers: Adam Magill, Esq., and Stacey Gambel, MBA, CPA. Register by Nov. 16 at the OCBA Store. Dec. 6 – Dependency Motion Practice 2: Common Dependency Motions and How to Prevail in Court. LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Marks Street Senior Center, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speaker: Stephanie Stewart, Esq. Contact: Marilyn Carbo at mcarbo@ legalaidocba.org. Dec. 8 – How to Get Medical Records Electronically Without Paying $1 Per Page by Using the Federal HITECH Law. Social Security Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 (pending). Speakers: Richard Culbertson, Esq., and Paul Morgan, Esq. Register by Dec. 6 at the OCBA Store. Dec. 13 – Domestic Violence and Its Impact on Dependency Court. LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Marks Street Senior Center, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speakers: Tenesia Connelly Hall, Esq., and Hannah Farber, Esq. Contact: Marilyn Carbo at mcarbo@legalaidocba. org. Jan. 12 – TBD. Social Security Committee Major Seminar. Jan 18 – TBD. Elder Law Committee Seminar.

An n o unce ments

theBriefs November 2016 Vol. 84 No. 9

www.orangecountybar.org

PAGE 33

The Orange County Bar Association is pleased to provide you with a list of vendors that have provided Central Floridians with time-tested, quality products and services, and are supporters of the Orange County Bar Association. We encourage you to take advantage of the products and services offered by these establishments. Many businesses on the list offer special promotions or discounts to help you continue to grow your practice and be successful both in the legal field and in the community.

Become a preferred vendor Contact Vendor Marketplace representative by email. •Advertising•

The Baker Press, Inc. – Finest Quality Printing since 1968 Dave Thompson • 3606 Silver Star Rd., Orlando, FL 32808 • 407-290-5800 x219 dthompson@thebakerpress.com

OCBA Mentoring Program Do you have wisdom & experience you could share with younger lawyers?

Living Magazines, Inc. /Vail Living Agency – Innovative Print & Advertising Design Catherine Hébert • P.O. Box 3450, Grand Junction, CO 81502 970-331-6491 • trinitycathy@yahoo.com

•Legal Support Services•

Boehm & Boehm Forensic Media Consulting – Certified Comprehensive Litigation Support Solutions Florian Boehm • 5036 Dr. Phillips Blvd., Ste. 155, Orlando, FL 32819 407-405-8483 • florian@boehmboehm.com Westlaw, a Thomson Reuters business – Westlaw, Legal Products and Services Vaunda Lyles • 407-925-3398 • vaunda.lyles@thomsonreuters.com

Could you use some guidance from an experienced lawyer?

Milestone | Reporting Company – Our court reporters have set the standard for accuracy and professionalism in Orlando since 1979. Evelyn Quintana • 407-423-9900 • evelyn@milestonereporting.com

If so, then this program is for you!

Data Analyzers Digital Forensics & E-Discovery – Concrete Evidence, Solid Testimony, Successful Outcomes! Andrew von Ramin Mapp • 805 S. Kirkman Rd, Suite 202, Orlando, FL 32811 321-206-6718 • andrew@forensicanalyzers.com

Mentors and mentees meet 16 times from February through May on a mutually convenient schedule to discuss the practice of law. Dec. 2, 2016 – Applications Due Feb. 1, 2017 – Program Begins TBD – Kick-off Luncheon May 31, 2017 – Program Concludes The commitment is minimal, but the impact may be life-long! For details, go to: www.orangecountybar.org/mentoring or contact Kristopher Kest at 407-514-2667.

PAGE 34

Perfect Practice – Reduce Expenses. Increase Profits. Enhance Efficiency. Track Billable Time More Accurately. Improve Workflow. Start Today. Richard Prieto • P.O. Box 540086, Orlando, FL 32854 • 407-843-8992 info@perfectpractice.com

•Professional Services•

Dytech Group Computer Networking – “Our Business lets you Focus on Your Business” Dennis Bell •7201 Sandscove Ct., Ste. 4, Winter Park, FL 32792 • 407-678-8300 Sales@Dytech.com The business listed herein (the “Vendors”) are not affiliated with the Orange County Bar Association (OCBA) and shall not under any circumstances be deemed to have any authority to act on behalf of the OCBA. The OCBA does not make, and expressly disclaims, any warranty, representation, responsibility, or guarantee as to (a) the quality or suitability of the Vendors, their products, or services, and (b) the duration or validity of any discount or other promotion offered by any of the Vendors.

www.orangecountybar.org

theBriefs November 2016 Vol. 84 No. 9

President’s Message continued from page 3

leading to substance abuse or mental health concerns. The purpose of the Veterans Court is to enable the court to focus on the particular problems and issues that are prevalent in the veteran community and thereby decrease recidivism rates. Participants must meet eligibility criteria, but there is also a mentorship component. Specialty courts, such as Veterans Court, have been shown to be successful across the nation, as reductions in recidivism are beneficial for both the participant and for society as a whole. Men and women of the armed forces, your sacrifices for our great nation are not forgotten, and the members of the OCBA support and honor you. Wiley S. Boston, Esq., is a partner with Holland & Knight LLP. He is Board Certified in Real Estate Law in Florida and practices in the area of commercial real estate law, with emphasis on leasing of office, industrial, and retail properties, representation of developers of commercial projects, and real estate finance. He has been a member of the OCBA since 1996.

New Mem b er s

Attorneys

Josephine Balzac Andres Beregovich Nikki A. Childress Vincent A. Citro Jennie L. Colabelli Roberto Cruz Andrew B. Doyle Alex Finch Christene H. Ford John Gihon Hillary N. Jenkins Ricky L. Johnson Kendra L. Jowers Steven H. Kane Wendy T. Kwon

Michael T. McManus Peter P. Mendez Juliane A. Murphy Emmanuela Obiabo Jany D. Perez Seibane Alfred Suarez Marsha D. Summersill Gina I. Thomas Iris R. Timm Humberto S. Valdes Joseph G. Wirth Matthew H. Wolfe Bryan A. Yasinsac

Affiliates

Associate

Andrew Weiner Helmut J. Wyzisk, III

Brian A. Fery

Morgan J. Deneen Sheila Serrano Cheryl E. Westfall

Law Students Phillip Arroyo Beatriz E. Benitez Brittany C. Bennett Ashanti Breeden Elizabeth Henin Dina L. Sarver

Patrons

Is your firm part of the 100% Club? Firms with two or more attorneys and 100% membership in the OCBA can belong! If you believe your firm is eligible, please call the Membership Department at 407-422-4551, ext. 225. McMillen Law Firm, P.A. Giles & Robinson, P.A. Allen, Norton & Blue, P.A. McShane & McShane Law Firm, P.A. Harris Harris Bauerle Ziegler Lopez Amy E. Goodblatt, P.A. Meenakshi A. Hirani, P.A. Heatwole Law Firm, P.A. Anderson & Ferrin, Attorneys at Law, P.A. Men’s Divorce Law Firm Higley & Szabo, P.A. Banker Lopez Gassler P.A. Morgan, White-Davis & Martinez, P.A. Hilyard, Bogan & Palmer, P.A. Benitez Law Group, P.L. Murphy & Berglund, PLLC Hornsby Law Beshara, P.A. Murrah Doyle Wigle & Torre P.A. Infocus Family Law Firm, P.L. Billings, Morgan & Boatwright, LLC N. Diane Holmes, P.A. Jill S. Schwartz & Associates, P.A. Bodiford Law Group O’Mara Law Group Keating & Schlitt, P.A. Burr & Forman Ossinsky & Cathcart, P.A. King, Blackwell, Zehnder & Wermuth, P.A. Carr Law Firm, P.A. Provencher & Simmons, P.A. Cole, Scott & Kissane, P.A. Korshak & Associates, P.A. Kosto & Rotella, P.A. Ringer Henry Buckley & Seacord, P.A. Colling Gilbert Wright & Carter, LLC Roman V. Hammes, P.L. Law Offices of Amber Jade F. Johnson, P.A. Cullen & Hemphill, P.A. Rumberger, Kirk & Caldwell P.A. Law Offices of Brent C. Miller, P.A. DeCiccio & Johnson Sasser & Weber, P.A. Legal Aid Society of OCBA Dellecker Wilson King McKenna Ruffier & Sos, LLP Sawyer & Sawyer, P.A. Lewis & Crichton Divine & Estes, P.A. SeifertMiller, LLC Lim & Associates, P.A. Faddis & Faddis, P.A. Small Business Counsel Marcus & Myers, P.A. Fassett, Anthony & Taylor, P.A Southern Trial Counsel Marshall, Dennehey, Warner, Fisher Rushmer Coleman & Goggin Stovash, Case & Tingley McDonald Toole Wiggins, P.A. Frank A. Hamner, P.A. Tangel-Rodriguez & Associates McMichen, Cinami & Demps PLLC Gasdick Stanton Early, P.A.

The Aikin Family Law Group The Arnold Law Group The Brennan Law Firm The Dill Law Group The Draves Law Firm, P.A. The Elder Law Center of Kirson & Fuller The Llabona Law Group The Maher Law Firm, P.A. The Orlando Law Group The Skambis Law Firm The Smith Family Law Firm, P.A. Vose Law Firm, LLP Warner & Warner, P.L. West, Green & Associates, P.L. Wicker, Smith, O’Hara, et al. Wieland, Hilado & DeLattre, P.A. Wilson McCoy, P.A. Winderweedle, Haines, et al. Wooten Kimbrough, P.A. Yergey & Yergey, P.A.