100. THE JUDGE RULES: Computing Time and Due Dates

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

If the court tells you that you have three days to produce a document, sign a paper or pay money, how is that time computed? Rule 1.090 of the Rules of Civil Procedure sets forth the directions we must follow.

In computing a due date, the starting date is not included. Therefore, if on Monday the judge gave you three days to remove the elephant from your front yard, the elephant must be gone by midnight on Thursday. This is a change from an older method of computing time which counted the day of the order as day 1.

The last day of the period cannot be a Saturday, Sunday or legal holiday. If the due date would have been a Saturday, Sunday or legal holiday, the due date is moved to the end of the following day. If on a Wednesday the judge gave you three days to remove the elephant from your front yard, the elephant must be gone by midnight on Monday.

If the time limit is less than seven days, Saturdays, Sundays and legal holidays are not included in the computation. If on a Friday the judge gave you three days to remove the elephant, the elephant must be gone by midnight on Wednesday.

If the order or notice to perform is served by MAIL to the party who must perform, 5 additional days are added after the three day deadline is computed. If the judge mailed an order by certified mail which gave you three days to remove the elephant from your front yard, you would be given three days excluding Saturday, Sunday and legal holidays, plus five additional days which could include a Saturday, Sunday or legal holiday but not ending on a Saturday, Sunday or legal holiday. You may wish to consult an attorney for further clarification.

My thanks to Attorney Fred Morrison for providing the case below and to County Civil Senior Clerk Debbie Irby for her help with this column.

*****(This example is based on an actual closed case.)*****

Property was rented to Peggy Bentley under a written lease. Rent was due on the first of each month. The landlord mailed Ms. Bentley a notice that her rent was past due and gave her four days to pay. When she did not pay within the four days, an eviction action was filed with the court. Ms. Bentley wanted the case dismissed because the landlord did not give her the proper amount of time to pay.

The judge writing for the 5th District Court of Appeal ruled: The landlord had three choices: 1) hand delivery, 2) mailing, 3) or posting a copy at the tenant’s usual place of residence. The landlord chose to mail this notice. When service is accomplished by mail, “an additional five days must be added to the period of time designated for response or compliance.” The landlord failed to allow the extra time. The case should be dismissed. (480 So2d 219)

101. THE JUDGE RULES: Child Curfew and Time of Day Constraints

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Although many parents do not realize it, children in Florida may be subject to certain curfews and time of day constraints.

Florida Statute 322.16 limits the hours a child can drive. Although a 16 year old may have a valid license to drive, he or she may not drive between 11 p.m. and 6 a.m. unless there is a licensed driver at least 21 years old in the front passenger seat. Going to or coming home from work would be an exception.

If the driver is 17, he or she cannot drive after 1 a.m. and before 5 a.m. without a properly licensed driver over 21 in the front passenger seat. Going to or coming from work would be an exception.

The driving curfew law is pretty clear. The regular curfew law is a little confusing.

Florida Statute 877.22 describes what a curfew law should include but it is only enforceable if a county or city adopts a curfew ordinance which incorporates the statute.

The statute states that a minor may not be in a public place between the hours of 11 p.m. and 5 a.m., Sunday through Thursday, except during a legal holiday. A minor may not be in a public place between 12:01 a.m. and 6 a.m. on Saturdays, Sundays and legal holidays. Some of our cities such as Leesburg and Umatilla have ordinances which incorporate the state curfew statute.

The curfew does not apply if the child is accompanied by his or her parents or guardian. The curfew does not apply in an emergency. The curfew does not apply if a child is in a public place for employment. The curfew does not apply if the child is returning from a school function, a religious function or a function sponsored by a civic group. The curfew does not apply if the child is on his or her own sidewalk or the neighbor’s sidewalk, if the neighbor gave permission. The curfew does not apply if the child is attending an organized event held at and sponsored by a theme park or entertainment complex.

*****(This example is based on an actual closed case.)*****

A minor from the City of Tampa and a minor from the City of Pinellas Park were charged with curfew violations. They wanted the court to dismiss the charges. They argued that the curfew ordinance was unconstitutional for many reasons.

The Justice writing for the Supreme Court of Florida ruled: The curfew ordinances from these two cities have many problems. Both of the ordinances make a curfew violation a criminal act. The curfew statute written by the Florida Legislature imposes only civil sanctions. The ordinance should have used the state statute as a model. Based on the problems with these two ordinances, the court finds them unconstitutional. (30 Fla. L. Weekly S331)  

[Column No. 32 has information regarding Teen Laws.]

102. THE JUDGE RULES: Libel, Slander and Defamation of Character

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

If you sling mud, you lose ground. That could be true but is mudslinging legal??? Today’s column is about libel, slander and defamation of character.

Black’s Law Dictionary defines “defamation” as “the offense of injuring a person’s character, fame, or reputation by false and malicious statements.”

As a general rule, if the statements are in writing, they are libel. If the statements are oral, they are slander.

Florida Statute 770 is entitled “Civil Actions For Libel.” Under some circumstances, you can sue a person for defaming your character. Florida Statute 836 addresses criminal acts and is entitled “Defamation; Libel; Threatening Letters and Similar Offenses.” Under some circumstances, you can file a criminal charge against a person who defames your character.

If the media defames a person, the person must notify the media in writing of their libel or slander. The media has an opportunity to publish a correction or apology. No media shall publish anonymous statements which defame a person’s character.

If a person writes or says something which injures your character or reputation, but it is the truth, you probably would not win a lawsuit for defamation. Other times lack of malice may prevent you from winning a defamation lawsuit.

Florida Statute 768.095 states that if you give a bad reference concerning a former employee, you should not be liable for it unless there is some malice. A person suing over a bad reference must prove by clear and convincing evidence that the information disclosed was knowingly false or violated the former employee’s civil rights. Before you give that bad reference, read the statute for yourself or get the advice of an attorney.

*****(This example is based on an actual closed case.)*****

Charles Thomas worked at but not for a racetrack. Based on complaints about Thomas, the Director of Security at Tampa Bay Downs racetrack banned him from the track. The Director’s investigative report was available to members of the Thoroughbred Racing Protective Bureau. Mr. Thomas sued the Track and the Bureau for slander and libel for defaming his character by the negative report. The Track claimed it had a right to gather and disburse information about people who worked on their property. The Bureau claimed they had a right to share in the information the Track disbursed.

The judge writing for 2nd District Court of Appeal ruled: Even if a report is defamatory, under certain circumstances no liability attaches. It must be reported in good faith. The reporter must have a duty to report. The listener or reader must have a duty to know. The information must be shared in an appropriate way and at an appropriate time. In this case, the Director had a duty to share with the Bureau the information he had. The Bureau had a duty to consider the information. Mr. Thomas did not prove malice. The court rules in favor of the Track and the Bureau. (761 So2d 401)

103. THE JUDGE RULES: Copyright and Patent Law

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Today’s column will give you an overview of copyright and patent law. Do not rely only on the very limited information in this column to make a decision about when you can copy someone else’s work and when you cannot.

A legitimate copyright on an item means that you cannot copy it without written permission unless the usage falls within an exception. Let’s use a map with a legitimate copyright as an example. You probably cannot copy a portion of the map for your commercial advertisement in the newspaper even if you give credit to the copyright holder. You probably cannot make a nearly identical map. You probably cannot remove the copyright symbol and pretend you drew the map. You might be able to make one enlarged copy of the map for a geography lesson you are presenting to sixth graders.

Copyright law protects literary or artistic work including videos, DVDs and music. You can probably tape a movie from television for your own use but you probably cannot sell the copy to someone else.

Plagiarism is the stealing of someone else’s written word. You can probably paraphrase or quote from the book you are reading but you probably cannot copy word for word and call the writing your own.

The illegal reproduction of someone’s artistic work is forgery. You can probably paint a duplicate of a famous Picasso painting for your own use without getting into trouble for it. You would probably get in big trouble if you claimed it was an original Picasso and tried to sell it.

A patent gives a person exclusive right to an invention or creation. Getting a patent is a very expensive process. Lawsuits involving patent infringement can be very costly. Sometimes big companies buy the patent from the inventor to keep a product from being made. Even though the item is not on the market, no one else can make or sell it.

lA trademark gives a person exclusive use of a name or symbol. We saw an example of this locally when the University of Miami told Umatilla High School to stop using their “U” which was too similar to the U. of M. symbol.

*****(This example is based on an actual closed case.)*****

Heise created an architectural drawing. He assigned the rights to it to Chrysalis. The copyright was registered naming Chrysalis as the holder of the copyright. Chrysalis sold its business, including the ownership of the copyright, to Arthur Rutenberg Homes, Inc. Drew Homes copied the architectural drawings. Drew claimed that since Rutenberg did not do the drawings, Rutenberg could not own the copyright. Rutenberg disagreed and sued Drew Homes.

The Judge writing for the U.S. Court of Appeals, 11th Circuit ruled: A copyright can be assigned to a non-author. In this case Heise put his assignment to Chrysalis in writing. Chrysalis put the transfer to Rutenberg in writing. Rutenberg therefore owned the copyright and had the standing to sue anyone who infringed on the copyright, including Drew Homes. (29 F.3d 1529)

104. THE JUDGE RULES: Medical Malpractice and Negligence

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Suing the guy who put in your pacemaker is different from suing the guy who put in your rebuilt car engine. Medical malpractice lawsuits must follow complicated special rules. A whole chapter, Florida Statutes 766, is devoted to the subject.

No action for medical negligence shall be filed until the attorney handling the case has made a reasonable investigation. Only if the attorney in good faith finds a basis for the lawsuit shall the attorney proceed. If the court finds that there is no justiciable issue, the court shall award attorney’s fees and taxable costs against the claimant’s ATTORNEY. The court shall submit the matter to the Florida Bar to determine if the attorney should be disciplined.

After the investigation is done but before a lawsuit can be filed, a claimant must give notice to each prospective defendant by certified mail, return receipt requested, that a medical malpractice lawsuit is going to be filed. The notice must include a list of all health care providers of the claimant for the last two years.

The medical malpractice suit cannot be filed until 90 days after the notice. During that period, the prospective defendant’s insurer shall review the situation. Before the end of the 90 days, the prospective defendant shall reject the claim, make a settlement offer or agree to arbitration.

If the case goes to trial, “the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” (F. S.766.102) Basically, was the doctor’s work up to the industry’s standard?

A witness in a medical malpractice trial may not give expert testimony concerning the prevailing professional standard of care unless he or she is a licensed health care provider. He or she must specialize in the area of expertise which is in question or a similar area. For the last three years, he or she must have been practicing medicine or teaching in a medical program.

*****(This example is based on an actual closed case.)*****

The Plaintiff sued the Doctor for medical malpractice which resulted in the death of the Plaintiff’s wife. The Plaintiff called an oncologist to testify against the Defendant who was a surgeon. The Defendant surgeon objected to allowing the oncologist to testify because he did not have the same specialty as the surgeon.

The judge writing for the 4th District Court of Appeal ruled: The purpose of the statute requiring experts from similar areas of expertise and actively involved in medicine is to eliminate so-called experts of all phases of medicine who have no current experience except testifying in court. A specialist in one field can give an opinion about a specialist in a different field if he has the proper background to do so. In this case the oncologist can testify and give his opinion as to the standard of care given by the surgeon. (630 So2d 606)

105. THE JUDGE RULES: Motorized Vehicles

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Another holiday shopping season is here. Before you buy your child a motorized vehicle, do some research. Today’s column should get your research started. I have included some statute numbers so that you can look them up for yourself. I have paraphrased the statutes based on my current understanding. In addition, check with law enforcement in your area. Having Junior get a ticket on Christmas morning could put a damper on the festivities.

Florida’s Attorney General opinion 2003-44 states that the law in Florida requires a driver’s license for the operation of a motorized scooter on a road. It further states that motorized scooters cannot be ridden on a sidewalk.

With a few exceptions, such as for a motorized wheelchair, no motorized vehicle can be operated on the road unless it is registered and tagged. The little scooters, ATVs, and the mini motorcycles cannot be registered and tagged, therefore they cannot be operated on the road even by a licensed driver. They cannot be operated on the sidewalk or on the road right of way, which is the shoulder of the road.

… Florida Statute 316.605 states that every vehicle on the road shall be licensed unless excluded by law.

… Florida Statute 316.003(21) defines a MOTOR VEHICLE as any self-propelled vehicle not including any bicycle, motorized scooter, electric personal assistive mobility device (this means a Segway) or moped.

… Florida Statute 320.01(1) defines a MOTOR VEHICLE as a vehicle propelled by non-muscle power excluding bicycles and mopeds.

… Florida Statutes 322.01(26) defines a MOTOR VEHICLE as any self-propelled vehicle, excluding vehicles propelled by human power, motorized wheelchairs and motorized bicycles.

It is clear that a person does not need a license to ride a bicycle and a bicycle does not need a tag. No person under 16 years old may operate or ride a motorized bicycle. (FS 316.003)

… Florida Statute 316.003(22) defines a MOTORCYCLE as a motor vehicle having a seat for the rider, having not more than 3 wheels, excluding a moped.

… Florida Statute 316.003(77) defines a MOPED as a vehicle with pedals and a motor, a seat for the rider, no more than 2 brake horsepower, travels no more than 30 mph, no more than 50 cc’s.

… Florida Statute 316.003(82) defines a MOTORIZED SCOOTER as a vehicle not having a seat for the rider, with no more than 3 wheels, which travels no more than 30 mph on level ground.

*****(This example is based on an actual closed case.)*****

The Defendant was riding a mini motorcycle (pocket bike) around his neighborhood. The Defendant was charged with the criminal act of driving an unregistered, untagged motorized vehicle in the road. He fought the charges claiming a pocket bike (mini motorcycle) could not be tagged and registered therefore it could be operated on the rode just as a bicycle could be.

Judge Miller ruled: The current law in Florida does not allow pocket bikes to be operated on the road or right of way. The charge is valid.

[Column No. 61 has more information regarding Motor Vehicles, Motorcycles, Mopeds, and Scooters.]