Florida Red Light Camera Tickets

Florida Red Light Camera Tickets

© William D. Slicker, 2012.  

            At present, there are about 26 states, plus the D.C., that allow municipalities to use cameras as the basis for issuing red light tickets. There are also about 15 states that prohibit such action.

            Florida is one of the states that allow municipalities to use cameras as the basis for issuing red light running tickets. Cities in at least 10 different counties have set up cameras for this purpose.

            The city ordinances have been attacked on various constitutional grounds. A county court in Dade County struck the ordinance of the City of Aventura as being preempted by the State’s right to control traffic. However, that opinion was reversed on appeal. City of Aventura v. Masone, ___ So. 3d ___, WL 5964359 (Fla. 3rd DCA 2011). A contrary ruling was issued in Minnesota. State v. Kuhlman, 729 NW 2d 577 (Minn. 2007).

            Another ordinance was challenged on the basis of a denial of equal protection. However, a county court in Broward County upheld the ordinance. State of Florida vs. South East Florida Zimmer, Case No. 11-005631 T 120 A.

            At least two ordinances have been challenged on the basis that city ordinances impermissibly shift the burden of proof from the government onto the defendant. A county court in Broward County upheld the ordinance. State of Florida vs. South East Florida Zimmer, Case No. 11-005631 T 120 A, relying upon City of Knoxville v. Brown, 284 SW 3d 330 (Tenn. 2008). Also see Agomo v. Fenty, 916 A. 2d 181 (D. C. 2007); Idris v. City of Chicago, 552 F. 3d 564 (4th Cir. 2009); Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D. N.C. 2003). A county court in Pasco county initially struck a city ordinance as unconstitutional due to this burden shifting. However, the opinion was pulled because the Attorney General had not been notified and allowed to argue. Filippone v. City of Port Richey, Case 11-5699 WFF. The county is waiting for an en banc ruling on the issue.

            Attacks on such statutes based upon the argument that the photo constitutes an illegal seizure have been denied in at least one other jurisdiction. McNeil v. Town of Paradise Valley, 44 Fed Appx. 871 (9th Cir. 2002).

            In short, it does not look good for a constitutional attack on Florida’s red light running camera ordinances.

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Annulments in Florida

© William D. Slicker, 2012

            An annulment of a marriage differs from a dissolution of a marriage. A dissolution of marriage seeks to terminate or end a valid marriage. Whereas an annulment seeks for the court to decide there was never a valid marriage due to some disability or defect. A dissolution of marriage terminates marriage as of the date of the judgment. Whereas an annulment renders the marriage void as of the time it was supposedly entered into.

            There are a limited number of grounds that have been found sufficient to support an annulment of a marriage. These circumstances including the following:

(1)        If a person getting married is still a party to another marriage at the time that they enter into a subsequent marriage, then that subsequent marriage may be annulled as a void, bigamous marriage.

(2)       Florida prohibits a marriage between people who are closely related. For example, marriage between a brother and sister may be annulled as an incestuous marriage.

(3)       A marriage between someone who is under the age of consent may be annulled.

(4)       The marriage of a person who is mentally incapacitated may be annulled since the person with the incapacity did not have the mental capacity to knowingly consent.

(5)       A marriage that was entered into with no intent of cohabitation or consummation may be annulled. For example, a U.S. citizen who marries a non-citizen for the sole purpose of assisting the non-resident to obtain entry into the United States with no intent of living together may be annulled if there was no cohabitation or consummation.

(6)       A marriage that was entered into under threats or force may be annulled.

Thus when someone enters into the stereotypical “shotgun wedding,” that person may have the marriage annulled.

(7)        Under some situations a marriage may be annulled based on fraud. For example, if a party marries someone on some false basis with no intent of consummating the marriage or cohabitating, the marriage might be annulled.

            If you think you might be qualified for an annulment or a dissolution of marriage, please contact William D. Slicker, P. A. at (727) 322-2795.

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Premarital and Antenuptial Agreements

Copyright, William D. Slicker, 2012

            Sometimes parties seek to set out what their rights will be if they get divorced or if one of them dies, in a document that they both sign before they get married. Sometimes when the time for divorce comes, one of the parties attempts to have the premarital or antenuptial agreement set aside due to unfairness or a failure to make full disclosure.

            In deciding these cases, the Florida courts have looked at:

(1)        Whether the agreement makes a fair and reasonable provision for the spouse, or

(2)       If there was a full and frank disclosure of a party’s financial worth before the signing, or

(3)       Whether there was a general and approximate knowledge of the spouses financial worth.

            In deciding these issues, the courts look at whether both parties had their own independent counsel or at least the opportunity to obtain independent counsel which they rejected. In determining a fair and reasonable provision for a spouse, there is necessarily a subjective judgment. On the other hand, full financial disclosure is more objective. Therefore, full financial disclosure is recommended.

            Duress is sometimes raised as a reason to get out of a premarital or antenuptial agreement. This is often raised when someone is not given sufficient time to review the agreement, such as if they are handed the agreement as they enter the church for a wedding ceremony. Therefore, it is important to make sure the agreement is entered into sufficiently in advance of the marriage.

            The courts have held that the state is a third party to a premarital or antenuptial agreement and has stricken provisions that attempt to defeat the rights of third parties. Generally, this has been used to strike provisions that attempt to do away with a spouse’s duty to provide child support to a minor child of the parties or attempts to set what the parties’ time-sharing arrangements would be with minor children of the marriage.

            If you are thinking of entering into a marriage and would like to enter into a premarital or antenuptial agreement or even if you are thinking of entering into a marriage and are wondering about your rights will be upon a dissolution of that marriage, please contact William D. Slicker, P.A. at (727) 322-2795.

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What to Expect at a Bankruptcy-Trustee Hearing

© William D. Slicker, 2012. 

            Your hearing before the bankruptcy trustee is usually held about a month after you file your Petition for Bankruptcy. Before the hearing, you will have taken two mandatory debt counseling courses. You will have also supplied the trustee with several financial documents including:

(1)        Six months of bank statements,

(2)       Most recent two years of tax returns with W-2’s.

(3)       Pay stubs from the most recent 60 days.

(4)       The title or registration to any automobiles that you own,

(5)       A printout from the internet showing the value of the automobiles or a written appraisal from an automobile dealer,

(6)       A written payoff statement from the creditor(s) regarding the balance owed on the automobile(s),

(7)        A copy of the deed to any real estate you own,

(8)       A written payoff statement from the creditor(s) as to the payoff for any mortgages or credit lines secured by the real estate.

            At the hearing, the trustee will ask to see your driver’s license and social security card and then swear you in. The trustee will ask you a number of questions including:

(1)            Have you read your Petition for Bankruptcy?

(2)           Is everything in your Petition for Bankruptcy true?

(3)           Did you read the trustee’s information sheet?

(4)           Did you list all your assets?

(5)           Did you list all of your debts?

(6)           Do you intend to keep your homestead real estate?

(7)            Do you intend to keep your automobile(s)?

(8)           Have you sold or transferred any assets in the last two years?

            Other questions will vary and depend on the specific contents of your Petition for Bankruptcy and who the trustee is that is assigned to your case.

            If you have further questions about filing a personal bankruptcy, please contact William D. Slicker, P.A. and schedule an appointment.

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What You Should Know About Do-It-Yourself Wills

© William D. Slicker, 2012 

            The problems with do-it-yourself wills have been with us for a long time. About 30 years ago, Abigail Van Buren, who was then writing the Dear Abby advice column, wrote a column entitled, “Do-It-Yourself Wills Create Pitfalls.” In the article she quoted some examples from attorneys of the problems that were caused to their clients by people trying to write their own wills. She concluded her advice by saying, “In legal matters, hire a lawyer and pay him or her for what he knows.” With the proliferation of online do-it-yourself legal services, the problem has become even more pervasive.

            A common example is contained in the recent case of Basile v. Alderich, 70 So. 3d 682 (Fla. 1st DCA 2011). The case involved a woman who wrote her will on “E-Z Legal Form.” Because of the way the will was written, it caused litigation between the named beneficiary and the decedent’s nieces who were her intestate heirs. Certainly, it was many times more expensive to litigate the poorly written will than it would have been to consult with an attorney and get the will written properly.

            Save your family time and money after you are gone by coming to see William D. Slicker, P.A. to get your will prepared correctly.

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Should I Have a Trust

 © William D. Slicker, 2012

            Everyone should probably have a will. Whether someone needs a trust depends on the size of the person’s estate as well as who the beneficiaries are. Since the federal estate tax exemption has been greatly increased, the majority of people no longer need to use a trust to avoid federal estate taxation. However, the person may still have an estate that is large enough that they wish to keep their assets from going through the process of administrating of a will.

            There are also people who may have a beneficiary who is a minor or who has not been able to manage money due to a mental condition or an addiction problem, and a trust may be the best way to dole out money over time to protect the beneficiary.

            If you would like to discuss setting up a will or a trust, please contact the office of William D. Slicker, P.A. to set up an appointment.

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Consumer Bankruptcy in Florida

Consumer Bankruptcy in Florida 

© William D. Slicker, 2012 

            In Florida, an individual may file for bankruptcy under Chapter 7 which discharges 100% of dischargeable unsecured debt or under Chapter 13 under which the individual has a repayment plan to repay a percentage of the dischargeable unsecured debt. In very limited situations, an individual may file under Chapter 11.

            Not all unsecured debt is dischargeable; federal taxes, child support, alimony, federal student loans, criminal fines, judgments for injuries caused by drugs or alcohol, are generally not dischargeable.

            Secured debts such as mortgages or liens on automobiles are not dischargeable. However, the debtor may surrender the asset and avoid a deficiency judgment against him or her personally.

            There are a variety of exemptions that protect many of the debtor’s assets. Prior to the present recession, the biggest exemption for most debtors was the equity in their homestead. However, since the recession and the decline in property values, many debtors have no equity in their homestead and they choose to surrender the homestead to the mortgage holder. If a debtor chooses to do this, then he acquires a larger exemption for some of his or her other personal property.

            For a personal analysis of which of your debts may be dischargeable and which of your assets may be exempt from being taken by the trustee, contact us at William D. Slicker, P.A. for a personal consultation.

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Estate Planning for Pets in Florida

© William D. Slicker, 2012

            In Pinellas and Hillsborough counties, more than 77,000 animals are abandoned each year. If a pet is abandoned for ten (10) days after a written notice to the owner at his last known address then the pet is to be delivered to the nearest humane society or animal control agency. Each year, many pets are delivered to the SPCA Tampa Bay due to the owners having died.

            You can make a now plan for the care of your pet upon incapacity or death. You may include language in your will that provides for your pet care upon your death. You may sign a power of attorney that allows for someone to care for your pet if you become incapacitated but are still alive. Or since January 1, 2003, you may set up a trust that includes language that provides for the care of your pet while you are alive but incapacitated and/or after your death. See Sec. 736.0408, Fla. Stat. for the legislation that allows for the creation of a trust to provide for the care of an animal.

            You may also contact the Society for Prevention of Cruelty to Animals Tampa Bay or my office, William D. Slicker, P.A., for wording that you can place in a will or trust to provide care for your pet.

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Florida Power of Attorney

© William D. Slicker, 2012

            As of October 1, 2011, powers of attorney in Florida were modified by Florida’s Power of Attorney Act which was based on the Uniform Power of Attorney Act. The following is a partial list of some of the major changes:

            (1) Power of attorney must be signed by the principal in front two witnesses and a notary public,

            (2) A power of attorney is terminated when:

                 (a) a dissolution of marriage or an annulment action is filed with respect to the marriage between the principal and agent,

                        (b) the principal dies,

                        (c) the principal becomes incapacitated if the power of attorney is not durable,

                        (d)      the principal is adjudicated incapacitated by a court,

                        (e)       the principal revokes the power of attorney,

                        (f)       the purpose of the power of attorney is accomplished,

                        (g)       the power of attorney provides that it ends,

                        (h)      the agent dies, resigns, becomes incapacitated, or is removed by court.

            (3) Springing powers of attorney (a power of attorney conditioned on a future event) are not given effect except in cases of a military power of attorney,

            (4) A third party must accept or reject a power of attorney within a reasonable amount of time (four days excluding Saturday, Sundays, and holidays are presumed to be reasonable). A third person may require an affidavit from the agent stating that the power of attorney is still valid. If the third party improperly refuses to accept a power of attorney, the agent may enforce it through the court and recover reasonable attorney fees and court costs,

            (5) In order to be paid as an agent, the agent must be one of the following:

                        (a) a financial institution that has trust powers and a place of business in Florida,

                        (b) a spouse or heir of the principal,

                        (c) an attorney licensed in Florida,

                        (d) a certified public accountant licensed in Florida,

                        (e) a person who is a resident of Florida who has never been an agent for more than three principals.

            (6) Certain powers contained in the power of attorney must be separately acknowledged by separately initialing next to each provision including:

                         (a) the power to create a living trust,

                        (b) the power to amend, revoke, or terminate a trust created by or for the benefit of the principal,

                        (c) make a gift in excess of the annual federal gift tax exlusion,

                        (d) create or change rights to survivorship,

                        (e) create or change a beneficiary designation,

                        (f) waive the principal’s rights to be a beneficiary of an annuity or retirement plan,

                        (g) the power to disclaim property or powers of appointment

            (7) The agent must act in accordance with the following duties that cannot be waived or eliminated:

                        (a) act within the scope of the authority granted in the power of attorney,

                        (b) may not act contrary to the principal’s reasonable expectations,

                        (c) act in good faith,

                        (d) may not act contrary to the principal’s best interest,

                        (e) attempt to preserve the principal’s estate plan,

                        (f) act personally except for the authority to delegate investment functions

                        (g) keep adequate records

                        (h) create an inventory of the principal’s safe deposit box if authorized access to it.

            (8) The agent must act with the following duties unless they are modified or eliminated by the power of attorney,

                        (a) act loyally for the sole benefit of the principal,

                        (b) act so as to not create a conflict of interest,

                        (c) act with care, competence, and diligence ordinarily exercised by agents in similar circumstances,

                        (d) cooperate with health care providers authorized to make health care decisions for the principle.

            (9)       An agent who violates the Florida Power of Attorney Act is liable to the principal or the principal’s successors in interest for restoring the value to the principal’s property to what it would have been if the violation had not occurred plus attorney fees and court costs.

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Child Support Modification Due to Payer’s Incarceration

©William D. Slicker, 2012

Child support in Florida is based on the payer’s income, the payee’s income, and the number of children. In cases when a payer has voluntarily lowered his income, the courts have imputed a higher income to the payer.

Cases dealing with situations in which the payer was incarcerated and sought to modify the child support based on the inability to earn money while in prison led to a split among Florida’s appellate courts. In Waugh v. Waugh, 679 So. 2d 1 (Fla. 2nd DCA 1996) and in Dept. of Revenue v. Jackson, 780 So. 2d 342 (Fla. 5th DCA 2001), the courts held that it was wrong to impute income to a person while incarcerated because there was no showing that the inmate had the capability to earn the amount being imputed. On the other hand, in Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999) the court held that a child support obligation could not be decreased where the payer had been convicted of a crime that was a voluntary action.

In order to resolve this conflict, The Florida Supreme Court issued an opinion in Dept. of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003). In that opinion, the court stated that the child’s interest in receiving child support trumped the payer parent’s substantial change in circumstances resulting from incarceration. Therefore, the child support could not be modified due to incarceration of the payer parent. However, the court recognized that when coming out of prison the payer would probably not have the means to pay the large accrued child support debt. Therefore, the payer parent, upon release from prison, could seek to modify the monthly amount of the child support payments so the arrearage would not be reduced but the payments on that arrearage could be reduced to spread repayment of the debt out over a longer period of time.

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