43. THE JUDGE RULES: Property Disputes

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).

There are many actions real property owners can file when possession is at issue.  Some choices are eviction, foreclosure, trespass, forcible entry and unlawful detainer, quiet title, partition, adverse possession, injunctive relief and ejectment.

Eviction cases are based on a landlord/tenant relationship.  The tenant has no ownership interest in the property.  There is an oral or written contract pursuant to Florida Statute 83.  Eviction cases are usually heard in County Court but if the amount in question is over $15,000, the case would be heard in Circuit Court.

Foreclosure may be the action necessary on a lease option or agreement for deed.

Property owners can trespass almost anyone from their property.  The trespass order is most effective when served on the trespasser by law enforcement.  Signs and fences are often used to put the public on notice.

Forcible entry and unlawful detainer involves cases in which there is no question of title.  The issue is right of possession and damages.  A person cannot take your land by force.

A quiet title suit may be the remedy when the documentation of ownership is in question.

Partition may be the appropriate cause of action if parties own as co-tenants.  The interest of each party needs to be decided by a court.

Adverse possession is usually a very complicated cause of action.  Basically, if property is used by a person for seven years as if that person had an ownership interest, that person may have created an ownership interest.  See Florida Statutes chapter 95.

If you own property and someone is harming it, you may need emergency action to stop them.  The most common relief would be an Injunction.  The Court could order the other party to stop.

Ejectment is an action to recover real property from a Defendant who is in possession, has not agreed to a lease and owes no rent.  Circuit Court has jurisdiction.

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

Defendants occupy residential property under a lease-purchase agreement.  The Defendants were to make 180 monthly payments.  Upon completion of the payments, the Defendants had the option to buy the home.  Complications arose and the owner filed papers to evict the Defendants.

The Judge for the 1st Judicial Circuit Appellate Panel ruled: Such an agreement is treated as a mortgage under Florida law.  Mortgages must be foreclosed.  Eviction is not the proper cause of action.  The eviction case is dismissed.  (11 Fla. L. Weekly Supp. Number 3)

44. THE JUDGE RULES: Drivers - Did You Know?

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).

Traffic court has increased my awareness of many things.  Maybe being more aware of one of these will save your time, your money or maybe even your life.

Do not use your cruise control when the roadway is wet.  If you were to hydroplane, your tires would keep spinning and the force could propel you into a more dangerous situation.

Keep at least a car length for each 10 miles per hour between you and the car in front of you.  Keep one length even when you are stopped at a light.  You need time to stop when in motion.  When you are stopped you need space to keep from becoming sandwich filling if you are rear-ended and pushed towards the car in front of you.

Keep at least 10 inches between the driver and the airbag and the passenger and the airbag.

If you change the size of your tires, your speedometer may no longer be accurate.

Many of the death cases I have seen were caused by the driver going off the shoulder and then overcorrecting.  Visualize the situation over and over until jerking the steering wheel is not your automatic response when you accidentally drive off the shoulder.

Signing a ticket is not an admission of guilt.  If you refuse to sign, you will be taken to jail.

A turn lane is NOT a travel lane or a passing lane.  Get into the turn lane through the proper opening only when it is time to turn.

You cannot leave a stop sign until you can do it safely.  Even if you made a complete stop, it does not negate your guilt if there is a crash.

When a green turn arrow turns to solid green, you must yield to oncoming traffic before you turn left.  When you take a right on red, you must yield to oncoming traffic taking a left in front of you.

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

The Defendant was issued a citation for jaywalking.  He refused to sign it.  The officer warned the Defendant that he would be arrested if he did not sign the citation.  The officer explained that signing the citation was not an admission of guilt.  The Defendant still did not sign and the officer attempted to arrest him.  The Defendant resisted the arrest.  He was finally arrested and also charged with resisting arrest.  He fights the charge claiming the officer had no right to try to arrest him in the first place for not signing the citation.

The Judge for the 3rd District ruled: Florida Statutes 318.14(3) states that the failure to sign and accept a citation is a criminal act.  The officer had a right to arrest the Defendant and the Defendant had no right to resist that arrest.  (29 FLW D290)

   

45. THE JUDGE RULES: Bicycle 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).

Bicycles are vehicles and cyclists must obey the traffic rules of the road.  Bicycle riders have some additional mandatory rules to follow.

A bicycle operated between sunset and sunrise must be equipped with proper headlights and both a taillight and a reflector.

A cyclist must ride in the direction of traffic.

A cyclist may not ride on a limited access or interstate highway unless there is a special exception.

Cyclists may not ride more than two abreast except in areas designated exclusively for bikes.  Cyclists riding two abreast may not impede traffic and must be within a single lane.

If the bicycle is being ridden in a bicycle lane, drivers of motor vehicles may carefully pass when they choose.  If there is no bike lane and the bicycle is traveling in the lane of traffic, the driver of the motor vehicle must be sure that the lane is at least 14 feet wide if he or she intends to pass within the lane.  If the lane is too small, the driver must leave the lane to pass.  Every driver must exercise due care to avoid a collision with a cyclist.

A bicycle can pass on the right of a motor vehicle when the lane is at least 14 feet wide.  The cyclist must proceed with care since motor vehicles could be turning right at any given time.

A signal of intention to turn must be given during the last 100 feet traveled prior to the turn.  If the cyclist needs both hands for control, the signal does not have to be continuous.

A cyclist under 16 must wear a helmet that is properly fitted, fastened securely and meets national safety standards.  A cyclist may not wear a headset while riding.

It is unlawful to operate a bicycle while impaired by drugs or alcohol.

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

An officer stopped the Defendant for failing to have a bell or other warning device on his bicycle in violation of an Orlando municipal ordinance.  The charge was a crime not an infraction.  The Defendant was arrested.  The officer found a concealed firearm on the Defendant and charged that crime also.  The Defendant appealed claiming that the original arrest was pretextual.

The Judge for the 5th District Court of Appeals ruled: Municipalities can make laws and prescribe penalties for violation of those laws.  The officer had a right to stop the Defendant and to arrest him.  (583 So2 336)

46. THE JUDGE RULES: Government Ethics (Sunshine Amendment)

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).

In 1995, the handbook on the Sunshine Amendment was 28 pages long.  In 2004 the handbook has been replaced with a manual, which is 392 pages long.

The “Sunshine Amendment” was passed in 1976 to provide additional constitutional guarantees concerning ethics in government.  A code of ethics for public officials and employees was created.  Those persons subject to the Government in the Sunshine Law could have been elected or appointed.  While there are some exceptions, the Law applies to the members of all government boards or commissions.

The Law extends to any discussions or deliberations as well as formal action taken when two or more members discuss a matter about which some foreseeable action may be taken.  The public is entitled to know how and why a decision is reached.

The Law applies to written exchanges of comments as well as e-mails.  The Law applies to telephone communication.

Board members can meet individually with non-board members such as a city manager.  The city manager cannot act as a liaison to circulate information gained to other board members.

Members can meet socially but they cannot discuss any matter, which may come before the board.

The public must be given reasonable notice of all meetings.  Emergency meetings must have at least 24 hours notice.  Even if the meeting is a continuation, it must be noticed.

The meetings must be open to the public.  The discussions must be audible to the public.  The discussions can be recorded by the audience.  Recording “any public communication uttered at a public meeting” is a lawful act.  Official minutes must be taken at every meeting.

Members of boards or commissions subject to the Sunshine Law may vote by written ballot, but there can be no secret voting.

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

The Mayor had the sole authority to fire employees and was therefore not required to comply with the Sunshine Act to carry out that duty.  He delegated the job to department heads who shared the decision making with a panel.  A fired employee complained that the panel violated the Sunshine Act.  The Panel argued that they were not required to follow the Act because they were just doing what the Mayor could have done without following the Act.

The Judge for the 4th District ruled: Because they are a panel, once the panel was given decision-making authority, they had to comply with the Sunshine Act.  In this case the Sunshine Act was violated.  (29 Fla. L. Weekly D1000)

   

47. THE JUDGE RULES: Pets (Law Pertaining to Animal Ownership)

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).

Count your pets.  In Lake County if you have more than four adult cats or more than four adult dogs, you need a kennel license.

Florida Statutes regulate some care and control of pets.  Chapter 767 is devoted entirely to “Damage By Dogs.”

Counties and municipalities have ordinances, which regulate the care of pets.  The ordinances limit the number and type of pets a person can have.  The ordinances specify minimum care.  The ordinances limit places where the pets can be and under what type of control.

If a pet owner is charged with violating a Florida Statute, the case is heard by a judge.

If Animal Services believes an animal owner has violated a county ordinance, the owner will be issued a warning citation or a citation with sanctions.  The sanctions are usually a fine and the owner is directed to comply with the ordinance.  If the owner does not comply and does not contest the citation, a Judgment can be filed against the owner.

An owner can contest a citation.  Under some circumstances the requested hearing would be before a county judge.  If Animal Services gives the owner notification that it has determined that a dog is dangerous, the dog owner may appeal.  Pursuant to Lake County Code and Chapter 767, Florida Statutes, the owner is entitled to a hearing.  A department head hears evidence, takes testimony and determines whether Animal Services has abused its discretion in making its determination.

The parties who request the hearing would be given formal notice of the time and place.  They would be instructed that they can be represented by an attorney.  They are told that they can present testimony.  They can even present hearsay evidence.  They can call witnesses and they can cross-examine witnesses the county might call.  They can introduce exhibits.  They can rebut the county’s evidence.

The hearing results must be based on competent substantial evidence.  If the owners wish to appeal, the review would go to the Court.

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

The victim was on or near the dog owner’s property.  She attempted to pet the dog, which savagely bit her on the arm and neck.  She remained hospitalized for nearly 50 days.  The County recommended that the dog be declared vicious.  The reviewing body unanimously agreed.  The owners appealed to the court.

The Judge for the 15th Circuit Appellate Panel ruled: The Court reviews the decision in a very narrow way.  The Court found that (1) the owners were given proper due process.  (2) The essential requirements of law were observed at the hearing.  (3) The ruling was based on competent substantial evidence.  Therefore the dog owner’s Petition is denied.  The results of the hearing stand.  (11 Fla. L. Weekly Supp. 307)

   

48. THE JUDGE RULES: ATVs (All-Terrain 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).

My office receives many complaints from irate citizens concerning All-Terrain Vehicles.

An ATV can only be ridden off-road.  A driver must trailer or push the motor vehicle across any road to get to a legal site.

There are many easements and private roads, which are privately maintained.  Traffic laws can still be enforced on them.  Traffic laws can be enforced on private property where the public can travel by right or custom such as parking lots.

The shoulder of a road and the road right-of-way are considered part of the road.  The only motor vehicles, which can use the road, are those that are registered with a valid tag.  Only licensed drivers can drive them on the road.  Golf carts are a specific exception and are allowed in certain places.

An ATV driver who is somewhere other than on private property with permission may be given several possible citations.  An officer may charge a violation of Florida Statutes 316.2074.  It states, “an all-terrain vehicle may not be operated upon the public roads, streets, or highways.”

An officer may charge the driver with driving an unregistered motor vehicle on the road.  All ATVs are unregistered because they cannot be registered.

An officer may charge the unlicensed driver for driving a motor vehicle on the road without a driver’s license even though a driver’s license is not needed to drive an ATV when it is being driven legally.

An officer may charge an ATV driver with trespass if the driver has been warned to stay off someone’s property.

An ATV driver can be charged with careless driving, improper backing, even DUI and many other charges.

I would like to thank Attorney Mark Brewer of the Lake County Sheriff’s Office for his help with this column.

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

The Defendant was driving an ATV on the shoulder of a road when he was stopped by a trooper.  He was charged with Driving With a Suspended License.  He argues that no driver’s license is needed to drive on the shoulder therefore it did not matter that his license was suspended.

The Judge writing for the 1st District ruled: The roadway includes the entire right-of-way including the shoulder.  A driver must have a valid driver’s license to operate a motor vehicle on the roadway.  An ATV is a motor vehicle and is not an exception to the rule even though it cannot be legally driven on the road.  The Defendant was correctly charged with Driving With A Suspended License.  (710 So2d 678)