49. THE JUDGE RULES: Organizations and Taxes

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).

You will be happy to know that the Internal Revenue Code now suspends the tax-exempt status of terrorist organizations!!!

But what organizations do qualify for what exemptions?

All Internal Revenue Code Section 501(c) organizations are exempt from Federal Income Tax.

This section divides the types of organizations into 28 categories.

Although none have to pay Federal Income Tax on normal income, there are different rules for each category.  Some do not have to charge sales tax on admission tickets to their fundraising events, some must charge sales tax.  A contribution to some would be a charitable donation while a payment to others would be a business expense.

501 (c)(3) organizations include religious and charitable groups.  Florida Statutes 212.04(2)(a)1 states “no tax shall be levied on dues, membership fees, and admission charges imposed by NOT-FOR-PROFIT sponsoring organizations.  To receive this exemption, the sponsoring organization must qualify as a NOT-FOR-PROFIT entity under the provisions of 501(c)(3).”

Civic leagues NOT ORGANIZED FOR PROFIT fall under 501(c)(4).

Chambers of Commerce fall under 501(c)(6).

NONPROFIT organizations under 501(c)(3), (4), (7), (8), (10) and (19) can hold raffles if the tickets are not for sale but are given in return for a donation.  This is only one of many unusual rules.  If your group is planning a raffle read the rules carefully.  A violation of this section is a criminal act.  (See FL Statutes 849.0935)

Charitable, NONPROFIT, or veterans’ 501(c) organizations, which have been in existence and active for three or more years, may be eligible to hold bingo games as a fundraiser.  The entire proceeds must be donated to the organizations charitable endeavors.  The rules for setting up the games are complicated.  Be sure to read them before your organization attempts to have a bingo game.  (See FL Statutes 849.0931)

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

The State sought to stop a NONPROFIT organization from running a bingo hall.  One of the State’s complaints was that part of the profits from the games were used to pay rent and utilities.

The Judge writing for the 4th District Court of Appeals ruled: Because those payments were actual expenses, they are allowed under the Statute.  (491 So2d 1183)

   

50. THE JUDGE RULES: Driver’s License

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).

Once again I ask you to look at your driver’s license.  After you have made sure that it has not expired, check the address.  It is a law violation to fail to change your address promptly.  Review the other information listed.  If it says “Safe Driver,” congratulations!

Most of you will have a Florida class E driver’s license.  This means that you can drive an automobile or a “low speed vehicle” in Florida unless your license becomes expired, suspended or revoked.  You cannot drive a motorcycle unless you also get a motorcycle endorsement.  You cannot drive a vehicle if it weighs over 8000 pounds unless it is a recreational vehicle or a straight truck hauling your own personal property which is not for sale.  (FS 322.53) You cannot carry more than 15 passengers.

Does your privilege to drive have restrictions?  If your license says that you must wear corrective lenses and you drive without them, it is a criminal violation.  Does your license say that you must have a seat cushion or that you can only drive during daylight hours?  If it does, you are required to follow those restrictions until they are removed from your license.

Note that your license states that by accepting the privilege to drive, you agree to take a sobriety test as required by law.

If you have had an alcohol related offense, your license may state that your vehicle must be equipped with an ignition interlock system.  The system requires the driver to submit a breath sample before the car will start.  Your license may limit you to driving for employment purposes only or the slightly broader “business purpose” license which could include church and the doctor.

If you have filled out the appropriate paperwork, your license may state that you are an organ donor.  Be sure to let your family know that you want them to carry out your wishes.

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

Several Defendants were arrested for DUI and were asked to give urine samples to be screened for alcohol content.  They refused to give samples.  They now argue that urine-testing procedures are not properly regulated therefore they should not have to give samples.  They further argue that they should not have any penalties for refusing to give samples

The Judge writing for the 3rd District Court of Appeals ruled: When an applicant signs his or her driver’s license, the applicant agrees to alcohol testing.  That consent includes the current method of testing urine for alcohol content.  The urine screen is a valid test and can be used against the Defendants.  Failure to give a sample can also be used against the Defendants.  (29 Fla. L. Weekly D1482)  

[Column No. 116 has additional information regarding Drivers and Licenses.]

51. THE JUDGE RULES: Possession and 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).

Finders keepers, losers weepers.  Possession is 9/10ths of the law.  You snooze, you lose.  Not exactly legal terms but how true are they?

If you find lost or abandoned property you must report it to law enforcement.  If you wish to make a claim to the property, you must deposit a reasonable sum to cover the law enforcement agency’s cost of transportation, storage and public notice concerning the property.  It is unlawful for any person who finds any lost or abandoned property to appropriate it to his or her own use.  (FL Statutes 705)

In a bailment, the owner of the property has another person hold the property for him.  The owner is called the bailor and the temporary possessor is called the bailee.  For instance, you ask a neighbor/bailee to keep your dog while you go away for the weekend.  Due to circumstances beyond your control, you do not return for a year.  You never contacted your neighbor to explain the delay.  You now want your dog back.  Judge Judy ruled that the bailee gets to keep the dog.

A New Jersey Court ruled the same way about large cast iron statues “temporarily” left on a neighbor’s lawn for more than six years.  The statues became the neighbor’s property.

A Michigan court ruled differently.  “It is recognized as a general rule of bailment that the mere retention of possession of property by the bailee, however long continued, will not in itself work a change of ownership.”  (151 N.W. 714)  If the bailee tells the former owner to get the property and he does not, then the bailment could be considered terminated.

When personal property remains after the tenant leaves, the landlord must give written notice as to how the former tenant could regain possession of the property.  For instance, a car left on the premises would not automatically become the landlord’s property.

If you do not pick up your dry cleaning or repaired television after 6 months after proper notice, the store would usually have the right to ownership of the item/items.  If you do not pick up your jewelry after one year after proper notice, the store would usually have the right to ownership

If property is truly abandoned the former owner is divested of title to the property.

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

Property was seized by law enforcement when they searched the Defendant’s home.  He filed a motion asking that all of the seized property be returned to him unless it was contraband or being used as evidence.  The lower court ruled that he had to prove that it was his before it would be returned to him.  He appealed that ruling.

The Judge writing for the 2nd District Court of Appeals ruled: The burden should not be on the Defendant to prove that the property taken from him was his.  If no one else has established a superior possessory interest in the property, it should be returned to the Defendant.  (29 Fla. L. Weekly 1487)

52. THE JUDGE RULES: Self-Defense and Defending Others  

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).

[Please see updated information in column No. 90.]

“I hit him but it was self-defense.”  Maybe it was, maybe it wasn’t.

In Florida a person has a duty to retreat unless there is an exception to that duty.  That means if a person punches you while you are in a public place you are suppose to leave the situation if you can.  Call law enforcement and let law enforcement proceed on your complaint.  If you could have left, but instead you participate in the fight, you could be charged with an affray.  An affray is a criminal offense.

If you are unable to retreat, you can defend yourself.  If you defend yourself, it cannot be with more force than was necessary.  A court would take into consideration your strength versus your assailant’s strength.

You might be able to claim “self-defense” if you were justifiably mistaken about the other person’s intentions.  A person taps you on the shoulder on a dark street in middle of the night.  You thought he was attacking you and you punch him.  Even if he was just going to ask for directions, your actions may have been justified given the totality of the circumstances.

You can defend others from violence with the appropriate degree of force but you must be sure it is necessary.  You cannot rely on a justifiable mistake.  When you attempt to defend others, the danger must be real.  Before you try to rescue someone, call law enforcement, if possible.

If law enforcement is attempting to arrest someone, even if the arrest is a mistake, the Defendant cannot resist with violence.  Under most circumstances, there is no self-defense claim allowed during an arrest unless unlawful or excessive force is being used.  A person is allowed to defend himself against unlawful or excessive force even when being arrested.  (423 So2 562)

In your own home there is an exception to the duty to retreat.  It is called the “castle doctrine.”  A person is not required to retreat from one’s home and may use deadly force in self-defense if it is necessary to prevent death or great bodily harm from a person who is not also a resident.

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

The Defendant was at a girl’s apartment.  Her ex-boyfriend came over.  The ex-boyfriend became enraged that she had another man there.  He began to choke her.  The Defendant intervened.  The Defendant and the ex-boyfriend continued to struggle.  The girl made a phone call for help.  During the struggle the ex-boyfriend’s previously unseen gun fell to the floor.  The Defendant picked it up.  The ex-boyfriend ran into the bedroom.  The Defendant fired a shot through the door into the bedroom.  The bullet hit and killed the ex-boyfriend.  The Defendant was charged with second-degree murder.  His defense is that he had no duty to retreat and was allowed to use all necessary force to eject an intruder.

The Judge writing for the 3rd District Court of Appeal ruled: The Defendant was only a guest in the home and could not use the “castle doctrine.”  He had a duty to retreat, if possible.  (867 So2d 414)

53. THE JUDGE RULES: Class Action Lawsuits

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).

You receive some legal papers in the mail.  The paperwork states that you bought an item which is the basis for a class action lawsuit against the manufacturer.

You are asked to decide if you want to be a part of the class action lawsuit or if you want to be excluded.

When many people have similar claims against one party, a “Representative Plaintiff” can sue on behalf of all of them.  One court would decide the issue for everyone who is not excluded.

If you ignore the Notice or if you do not ask to be excluded, you will be bound by any settlement or any trial result.  You cannot later sue the manufacturer on your own over the issue in dispute.

If you are a member of the class, you have a right to object to a settlement.  The court will consider your objection.

If you are a member of the class, you and your attorney can participate in hearings, meetings and trials.  If you do not retain your own attorney, you will be represented by attorneys appointed by the court to represent you and all class members.  You will not be charged for these attorneys.

If there is a proposed settlement, a “Fairness Hearing” will be set and all members of the class will be given notice.  At the “Fairness Hearing,” the Judge will decide whether the proposed settlement is appropriate.  Attorney’s fees will be determined.  It would not be unusual for the attorney’s fees to far exceed the lawsuit amount.  The attorney’s fees will be a major concern for both sides.

If there is no settlement, a trial is held and a jury decides which side wins.

Class action lawsuits can be over life threatening situations such as an automobile gas tank that explodes upon impact or over an aggravating situation such as a model of washing machine that gets moldy.

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

Plaintiffs in Florida filed a class action on behalf of all purchasers in the United States of America of certain spreadable fruit products by Smuckers.  They alleged that Smuckers 100% Fruit products do not contain 100% fruit.

The Judge writing for the 3rd District Court of Appeal ruled: The manufacturer, Smuckers, is entitled to have the Florida case put on hold pending the outcome of a previously filed class action lawsuit filed in Illinois State Court on behalf of all United States of America purchasers of Smuckers 100% Fruit.  (29 Fla.  L Weekly D1584)

54. THE JUDGE RULES: Appeals (Appealing a Ruling)

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).

Just because you lose your case or Motion does not mean that you have a basis to appeal.

There must be error and the error cannot be a harmless error.  No judgment shall be set aside or reversed unless “the error complained of has resulted in a miscarriage of justice.”  (FS 59.041)

If your case was heard in County Court, your appeal would be heard by a panel of three Circuit Judges.

If your case was heard in Circuit Court, your appeal would be heard by a panel of Judges at the 5th District Court of Appeal.

If the ruling of the District Court is appealed, the Supreme Court of Florida would hear the case.

If the ruling of the Florida Supreme Court is appealed, the United States Supreme Court would hear the case.

The appeal must be filed in the correct form and within the appropriate amount of time after the ruling or verdict.  The party filing the appeal has the burden to prove error.

You might disagree with a decision made concerning testimony in a case.  Usually an appellate court will not re-evaluate that testimony’s credibility because they cannot hear the witness’s tone of voice or see his body language.  The trial judge was able to do so.

You might disagree with a Judge’s interpretation of the law.  Appellate courts can review law by doing their own legal research.

In a civil case, if there was a basis for an award of attorney’s fees at the trial level, there is probably a basis for attorney’s fees to the prevailing party on appeal.

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

The Defendant wanted some evidence suppressed.  At the suppression hearing the officer testified and the Defendant testified.  The Judge found the officer’s testimony to be more credible than the Defendant’s testimony.  The Judge denied the Motion To Suppress.  The Defendant appealed.

The Judge writing for the 5th District Court of Appeal ruled: A ruling on a Motion To Suppress is presumptively correct.  A reviewing court should interpret the evidence in a manner most favorable to sustaining the trial court’s ruling.  “In considering a Motion To Suppress, the role of the trial court is to weigh the credibility of witnesses and to resolve evidentiary conflicts, and on truly discretionary matters, the appellate court must recognize the trial court’s superior vantage point.”  The lower court’s decision to deny the Motion To Suppress is AFFIRMED.  (877 SO2d 800)