The Law Office of Gail Cheatwood
Saturday, August 25, 2012
Florida's new PIP law.
CS/CS/HB 119: Motor Vehicle Personal Injury Protection Insurance
A trio of constitutionally questionable measures and legislation designed to crack down on no-fault auto insurance fraud are among about 150 new Florida laws going into effect Sunday.
A law that bans state and local governments from hiring companies that do business in Cuba and Syria already has been challenged in court and a federal judge has at least temporarily put it on hold
Gov. Rick Scott’s administration earlier announced it would not put into effect a second new law allowing random drug testing of state employees until a legal challenge to a similar executive order issued by Scott is resolved.
Another statute that permits inspirational messages, including prayers, in public schools has drawn threats of lawsuits. Legal action, however, may not be necessary to negate the law because it gives local school boards the option of implementing it.
“Nobody’s going to do it,” said Wayne Blanton, executive director of the Florida School Boards Association. “We are telling them it will be costly and not worth the effort.”
Some of the other laws with July 1 effective dates would enlarge Scott’s power over state rule making, restore tax credits for renewable energy and expand online learning for elementary school students.
There are also tax breaks for businesses and new laws that increase penalties for human trafficking and video voyeurism. Another law will require student-athletes who suffer head injuries to be pulled from competition until cleared by doctors. The state’s new $69.9 billion budget also goes into effect.
The changes to auto insurance affect the state’s personal injury protection — or PIP ‚ coverage. Since 1972, Florida motorists have been required to buy such coverage to make sure anyone injured in a crash gets money to treat their injuries without delay. A driver’s insurance company is required to pay up to $10,000 for medical bills and lost wages no matter who is at fault.
Bogus claims and faked accidents, though, are largely responsible for a $1.4 billion increase in PIP costs since 2008, state officials say.
The new law puts a 14-day limit on seeking treatment after a crash. Benefits also are capped at $2,500 unless a doctor, osteopathic physician, dentist or a supervised physician’s assistant or advanced registered nurse practitioner determines there’s an “emergency medical condition.” Chiropractors cannot make that determination.
The Cuba-Syria law is already in court: Odebrecht Construction Inc., a Coral Gables-based subsidiary of a Brazilian engineering conglomerate, challenged it in a Miami federal court. The lawsuit contends the Florida statute violates the U.S. Constitution, which gives the federal government, not individual states, power to set foreign policy.
District Judge K. Michael Moore agreed, and last Monday he issued a temporary injunction, saying Odebrecht likely will prevail at trial.
Odebrecht has been involved in state and local contracts totaling $3.9 billion since 1990 while another subsidiary has been working on a project to expand a Cuban port. That could result in the Florida firm losing its state and local government business.
Even Scott expressed doubt about the law’s constitutionality. The Republican governor wrote in a signing letter that it could not go into effect unless a federal law is passed allowing the states to impose such sanctions. Scott, though, backtracked and said he’d defend the law after his letter caused an uproar in South Florida’s reliably Republican Cuban-American community.
Moore’s ruling was the latest in a series of court decisions that have gone against state laws passed in the last two years by the Republican-led Legislature. Others include laws requiring public employees to contribute to their pensions, privatizing prisons, barring doctors from asking patients if they own guns, restricting voter registration drives and requiring welfare applicants to be tested for drugs.
Another of the new laws responds to a Florida Supreme Court ruling that Scott exceeded his authority when he ordered state agencies to freeze rule making so his office could first review and approve or reject proposed rules. The new law gives Scott the power that the high court said he lacked. Environmentalists and other critics say that will make it harder for the public to challenge proposed rules.
A tax-cutting law totaling nearly $120 million will be going into effect. It includes a small reduction in the state’s corporate income tax as the result of doubling the exemption to $50,000. The law that Scott touts as part of his “jobs agenda” includes tax breaks targeted to specific industries and for purchases of machinery and equipment. Another section reauthorizes the popular back-to-school sales tax “holiday” by exempting purchases of certain school supplies and clothing between Aug. 3 and Aug. 5.
A separate new law scales back an increase in the unemployment compensation tax paid by employers, which is expected to save them $800 million over three years. It also revamps the system into a “reemployment assistance” program including job training for unemployed workers who score low on a skills test.
Maximum penalties will double from 15 years to 30 years for human trafficking and increase from one year to five years for video voyeurism _ the secret recording of another person while naked or in some state of undress.
The head injury law also requires that parents or guardians sign an “informed consent” form about the dangers of concussions before a student can join a team.
The budget includes a $1 billion increase for public schools, although that’s not enough to make up for cuts they received a year ago. It also slashes state support to public universities by $300 million.
Wednesday, August 22, 2012
Appellate Court Narrows Focus on Florida's Gang Activity
TALLAHASSEE | An appellate court has struck down a Florida law prohibiting electronic communication by criminal gangs, but it upheld another statute that makes it a felony to recruit new gang members if they must commit a crime to join.
A three-judge panel of the 1st District Court of Appeal ruled Friday that the electronic-communication ban violates due process and First Amendment free-speech-and-association rights because it applies even to messages concerning non-criminal gang activities.
The statute aimed to prohibit gang members from posting audio, video or still images on the Internet or other electronic communication to intimidate or harass others or to advertise a gang's presence in the community.
The recruitment law passed constitutional muster because it applies only if criminal activity is a condition of membership. The communication law lacks that limitation.
The state's interest in controlling gangs' criminal and delinquent acts is a compelling one, but the government cannot effect its purposes in a provision that criminalizes innocent conduct, District Judge Stephanie Ray wrote for the panel.
The unanimous opinion upheld Naymontie Nashare Enoch's conviction and three-year prison sentence followed by two years of probation for violating the recruitment law in Alachua County three years ago.
The ruling, though, reversed Enoch's conviction and sentence of five years of probation under the communication statute.
Enoch pleaded no contest to both counts. But he reserved his right to appeal Circuit Judge Mark Moseley's refusal to dismiss the charges on constitutional grounds.
Original Article Can Be Found At:
http://www.theledger.com/article/20120727/POLITICS/120729367?tc=ar
Man Acquitted in Case of Using Rap Videos to Recruit Gang Members
BARTOW | A jury Tuesday acquitted a 29-year-old Auburndale man who was accused of using an online rap video to advertise a local gang.
Florida law allows people to be charged criminally if they are promoting gang activity, and Daniel "Lucky" Barajas' trial was the first of its kind in Polk County.
Rap music thumped out of speakers Tuesday in the courtroom. A large screen television showed images of young men flashing hand signs and wearing red bandannas.
Prosecutors argued the pictures and music amounted to marketing material for a local gang.
But after an hour of deliberations, the jury found Barajas not guilty of making an electronic communication for criminal gang activity.
The third-degree felony carried a maximum of five years in prison.
Last year, three other men were arrested on similar charges that they used online music videos to recruit gang members, but accepted plea deals to resolve their cases.
During Tuesday's opening statements, Barajas' lawyer, Gail Cheatwood, told jurors that gangster rap is controversial but is also artistic expression.
She said the music with its catchy beats and poetry has been big business for popular performers.
"It's entertainment," Cheatwood said. "It's not recruiting members."
But prosecutors argued Barajas was promoting himself as a member of the Westside 7.
"This is a criminal gang," said Assistant State Attorney Victoria Avalon. "It's not a young men's social club."
Avalon told jurors that Barajas' music video subtly promoted the gang using images of money, power and loyalty.
"It's like the mafia holding up a ‘help wanted' sign," Avalon said.
The Westside 7, a Wahneta-based group, isn't highly organized, doesn't have a clear command structure, and usually emulates traditions and symbols of much larger national gangs, Avalon said.
The Westside 7 engages in criminal acts, including fighting other local gangs and spraying graffiti to mark their turf, Avalon said.
In addition, the group was linked to a March 2008 shooting at an Auburndale flea market where two innocent bystanders were injured amid gunfire, Avalon said.
An undercover investigator testified that a young man was likely mistaken as a Westside 7 member and fatally shot during a December 2007 party at a recreation center in Bartow.
In her closing argument, Avalon said the right to freedom of speech doesn't extend to "gang propaganda."
"Those rights aren't absolute," Avalon said. "They are limited. Advertising a criminal gang is where free speech stops."
Original Article Can Be Accessed At:
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