As December is coming to a close and we near the end of 2015, I wanted to take a moment to wish everyone a safe and Happy Holidays. This is the time of year to spend with your family and close friends, to reminisce about the previous year and what it brought, and to wonder about the upcoming year and what it has in store for us.
Arut Law, P.A., has and will continue to strive to help the people of Northeast FL with their legal needs. If at any time you have questions about Trusts & Estates, Real Estate, Business Law, Civil Litigation, or other issues, please feel free to send a question or request a free, confidential consultation.
On behalf of the firm, may all of you have an enjoyable and memorable celebration of the coming new year!
See you in 2016!
George
Sometimes a trial depends on the testimony of an expert, someone who is held to have knowledge of a specialized kind within a particular field or of a particular concept. The average person is prohibited by the evidence rules (in Florida, at least) from testifying to such specialized items, as they are generally beyond the range of what an average layperson may know from common experience. But how do you determine if a person qualifies as an expert? What standard(s) are used, and who makes the decision? That is the subject of a current debate in the Florida legal community.
At the time of this post, the standard used for experts under the Florida Evidence Code comes from a case called Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923), which provided that scientific evidence must be generally accepted in its field to be admissible. The Florida Supreme Court officially adopted this standard (known as the Frye standard) in Bundy v. State, 471 So. 2d 9 (Fla. 1985).
However, the Florida Legislature adopted an amendment to the Florida Evidence Code in 2013 to change the applicable standard. This newer standard comes from a case called Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whereby the admissibility of expert testimony is based upon its reliability, rather than its acceptance in a particular field.
The Legislature’s adoption of this Daubert standard, however, does not make it final. Because the adopted proposal concerns a rule of evidence (thus, a rule used by courts-of-law in the State), the Florida Supreme Court has the final say, and can choose to keep the Frye standard if it chooses. The only question is: which standard provides a better and accurate way to admit expert testimony? Does focusing on reliability of the evidence better than the general acceptance of that evidence? Or is it the other way around?
This will be something that the Florida legal community will be sorting out in the near future, though it will be the Florida Supreme Court that ultimately decides whether it will overturn Bundy and turn to the newer standard.
For more information on this and other legal issues, feel free to send a question or request a free and confidential consultation.
George
When buying or selling Real Estate, a sometimes over-looked facet of the property being transferred is its allowable zoning. You might have heard about “zones” when watching a football game or other sports event, and there are even other “zones” that we hear of in our lives (e.g., war zones, zones of danger, etc.). But you probably might find the idea of Real Estate zoning to be a bit foreign, even if you know of the term.
Generally, when a city is developed, the county (where the city is located) will “plan out” the city by dividing its land into associated areas, or “zones.” Each of these zones is meant for a particular use or group of uses and is subject to certain restrictions based upon these associated use(s). For example, land can be zoned to be “residential” (for homes and related structures), “commercial” (for businesses, plazas, offices, etc.), “agriculture” (for farming and related activities), and other categories.
Furthermore, within each category, there is an underlying spectrum of allowable “uses.” For example, with residentially-zoned land, there might be different uses based upon the “density” (or number) of homes allowed. Or, for commercially-zoned land, there might be different uses based upon the type of business allowed or the stage of current development.
The main reason why zoning is such a big deal is that it can prevent a buyer of Real Estate from using the land the way s/he wants to, and can thus be a deal-breaker.
Fortunately, the fact that land is zoned in a particular way does not preclude someone from requesting a change to that zoning. While it is possible to make such a request and be successful, you do have to keep a few things in mind:
- Re-zoning can be expensive – Re-zoning can cost upwards of several thousand dollars, if not more, based upon the amount of land, requested zoning, required legal notices (i.e., signs, newspaper ads, and mailings), and attorney’s fees (if you hire an to represent you).
- Re-zoning is not quick – All Florida re-zonings require at least one hearing by a local board before a request may be granted or denied. Usually, more than one hearing is held by different committees to give the public a chance to provide comments on the request. The hearings can take several months (and, in some case, a year or more) to take place, based upon the schedule and current request-load of the county where the land is located.
- Re-zoning may not be enough – Sometimes, a change must be made to the permitted use of the land, or even the zoning/comp plan made by the county, before the re-zoning can occur. This presents an even greater cost to the whole process, and can delay the re-zoning by months, if not a year.
- Re-zoning is not guaranteed – It is entirely possible to go through the entire process and have your request denied. You must be prepared for this outcome if you attempt a re-zone.
All of this is not to say that re-zoning is impossible or impracticable to accomplish. Rather, this information is designed to let you know of the difficulties you may face so you can objectively weigh all of the risks and benefits before undertaking a re-zoning request. It can be, and sometimes is, necessary to get the highest-and-best-use out of your land. But, at the same time, it isn’t something that can be done on the fly and for low cost.
If you have any questions regarding this or any other legal issue, feel free to send a question or request a free, confidential consultation.
George
A variety of different business entities operate in Florida, each with its own characteristics and structure. The main way to discern the type of business entity you are dealing with is from the ending of the business’s full name – whether Inc., LLC, P.A., LLP, etc.
These endings tend to form an “alphabet soup” that can be confusing for some. To help out, here is a short summary of some of the most common types of business associations (or entities) that you may find, and what they mean:
“Inc.” = “Incorporated” – A business with this ending is a corporation, the typical entity a person associates with a business. Every corporation is owned by its shareholders, who in turn elect directors to oversee the operation of the business. The directors generally hire a group of officers (CEO, President, CFO, etc.) to run the business, who in turn answer to the directors. Since the corporation is a separate legal entity, the shareholders and directors often enjoy legal protection (known as the “corporate veil”) from any lawsuits the corporation faces, but that can fail (or be “pierced”) under certain circumstances.
“P.A.” = “Professional Association” – Businesses with this ending are also corporations and are similarly structured with shareholders, directors, and officers. However, the owners, operators, employees, etc., of a P.A. generally have to be members of a particular profession, (doctors, lawyers, engineers, etc.). In fact, a P.A. can only be formed for the purpose of performing the service(s) associated with its underlying profession. Also, liability protections are not the same as in a corporation, based upon the nature of the professional services provided by the P.A.
“LLC” = “Limited Liability Corporation” – This entity employs the characteristics of a corporation and a partnership. The typical LLC entails a group of individuals, as members, who create the LLC by agreement (and registration with the State). Each member is entitled to a share of the profits and voting power. LLC members usually have legal protection from the LLC’s debts and lawsuits, as well as from the legal problems an individual member may incur while conducting LLC business. This entity has particularly gained popularity as of late, so the rules around LLCs tend to change from time to time.
“LP,” “LLP,” and “LLLP” = “Limited Partnership,” “Limited Liability Partnership,” and “Limited Liability Limited Partnership” – These entities are variations of the traditional partnership, which (unlike a partnership) must be registered with the State. Each form impacts the traditional partnership model in its own way:
- In an LP, there are general partners, who function the same as the partners in a traditional partnership, and limited partners, who are investors who contribute money and expect a return on their investment (in the form of profit sharing). The limited partners are only liable up to the amount they have invested.
- In an LLP, the partners enjoy legal protection from the debts and lawsuits of the LLP entity, as well as from the legal problems another partner may incur in conducting LLP business.
- An LLLP is a combination of an LP and an LLP. Thus, an LLLP has general and limited partners just like an LP, as well as the liability protections of an LLP to the general partners (because the limited partners are only liable up the amount invested, just as in an LP).