Sunday, June 21, 2015

A Cry for Calm and End to Racial Tensions in the Aftermath of Charleston Shooting

In the aftermath of the shooting deaths of nine churchmembers last week in Charleston, South Carolina, I felt compelled to address some of the comments I have heard and read recently and to remark on some of my own experiences there.

There is no excuse for what happened. Dylann Roof's actions were simply murder, regardless of what they may or may not have been motivated by or what anyone else is saying about it. If he did intend to ignite racial tensions, I remain hopeful that he failed. I grew up in an overwhelmingly white area of southern Ohio and remember hearing from time to time, even from my own family members. snide comments and derogatory terms about black people. I have strived to overcome such racist mentality and hope that I have suceeded. Sometimes I wish we were all colorblind because the color of our skin should not determine how we are treated.

Neverthless, calls for removal of the Confederate flag from the state house, and similar outcries, may be misplaced. I know that statement may not be easy to swallow for some, but let me explain my thoughts on this. The American Civil War is an indelible part of our nation's history. It can't be rewritten, no matter how distasteful it was or how uncomfortable it makes us feel now a hundred and fifty years later. Just like other historical events including the intial slave trade, world wars, atomic bombs, these things are part of our past. Putting your head in the sand and pretending that life was different is not a viable option. Should the Confederate flag be relegated to merely a symbol of hate and racism? To do so, in my opinion, would detract from our nation's history as a whole as well as from the lives of each person who fought for his beliefs or way of life, and their families. No, I do not and could never condone slavery or the mistreatment of entire peoples based solely on a physical trait, but neither can I say that removing the Conferedate flag would be an end to racism. We have a lot further to go than that. Work on the issues rather than a symbol.

Make no mistake, there are issues on both sides of the table. There are certainly white people who are racists toward blacks and other minorities. There are also blacks who are racist against whites and sometimes other minorities as well. It seems like every time there is a news story about racial violence, certain well known people come out of the woodwork and start rabblerousing the public. I'm certainly not saying that unjustified shootings and mistreatment by the police should be ignored. It should not. What I don't understand though is why people who are supposedly clergy just like to stir the pot rather than try to fix anything. Perhaps it is because they fear becoming obsolete. Without racial tensions, they have nothing to do. Conversely, why does it appear that so many police officers appear to use unwarranted force at times? Likewise, why do some people insist on resisting law enforcement unnecessarily? I know that if a cop told me to stop whatever I was doing, I would. Some of the incidents and participants thereof just beg for trouble, but that doesn't give an officer the right to overstep. And no amount of senseless looting of stores and businesses can be accepted as meaningful in any way. That's just pure criminal activity. There has to be education by our citizens, by our elected officials, and by our law enforcement.

One particular item I heard in the news concerns the judge that was to hear Roof's case in court. Back in 2003 in an unrelated matter, the judge said, "There are four kinds of people in this world - black people, white people, red necks, and n--------." For that comment and an act of favoritism he showed toward a fellow judge, he was reprimanded by the South Carolina Supreme Court. That was 12 years ago. I haven't heard that this judge has done anything similar since. Nevertheless, he has been removed from this case. Fair? The right thing to do in the circumstances? I don't know. Maybe, maybe not. I do know that until we start forgiving the past, we will struggle in the present and in the future. Young children do not know racism. It is learned. Unfortunately, it is often taught by the very people who should want better for all children - parents, clergy, politicians. 

I lived and worked in Charleston, South Carolina for a year and a half, about 14 years ago. I had never set foot in the state until I moved there. I had visions of the old South and wasn't disapointed in that regard. Magnificent houses, colorful people, and just a little different than the normal, every day city in the United States. The Confederacy had appeared to linger on in this part of the country. The city is full of historical sites related to the Civil War - after all, the first shots were fired here. The armory, the fort, the cannons by the waterfront. It was all very fascinating to me at the time.

Of course, I also experienced a not so good part of Charleston. Like it or not, such an historical city seemed very closed off to me in many ways from a social and professional perspective. While just about everyone generally displayed good manners, it was all a bit stand-offish at times. Who you knew often determined where you went and what you did, and with whom. I did work with some well connected people that allowed me a glimpse, but I didn't stay in Charleston long enough to be part of high society in the Low Country, as the area is known. I also had a close friend, now deceased, who showed me the back parts of town and told me stories of days past. There are many good things about the area and the people who live there, and I am lucky to still have a few friends in the area.

Charleston, like many other American cities, now has to face the ugliness of racism head-on. But let this be a meaningful discussion with goals in mind and calm by all participants. Dylann Roof was an individual. He is the one who committed the terrible crime of murder. It is not Charleston or the old South or even the Confederate flag that should be on trial here while we strive to be a better country and humans.

Thursday, May 14, 2015

Property Rights of Tenants During Foreclosure

It is not uncommon for a home in foreclosure to be occupied by renters rather than the homeowner(s). So what rights do tenants in Florida have in this situation. Historically, they basically had no rights. When the property was sold at public auction, the property had to be vacated by the homeowner and tenant alike. That changed with the Protecting Tenants at Foreclosure Act of 2009


This federal law permitted renters with a lease to remain in the property until the expiration of their lease. That period was reduced to just 90 days if the new owner intended to occupy the residence. For those renters leasing mont-to-month, they were permitted to remain in the property for at least 90 days after notice by the new owner. 


Sounds great, right? Well, it was, but unfortunately the Act contained a "sunset" provision which meant it would expire at a certain date unless extended by the United States Congress. The sunset date listed in the Act was December 31, 2014. Congress did not extend the Act and thus renters no longer have the protection of this federal law. A handful of states has enacted similar legislation, but Florida is not one of them as of today, though there has been some effort at doing so. In addition, the Protecting Tenants at Foreclosure Act of 2015 has been proposed in Congress, which would amend the federal Act to eliminate the sunset date and make the Act permanent. Again, thus far, it has not been passed.


For the time being, renters must know that if the house they are living in is foreclosed, they are practically in the same boat as the homeowner once the property is sold - none. Pack up and move, as quickly as you can, to avoid potential financial and legal liabiilty.


--
Timothy C. Martin, Esq. is the owner/attorney of Martin Law Office, P.A., a solo practitioner law firm in St. Petersburg, Florida. Martin Law's practice areas include Animal Law, Business Law, Estate Planning/Probate, LGBT Advocacy, and Real Estate.





Friday, August 22, 2014

Real Estate Conveyance Involving Same-Sex Marriage

As of today, there are currently only 19 States (plus Washington, D.C.) which recognize same-sex marriage, as follows:

Court Decision
State Legislature
Popular Vote
California (06/28/13)
Connecticut (11/12/08)
Iowa (04/24/09)
Massachusetts (05/17/04)
New Jersey (10/21/13)
New Mexico (12/19/13)
Oregon (05/19/14)
Pennsylvania (05/20/14)
Delaware (07/01/13)
Hawaii (12/02/13)
Illinois (06/01/14)
Minnesota (08/01/13)
New Hampshire (01/01/10)
New York (07/24/11)
Rhode Island (08/01/13)
Vermont (09/01/09)
Washington, D.C. (12/18/09)
Maine (12/29/12)
Maryland (01/01/13)
Washington (12/09/12)


There are a  number of law suits challenging state bans on same-sex marriage that are working their way through the courts in all the remaining states (except North Dakota). In addition, thousands of same-sex couples were married during brief periods of time when it was allowed in some states before an appeal was filed and/or a stay was granted, leaving those persons in a state of limbo. Despite the full faith and credit clause of the U.S. constitution, recognition in one state has not translated to recognition in all other states. As such, this matter is very likely to go to the U.S. Supreme Court for the next term.

Any conveyance of property to/from same-sex couples in states that do not recognize such marriages at the time of the conveyance could present a challenge (and a title nightmare). Traditionally, deeds to/from married couples (of opposite sex) were often written to include "husband and wife" or "tenants by the entireties" after the names of the parties. Such language ensured that ownership and succession of title would remain with a surviving spouse. With the evolution of marriage in some states to include same-sex couples while still being unrecognized in others, care must be taken with the language on deeds of conveyance both to ensure survivorship upon the death of one party, but also to reduce potential problems with a subsequent transfer of the property if the same-sex couple wishes to dispose of it.

For states in which same-sex marriages are recognized, "tenants by the entireties" may be the most accurate language, although rather formal and perhaps not well understood by non-attorneys or real estate professionals. Another option might be "a married couple." However, for states in which same-sex marriages are not recognized, such language may have no legal effect, meaning the couple would own the property as joint tenants (two individuals instead of one married couple). Title held in such a manner means that each person owns 50% of the property and upon the death of one party, his/her interest will be conveyed pursuant to his/her will or the intestacy statutes of the state in which the property is located. That means the heir(s) of the decedent could take ownership jointly with a surviving owner. It could also present a challenge when trying to transfer the property. To help prevent any subsequent transfer problems and to ensure that a surviving spouse in a same-sex marriage takes ownership of the property, I recommend that title be conveyed in non-recognition states as "joint tenants with right of survivorship." If the relevant state later recognizes same-sex marriages, the couple may choose to deed the property to themselves as "a married couple", "tenants by the entireties", or whatever nomenclature is prevalent in that jurisdiction.

Wednesday, January 22, 2014

Florida Power of Attorney

Effective October 1, 2011, the Florida legislature revised the Florida Power of Attorney Act (the "Act") which eliminated “springing” POAs and changed some of the requirements in order to authorize an agent to act on behalf of a principal.

Definition

A power of attorney (POA) is a legal document which delegates authority of one person (the principal) to another (the agent/attorney-in-fact). A POA can be durable (not terminated by the later incapacity of the principal) or nondurable (terminated by the later incapacity of the principal). A POA not designated as “durable” will be considered nondurable. As such, language should be included to indicate the later disability or incapacity of the principal or the lapse of time shall not affect the validity of the powers granted to the agent. 

Requirements

A Power of Attorney must be: (i) signed by a principal; (ii) with two subscribing witnesses; and (iii) before a notary public. The principle must sign or initial next to specific clauses in the document before an agent may exercise certain powers. It is no longer sufficient for a principal to just sign at the end of a list of powers in the document. However, general references (such as “my agent has authority to conduct banking transactions”) will bestow broad powers on an agent as it is no longer necessary to separately itemize each of the banking transactions which an agent can now perform.  

Qualifications, Actions, and Resignation

An agent must be (i) a natural person 18 years of age or older, or (ii) a financial institution that has trust powers, maintains a place of business in Florida, and is authorized to conduct trust business in Florida. A principal may designate one or more agents and each agent now has full authority to act independently. An agent may select only certain powers designated to them. Resignation can be affected by notice to the principal, the principal’s guardian, or a successor agent.

Estate Planning

An agent’s authority regarding a revocable trust must be specifically enumerated and may be exercised by an agent only if (i) the principal signs or initials next to the specific enumerated power, (ii) the authority to exercise is consistent with the agent’s duties, and (iii) the exercise is not otherwise prohibited.

Authority

A photocopy, electronic copy, or original power of attorney will now be honored by financial institutions. An attorney-in-fact may initial litigation to contest a third party’s refusal to honor the POA. The acceptance of copies may create situations where the principal has revoked the agent’s authority, but the agent may present a copy of the POA and continue to act on behalf of the principal without his knowledge or consent. Therefore, the principal should notify others when a POA has been revoked. Death of the principal extinguishing any existing POA.

Pre-October 2011 POAs

POAs often were drafted to become effective upon the occurrence of an event such as the disability or incapacity of the principal (i.e., springing POA). The Act eliminated such springing authority and now POAs are effective immediately upon signing. POAs executed prior to October 1, 2011, may or may not still be valid. A qualified attorney can review the POA to determine the extent of its enforceability, and whether the document should be updated to comply with the latest requirements of Florida law.

A Power of Attorney can be a useful tool by allowing another to handle matters for you. Bear in mind, however, that this document grants very broad powers to the agent and care should be taken to designate a reliable, responsible person as your agent.

---
Tim Martin is the owner/attorney of Martin Law Office, P.A., a solo practitioner law firm in the Tampa Bay area of Florida. Martin Law focuses on animal law, business law, estate planning/probate, LGBT issues, and real property.

Martin Law Office, P.A.
10200 Gandy Blvd. N. #1014
St. Petersburg, FL 33702
Tel: 813-260-1413
Fax: 888-250-6501

Friday, July 26, 2013

Catching Up With Legal Headlines of the Day

Let me borrow a line from the Catholics and begin with "Forgive me, Father, for I have sinned." It's been many months since I last posted anything on my blog. Although I make no bones about this being an "occasional blog", I realize the error of my ways in neglecting to write anything for so long. I will try to do better. Today's blog will hit upon some legal issues recently in the news. As always, these are my opinions, and I welcome yours - as long as you're polite and respectful.

Gay Marriage

The Supreme Court of the United States recently ruled that the federal government could not deny federal benefits to legally-married same-sex couples. U.S. v. Windsor, 570 U.S. ____ (2013). The Court also ruled in California's Proposition 8 case that marriage equality opponents lacked standing to defend its constitutionality when the state refused to do so. Hollingsworth v. Perry, 570 U.S. ____ (2013). Taken together, these two decisions bring hope to millions of same-sex couples and energize efforts in many states to remove same-sex restrictions on marriage. The tide of public sentiment has turned with a majority of Americans supporting marriage equality. CNN/ORC International poll (June 11-13, 2013). These Supreme Court rulings do not, however, fully open the door for gay couples in states where same-sex marriage is still banned. Couples in states with bans on gay marriage still face disparate treatment at the hands of government, and also face discrimination. Such couples face difficulty navigating federal laws and regulations to obtain the benefits the Supreme Court has decided they are entitled to.

Thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia have legalized same-sex marriage.  It is my humble opinion that same-sex marriage should be allowed in all states and territories of the United States of America. Discriminatory action and sentiment of the past must be cast aside for a fair and tolerant America.

Trayvon Martin / George Zimmerman

Only two people know what really happened that night almost two years ago in Sanford, Florida. News accounts, court testimony, and public gossip all paint somewhat different versions of what transpired between Trayvon Martin, a black teenager visiting from out of town, and George Zimmerman, a neighborhood watch patrolman. The only thing that is known without a doubt is that a skirmish between them resulted in the death of Trayvon Martin. Six jurors heard testimony and saw evidence in the second degree murder trial of George Zimmerman. Those six jurors ultimately concluded that there was insufficient evidence to convict Zimmerman of murder.

Many people have very strong feelings about the verdict. It is difficult for me to understand why, aside from the obvious loss of life that we should all be upset about. Our system of justice, while not perfect, does work. The state has the burden of proving, beyond a reasonable doubt, the case against the defendant. If the state does not meet that burden, the jury must find for the defendant. Although certain people may be very upset about the outcome of this trial, those same people would appreciate how heavy the state's burden is if they were a defendant.

As I have read or watched news accounts about this - and the resulting demonstrations, inflammatory remarks made by athletes, calls by celebrities to boycott Florida, etc. - I wonder at what age people in the United States (and elsewhere) become prejudiced. The color of our skin should not be an issue. It is time that America lay down its arms in the race fight, and embrace each other as equals. When little children of difference racial backgrounds meet each other for the first time in playgrounds or schools, they might be curious as to why they look a little different - and that is understandable - but two minutes later they couldn't care less. They play with each other and have a good time. It's only the adults that seem to have a problem, who continue to perpetuate racial tension and prejudice. Let's all learn from the kids and start becoming "racially blind."

Wednesday, November 28, 2012

More Pet Food Recalls

The FDA continues to announce pet food/treat recalls. Please be sure to review the announcements and check your pet's products against the list to see if it should be discontinued. Most stores will take the product back. If your pet has gotten ill, save all packaging for tests and consult a veterinarian immediately.

Pets with Salmonella infections may be lethargic and have diarrhea or bloody diarrhea, fever, and vomiting. Some pets will have only decreased appetite, fever and abdominal pain. Infected but otherwise healthy pets can be carriers and infect other animals or humans. If your pet has consumed the recalled product and has any of these signs, please contact your veterinarian.

Healthy people infected with Salmonella should monitor themselves for some or all of the following symptoms: nausea, vomiting, diarrhea or bloody diarrhea, abdominal cramping and fever. Rarely, Salmonella can result in more serious ailments, including arterial infections, endocarditis, arthritis, muscle pain, eye irritation, and urinary tract symptoms. Consumers exhibiting these symptoms after having contact with this product should contact their healthcare providers.

Kasel Associated Industries Recalls Nature's Deli Chicken Jerky Dog Treats Because of Possible Salmonella Health Risk
Contact: (800) 218-4417

Kasel Associated Industries of Denver, CO is voluntarily recalling its NATURE’S DELI CHICKEN JERKY DOG TREATS product because it may be contaminated with Salmonella. Salmonella can sicken animals that eat these products and humans are at risk for salmonella poisoning from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the pet products or any surfaces exposed to these products.

Kasel Associated Industries Recalls Boots & Barkley Roasted American Pig Ears And Boots & Barkley American Variety Pack Dog Treats Because of Possible Salmonella Health Risk
Contact: (800) 218-4417

Kasel Associated Industries of Denver, CO is voluntarily recalling its BOOTS & BARKLEY ROASTED AMERICAN PIG EARS AND BOOTS & BARKLEY AMERICAN VARIETY PACK DOG TREATS product because it may be contaminated with Salmonella. Salmonella can sicken animals that eat these products and humans are at risk for salmonella poisoning from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the pet products or any surfaces exposed to these products. The recalled Roasted Pig Ears and Variety Pack Dog Treats were distributed nationwide through Target retail stores in August 2012.

Premium Nutritional Products Announces Ongoing Voluntary Recall Of Select ZuPreem Bird Foods
Contact: 800-345-4767

On September 27, 2012, Premium Nutritional Products, Inc. initiated a voluntary recall of ZuPreem FruitBlend™ With Natural Fruit Flavors maintenance formula bird foods for medium/large birds and for large birds with use by date codes of 11/30/13 or 11/13 and lot numbers 598405052 or 598405072. The recall is being conducted due to the product containing the combination of exceedingly high calcium levels, low phosphorus, and high vitamin D concentration resulting in a significant health risk to the birds.

 

Thursday, October 25, 2012

Change Your Windows Password

Today's blog posting is just a simple security tip for computer users: how to change your Windows logon password.
 
Your Windows password is the password you use to log on to your computer. You can help keep your computer more secure by changing your Windows password regularly, and by using a strong password.
  1. Log onto Windows as you normally do,
  2. Press CTRL+ALT+DELETE,
  3. Click Change a password.
  4. Type your old password,
  5. Type your new password,
  6. Type your new password again to confirm it, and
  7. Then press ENTER.