Sections gear up for 2001 legislative session
Opposes legislation that would require courts to consider domestic violence counseling or mental health or substance abuse treatment when establishing the amount of bail or type of bond required for a criminal defendant. Opposes revision of Florida law regarding a spouse’s elective share that would modify the percentage of elective share in any revocable trust of a decedent based upon the length of the decedent and spouse’s marriage. Supports amendment to §673.3121, Florida Statutes, to provide a cross reference in it to §673.4111, Florida Statutes, stating that if an official check is not paid, then the person entitled to enforce the official check is entitled to compensation from the obligated bank for refusing to pay. The Florida Bar’s sections have begun preparing for the 2001 session of the Florida Legislature by reaffirming previous legislative positions and establishing several new positions. The Board of Governors last month recognized a variety of section legislative requests. Most were renewals for previous section positions, required because under Bar policies all legislative positions sunset at the end of the legislative biennium. Some sections have also begun with their new requests. Unlike Bar-wide positions, sections lobby in their own name and use only their own voluntary dues to support such advocacy, and consequently have a greater scope for their lobbying activities. Sections can also oppose each other on the same position. The Bar rules require that when section representatives present their positions to lawmakers, they clearly identify that they represent the section and not the Bar as a whole. Because the sections’ legislative activities are supported with voluntary dues, Bar members cannot seek a refund, as they can with Bar-wide positions, of their annual Bar membership fees when they disagree with the position. Anyone with questions about a section legislative position can find a list of section officers in the September Journal directory issue. Following is a list of section positions, both new and renewed, authorized by the board. Supports the creation of a commission to study issues of child support. Supports legislation to clarify that the Earned Income Credit is exempt from legal process under §222.25, Florida Statutes. Supports legislation providing that a motor vehicle is subject to forfeiture under the Florida Contraband Act if it is driven by a person under the influence of alcohol or drugs and the person’s license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence. Administrative Law Opposes revision of §57.071, Florida Statutes, that would preclude the taxation of expert witness fees in family law matters absent compliance with particularized requirements. Family Law Public Interest Law Business Law Section: Opposes modification of §90.612, Florida Statutes, to require additional protections for the interrogation of witnesses under 14 years of age. Workers’ Compensation Supports statutory creation of the crime of culpable negligence creating financial injury. Opposes the portion of the 1998 Internal Revenue Service Restructuring and Reform Act, which would extend the attorney/client privilege to accountants and enrolled agents in civil tax matters. Government Lawyer Opposes exemptions or exceptions to the Administrative Procedure Act, but otherwise supports a requirement that any exemption or exception be included within Chapter 120, Florida Statutes, itself. Opposes enhancement of the penalties for driving under the influence. Supports legislation amending §119.07(3)(i)(1), Florida Statutes, to exempt from public disclosure the home addresses, telephone numbers, places of employment, and names and locations of schools and day care facilities of grandchildren of justices, district court of appeal judges, circuit court judges, county court judges, general masters and child support hearing officers. Supports legislation to enact the revised Article 9 of the Uniform Commercial Code as recommended by the National Conference of Commissioners on Uniform State Laws. October 15, 2000 Regular News Tax Section: Supports amendments to Florida’s domestic violence laws that would include: (a) amending §741.28(1), Florida Statutes, to eliminate the wording “who is or was residing in the same single dwelling unit”; (b) amending §741.30(6)(c), Florida Statutes, to substitute the term “permanent” instead of “final” with regard to judgments on injunctions for protection against domestic violence; (c) amending §741.30(6)(a)7, Florida Statutes, to authorize the court to enter relief to protect minor children of a domestic violence victim as well as the victim; (d) amending §741.30(1)(g), Florida Statutes, to permit consideration of evidence presented at a hearing of which parties were noticed to be present, as opposed to limiting consideration of evidence to those hearings where parties are actually present; and (e) amending §790.065(a), Florida Statutes, to include review of misdemeanor crimes of domestic violence. Administrative Law Section: Opposes legislation to repeal or eliminate the use of discovery depositions in criminal cases. Tax Supports legislation amending §737.307, Florida Statutes, to clarify the six-month statute of limitations applies to a trust accounting, provide a notice requirement for the statute and specify the statute of limitations does not apply to certain dishonest conduct by the trustee. Opposes the extension of child visitation rights to great-grandparents. Supports full legislative funding of the Prosecutor/Public Defender Training Program. Supports repeal of §83.09, Florida Statutes, to clarify that distress no longer applies to residential tenancies. Supports modification of child support guidelines, Chapter 61, Florida Statutes, to eliminate the 25 percent reduction from the total cost of child care prior to allocating that cost between the parents, and to allow consideration of any available tax credit received by one parent as a result of child care expenses when determining allocation of costs. Supports full legislative funding of the Prosecutor/Public Defender Training Program. Supports any legislation that would streamline and make more efficient the administration of justice in the workers’ compensation system. Supports legislation that would make it a capital felony to commit the unlawful killing of a human being while perpetrating or attempting to perpetrate the act of resisting a law enforcement officer with violence. Opposes federal efforts by the Social Security Administration (SSA) to eliminate the attorney fee program, which pays private counsel for successfully representing claimants in Social Security cases. Supports legislation recognizing the state’s legal obligation to provide medical, mental health and developmental services to all children in state custody who need such services. Opposes revisions in the statutory criteria for bail determination that would add consideration of whether there is probable cause to believe a defendant committed a new crime while on pretrial release. Real Property, Probate, and Trust Law Supports language in the Legislative Appropriations Act to permit the payment of government attorneys’ Florida Bar membership fees and continuing legal education costs from funds within budget entities, and further supports amendment to general law to authorize all Florida government agencies to pay their government attorneys’ Florida Bar membership fees and continuing education costs. Opposes legislation that would seek to remove from the courts in any way the establishment, modification or enforcement of family support, and/or that would seek to place consideration, effectuation or adjudication of these issues under the jurisdiction of the Department of Revenue or any other governmental or administrative body. Supports legislation to extend child health insurance coverage, including special health care needs, dental care, presumptive eligibility and continuous eligibility, to all children who are eligible for coverage under KidCare. Opposes amendment of the repeat violence laws that would exempt a parent or guardian from setting forth facts sufficient to support an injunction for protection against repeat violence within a petition filed on behalf of a minor. Supports any changes in the current workers’ compensation law that would: (a) ensure the independence of the judges of compensation claims’ ability to discharge the duties of their office in the adjudicatory process, including a reappointment process that promotes and ensures the independence of the judiciary; and (b) ensure the right of injured workers to have their cases reviewed by an Article V court. Supports legislation to replace the term “general master” with “magistrate” within all statutes relating to family law. Opposes any efforts to enact a statutory will. Supports technical amendment of the assignment of rents statute, §697.07, Florida Statutes, to correct typographical and grammatical errors in subsections (2), (4) & (7), and to include the term “or control” inadvertently omitted from subsection (3) in the original 1993 legislation. Supports legislation amending §737.303, Florida Statutes, to make technical corrections to ensure trust accounting terms are used in a uniform manner. Supports the establishment and funding of programs to provide dependency mediation services in each judicial circuit. Supports legislation to allow relatives with custody of a child pursuant to any court order to receive financial assistance under the Relative Caregiver Program. Opposes any amendment to Chapter 120, Florida Statutes, or other legislation, which undermines the rulemaking requirements of the Administrative Procedure Act by allowing “guidelines,” “determinations,” or other statements of agency policy without formal rule making. Opposes mandatory sentences for persons who commit or attempt to commit a forcible felony with a firearm. Supports legislation prohibiting discrimination in employment, housing and accommodations on the basis of sexual orientation. Opposes statutory creation of the “doctrine of necessaries” with regard to joint marital debts. Opposes the rigid allocation of child support based on the number of days a child spends with each parent; supports factors that would permit a deviation in child support based on a rotating custody arrangement or extensive visitation. Supports passage of adoption legislation which: (a) amends Chapters 39 and 63, Florida Statutes, to provide that Chapter 39 applies to all adoptions that involve children surrendered to the Department of Children and Families (DCF) and Chapter 63 applies to all other adoptions; (b) provides that an adoption entity has an affirmative duty to follow specified due process provisions and that a material failure on the part of the entity to meet this duty may result in the entity being liable to the adoptive parents for all sums paid by the adoptive parents in connection with the adoption (such due process provisions should require the entity to begin specified efforts to identify and locate a parent whose consent to an adoption is required within 7 days after the person seeking to place a child for adoption evidences that desire to an adoption entity); (c) adopts the procedural framework for adoptions that is used by agencies under current Chapter 39, bifurcating the two-step process currently accomplished under Chapter 63, with the first step being an accelerated termination of parental rights proceeding; (d) requires repayment to the adoptive parents of certain fees, costs and expenditures by the adoption entity if the court sets aside a consent to adoption or judgment under Chapter 63 due to fraud or duress attributable to the adoption entity, and requires an award of attorneys’ fees to the adoptive parent in such circumstances; (e) requires that a copy of any order imposing sanctions under Chapter 63 be forwarded by the court to DCF if against an agency, and to The Florida Bar if against an intermediary; (f) provides that if the court sets aside a consent to adoption or a judgment under Chapter 63 due to acts or omissions attributable to the adoption entity that the entity is liable to the prevailing party for a reasonable attorney’s fee; (g) provides that consent must be obtained or notice under Chapter 63 must be provided to any man who is the child’s father by marriage, adoption or an order of paternity, and if there is no one, then any man who registers with the Department of Vital Statistics, has provided support to the child or to the mother during her pregnancy in a repetitive customary matter, has been identified under oath by the birth mother as the father, or is a party in a legal proceeding in which the custody, paternity or a legal proceeding in which the custody, paternity or termination of parental rights regarding the child is at issue; (h) provides that an affidavit of non-paternity may be executed in lieu of a consent in certain circumstances and sets out the form affidavit; (i) requires that certain persons with potential rights regarding a minor being placed for adoption execute a consent to adoption, an affidavit of nonpaternity, or receive notice by personal or constructive service of an action to terminate parental rights and which sets out the form notice; (j) allows a person executing a consent to an adoption or an affidavit of nonpaternity to have an independent witness present and requires advance notice of this right; (k) provides that a consent to an adoption may be withdrawn by certified mail sent within three business days after execution, or one business day after a birth mother’s discharge from a hospital or birth center, whichever is later; (l) permits termination of parental rights of an incarcerated parent based upon such incarceration under certain circumstances; (m) specifies the fees and expenditures related to the adoption that may be collected from adoptive parents by the adoption entity, prohibits the charging of certain fees including nonrefundable lump sum payments and facilitation fees, and provides for repayment of these expenses under certain circumstances; (n) grants to the court the authority to scrutinize the fees, costs and expenses connected with an adoption and to restore to the adoptive parents monies paid that were not actually spent; (o) allows a party to an agreement for payment of fees, costs and expenditures related to an adoption to cancel the agreement within a period of three business days after signing it; (p) provides that petitions for declaratory statement, termination of parental rights pending adoption, and adoption filed under Chapter 63 pertaining to the same child may be consolidated at the request of a party or by order of the court, and prohibits the charging of more than one filing fee in such cases; (q) requires that, when readily obtainable, the Social Security number and date of birth of each birth parent be included on the social and medical history form filed with the court; (r) requires that the clerk of the court forward the statement of final decree of adoption to the adoption registry maintained by DCF for retention; (s) requires a statute of repose prohibiting any challenge to an order of adoption or underlying order terminating parental rights on any ground, including fraud or duress, more than one year after entry of the order terminating parental rights; (t) amends current law to set out factors to be considered when terminating parental rights based upon abandonment, preventing de facto termination of parental rights without notice prior to the child’s birthday, and which would preclude a finding of abandonment based upon lack of emotional support provided to a birth mother during her pregnancy; and (u) requires adoption agencies to follow the same law currently applicable to intermediaries regarding children placed out of state for adoption. Supports any legislation that would further enforce the insurance coverage requirements of the Workers’ Compensation Act. Opposes revision of §57.105, Florida Statutes, that would delete the standard of “a complete absence of any justiciable issue of either law or fact raised by the complaint or defense of the losing party” for awarding an attorney’s fee to the prevailing party. Opposes amendment to §733.302, Florida Statutes, to expand the class of non-residents which may serve as personal representative because of a concern that any addition to the class may subject the entire statute to a renewed constitutional challenge. Supports legislation amending §§61.30(11)(b), Florida Statutes, to include a specific mathematical calculation (Gross-up method) for determining child support in cases involving a shared parental arrangement wherein the child spends a “substantial amount of time” with the non-custodial parent. Supports legislation amending §61.30(11)(b), Florida Statutes, to include a definition of “substantial amount of time” connoting the non-custodial parent exercising visitation at 30 percent of the overnights during a calendar year, for the purpose of adjusting child support awards. Supports legislation amending §119.07(3)(i)(1), Florida Statutes, to extend to general masters and child support hearing officers the exemption from public disclosure granted therein. Supports legislation that would add assistant state attorneys, assistant statewide prosecutors and assistant public defenders to the Senior Management Service Class of the Florida Retirement System. Supports extending jurisdiction of the juvenile courts through age 21 for young adults who remain in foster care beyond their 18th birthday. Supports amendment of §918.16, Florida Statutes, which would require that a judge clear the courtroom at the request of a victim during his or her testimony concerning a sexual offense, provided that the judge retained discretion for certain individuals (such as psychologists or other professionals) to hear such testimony. Government Lawyer Section: Supports amendments to Chapter 718, Florida Statutes, Condominiums, and Chapter 719, Florida Statutes, Cooperatives, to require that engineers, architects and other design professionals and manufacturers warrant the fitness of the work they perform on condominiums or cooperatives. Supports amendment to §119.07(3)(x), Florida Statutes, to exempt from disclosure under the public records law, the home addresses and telephone numbers of all current and former government agency employees. Supports the repeal of §744.3725(6), Florida Statutes, which requires the consent of a ward’s spouse before a court may permit a guardian to initiate a proceeding for dissolution of the ward and spouse’s marriage. Supports §718.116 (1)(a) and (e), Florida Statutes, of the Condominium Act as it currently exists, and opposes any amendments that would increase the liability of a first mortgagee for unpaid assessments or that would otherwise unconstitutionally impair the rights of owners or lienors. Health Law Section: Opposes amendment to Chapter 120, Florida Statutes, to deny points of entry to request administrative proceedings where rights of substantially affected persons are involved. Supports amendment to Chapter 63, Florida Statutes, Adoption, to provide that no consents shall be signed by either birth parent prior to the child’s birth and providing that a birth parent be given at least a three-day right of rescission once the consent is signed. Public Interest Law Section: Supports amendment of §61.1301, Florida Statutes, to reinstitute the use of income deduction “orders” rather than income deduction “notices,” and clarification of the authority of a trial court to utilize income deduction for temporary support. Sections gear up for 2001 legislative session Supports amendment of the domestic violence laws to provide that it is unlawful for a person subject to an injunction for protection against domestic violence to refuse to surrender firearms or ammunition, or to interfere with or obstruct a law enforcement officer from enforcing such an injunction. Supports legislative intent language to clarify that statutory restrictions or prohibitions on the private practice of law by government lawyers (other than judges and their staff) do not preclude such lawyers from providing pro bono legal services as contemplated by the Supreme Court of Florida in Amendments to Rules Regulating The Florida Bar, 630 So. 2d 501 (Fla. 1993), which establishes an aspirational goal of 20 hours per year of such services by each Florida lawyer. Supports, for administrative disciplinary proceedings before regulatory boards within the Division of Medical Quality Assurance of the Department of Health, the adoption of a statute of limitations of no less than four years from the time of the conduct giving rise to the complaint, or from the time the conduct is discovered or should have been discovered, but in no event should the statute of limitations be extended more than seven years — said limitations being inapplicable in cases involving: fraud, concealment or intentional misrepresentation of fact by the investigated licensee which affect discovery of the alleged misconduct within the limitations period; a complainant whose minority, incapacity or other legal impediment prevented discovery of the alleged misconduct within the limitations period; claims of sexual activity between a licensee and patient; or alleged conduct that involves fraud or misrepresentation of a material fact in the context of an original or renewal license application. Opposes legislation that would re-enact the Bulk Sales Act, Article 6 of the Uniform Commercial Code. Supports amendment of §61.13(1), Florida Statutes, to clarify that a court may require either or both parents to carry life insurance or to otherwise secure child support obligations. Opposes creation of an evidentiary privilege for parent-child communications. Opposes revision of §827.03, Florida Statutes, that would include as a definition of “child abuse” the commission of an act of domestic violence by a caregiver in the presence of a minor child. Supports legislation amending §61.14(2), Florida Statutes, to clarify the Court has the authority to make upward or downward modification of support retroactive to the date of the filing of the modification action. Supports amendment to Chapter 723, Florida Statutes, specifying that each mobile home owner/owners shall have only one vote at elections or meetings, and to allow association bylaws to specify less than a majority for a quorum. Opposes any portion of the National Association of Insurance Commissioners Title Insurers Model Act and Title Insurance Agent Model Act that may adversely affect Florida attorneys’ ability to participate in real estate closing and the issuance of title insurance. Supports a constitutional amendment removing the restriction on devise of homestead property; also to provide that homestead rights are limited to the head of a family with a surviving spouse or dependent heir. Supports legislation to resolve the cloud on Florida land titles resulting from potential claims that portions of property that appear from the face of deed in the chain of title to have been conveyed into private ownership are subject to a claim of ownership by the State of Florida as sovereignty lands, and further supports a commission to review the issue. Supports the exclusion of proceedings governed by the Family Law Rules of Procedure and Juvenile Rules of Procedure from a parent-child privilege. Supports adequate funding for dependency courts and for all Chapter 39, F.S. proceedings relating to children. Supports confidentiality of Physician Recovery Network records. Supports legislation to clarify that children in shelter or foster care be accorded the protections of §39.4085, Florida Statutes. Opposes any legislation effecting restrictions on, or restructuring of, the payment of attorneys’ fees — either to the attorney of the injured worker or to the attorney for the employer/carrier/self-insured — other than what is currently stated within §440.34, Florida Statutes. Criminal Law Section: Opposes any legislation that would eliminate, impair or change the Interest on Trust Accounts (IOTA) Program. Supports amendment to §162.09(3), Florida Statutes, to clarify the relative priority of recorded municipal code enforcement liens created pursuant to the Local Government Code Enforcement Boards Act. Health Law Supports revision to §704.01, Florida Statutes, the Common Law and Statutory Easements of Necessity, to balance the rights of landowners. Opposes changes in Florida’s insanity defense which would impose on the defendant the burden of proving insanity by clear and convincing evidence. Supports repeal of §6045(f), Internal Revenue Code, which expands the scope of required tax information reporting, to include amounts paid to attorneys even where the payment includes damage awards that clearly are not taxable to the attorney, and even where the payments are made to an incorporated law firm. Supports revisions to §744.301 and §744.387, Florida Statutes, which would increase the settlement authority of natural guardians and clarify the role of guardians ad litem in settlements of claim for minors. Supports legislation to create trust accounting standards similar to probate accounting standards, including a requirement for notice of the deadline for filing objections to the trust accounting. Supports amendment to Chapter 39, Florida Statutes, Proceedings Relating to Children, to provide that a separate proceeding for termination of parental rights be conducted by the juvenile division of the court, thus affording the birth parents the right to counsel. Opposes any legislation limiting property owners’ rights or limiting attorneys’ fees in condemnation proceedings. Business Law Workers’ Compensation Section: Real Property, Probate and Trust Law Section: Family Law Section: Supports amendment to §695.26(3)(a), Florida Statutes, to provide that its requirements do not apply to instruments executed before July 1, 1995. Sections gear up for 2001 legislative session Criminal Law Supports adequate funding for mandated programs under the state’s Families in Need of Services and Children in Need of Services legislation pursuant to Chapter 39, Florida Statutes.