Florida Legal Guide

FLORIDA LEGAL GUIDE

FOR NON-RESIDENTIAL PROPERTY MANAGERS AND LEASING PROFESSIONALS

400 North Ashley Drive, Suite 2300 Tampa, Florida 33602-4317 (813) 274-5135

www.landlordlaw.com

October 1, 2009

This edition of our firm's Florida Legal Guide for Non-Residential Property Managers and Leasing Professionals contains statutes as amended through the latest session of the Florida Legislature. The articles and forms are grounded upon our interpretation of Florida Statutes and court rulings.

This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that we are not engaged in rendering legal, accounting or other professional services by offering this publication. If legal advice or other professional assistance is required, the services of a competent professional person should be sought.

We welcome suggestions for improving future editions. Please call or write to us with your comments. A client questionnaire has been provided at the end of this Guide for your convenience.

Best wishes,

Charles J. Levin TABLE OF CONTENTS

FOREWORD LETTER

FLORIDA STATUTES (Arranged by Statute Numbers):

Summary Procedure...... 1 (Section 51.011) Civil Damages for Insufficient Checks...... 1 (Section 68.065) Landlord and Tenant ...... 2 (Chapter 83 - Part I) Notary Public...... 8 (Section 117.05 - 117.107) Unpaid Utilities of Former Tenant...... 16 (Section 180.135(1)(a)) Fictitious Name Registration...... 17 (Section 205.023) Sales Tax...... 17 (Section 212.031) Parking Spaces...... 21 (Section 316.1957) Particular Conditions Affecting Public Health Indoor Air; Tobacco Smoke...... 21 (Section 386.201 through 386.209) Florida Litter Law...... 24 (Section 403.413) Disposal of Bio hazardous and Hazardous Waste...... 27 (Section 403.727)

Radon Gas...... 29 (Excerpt from Chapter 404.056)

Engineering...... 30 (Section 471.027) Real Estate Brokers, Salesmen, and Schools...... 30 (Chapter 475.011) Outdoor Advertising...... 31 (Section 479.16)

Private Security Services...... 33 (Chapter 493 - Part III)

Accessibility by Handicapped Persons...... 35 (Chapter 553 - Part IV)

Corporate Name...... 43 (Section 617.0401)

Performance or Acceptance Under Reservation of Rights...... 43 (Section 671.207)

Legal Holidays...... 43 (Sections 683.01 through 683.325) Construction Liens...... 48 (Section 713.10)

Towing of Vehicles...... 49 (Section 715.07)

Abandoned Personal Property, Disposal of...... 52 (Sections 715.10 through 715.111) Negligence...... 56 (Section 768.075) Crimes Against Damage to Fire Extinguishment and Detection Equipment...... 57 (Section 806.10)

False Alarms of Fire...... 57 (Section 806.101) Criminal Mischief ...... 57 (Section 806.13)

Burglary...... 59 (Section 810.02)

Trespass...... 61 (Section 810.011, 810.08 and 810.10)

Breaking or Injuring Fences...... 63 (Section 810.115) Theft...... 63 (Section 812.014) Criminal Liability for Issuance of Bad Checks...... 66 (Section 832.05 and 832.07)

Fictitious Name Statute...... 70 (Section 865.09)

U.S. Bankruptcy Code...... 73

Automatic Stay (Section 362) ARTICLES REGARDING LEASES:

Automatic Stay in Bankruptcy...... 83 Filing Proofs of Claim...... 86 Cases Everyone Should Read!

Glisson v. Gilbert...... 89 (Broker Liability for Failure to Investigate Prospective Tenant)

Protean Investors, Inc., et al.,v. Travel, Etc., Inc...... 91 (Acceptance of Late Rent Waives Default)

Landry v. Hornstein...... 92 (Landlord Liable for Negotiating Directly with Buyer of Tenant's Business Saying Tenant Would Soon Be Evicted)

Dania Jai-Alai Palace, Inc. v. Sykes...... 96 (Piercing the Corporate Veil)

Questions and Answers...... 103 Clauses Every Lease Should Contain...... 107 Explanation of General Lease Provisions...... 111 Office Lease Checklist...... 122 Shopping Center Lease Checklist...... 124 Fixtures...... 126 Third Party Items Left in Premises...... 126 Americans with Disabilities Act (ADA)...... 126 Building Owner's Alert Regarding Telecommunications Issues...... 128 Non-Disturbance Agreements...... 129 Sales Tax...... 129 Eminent Domain...... 129 Signature Block Forms...... 130 Parties and Formalities of Execution...... 131 Guide to Insurance Rating...... 132 Landlord's Insurance Outline...... 132 Casualty Clauses in Leases...... 135 Requirements of the Fictitious Name Act...... 137

ARTICLES REGARDING ENFORCEMENT OF LEASES:

Eviction Procedure...... 139 Tenant's Right to Withhold Rent...... 140 Tenant Required to Pay Rent During Eviction Action...... 141 Abandonment of the Premises...... 142 Landlord's Right to Evict for “Non-Rent” Non-compliances...... 143 Election of Remedies...... 144 Landlord's Duty to Mitigate Damages...... 145 Distress for Rent...... 146 Accepting Partial Rent Payment and Accepting Rent After Filing Eviction Suit for Non-payment...... 147 Acceptance of Check “Under Protest”...... 148 Collecting Bad Checks and Form Letters...... 149 Vehicle Towing...... 151 The Three Day Notice Procedure...... 153

FORMS:

Three Days Notice to Pay Rent or Give Possession...... 156 Annotated (Suggested Form with Footnotes)...... 157 Notice of Non-Compliance...... 160 (Other than non-payment of rent) Termination Notice for Month-to-Month Tenant...... 161 Recordable Statement Prohibiting Construction Liens...... 162 Notice of "No Surrender" Accepted Letter Keys returned...... 163 Keys not returned...... 164 Notice to Potential Holdover Tenant...... 165 Bad Check Letter...... 166 Notice to Former Tenant of Right to...... 167 Reclaim Abandoned Property Valued Less than $500.00 Notice to Former Tenant of Right to...... 168 Reclaim Abandoned Property Valued More than $500.00 Notice to Owner Other Than Former Tenant of Right to...... 169 Reclaim Abandoned Property Valued Less than $500.00 Notice to Owner Other Than Former Tenant of Right to...... 170 Reclaim Abandoned Property Valued More than $500.00 Third Party Indemnity Running to Landlord for...... 171 Retrieval of Leased Personal Property in Premises

Client Questionnaire...... 172 SUMMARY PROCEDURE Florida Statutes Section 51.011

51.011 Summary procedure. - The procedure in this section applies only to those actions specified by statute or rule. Rules of procedure apply to this section except when this section or the statute or rule prescribing this section provides a different procedure. If there is a difference between the time period prescribed in a rule and in this section, this section governs.

(1) PLEADINGS.--Plaintiff's initial pleading shall contain the matters required by the statute or rule prescribing this section or, if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant's answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his or her answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.

(2) DISCOVERY.--Depositions on oral examination may be taken by any party at any time. Other discovery and admissions may be had only on order of court setting the time for compliance. No discovery postpones the time for trial except for good cause shown or by stipulation of the parties.

(3) JURY.--If a jury trial is authorized by law, any party may demand it in any pleading or by a separate paper served not later than 5 days after the action comes to issue. When a jury is in attendance at the close of pleading or the time of demand for jury trial, the action may be tried immediately; otherwise, the court shall order a special venire to be summoned immediately. If a special venire be summoned, the party demanding the jury shall deposit sufficient money with the clerk to pay the jury fees which shall be taxed as costs if he or she prevails.

(4) NEW TRIAL.--Motion for new trial shall be filed and served within 5 days after verdict, if a jury trial was had, or after entry of judgment, if trial was by the court. A reserved motion for directed verdict shall be renewed within the period for moving for a new trial.

(5) APPEAL.--Notice of appeal shall be filed and served within 30 days from the rendition of the judgment appealed from.

CIVIL DAMAGES FOR INSUFFICIENT CHECKS Florida Statutes Section 68.065

68.065 Actions to collect worthless checks, drafts, or orders of payment; attorney's fees and collection costs.—

(1) In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, or where the maker or drawer stops payment on the check, draft, or order of payment with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days following a written demand therefor, as provided in subsection (3), the maker or drawer shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing. However, in no case shall the liability for damages be less than $50. The maker or drawer shall also be liable for any court costs and reasonable attorney fees incurred by the payee in taking the action. Criminal sanctions, as provided in s. 832.07, may be applicable.

(2) The payee may also charge the maker or drawer of the check, draft, or order of payment a service charge not to exceed the service fees authorized under s. 832.08(5) or 5 percent of the face amount of the instrument, whichever is greater, when making written demand for payment. In the event that a judgment or decree is rendered, interest at the rate and in the manner described in s. 55.03 may be added toward the total amount due. Any bank fees incurred by the payee may be charged to the maker or drawer of the check, draft, or order of payment.

1 (3) Before recovery under this section may be claimed, a written demand must be delivered by certified or registered mail, evidenced by return receipt, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment to the address on the check or other instrument, to the address given by the drawer at the time the instrument was issued, or to the drawer's last known address. The form of such notice shall be substantially as follows:

"You are hereby notified that a check numbered _____ in the face amount of $_____ issued by you on (date) , drawn upon (name of bank) , and payable to _____, has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or 5 percent of the face amount of the check, whichever is greater, the total amount due being $_____ and _____ cents. Unless this amount is paid in full within the 30-day period, the holder of the check or instrument may file a civil action against you for three times the amount of the check, but in no case less than $50, in addition to the payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action."

(4) A subsequent person receiving a check, draft, or order, from the original payee or a successor endorsee has the same rights that the original payee has against the maker of the instrument, provided such subsequent person gives notice in a substantially similar form to that provided above. A subsequent person providing such notice shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice, so long as the maker of the instrument has the same defenses against the subsequent person as against the original payee. However, the remedies available under this section may be exercised only by one party in interest.

(5) Subsequent to the commencement of the action but prior to the hearing, the maker or drawer may tender to the payee, as satisfaction of the claim, an amount of money equal to the sum of the check, the service charge, court costs, and incurred bank fees. Other provisions notwithstanding, the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee's claim.

(6) If the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of the statutory damages.

LANDLORD AND TENANT Florida Statutes - Chapter 83 - Part I

83.001 Application. 83.01 Unwritten lease tenancy at will; duration. 83.02 Certain written leases tenancies at will; duration. 83.03 Termination of tenancy at will; length of notice. 83.04 Holding over after term, tenancy at sufferance, etc. 83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of premises. 83.06 Right to demand double rent upon refusal to deliver possession. 83.07 Action for use and occupation. 83.08 Landlord's lien for rent. 83.09 Exemptions from liens for rent. 83.10 Landlord's lien for advances. 83.11 Distress for rent; complaint. 83.12 Distress rent. 83.13 Levy of writ. 83.135 Dissolution of writ. 83.14 Replevy of distrained property. 83.15 Claims by third persons. 83.18 Distress for rent; trial; verdict; judgment. 83.19 Sale of property distrained.

2 83.20 Causes for removal of tenants. 83.201 Notice to landlord of failure to maintain or repair rendering premises wholly untenantable; right to withhold rent 83.202 Waiver of right to proceed with eviction claim 83.21 Removal of tenant. 83.22 Removal of tenant; service. 83.231 Removal of tenant; judgment. 83.232 Rent paid into registry of court 83.241 Removal of tenant; process. 83.251 Removal of tenant; costs.

83.001 Application. - This part applies to non-residential tenancies and all tenancies not governed by Part II of this Chapter.

83.01 Unwritten lease tenancy at will; duration. - Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be determined by the periods at which the rent is payable. If the rent is payable weekly, then the tenancy shall be from week to week; if payable monthly, then from month to month; if payable quarterly, then from quarter to quarter; if payable yearly, then from year to year.

83.02 Certain written leases tenancies at will; duration. - Where any tenancy has been created by an instrument in writing from year to year, or quarter to quarter, or month to month, or week to week, to be determined by the periods at which the rent is payable, and the term of which tenancy is unlimited, the tenancy shall be a tenancy at will. If the rent is payable weekly, then the tenancy shall be from week to week; if payable monthly, then the tenancy shall be from month to month; if payable quarterly, then from quarter to quarter; if payable yearly, then from year to year.

83.03 Termination of tenancy at will; length of notice. - A tenancy at will may be terminated by either party giving notice as follows:

(1) Where the tenancy is from year to year, by giving not less than 3 months' notice prior to the end of any annual period;

(2) Where the tenancy is from quarter to quarter, by giving not less than 45 days' notice prior to the end of any quarter;

(3) Where the tenancy is from month to month, by giving not less than 15 days' notice prior to the end of any monthly period; and

(4) Where the tenancy is from week to week, by giving not less than 7 days' notice prior to the end of any weekly period.

83.04 Holding over after term, tenancy at sufferance, etc. - When any tenancy created by an instrument in writing, the term of which is limited, has expired and the tenant holds over in the possession of said premises without renewing the lease by some further instrument in writing then such holding over shall be construed to be a tenancy at sufferance. The mere payment or acceptance of rent shall not be construed to be renewal of the term, but if the holding over be continued with the written consent of the lessor then the tenancy shall become a tenancy at will under the provisions of this law.

83.05 Right of possession upon default in rent; determination of right of possession in action or surrender or abandonment of premises. -

3 (1) If any person leasing or renting any land or premises other than a dwelling unit fails to pay the rent at the time it becomes due, the lessor has the right to obtain possession of the premises as provided by law;

(2) The landlord shall recover possession of rented premises only:

(a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession determined;

(b) When the tenant has surrendered possession of the rented premises to the landlord; or

(c) When the tenant has abandoned the rented premises.

(3) In the absence of actual knowledge of abandonment, it shall be presumed for purposes of paragraph (2) (c) that the tenant has abandoned the rented premises if:

(a) The landlord reasonably believes that the tenant has been absent from the rented premises for a period of 30 consecutive days;

(b) The rent is not current; and

(c) A notice pursuant to s. 83.20(2) has been served and 10 days have elapsed since service of such notice.

However, this presumption does not apply if the rent is current or the tenant has notified the landlord in writing of an intended absence.

83.06 Right to demand double rent upon refusal to deliver possession. - (1) When any tenant refuses to give up possession of the premises at the end of the tenant's lease, the landlord, the landlord's agent, attorney, or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expiration of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.

(2) All contracts for rent, verbal or in writing, shall bear interest from the time the rent becomes due, any law, usage or custom to the contrary notwithstanding. 83.07 Action for use and occupation. - Any landlord, the landlord's heirs, executors, administrators or assigns may recover reasonable damages for any house, lands, tenements, or hereditaments held or occupied by any person by the landlord's permission in an action on the case for the use and occupation of the lands, tenements, or hereditaments when they are not held, occupied by or under agreement or demise by deed; and if on trial of any action, any demise or agreement (not being by deed) whereby a certain rent was reserved is given in evidence, the plaintiff shall not be dismissed but may make use thereof as an evidence of the quantum of damages to be r, the plaintiff shall not be dismissed but may make use thereof as an evidence of the quantum of damages to be recovered. 83.08 Landlord's lien for rent. - Every person to whom rent may be due, the person's heirs, executors, administrators or assigns, shall have a lien for such rent upon the property found upon or off the premises leased or rented, and in the possession of any person, as follows:

(1) Upon agricultural products raised on the land leased or rented for the current year. This lien shall be superior to all other liens, though of older date.

(2) Upon all other property of the lessee or his or her sublessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of the property on the premises leased.

(3) Upon all other property of the defendant. This lien shall date from the levy of the distress warrant hereinafter provided.

4 83.09 Exemptions from liens for rent. - No property of any tenant or lessee shall be exempt from distress and sale for rent, except beds, bedclothes and wearing apparel.

83.10 Landlord's lien for advances. - Landlords shall have a lien on the crop grown on rented land for advances made in money or other things of value, whether made directly by them or at their instance and requested by another person, or for which they have assumed a legal responsibility, at or before the time at which such advances were made, for the sustenance or well-being of the tenant or the tenant's family, or for preparing the ground for cultivation, or for cultivating, gathering, saving, handling, or preparing the crop for market. They shall have a lien also upon each and every article advanced, and upon all property purchased with money advanced, or obtained, by barter or exchange for any articles advanced, for the aggregate value or price of all the property or articles so advanced. The liens upon the crop shall be of equal dignity with liens for rent, and upon the articles advanced shall be paramount to all other liens.

83.11 Distress for rent; complaint. - Any person to whom any rent or money for advances is due or the person's agent or attorney may file an action in the court in the county where the land lies having jurisdiction of the amount claimed, and the court shall have jurisdiction to order the relief provided in this part. The complaint shall be verified and shall allege the name and relationship of the defendant to the plaintiff, how the obligation for rent arose, the amount or quality and value of the rent due for such land, or the advances, and whether payable in money, an agricultural product, or any other thing of value

83.12 Distress writ.--A distress writ shall be issued by a judge of the court which has jurisdiction of the amount claimed. The writ shall enjoin the defendant from damaging, disposing of, secreting, or removing any property liable to distress from the rented real property after the time of service of the writ until the sheriff levies on the property, the writ is vacated, or the court otherwise orders. A violation of the command of the writ may be punished as a contempt of court. If the defendant does not move for dissolution of the writ as provided in s. 83.135, the sheriff shall, pursuant to a further order of the court, levy on the property liable to distress forthwith after the time for answering the complaint has expired. Before the writ issues, the plaintiff or the plaintiff's agent or attorney shall file a bond with surety to be approved by the clerk payable to defendant in at least double the sum demanded or, if property, in double the value of the property sought to be levied on, conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff's improperly suing out the distress.

83.13 Levy of writ. - The sheriff shall execute the writ by service on defendant and, upon the order of the court, by levy on property distrainable for rent or advances, if found in the sheriff's jurisdiction. If the property is in another jurisdiction, the party who had the writ issued shall deliver the writ to the sheriff in the other jurisdiction; and that sheriff shall execute the writ, upon order of the court, by levying on the property and delivering it to the sheriff of the county in which the action is pending, to be disposed of according to law, unless he or she is ordered by the court from which the writ emanated to hold the property and dispose of it in his or her jurisdiction according to law. If the plaintiff shows by a sworn statement that the defendant cannot be found within the state, the levy on the property suffices as service on the defendant.

83.135 Dissolution of writ. - The defendant may move for dissolution of a distress writ at any time. The court shall hear the motion not later than the day on which the sheriff is authorized under the writ to levy on property liable under distress. If the plaintiff proves a prima facie case, or if the defendant defaults, the court shall order the sheriff to proceed with the levy.

83.14 Replevy of distrained property.--The property distrained may be restored to the defendant at any time on the defendant's giving bond with surety to the sheriff levying the writ. The bond shall be approved by such sheriff; made payable to plaintiff in double the value of the property levied on, with the value to be fixed by the sheriff; and conditioned for the forthcoming of the property restored to abide the final order of the court. It may be also restored to defendant on defendant's giving bond with surety to be approved by the sheriff making the levy conditioned to pay the plaintiff the amount or value of the rental or advances which may be adjudicated to be payable to plaintiff. Judgment may be entered against the surety on such bonds in the manner and with like effect as provided in s. 76.31.

5 83.15 Claims by third persons.--Any third person claiming any property so distrained may interpose and prosecute his or her claim for it in the same manner as is provided in similar cases of claim to property levied on under execution.

83.18 Distress for rent; trial; verdict; judgment. - If the verdict or the finding of the court is for plaintiff, judgment shall be rendered against defendant for the amount or value of the rental or advances, including interest and costs, and against the surety on defendant's bond as provided for in s. 83.14, if the property has been restored to defendant, and execution shall issue. If the verdict or the finding of the court is for defendant, the action shall be dismissed and defendant shall have judgment and execution against plaintiff for costs.

83.19 Sale of property distrained. –

(1) If the judgment is for plaintiff and the property in whole or in part has not been replevied, it, or the part not restored to the defendant, shall be sold and the proceeds applied on the payment of the execution. If the rental or any part of it is due in agricultural products and the property distrained, or any part of it, is of a similar kind to that claimed in the complaint, the property up to a quantity to be adjudged of by the officer holding the execution (not exceeding that claimed), may be delivered to the plaintiff as a payment on the plaintiff's execution at his or her request.

(2) When any property levied on is sold, it shall be advertised two times, the first advertisement being at least 10 days before the sale. All property so levied on shall be sold at the location advertised in the notice of sheriff's sale.

(3) Before the sale if defendant appeals and obtains supersedeas and pays all costs accrued up to the time that the supersedeas becomes operative, the property shall be restored to defendant and there shall be no sale.

(4) In case any property is sold to satisfy any rent payable in cotton or other agricultural product or thing, the officer shall settle with the plaintiff at the value of the rental at the time it became due.

83.20 Causes for removal of tenants. - Any tenant or lessee at will or sufferance, or for part of the year, or for one or more years, of any houses, lands or tenements, and the assigns, under tenants or legal representatives of such tenant or lessee, may be removed from the premises in the manner hereinafter provided in the following cases:

(1) Where such person holds over and continues in the possession of the demised premises, or any part thereof, after the expiration of the person's time, without the permission of the person's landlord.

(2) Where such person holds over without permission as aforesaid, after any default in the payment of rent pursuant to the agreement under which the premises are held, and 3 days' notice in writing requiring the payment of the rent or the possession of the premises has been served by the person entitled to the rent on the person owing the same. The service of the notice shall be by delivery of a true copy thereof, or, if the tenant is absent from the rented premises, by leaving a copy thereof at such place.

(3) Where such person holds over without permission after failing to cure a material breach of the lease or oral agreement, other than nonpayment of rent, and when 15 days' written notice requiring the cure of such breach or the possession of the premises has been served on the tenant. This subsection applies only when the lease is silent on the matter or when the tenancy is an oral one at will. The notice may give a longer time period for cure of the breach or surrender of the premises. In the absence of a lease provision prescribing the method for serving notices, service must be by mail, hand delivery, or, if the tenant is absent from the rental premises or the address designated by the lease, by posting.

83.201 Notice to landlord of failure to maintain or repair rendering premises wholly untenantable; right to withhold rent. - When the lease is silent on the procedure to be followed to effect repair or maintenance and the payment of rent relating thereto, yet affirmatively and expressly places the obligation for same upon the landlord, and the landlord has failed or refused to do so, rendering the leased premises wholly untenantable, the

6 tenant may withhold rent after notice to the landlord. The tenant shall serve the landlord, in the manner prescribed by s. 83.20(3), with a written notice declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically described repair or maintenance, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed. The lease may provide for a longer period of time for repair or maintenance. Once the landlord has completed the repair or maintenance, the tenant shall pay the landlord the amounts of rent withheld. If the landlord does not complete the repair or maintenance in the allotted time, the parties may extend the time by written agreement or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease. This section is cumulative to other existing remedies, and this section does not prevent any tenant from exercising his or her other remedies.

83.202 Waiver of right to proceed with eviction claim. - The landlord's acceptance of the full amount of rent past due, with knowledge of the tenant's breach of the lease by nonpayment, shall be considered a waiver of the landlord's right to proceed with an eviction claim for nonpayment of that rent. Acceptance of the rent includes conduct by the landlord concerning any tender of the rent by the tenant which is inconsistent with reasonably prompt return of the payment to the tenant.

83.21 Removal of tenant. - The landlord, the landlord's attorney or agent, applying for the removal of any tenant, shall file a complaint stating the facts which authorize the removal of the tenant, and describing the premises in the proper court of the county where the premises are situated and is entitled to the summary procedure provided in s. 51.011.

83.22 Removal of tenant; service. –

(1) After at least two attempts to obtain service as provided by law, if the defendant cannot be found in the county in which the action is pending and either the defendant has no usual place of abode in the county or there is no person 15 years of age or older residing at the defendant's usual place of abode in the county, the sheriff shall serve the summons by attaching it to some part of the premises involved in the proceeding. The minimum time delay between the two attempts to obtain service shall be 6 hours.

(2) If a landlord causes, or anticipates causing, a defendant to be served with a summons and complaint solely by attaching them to some conspicuous part of the premises involved in the proceeding, the landlord shall provide the clerk of the court with two additional copies of the complaint and two prestamped envelopes addressed to the defendant. One envelope shall be addressed to such address or location as has been designated by the tenant for receipt of notice in a written lease or other agreement or, if none has been designated, to the residence of the tenant, if known. The second envelope shall be addressed to the last known business address of the tenant. The clerk of the court shall immediately mail the copies of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service shall be effective on the date of posting or mailing, whichever occurs later; and at least 5 days from the date of service must have elapsed before a judgment for final removal of the defendant may be entered.

83.231 Removal of tenant; judgment. - If the issues are found for plaintiff, judgment shall be entered that plaintiff recover possession of the premises. If the plaintiff expressly and specifically sought money damages in the complaint, in addition to awarding possession of the premises to the plaintiff, the court shall also direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment in favor of the plaintiff and against the defendant for the amount of money found due, owing, and unpaid by the defendant, with costs. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plaintiff in the judgment for possession and money damages may also be awarded attorney's fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the action.

7 83.232 Rent paid into registry of court. –

(1) In an action by the landlord which includes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Unless the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or before the date on which his or her answer to the claim for possession is due. If the tenant contests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination. The court may, however, extend these time periods to allow for later payment, upon good cause shown. Even though the defense of payment or satisfaction has been asserted, the court, in its discretion, may order the tenant to pay into the court registry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease. If the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.

(2) If the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning:

(a) Whether the tenant has been properly credited by the landlord with any and all rental payments made; and

(b) What properly constitutes rent under the provisions of the lease.

(3) The court, on its own motion, shall notify the tenant of the requirement that rent be paid into the court registry by order, which shall be issued immediately upon filing of the tenant's initial pleading, motion, or other paper.

(4) The filing of a counterclaim for money damages does not relieve the tenant from depositing rent due into the registry of the court.

(5) Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant's defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.

83.241 Removal of tenant; process. - After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put plaintiff in possession.

83.251 Removal of tenant; costs. - The prevailing party shall have judgment for costs and execution shall issue therefor.

NOTARY PUBLIC Florida Statutes Section 117.05- 117.107

117.05 Use of notary commission; unlawful use; notary fee; seal; duties; employer liability; name change; advertising; photocopies; penalties.— (1) No person shall obtain or use a notary public commission in other than his or her legal name, and it is unlawful for a notary public to notarize his or her own signature. Any person applying for a notary public commission must submit proof of identity to the Department of State if so requested. Any person who violates the provisions of this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

8 (2) (a) The fee of a notary public may not exceed $10 for any one notarial act, except as provided in s. 117.045.

(b) A notary public may not charge a fee for witnessing an absentee ballot in an election, and must witness such a ballot upon the request of an elector, provided the notarial act is in accordance with the provisions of this chapter.

(3) (a) A notary public seal shall be affixed to all notarized paper documents and shall be of the rubber stamp type and shall include the words "Notary Public-State of Florida." The seal shall also include the name of the notary public, the date of expiration of the commission of the notary public, and the commission number. The rubber stamp seal must be affixed to the notarized paper document in photographically reproducible black ink. Every notary public shall print, type, or stamp below his or her signature on a paper document his or her name exactly as commissioned. An impression-type seal may be used in addition to the rubber stamp seal, but the rubber stamp seal shall be the official seal for use on a paper document, and the impression-type seal may not be substituted therefor.

(b) Any notary public whose term of appointment extends beyond January 1, 1992, is required to use a rubber stamp type notary public seal on paper documents only upon reappointment on or after January 1, 1992.

(c) The notary public official seal and the certificate of notary public commission are the exclusive property of the notary public and must be kept under the direct and exclusive control of the notary public. The seal and certificate of commission must not be surrendered to an employer upon termination of employment, regardless of whether the employer paid for the seal or for the commission.

(d) A notary public whose official seal is lost, stolen, or believed to be in the possession of another person shall immediately notify the Department of State or the Governor in writing.

(e) Any person who unlawfully possesses a notary public official seal or any papers or copies relating to notarial acts is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) When notarizing a signature, a notary public shall complete a jurat or notarial certificate in substantially the same form as those found in subsection (13). The jurat or certificate of acknowledgment shall contain the following elements:

(a) The venue stating the location of the notarization in the format, "State of Florida, County of ______."

(b) The type of notarial act performed, an oath or an acknowledgment, evidenced by the words "sworn" or "acknowledged."

(c) That the signer personally appeared before the notary public at the time of the notarization.

(d) The exact date of the notarial act.

(e) The name of the person whose signature is being notarized. It is presumed, absent such specific notation by the notary public, that notarization is to all signatures.

(f) The specific type of identification the notary public is relying upon in identifying the signer, either based on personal knowledge or satisfactory evidence specified in subsection (5).

(g) The notary's official signature.

(h) The notary's name, typed, printed, or stamped below the signature.

(i) The notary's official seal affixed below or to either side of the notary's signature.

9 (5) A notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in and who is executing the instrument. A notary public shall certify in the certificate of acknowledgment or jurat the type of identification, either based on personal knowledge or other form of identification, upon which the notary public is relying.

(a) For purposes of this subsection, "personally knows" means having an acquaintance, derived from association with the individual, which establishes the individual's identity with at least a reasonable certainty.

(b) For the purposes of this subsection, "satisfactory evidence" means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person whose signature is to be notarized is not the person he or she claims to be and any one of the following:

1. The sworn written statement of one credible witness personally known to the notary public or the sworn written statement of two credible witnesses whose identities are proven to the notary public upon the presentation of satisfactory evidence that each of the following is true:

a. That the person whose signature is to be notarized is the person named in the document;

b. That the person whose signature is to be notarized is personally known to the witnesses;

c. That it is the reasonable belief of the witnesses that the circumstances of the person whose signature is to be notarized are such that it would be very difficult or impossible for that person to obtain another acceptable form of identification;

d. That it is the reasonable belief of the witnesses that the person whose signature is to be notarized does not possess any of the identification documents specified in subparagraph 2.; and

e. That the witnesses do not have a financial interest in nor are parties to the underlying transaction; or

2. Reasonable reliance on the presentation to the notary public of any one of the following forms of identification, if the document is current or has been issued within the past 5 years and bears a serial or other identifying number:

a. A Florida identification card or driver's license issued by the public agency authorized to issue driver's licenses;

b. A passport issued by the Department of State of the United States;

c. A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;

d. A driver's license or an identification card issued by a public agency authorized to issue driver's licenses in a state other than Florida, a territory of the United States, or Canada or Mexico;

e. An identification card issued by any branch of the armed forces of the United States;

10 f. An inmate identification card issued on or after January 1, 1991, by the Florida Department of Corrections for an inmate who is in the custody of the department;

g. An inmate identification card issued by the United States Department of Justice, Bureau of Prisons, for an inmate who is in the custody of the department;

h. A sworn, written statement from a sworn law enforcement officer that the forms of identification for an inmate in an institution of confinement were confiscated upon confinement and that the person named in the document is the person whose signature is to be notarized; or

i. An identification card issued by the United States Bureau of Citizenship and Immigration Services.

(6) The employer of a notary public shall be liable to the persons involved for all damages proximately caused by the notary's official misconduct, if the notary public was acting within the scope of his or her employment at the time the notary engaged in the official misconduct.

(7) Any person who acts as or otherwise willfully impersonates a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(8) Any notary public who knowingly acts as a notary public after his or her commission has expired is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(9) Any notary public who lawfully changes his or her name shall, within 60 days after such change, request an amended commission from the Secretary of State and shall send $25, his or her current commission, and a notice of change form, obtained from the Secretary of State, which shall include the new name and contain a specimen of his or her official signature. The Secretary of State shall issue an amended commission to the notary public in the new name. A rider to the notary public's bond must accompany the notice of change form. After submitting the required notice of change form and rider to the Secretary of State, the notary public may continue to perform notarial acts in his or her former name for 60 days or until receipt of the amended commission, whichever date is earlier.

(10) A notary public who is not an attorney who advertises the services of a notary public in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall post or otherwise include with the advertisement a notice in English and in the language used for the advertisement. The notice shall be of a conspicuous size, if in writing, and shall state: "I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF FLORIDA, AND I MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE." If the advertisement is by radio or television, the statement may be modified but must include substantially the same message.

(11) Literal translation of the phrase "Notary Public" into a language other than English is prohibited in an advertisement for notarial services.

(12) (a) A notary public may supervise the making of a photocopy of an original document and attest to the trueness of the copy, provided the document is neither a vital record in this state, another state, a territory of the United States, or another country, nor a public record, if a copy can be made by the custodian of the public record.

(b) A notary public must use a certificate in substantially the following form in notarizing an attested copy:

STATE OF FLORIDA

11 COUNTY OF ______

On this _____ day of ______, (year) , I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of (description of document) presented to me by the document's custodian, ______, and, to the best of my knowledge, that the photocopied document is neither a vital record nor a public record, certified copies of which are available from an official source other than a notary public.

(Official Notary Signature and Notary Seal)

(Name of Notary Typed, Printed or Stamped)

(13) The following notarial certificates are sufficient for the purposes indicated, if completed with the information required by this chapter. The specification of forms under this subsection does not preclude the use of other forms.

(a) For an oath or affirmation:

STATE OF FLORIDA COUNTY OF ______

Sworn to (or affirmed) and subscribed before me this _____ day of ______, (year) , by (name of person making statement) .

(Signature of Notary Public - State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public)

Personally Known ______OR Produced Identification ______

Type of Identification Produced

(b) For an acknowledgment in an individual capacity:

The foregoing instrument was acknowledged before me this _____ day of ______, (year) , by (name of person acknowledging) .

(c) For an acknowledgment in a representative capacity:

12 STATE OF FLORIDA COUNTY OF ______

The foregoing instrument was acknowledged before me this _____ day of ______, (year) , by (name of person) as (type of authority, . . . e.g. officer, trustee, attorney in fact) for (name of party on behalf of whom instrument was executed) .

(14) A notary public must make reasonable accommodations to provide notarial services to persons with disabilities.

(a) A notary public may notarize the signature of a person who is blind after the notary public has read the entire instrument to that person.

(b) A notary public may notarize the signature of a person who signs with a mark if:

1. The document signing is witnessed by two disinterested persons;

2. The notary prints the person's first name at the beginning of the designated signature line and the person's last name at the end of the designated signature line; and

3. The notary prints the words "his (or her) mark" below the person's signature mark.

(c) The following notarial certificates are sufficient for the purpose of notarizing for a person who signs with a mark:

1. For an oath or affirmation:

(First Name) (Last Name) His (or Her) Mark

Sworn to and subscribed before me this _____ day of ______, (year) , by (name of person making statement) , who signed with a mark in the presence of these witnesses: (Signature of Notary Public - State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known ______OR Produced Identification ______Type of Identification Produced

2. For an acknowledgment in an individual capacity:

(First Name) (Last Name)

13 His (or Her) Mark

The foregoing instrument was acknowledged before me this _____ day of ______, (year) , by (name of person acknowledging) , who signed with a mark in the presence of these witnesses: (Signature of Notary Public - State of Florida)

(Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known ______OR Produced Identification ______Type of Identification Produced

(d) A notary public may sign the name of a person whose signature is to be notarized when that person is physically unable to sign or make a signature mark on a document if:

1. The person with a disability directs the notary to sign in his or her presence;

2. The document signing is witnessed by two disinterested persons;

3. The notary writes below the signature the following statement: "Signature affixed by notary, pursuant to s. 117.05(14), Florida Statutes," and states the circumstances of the signing in the notarial certificate.

(e) The following notarial certificates are sufficient for the purpose of notarizing for a person with a disability who directs the notary to sign his or her name: 1. For an oath or affirmation:

Sworn to (or affirmed) before me this _____ day of ______, (year) , by (name of person making statement) , and subscribed by (name of notary) at the direction of and in the presence of (name of person making statement) , and in the presence of these witnesses:

2. For an acknowledgment in an individual capacity:

14 The foregoing instrument was acknowledged before me this _____ day of ______, (year) , by (name of person acknowledging) and subscribed by (name of notary) at the direction of and in the presence of (name of person acknowledging) , and in the presence of these witnesses:

117.06 Validity of acts prior to April 1, 1903.--Any and all notarial acts that were done by any notary public in the state prior to April 1, 1903, which would have been valid had not the term of office of the notary public expired, are declared to be valid.

117.10 Law enforcement and correctional officers.-- Law enforcement officers, correctional officers, and correctional probation officers, as defined in s. 943.10, and traffic accident investigation officers and traffic infraction enforcement officers, as described in s. 316.640, are authorized to administer oaths when engaged in the performance of official duties. Sections 117.01, 117.04, 117.045, 117.05, and 117.103 do not apply to the provisions of this section. An officer may not notarize his or her own signature.

117.103 Certification of notary's authority by Secretary of State.-- A notary public is not required to record his or her notary public commission in an office of a clerk of the circuit court. If certification of the notary public's commission is required, it must be obtained from the Secretary of State. Upon the receipt of a written request and a fee of $10 payable to the Secretary of State, the Secretary of State shall issue a certificate of notarial authority, in a form prescribed by the Secretary of State, which shall include a statement explaining the legal qualifications and authority of a notary public in this state.

117.105 False or fraudulent acknowledgments; penalty.--A notary public who falsely or fraudulently takes an acknowledgment of an instrument as a notary public or who falsely or fraudulently makes a certificate as a notary public or who falsely takes or receives an acknowledgment of the signature on a written instrument is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

117.107 Prohibited acts.-- (1) A notary public may not use a name or initial in signing certificates other than that by which the notary public is commissioned.

(2) A notary public may not sign notarial certificates using a facsimile signature stamp unless the notary public has a physical disability that limits or prohibits his or her ability to make a written signature and unless the notary public has first submitted written notice to the Department of State with an exemplar of the facsimile signature stamp.

(3) A notary public may not affix his or her signature to a blank form of affidavit or certificate of acknowledgment and deliver that form to another person with the intent that it be used as an affidavit or acknowledgment.

(4) A notary public may not take the acknowledgment of or administer an oath to a person whom the notary public actually knows to have been adjudicated mentally incapacitated by a court of competent jurisdiction, where the acknowledgment or oath necessitates the exercise of a right that has been removed pursuant to s. 744.3215(2) or (3), and where the person has not been restored to capacity as a matter of record.

15 (5) A notary public may not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization.

(6) A notary public may not take the acknowledgment of a person who does not speak or understand the English language, unless the nature and effect of the instrument to be notarized is translated into a language which the person does understand.

(7) A notary public may not change anything in a written instrument after it has been signed by anyone.

(8) A notary public may not amend a notarial certificate after the notarization is complete.

(9) A notary public may not notarize a signature on a document if the person whose signature is being notarized is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this subsection is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and such violation constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this subsection that the notary public acted without intent to defraud. A notary public who violates this subsection with the intent to defraud is guilty of violating s. 117.105.

(10) A notary public may not notarize a signature on a document if the document is incomplete or blank. However, an endorsement or assignment in blank of a negotiable or nonnegotiable note and the assignment in blank of any instrument given as security for such note is not deemed incomplete.

(11) A notary public may not notarize a signature on a document if the person whose signature is to be notarized is the spouse, son, daughter, mother, or father of the notary public.

(12) A notary public may not notarize a signature on a document if the notary public has a financial interest in or is a party to the underlying transaction; however, a notary public who is an employee may notarize a signature for his or her employer, and this employment does not constitute a financial interest in the transaction nor make the notary a party to the transaction under this subsection as long as he or she does not receive a benefit other than his or her salary and the fee for services as a notary public authorized by law. For purposes of this subsection, a notary public who is an attorney does not have a financial interest in and is not a party to the underlying transaction evidenced by a notarized document if he or she notarizes a signature on that document for a client for whom he or she serves as an attorney of record and he or she has no interest in the document other than the fee paid to him or her for legal services and the fee authorized by law for services as a notary public.

UNPAID UTILITIES OF FORMER TENANT Florida Statutes Section 180.135

180.135 Utility services; refusal or discontinuance of services for nonpayment of service charges by former occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception. –

(1) (a) Any other provision of law to the contrary notwithstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit; any such unpaid service charges incurred by a former occupant will not be the basis for any lien against the rental property or legal action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occupant.

(b) This section applies only if the former occupant of the rental unit contracted for such services with the municipality or if the municipality provided services with knowledge of the former occupant's name and the period the occupant was provided the services.

16 (2) The provisions of this section may not be waived through any contractual arrangement between a municipality and a landlord whereby the landlord agrees to be responsible for a tenant's or future tenant's payment of service charges.

(3) Any other provision of law to the contrary notwithstanding, any municipality may adopt an ordinance authorizing the municipality to withdraw and expend any security deposit collected by the municipality from any occupant or tenant for the provision of utility, water, or sewer services for the nonpayment of service charges by the occupant or tenant.

(4) In any case where a tenant subject to part II of chapter 83 does not make payment for service charges to a municipality for the provision of utility, water, or sewer services, the landlord may thereupon commence eviction proceedings. Nothing in this section shall be construed to prohibit a municipality from discontinuing service to a tenant who is in arrears 30 days or more, or as required by bond covenant.

FICTITIOUS NAME REGISTRATION Florida Statutes Section 205.023

205.023 Requirement to report status of fictitious name registration. - As a prerequisite to receiving a local occupational license under this chapter or transferring a business license under s. 205.033(2) or s. 205.043(2), the applicant or new owner must present to the county or municipality that has jurisdiction to issue or transfer the license either:

(1) A copy of the applicant's or new owner's current fictitious name registration, issued by the Division of Corporations of the Department of State; or

(2) A written statement, signed by the applicant or new owner, which sets forth the reason that the applicant or new owner need not comply with the Fictitious Name Act.

SALES TAX Florida Statutes Section 212.031

212.031 Tax on rental or license fee for use of real property.--

(1) (a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is:

1. Assessed as agricultural property under s. 193.461.

2. Used exclusively as dwelling units.

3. Property subject to tax on parking, docking, or storage spaces under s. 212.03(6).

4. Recreational property or the common elements of a condominium when subject to a lease between the developer or owner thereof and the condominium association in its own right or as agent for the owners of individual condominium units or the owners of individual condominium units. However, only the lease payments on such property shall be exempt from the tax imposed by this chapter, and any other use made by the owner or the condominium association shall be fully taxable under this chapter.

5. A public or private street or right-of-way and poles, conduits, fixtures, and similar improvements located on such streets or rights-of-way, occupied or used by a utility or provider of communications services, as defined by s. 202.11, for utility or communications or television purposes. For purposes of this subparagraph, the term "utility" means any person providing utility services as defined in s. 203.012. This exception also applies to property, wherever located, on which the following are placed:

17 towers, antennas, cables, accessory structures, or equipment, not including switching equipment, used in the provision of mobile communications services as defined in s. 202.11. For purposes of this chapter, towers used in the provision of mobile communications services, as defined in s. 202.11, are considered to be fixtures.

6. A public street or road which is used for transportation purposes.

7. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft.

8. a. Property used at a port authority, as defined in s. 315.02(2), exclusively for the purpose of oceangoing vessels or tugs docking, or such vessels mooring on property used by a port authority for the purpose of loading or unloading passengers or cargo onto or from such a vessel, or property used at a port authority for fueling such vessels, or to the extent that the amount paid for the use of any property at the port is based on the charge for the amount of tonnage actually imported or exported through the port by a tenant.

b. The amount charged for the use of any property at the port in excess of the amount charged for tonnage actually imported or exported shall remain subject to tax except as provided in sub-subparagraph a.

9. Property used as an integral part of the performance of qualified production services. As used in this subparagraph, the term "qualified production services" means any activity or service performed directly in connection with the production of a qualified motion picture, as defined in s. 212.06(1)(b), and includes:

a. Photography, sound and recording, casting, location managing and scouting, shooting, creation of special and optical effects, animation, adaptation (language, media, electronic, or otherwise), technological modifications, computer graphics, set and stage support (such as electricians, lighting designers and operators, greensmen, prop managers and assistants, and grips), wardrobe (design, preparation, and management), hair and makeup (design, production, and application), performing (such as acting, dancing, and playing), designing and executing stunts, coaching, consulting, writing, scoring, composing, choreographing, script supervising, directing, producing, transmitting dailies, dubbing, mixing, editing, cutting, looping, printing, processing, duplicating, storing, and distributing;

b. The design, planning, engineering, construction, alteration, repair, and maintenance of real or personal property including stages, sets, props, models, paintings, and facilities principally required for the performance of those services listed in sub-subparagraph a.; and

c. Property management services directly related to property used in connection with the services described in sub-subparagraphs a. and b.

This exemption will inure to the taxpayer upon presentation of the certificate of exemption issued to the taxpayer under the provisions of s. 288.1258.

10. Leased, subleased, licensed, or rented to a person providing food and drink concessionaire services within the premises of a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, publicly owned recreational facility, or any business operated under a permit issued pursuant to chapter 550. A person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of real property used for that purpose, but shall not be subject to the tax on any license to use the property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property.

18 11. Property occupied pursuant to an instrument calling for payments which the department has declared, in a Technical Assistance Advisement issued on or before March 15, 1993, to be nontaxable pursuant to rule 12A-1.070(19)(c), Florida Administrative Code; provided that this subparagraph shall only apply to property occupied by the same person before and after the execution of the subject instrument and only to those payments made pursuant to such instrument, exclusive of renewals and extensions thereof occurring after March 15, 1993.

12. Rented, leased, subleased, or licensed to a concessionaire by a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility, during an event at the facility, to be used by the concessionaire to sell souvenirs, novelties, or other event-related products. This subparagraph applies only to that portion of the rental, lease, or license payment which is based on a percentage of sales and not based on a fixed price. This subparagraph is repealed July 1, 2009.

13. Property used or occupied predominantly for space flight business purposes. As used in this subparagraph, "space flight business" means the manufacturing, processing, or assembly of a space facility, space propulsion system, space vehicle, satellite, or station of any kind possessing the capacity for space flight, as defined by s. 212.02(23), or components thereof, and also means the following activities supporting space flight: vehicle launch activities, flight operations, ground control or ground support, and all administrative activities directly related thereto. Property shall be deemed to be used or occupied predominantly for space flight business purposes if more than 50 percent of the property, or improvements thereon, is used for one or more space flight business purposes. Possession by a landlord, lessor, or licensor of a signed written statement from the tenant, lessee, or licensee claiming the exemption shall relieve the landlord, lessor, or licensor from the responsibility of collecting the tax, and the department shall look solely to the tenant, lessee, or licensee for recovery of such tax if it determines that the exemption was not applicable.

(b) When a lease involves multiple use of real property wherein a part of the real property is subject to the tax herein, and a part of the property would be excluded from the tax under subparagraph (a)1., subparagraph (a)2., subparagraph (a)3., or subparagraph (a)5., the department shall determine, from the lease or license and such other information as may be available, that portion of the total rental charge which is exempt from the tax imposed by this section. The portion of the premises leased or rented by a for-profit entity providing a residential facility for the aged will be exempt on the basis of a pro rata portion calculated by combining the square footage of the areas used for residential units by the aged and for the care of such residents and dividing the resultant sum by the total square footage of the rented premises. For purposes of this section, the term "residential facility for the aged" means a facility that is licensed or certified in whole or in part under chapter 400, chapter 429, or chapter 651; or that provides residences to the elderly and is financed by a mortgage or loan made or insured by the United States Department of Housing and Urban Development under s. 202, s. 202 with a s. 8 subsidy, s. 221(d)(3) or (4), s. 232, or s. 236 of the National Housing Act; or other such similar facility that provides residences primarily for the elderly.

(c) For the exercise of such privilege, a tax is levied in an amount equal to 6 percent of and on the total rent or license fee charged for such real property by the person charging or collecting the rental or license fee. The total rent or license fee charged for such real property shall include payments for the granting of a privilege to use or occupy real property for any purpose and shall include base rent, percentage rents, or similar charges. Such charges shall be included in the total rent or license fee subject to tax under this section whether or not they can be attributed to the ability of the lessor's or licensor's property as used or operated to attract customers. Payments for intrinsically valuable personal property such as franchises, trademarks, service marks, logos, or patents are not subject to tax under this section. In the case of a contractual arrangement that provides for both payments taxable as total rent or license fee and payments not subject to tax, the tax shall be based on a reasonable allocation of such payments and shall not apply to that portion which is for the nontaxable payments.

(d) When the rental or license fee of any such real property is paid by way of property, goods, wares, merchandise, services, or other thing of value, the tax shall be at the rate of 6 percent of the value of the property, goods, wares, merchandise, services, or other thing of value.

19 (2) (a) The tenant or person actually occupying, using, or entitled to the use of any property from which the rental or license fee is subject to taxation under this section shall pay the tax to his or her immediate landlord or other person granting the right to such tenant or person to occupy or use such real property.

(b) It is the further intent of this Legislature that only one tax be collected on the rental or license fee payable for the occupancy or use of any such property, that the tax so collected shall not be pyramided by a progression of transactions, and that the amount of the tax due the state shall not be decreased by any such progression of transactions.

(3) The tax imposed by this section shall be in addition to the total amount of the rental or license fee, shall be charged by the lessor or person receiving the rent or payment in and by a rental or license fee arrangement with the lessee or person paying the rental or license fee, and shall be due and payable at the time of the receipt of such rental or license fee payment by the lessor or other person who receives the rental or payment. Notwithstanding any other provision of this chapter, the tax imposed by this section on the rental, lease, or license for the use of a convention hall, exhibition hall, auditorium, stadium, theater, arena, civic center, performing arts center, or publicly owned recreational facility to hold an event of not more than 7 consecutive days' duration shall be collected at the time of the payment for that rental, lease, or license but is not due and payable to the department until the first day of the month following the last day that the event for which the payment is made is actually held, and becomes delinquent on the 21st day of that month. The owner, lessor, or person receiving the rent or license fee shall remit the tax to the department at the times and in the manner hereinafter provided for dealers to remit taxes under this chapter. The same duties imposed by this chapter upon dealers in tangible personal property respecting the collection and remission of the tax; the making of returns; the keeping of books, records, and accounts; and the compliance with the rules and regulations of the department in the administration of this chapter shall apply to and be binding upon all persons who manage any leases or operate real property, hotels, apartment houses, roominghouses, or tourist and trailer camps and all persons who collect or receive rents or license fees taxable under this chapter on behalf of owners or lessors.

(4) The tax imposed by this section shall constitute a lien on the property of the lessee or licensee of any real estate in the same manner as, and shall be collectible as are, liens authorized and imposed by ss. 713.68 and 713.69.

(5) When space is subleased to a convention or industry trade show in a convention hall, exhibition hall, or auditorium, whether publicly or privately owned, the sponsor who holds the prime lease is subject to tax on the prime lease and the sublease is exempt.

(6) The lease or rental of land or a hall or other facilities by a fair association subject to the provisions of chapter 616 to a show promoter or prime operator of a carnival or midway attraction is exempt from the tax imposed by this section; however, the sublease of land or a hall or other facilities by the show promoter or prime operator is not exempt from the provisions of this section.

(7) Utility charges subject to sales tax which are paid by a tenant to the lessor and which are part of a payment for the privilege or right to use or occupy real property are exempt from tax if the lessor has paid sales tax on the purchase of such utilities and the charges billed by the lessor to the tenant are separately stated and at the same or a lower price than those paid by the lessor.

(8) Charges by lessors to a lessee to cancel or terminate a lease agreement are presumed taxable if the lessor records such charges as rental income in its books and records. This presumption can be overcome by the provision of sufficient documentation by either the lessor or the lessee that such charges were other than for the rental of real property.

(9) The rental, lease, sublease, or license for the use of a skybox, luxury box, or other box seats for use during a high school or college football game is exempt from the tax imposed by this section when the charge for such rental, lease, sublease, or license is imposed by a nonprofit sponsoring organization which is qualified as nonprofit pursuant to s. 501(c)(3) of the Internal Revenue Code.

20 PARKING SPACES Florida Statutes Section 316.1957

316.1957 Parking violations; designated parking spaces for persons who have disabilities. - When evidence is presented in any court of the fact that any motor vehicle was parked in a properly designated parking space for persons who have disabilities in violation of s. 316.1955, it is prima facie evidence that the vehicle was parked and left in the space by the person, firm, or corporation in whose name the vehicle is registered and licensed according to the records of the Division of Motor Vehicles.

PARTICULAR CONDITIONS AFFECTING PUBLIC HEALTH PART II. INDOOR AIR; TOBACCO SMOKE Florida Statutes Section 386.201 through 386.209

386.201 Popular name.--This part may be cited by the popular name the "Florida Clean Indoor Air Act."

386.202 Legislative intent.--The purpose of this part is to protect people from the health hazards of secondhand tobacco smoke and to implement the Florida health initiative in s. 20, Art. X of the State Constitution. It is the intent of the Legislature to not inhibit, or otherwise obstruct, medical or scientific research or smoking cessation programs approved by the Department of Health.

386.203 Definitions.--As used in this part:

(1) "Commercial" use of a private residence means any time during which the owner, lessee, or other person occupying or controlling the use of the private residence is furnishing in the private residence, or causing or allowing to be furnished in the private residence, child care, adult care, or health care, or any combination thereof, and receiving or expecting to receive compensation therefor.

(2) "Common area" means a hallway, corridor, lobby, aisle, water fountain area, restroom, stairwell, entryway, or conference room in a customs area of an airport terminal under the authority and control of the Bureau of Customs and Border Protection of the United States Department of Homeland Security.

(3) "Department" means the Department of Health.

(4) "Designated smoking guest rooms at public lodging establishments" means the sleeping rooms and directly associated private areas, such as bathrooms, living rooms, and kitchen areas, if any, rented to guests for their exclusive transient occupancy in public lodging establishments, including hotels, motels, resort condominiums, transient apartments, transient lodging establishments, rooming houses, boarding houses, resort dwellings, bed and breakfast inns, and the like; and designated by the person or persons having management authority over such public lodging establishment as rooms in which smoking may be permitted.

(5) "Enclosed indoor workplace" means any place where one or more persons engages in work, and which place is predominantly or totally bounded on all sides and above by physical barriers, regardless of whether such barriers consist of or include, without limitation, uncovered openings; screened or otherwise partially covered openings; or open or closed windows, jalousies, doors, or the like. A place is "predominantly" bounded by physical barriers during any time when both of the following conditions exist:

(a) It is more than 50 percent covered from above by a physical barrier that excludes rain, and

(b) More than 50 percent of the combined surface area of its sides is covered by closed physical barriers. In calculating the percentage of side surface area covered by closed physical barriers, all solid surfaces that block air flow, except railings, must be considered as closed physical barriers. This section applies to all such enclosed indoor workplaces and enclosed parts thereof without regard to whether work is occurring at any given time.

21 (c) The term does not include any facility owned or leased by and used exclusively for noncommercial activities performed by the members and guests of a membership association, including social gatherings, meetings, dining, and dances, if no person or persons are engaged in work as defined in subsection (12).

(6) "Essential services" means those services that are essential to the maintenance of any enclosed indoor room, including, but not limited to, janitorial services, repairs, or renovations.

(7) "Physical barrier" includes an uncovered opening; a screened or otherwise partially covered opening; or an open or closed window, jalousie, or door.

(8) "Retail tobacco shop" means any enclosed indoor workplace dedicated to or predominantly for the retail sale of tobacco, tobacco products, and accessories for such products, in which the sale of other products or services is merely incidental. Any enclosed indoor workplace of a business that manufactures, imports, or distributes tobacco products or of a tobacco leaf dealer is a business dedicated to or predominantly for the retail sale of tobacco and tobacco products when, as a necessary and integral part of the process of making, manufacturing, importing, or distributing a tobacco product for the eventual retail sale of such tobacco or tobacco product, tobacco is heated, burned, or smoked or a lighted tobacco product is tested.

(9) "Secondhand smoke," also known as environmental tobacco smoke (ETS), means smoke emitted from lighted, smoldering, or burning tobacco when the smoker is not inhaling; smoke emitted at the mouthpiece during puff drawing; and smoke exhaled by the smoker.

(10) "Smoking" means inhaling, exhaling, burning, carrying, or possessing any lighted tobacco product, including cigarettes, cigars, pipe tobacco, and any other lighted tobacco product.

(11) "Stand-alone bar" means any licensed premises devoted during any time of operation predominantly or totally to serving alcoholic beverages, intoxicating beverages, or intoxicating liquors, or any combination thereof, for consumption on the licensed premises; in which the serving of food, if any, is merely incidental to the consumption of any such beverage; and the licensed premises are not located within, and does not share any common entryway or common indoor area with, any other enclosed indoor workplace, including any business for which the sale of food or any other product or service is more than an incidental source of gross revenue. A place of business constitutes a stand-alone bar in which the service of food is merely incidental in accordance with this subsection if the licensed premises derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises.

(12) "Work" means any person's providing any employment or employment-type service for or at the request of another individual or individuals or any public or private entity, whether for compensation or not, whether full or part time, whether legally or not. "Work" includes, without limitation, any such service performed by an employee, independent contractor, agent, partner, proprietor, manager, officer, director, apprentice, trainee, associate, servant, volunteer, and the like. The term does not include noncommercial activities performed by members of a membership association.

(13) "Membership association" means a charitable, nonprofit, or veterans' organization that holds a current exemption under s. 501(c)(3), (4), (7), (8), (10), or (19) or s. 501(d) of the Internal Revenue Code.

386.204 Prohibition.--A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s. 386.2045.

386.2045 Enclosed indoor workplaces; specific exceptions.--Notwithstanding s. 386.204, tobacco smoking may be permitted in each of the following places:

(1) PRIVATE RESIDENCE.--A private residence whenever it is not being used commercially to provide child care, adult care, or health care, or any combination thereof as defined in s. 386.203(1).

22 (2) RETAIL TOBACCO SHOP.--An enclosed indoor workplace dedicated to or predominantly for the retail sale of tobacco, tobacco products, and accessories for such products, as defined in s. 386.203(8).

(3) DESIGNATED SMOKING GUEST ROOM.--A designated smoking guest room at a public lodging establishment as defined in s. 386.203(4).

(4) STAND-ALONE BAR.--A business that meets the definition of a stand-alone bar as defined in s. 386.203(11) and that otherwise complies with all applicable provisions of the Beverage Law and this part.

(5) SMOKING CESSATION PROGRAM, MEDICAL OR SCIENTIFIC RESEARCH.--An enclosed indoor workplace, to the extent that tobacco smoking is an integral part of a smoking cessation program approved by the department, or medical or scientific research conducted therein. Each room in which tobacco smoking is permitted must comply with the signage requirements in s. 386.206.

(6) CUSTOMS SMOKING ROOM.--A customs smoking room in an airport in-transit lounge under the authority and control of the Bureau of Customs and Border Protection of the United States Department of Homeland Security subject to the restrictions contained in s. 386.205.

386.205 Customs smoking rooms.--A customs smoking room may be designated by the person in charge of an airport in-transit lounge under the authority and control of the Bureau of Customs and Border Protection of the United States Department of Homeland Security. A customs smoking room may only be designated in an airport in- transit lounge under the authority and control of the Bureau of Customs and Border Protection of the United States Department of Homeland Security. A customs smoking room may not be designated in an elevator, restroom, or any common area as defined by s. 386.203. Each customs smoking room must conform to the following requirements:

(1) Work, other than essential services defined in s. 386.203(6), must not be performed in the room at any given time.

(2) Tobacco smoking must not be permitted in the room while any essential services are being performed in the room.

(3) Each customs smoking room must be enclosed by physical barriers that are impenetrable by secondhand tobacco smoke and prevent the escape of secondhand tobacco smoke into the enclosed indoor workplace.

(4) Each customs smoking room must exhaust tobacco smoke directly to the outside and away from air intake ducts, and be maintained under negative pressure, with respect to surrounding spaces, sufficient to contain tobacco smoke within the room.

(5) Each customs smoking room must comply with the signage requirements in s. 386.206.

386.206 Posting of signs; requiring policies.--

(1) The proprietor or other person in charge of an enclosed indoor workplace must develop and implement a policy regarding the smoking prohibitions established in this part. The policy may include, but is not limited to, procedures to be taken when the proprietor or other person in charge witnesses or is made aware of a violation of s. 386.204 in the enclosed indoor workplace and must include a policy which prohibits an employee from smoking in the enclosed indoor workplace. In order to increase public awareness, the person in charge of an enclosed indoor workplace may, at his or her discretion, post "NO SMOKING" signs as deemed appropriate.

(2) The person in charge of an airport terminal that includes a designated customs smoking room must conspicuously post, or cause to be posted, signs stating that no smoking is permitted except in the designated customs smoking room located in the customs area of the airport. Each sign posted pursuant to this section must have letters of reasonable size that can be easily read. The color, design, and precise locations at which such signs are posted shall be left to the discretion of the person in charge of the premises.

23 (3) The proprietor or other person in charge of an enclosed indoor workplace where a smoking cessation program, medical research, or scientific research is conducted or performed must conspicuously post, or cause to be posted, signs stating that smoking is permitted for such purposes in designated areas in the enclosed indoor workplace. Each sign posted pursuant to this section must have letters of reasonable size which can be easily read. The color, design, and precise locations at which such signs are posted shall be left to the discretion of the person in charge of the premises.

386.207 Administration; enforcement; civil penalties.--

(1) The department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall enforce this part based upon each department's specific areas of regulatory authority and to implement such enforcement shall adopt, in consultation with the State Fire Marshal, rules specifying procedures to be followed by enforcement personnel in investigating complaints and notifying alleged violators and rules specifying procedures by which appeals may be taken by aggrieved parties.

(2) Public agencies responsible for the management and maintenance of government buildings shall report observed violations to the department. The State Fire Marshal shall report to the department observed violations of this part found during its periodic inspections conducted under its regulatory authority.

(3) The department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation, upon notification of observed violations of this part, shall issue to the proprietor or other person in charge of such enclosed indoor workplace a notice to comply with this part. If the person fails to comply within 30 days after receipt of the notice, the department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation shall assess a civil penalty against the person of not less than $250 and not to exceed $750 for the first violation and not less than $500 and not to exceed $2,000 for each subsequent violation. The imposition of the fine must be in accordance with chapter 120. If a person refuses to comply with this part, after having been assessed such penalty, the department or the Division of Hotels and Restaurants or the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation may file a complaint in the circuit court of the county in which the enclosed indoor workplace is located to require compliance.

(4) All fine moneys collected pursuant to this section shall be used by the department for children's medical services programs pursuant to the provisions of part I of chapter 391.

386.208 Penalties.--Any person who violates s. 386.204 commits a noncriminal violation as defined in s. 775.08(3), punishable by a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation. Jurisdiction shall be with the appropriate county court.

386.209 Regulation of smoking preempted to state.--This part expressly preempts regulation of smoking to the state and supersedes any municipal or county ordinance on the subject.

FLORIDA LITTER LAW Florida Statutes Section 403.413

403.413 Florida Litter Law.--

(1) SHORT TITLE.--This section may be cited as the "Florida Litter Law."

(2) DEFINITIONS.--As used in this section:

(a) "Litter" means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; tobacco product; tire; appliance; mechanical equipment or part; building or construction material; tool; machinery; wood; motor vehicle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a

24 waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.

(b) "Person" means any individual, firm, sole proprietorship, partnership, corporation, or unincorporated association.

(c) "Law enforcement officer" means any officer of the Florida Highway Patrol, a county sheriff's department, a municipal law enforcement department, a law enforcement department of any other political subdivision, the department, or the Fish and Wildlife Conservation Commission. In addition, and solely for the purposes of this section, "law enforcement officer" means any employee of a county or municipal park or recreation department designated by the department head as a litter enforcement officer.

(d) "Aircraft" means a motor vehicle or other vehicle that is used or designed to fly but does not include a parachute or any other device used primarily as safety equipment.

(e) "Commercial purpose" means for the purpose of economic gain.

(f) "Commercial vehicle" means a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conducting business for a commercial purpose.

(g) "Dump" means to dump, throw, discard, place, deposit, or dispose of.

(h) "Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor, or semitrailer combination or any other vehicle that is powered by a motor.

(i) "Vessel" means a boat, barge, or airboat or any other vehicle used for transportation on water.

(3) RESPONSIBILITY OF LOCAL GOVERNING BODY OF A COUNTY OR MUNICIPALITY.--The local governing body of a county or a municipality shall determine the training and qualifications of any employee of the county or municipality or any employee of the county or municipal park or recreation department designated to enforce the provisions of this section if the designated employee is not a regular law enforcement officer.

(4) DUMPING LITTER PROHIBITED.--Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:

(a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of the right-of-way thereof, or any other public lands, except in containers or areas lawfully provided therefor. When any litter is thrown or discarded from a motor vehicle, the operator or owner of the motor vehicle, or both, shall be deemed in violation of this section;

(b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state, including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section; or

(c) In or on any private property, unless prior consent of the owner has been given and unless the dumping of such litter by such person will not cause a public nuisance or otherwise be in violation of any other state or local law, rule, or regulation.

(5) DUMPING RAW HUMAN WASTE PROHIBITED.--Unless otherwise authorized by law or permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state.

(6) PENALTIES; ENFORCEMENT.--

(a) Any person who dumps litter in violation of subsection (4) in an amount not exceeding 15 pounds in weight or 27 cubic feet in volume and not for commercial purposes is guilty of a noncriminal

25 infraction, punishable by a civil penalty of $100, from which $50 shall be deposited into the Solid Waste Management Trust Fund to be used for the solid waste management grant program pursuant to s. 403.7095. In addition, the court may require the violator to pick up litter or perform other labor commensurate with the offense committed.

(b) Any person who dumps litter in violation of subsection (4) in an amount exceeding 15 pounds in weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court shall require the violator to pick up litter or perform other community service commensurate with the offense committed. Further, if the violation involves the use of a motor vehicle, upon a finding of guilt, whether or not adjudication is withheld or whether imposition of sentence is withheld, deferred, or suspended, the court shall forward a record of the finding to the Department of Highway Safety and Motor Vehicles, which shall record a penalty of three points on the violator's driver's license pursuant to the point system established by s. 322.27.

(c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as defined in s. 403.703, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the court may order the violator to:

1. Remove or render harmless the litter that he or she dumped in violation of this section;

2. Repair or restore property damaged by, or pay damages for any damage arising out of, his or her dumping litter in violation of this section; or

3. Perform public service relating to the removal of litter dumped in violation of this section or to the restoration of an area polluted by litter dumped in violation of this section.

(d) A court may enjoin a violation of this section.

(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to dump litter that exceeds 500 pounds in weight or 100 cubic feet in volume is declared contraband and is subject to forfeiture in the same manner as provided in ss. 932.703 and 932.704.

(f) If a person sustains damages arising out of a violation of this section that is punishable as a felony, a court, in a civil action for such damages, shall order the person to pay the injured party threefold the actual damages or $200, whichever amount is greater. In addition, the court shall order the person to pay the injured party's court costs and attorney's fees. A final judgment rendered in a criminal proceeding against a defendant under this section estops the defendant from asserting any issue in a subsequent civil action under this paragraph which he or she would be estopped from asserting if such judgment were rendered in the civil action unless the criminal judgment was based upon a plea of no contest or nolo contendere.

(g) For the purposes of this section, if a person dumps litter or raw human waste from a commercial vehicle, that person is presumed to have dumped the litter or raw human waste for commercial purposes.

(h) In the criminal trial of a person charged with violating this section, the state does not have the burden of proving that the person did not have the right or authority to dump the litter or raw human waste or that litter or raw human waste dumped on private property causes a public nuisance. The defendant has the burden of proving that he or she had authority to dump the litter or raw human waste and that the litter or raw human waste dumped does not cause a public nuisance.

(i) It shall be the duty of all law enforcement officers to enforce the provisions of this section.

26 (j) Any person who violates the provisions of subsection (5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; provided, however, that any person who dumps more than 500 pounds or more than 100 cubic feet of raw human waste, or who dumps any quantity of such waste for commercial purposes, is guilty of a felony of the third degree, punishable as provided in paragraph (c).

(7) ENFORCEMENT BY CERTAIN COUNTY OR MUNICIPAL EMPLOYEES.--Employees of counties or municipalities whose duty it is to ensure code compliance or to enforce codes and ordinances may be designated by the governing body of the county or the municipality to enforce the provisions of this section. Designation of such employees shall not provide the employees with the authority to bear arms or to make arrests.

(8) ENFORCEMENT OF OTHER REGULATIONS.--This section does not limit the authority of any state or local agency to enforce other laws, rules, or ordinances relating to litter or solid waste management.

DISPOSAL OF BIOHAZARDOUS AND HAZARDOUS WASTE Florida Statutes Section 403.727

403.727 Violations; defenses, penalties, and remedies.--

(1) It is unlawful for any hazardous waste generator, transporter, or facility owner or operator to:

(a) Fail to comply with the provisions of this act or departmental rules or orders;

(b) Operate without a valid permit;

(c) Fail to comply with a permit;

(d) Cause, authorize, create, suffer, or allow an imminent hazard to occur or continue;

(e) Knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to the provisions of this act;

(f) Fail to notify the department pursuant to s. 403.72(2); or

(g) Refuse lawful inspection.

(2) In addition to the "imminent hazard" provision, ss. 403.121 and 403.131 are available to the department to abate violations of this act.

(3) Violations of the provisions of this act are punishable as follows:

(a) Any person who violates the provisions of this act, the rules or orders of the department, or the conditions of a permit is liable to the state for any damages specified in s. 403.141 and for a civil penalty of not more than $50,000 for each day of continued violation, except as otherwise provided herein. The department may revoke any permit issued to the violator. In any action by the department against a small hazardous waste generator for the improper disposal of hazardous wastes, a rebuttable presumption of improper disposal shall be created if the generator was notified pursuant to s. 403.7234; the generator shall then have the burden of proving that the disposal was proper. If the generator was not so notified, the burden of proving improper disposal shall be placed upon the department.

(b) Any person who knowingly or by exhibiting reckless indifference or gross careless disregard for human health:

27 1. Transports or causes to be transported any hazardous waste, as defined in s. 403.703, to a facility which does not have a permit when such a permit is required under s. 403.707 or s. 403.722;

2. Disposes of, treats, or stores hazardous waste:

a. At any place but a hazardous waste facility which has a current and valid permit pursuant to s. 403.722;

b. In knowing violation of any material condition or requirement of such permit if such violation has a substantial likelihood of endangering human health, animal or plant life, or property; or

c. In knowing violation of any material condition or requirement of any applicable rule or standard if such violation has a substantial likelihood of endangering human health, animal or plant life, or property;

3. Makes any false statement or representation or knowingly omits material information in any hazardous waste application, label, manifest, record, report, permit, or other document required by this act;

4. Generates, stores, treats, transports, disposes of, or otherwise handles any hazardous waste and who knowingly destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed for purposes of compliance with this act; or

5. Transports without a manifest, or causes to be transported without a manifest, any hazardous waste required by rules adopted by the department to be accompanied by a manifest is, upon conviction, guilty of a felony of the third degree, punishable for the first such conviction by a fine of not more than $50,000 for each day of violation or imprisonment not to exceed 5 years, or both, and for any subsequent conviction by a fine of not more than $100,000 per day of violation or imprisonment of not more than 10 years, or both.

(4) In addition to any other liability under this chapter, and subject only to the defenses set forth in subsections (5), (6), and (7):

(a) The owner and operator of a facility;

(b) Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance was disposed of;

(c) Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person or by any other party or entity at any facility owned or operated by another party or entity and containing such hazardous substances; and

(d) Any person who accepts or has accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, is liable for all costs of removal or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from the release or threatened release of a hazardous substance as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510.

28 (5) The following defenses are available to a person alleged to be in violation of this act, who shall plead and prove that the alleged violation was solely the result of any of the following or combination of the following:

(a) An act of war.

(b) An act of government, either state, federal, or local, unless the person claiming the defense is a governmental body, in which case this defense is available only by acts of other governmental bodies.

(c) An act of God, which means only an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency.

(d) An act or omission of a third party other than an employee or agent of the defendant or other than one whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the defendant establishes by a preponderance of the evidence that:

1. The defendant exercised due care with respect to the hazardous waste concerned, taking into consideration the characteristics of such biomedical or hazardous waste, in light of all relevant facts and circumstances; and

2. The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.

(6) A generator or transporter of hazardous wastes who has complied with this act and with the applicable rules adopted under this act and who has contracted for the disposal of hazardous wastes with a licensed hazardous waste disposal or processing facility is relieved from liability for those wastes upon receipt of a certificate of disposal from the disposal or processing facility.

(7) A generator of hazardous waste who has complied with this act and with the applicable rules under this act and who has contracted for the transportation of hazardous waste to a licensed hazardous waste facility is relieved of liability to the extent that such liability is covered by the insurance or bond of the transporter obtained pursuant to this act.

(8) A party liable for a violation of this section shall have a right to contribution from other parties identified in subsection (4) as liable for the pollution conditions.

RADON GAS Florida Statutes Section 404.056

404.056 Environmental radiation standards and programs; radon protection. - ...

(5) NOTIFICATION ON REAL ESTATE DOCUMENTS.--Notification shall be provided on at least one document, form, or application executed at the time of, or prior to, contract for sale and purchase of any building or execution of a rental agreement for any building. Such notification shall contain the following language:

"RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department."

The requirements of this subsection do not apply to any residential transient occupancy, as described in s. 509.013(12), provided that such occupancy is 45 days or less in duration.

29 30 ENGINEERING Florida Statutes Section 471.027

471.027 Engineers authorized to enter lands of third parties under certain conditions.--Engineers are hereby granted permission and authority to go on, over, and upon the lands of others when necessary to make engineering surveys and, in so doing, to carry with them their agents and employees necessary for that purpose. Entry under the right hereby granted shall not constitute trespass, and engineers and their duly authorized agents or employees so entering shall not be liable to arrest or a civil action by reason of such entry; however, nothing in this section shall be construed as giving authority to said licensees, agents, or employees to destroy, injure, damage, or move anything on lands of another without the written permission of the landowner.

REAL ESTATE BROKERS, SALESPERSONS, AND SCHOOLS Florida Statutes Section 475.011

475.011 Exemptions.--This part does not apply to:

(1) Any person acting as an attorney in fact for the purpose of the execution of contracts or conveyances only; as an attorney at law within the scope of her or his duties as such; as a certified public accountant, as defined in chapter 473, within the scope of her or his duties as such; as the personal representative, receiver, trustee, or general or special magistrate under, or by virtue of, an appointment by will or by order of a court of competent jurisdiction; or as trustee under a deed of trust, or under a trust agreement, the ultimate purpose and intent whereof is charitable, is philanthropic, or provides for those having a natural right to the bounty of the donor or trustor.

(2) Any individual, corporation, partnership, trust, joint venture, or other entity which sells, exchanges, or leases its own real property; however, this exemption shall not be available if and to the extent that an agent, employee, or independent contractor paid a commission or other compensation strictly on a transactional basis is employed to make sales, exchanges, or leases to or with customers in the ordinary course of an owner's business of selling, exchanging, or leasing real property to the public.

(3) Any employee of a public utility, a rural electric cooperative, a railroad, or a state or local governmental agency who acts within the scope of her or his employment, for which no compensation in addition to the employee's salary is paid, to buy, sell, appraise, exchange, rent, auction, or lease any real property or any interest in real property for the use of her or his employer.

(4) Any salaried employee of an owner, or of a registered broker for an owner, of an apartment community who works in an onsite rental office of the apartment community in a leasing capacity.

(5) Any person employed for a salary as a manager of a condominium or cooperative apartment complex as a result of any activities or duties which the person may have in relation to the renting of individual units within such condominium or cooperative apartment complex if rentals arranged by the person are for periods no greater than 1 year.

(6) Any person, partnership, corporation, or other legal entity which, for another and for compensation or other valuable consideration, sells, offers to sell, advertises for sale, buys, offers to buy, or negotiates the sale or purchase of radio, television, or cable enterprises licensed and regulated by the Federal Communications Commission pursuant to the Communications Act of 1934. However, if the sale or purchase of the radio, television, or cable enterprise involves the sale or lease of land, buildings, fixtures, and all other improvements to the land, a broker or sales associate licensed under this chapter shall be retained for the portion of the transaction which includes the land, buildings, fixtures, and all other improvements to the land.

(7) Any full-time graduate student who is enrolled in a commission-approved degree program in appraising at a college or university in this state, if the student is acting under the direct supervision of a licensed

31 broker or a licensed or certified appraiser and is engaged only in appraisal activities related to the approved degree program. Any appraisal report by the student must be issued in the name of the supervising individual.

(8) (a) An owner of one or part of one or more timeshare periods for the owner's own use and occupancy who later offers one or more of such periods for resale.

(b) An exchange company, as that term is defined by s. 721.05(15), but only to the extent that the exchange company is engaged in exchange program activities as described in and is in compliance with s. 721.18.

(9) Any person registered, licensed, or certified by the department under part II as an appraiser or trainee appraiser performing appraisals in accordance with that part.

(10) Any person who appraises under the unit-rule method of valuation a railroad or railroad terminal company assessed for ad valorem tax purposes pursuant to s. 193.085.

(11) Any person, partnership, corporation, or other legal entity which, for another and for compensation or other valuable consideration, rents or advertises for rent, for transient occupancy, any public lodging establishment licensed under chapter 509.

(12) Any dealer registered under the Securities and Exchange Act of 1934, as amended, or any federally insured depository institution and any parent, subsidiary, or affiliate thereof, in connection with the sale, exchange, purchase, or rental of a business enterprise to or by a person who is an accredited investor as defined by 15 U.S.C. s. 77b, the Securities Act of 1933, or any regulation adopted thereunder. This exemption applies whether stock or assets of the business enterprise are purchased or sold. The exemption does not apply to a sale, exchange, purchase, or rental of land, buildings, fixtures or other improvements to the land which is not made in connection with the sale, exchange, purchase, or rental of a business enterprise. Any reference to rental in this subsection includes a lease transaction.

(13) Any property management firm or any owner of an apartment complex for the act of paying a finder's fee or referral fee to an unlicensed person who is a tenant in such apartment complex provided the value of the fee does not exceed $50 per transaction. Nothing in this subsection authorizes an unlicensed person to advertise or otherwise promote the person's services in procuring or assisting in procuring prospective lessees or tenants of apartment units. For purposes of this subsection, "finder's fee" or "referral fee" means a fee paid, credit towards rent, or some other thing of value provided to a person for introducing or arranging an introduction between parties to a transaction involving the rental or lease of an apartment unit. It is a violation of s. 475.25(1)(h) and punishable under s. 475.42 for a property management firm or any owner of an apartment complex to pay a finder's fee or a referral fee to an unlicensed person unless expressly authorized by this subsection.

OUTDOOR ADVERTISING Florida Statutes Section 479.16

479.16 Signs for which permits are not required.--The following signs are exempt from the requirement that a permit for a sign be obtained under the provisions of this chapter but are required to comply with the provisions of s. 479.11(4)-(8):

(1) Signs erected on the premises of an establishment, which signs consist primarily of the name of the establishment or which identify the principal or accessory merchandise, services, activities, or entertainment sold, produced, manufactured, or furnished on the premises of the establishment and which comply with the lighting restrictions under department rule adopted pursuant to s. 479.11(5), or signs owned by a municipality or a county located on the premises of such municipality or such county which display information regarding government services, activities, events, or entertainment. For purposes of this section, the following types of messages shall not be considered information regarding government services, activities, events, or entertainment:

(a) Messages which specifically reference any commercial enterprise.

32 (b) Messages which reference a commercial sponsor of any event.

(c) Personal messages.

(d) Political campaign messages.

If a sign located on the premises of an establishment consists principally of brand name or trade name advertising and the merchandise or service is only incidental to the principal activity, or if the owner of the establishment receives rental income from the sign, then the sign is not exempt under this subsection.

(2) Signs erected, used, or maintained on a farm by the owner or lessee of such farm and relating solely to farm produce, merchandise, service, or entertainment sold, produced, manufactured, or furnished on such farm.

(3) Signs posted or displayed on real property by the owner or by the authority of the owner, stating that the real property is for sale or rent. However, if the sign contains any message not pertaining to the sale or rental of that real property, then it is not exempt under this section.

(4) Official notices or advertisements posted or displayed on private property by or under the direction of any public or court officer in the performance of her or his official or directed duties, or by trustees under deeds of trust or deeds of assignment or other similar instruments.

(5) Danger or precautionary signs relating to the premises on which they are located; forest fire warning signs erected under the authority of the Division of Forestry of the Department of Agriculture and Consumer Services; and signs, notices, or symbols erected by the United States Government under the direction of the United States Forestry Service.

(6) Notices of any railroad, bridge, ferry, or other transportation or transmission company necessary for the direction or safety of the public.

(7) Signs, notices, or symbols for the information of aviators as to location, directions, and landings and conditions affecting safety in aviation erected or authorized by the department.

(8) Signs or notices erected or maintained upon property stating only the name of the owner, lessee, or occupant of the premises and not exceeding 8 square feet in area.

(9) Historical markers erected by duly constituted and authorized public authorities.

(10) Official traffic control signs and markers erected, caused to be erected, or approved by the department.

(11) Signs erected upon property warning the public against hunting and fishing or trespassing thereon.

(12) Signs not in excess of 8 square feet that are owned by and relate to the facilities and activities of churches, civic organizations, fraternal organizations, charitable organizations, or units or agencies of government.

(13) Except that signs placed on benches, transit shelters, and waste receptacles as provided for in s. 337.408 are exempt from all provisions of this chapter.

(14) Signs relating exclusively to political campaigns.

(15) Signs not in excess of 16 square feet placed at a road junction with the State Highway System denoting only the distance or direction of a residence or farm operation, or, in a rural area where a hardship is created because a small business is not visible from the road junction with the State Highway System, one sign not in excess of 16 square feet, denoting only the name of the business and the distance and direction to the business. The small-business-sign provision of this subsection does not apply to charter counties and may not be implemented if the Federal Government notifies the department that implementation will adversely affect the allocation of federal funds to the department.

33 PRIVATE SECURITY SERVICES Florida Statutes - Chapter 493 - Part III

493.6301 Classes of licenses. 493.6303 License requirements. 493.6304 Security officer school or training facility. 493.6305 Uniforms, required wear; exceptions. 493.6301 Classes of licenses.--

(1) Any person, firm, company, partnership, or corporation which engages in business as a security agency shall have a Class "B" license. A Class "B" license is valid for only one location.

(2) Each branch office of a Class "B" agency shall have a Class "BB" license. Where a person, firm, company, partnership, or corporation holds both a Class "A" and Class "B" license, each branch office shall have a Class "AB" license.

(3) Any individual who performs the services of a manager for a:

(a) Class "B" security agency or Class "BB" branch office shall have a Class "MB" license. A Class "M" licensee, or a Class "D" licensee who has been so licensed for a minimum of 2 years, may be designated as the manager, in which case the Class "MB" license is not required.

(b) Class "A" and Class "B" agency or a Class "AB" branch office shall have a Class "M" license.

(4) A Class "D" licensee shall own or be an employee of a Class "B" security agency or branch office. This does not include those individuals who are exempt under s. 493.6102(4) but who possess a Class "D" license solely for the purpose of holding a Class "G" license.

(5) Any individual who performs the services of a security officer shall have a Class "D" license. However, a Class "C" licensee or a Class "CC" licensee may perform bodyguard services without a Class "D" license.

(6) Only Class "M," Class "MB," or Class "D" licensees are permitted to bear a firearm, and any such licensee who bears a firearm shall also have a Class "G" license.

(7) Any person who operates a security officer school or training facility must have a Class "DS" license.

(8) Any individual who teaches or instructs at a Class "DS" security officer school or training facility must have a Class "DI" license.

493.6303 License requirements.--In addition to the license requirements set forth elsewhere in this chapter, each individual or agency shall comply with the following additional requirements:

(1) Each agency or branch office shall designate a minimum of one appropriately licensed individual to act as manager, directing the activities of the Class "D" employees.

(2) An applicant for a Class "MB" license shall have 2 years of lawfully gained, verifiable, full-time experience, or training in:

(a) Security work or related fields of work that provided equivalent experience or training;

(b) Experience described in paragraph (a) for 1 year and experience described in paragraph (c) for 1 year;

34 (c) No more than 1 year using:

1. Either college coursework related to criminal justice, criminology, or law enforcement administration; or

2. Successfully completed law enforcement-related training received from any federal, state, county, or municipal agency; or

(d) Experience described in paragraph (a) for 1 year and work in a managerial or supervisory capacity for 1 year.

(3) An applicant for a Class "M" license shall qualify for licensure as a Class "MA" manager as outlined under s. 493.6203(2) and as a Class "MB" manager as outlined under subsection (2).

(4) (a) An applicant for a Class "D" license must complete a minimum of 40 hours of professional training at a school or training facility licensed by the department. The department shall by rule establish the general content and number of hours of each subject area to be taught.

(b) An applicant may fulfill the training requirement prescribed in paragraph (a) by submitting proof of:

1. Successful completion of the total number of required hours of training before initial application for a Class "D" license; or

2. Successful completion of 24 hours of training before initial application for a Class "D" license and successful completion of the remaining 16 hours of training within 180 days after the date that the application is submitted. If documentation of completion of the required training is not submitted within the specified timeframe, the individual's license is automatically suspended until such time as proof of the required training is provided to the department. However, any person whose license has been revoked, suspended pursuant to subparagraph 2., or expired for 1 year or longer is considered, upon reapplication for a license, an initial applicant and must submit proof of successful completion of 40 hours of professional training at a school or training facility licensed by the department as prescribed in paragraph (a) before a license will be issued. Any person whose license was issued before January 1, 2007, and whose license has been expired for less than 1 year must, upon reapplication for a license, submit documentation of completion of the total number of hours of training prescribed by law at the time her or his initial license was issued before another license will be issued. This subsection does not require an individual licensed before January 1, 2007, to complete additional training hours in order to renew an active license, beyond the required total amount of training within the timeframe prescribed by law at the time she or he was licensed.

(5) An applicant for a Class "G" license shall satisfy the firearms training outlined in s. 493.6115.

493.6304 Security officer school or training facility.--

(1) Any school, training facility, or instructor who offers the training outlined in s. 493.6303(4) for Class "D" applicants shall, before licensure of such school, training facility, or instructor, file with the department an application accompanied by an application fee in an amount to be determined by rule, not to exceed $60. The fee shall not be refundable.

(2) The application shall be signed and notarized and shall contain, at a minimum, the following information:

(a) The name and address of the school or training facility and, if the applicant is an individual, her or his name, address, and social security or alien registration number.

35 (b) The street address of the place at which the training is to be conducted.

(c) A copy of the training curriculum and final examination to be administered.

(3) The department shall adopt rules establishing the criteria for approval of schools, training facilities, and instructors.

493.6305 Uniforms, required wear; exceptions.--

(1) Class "D" licensees shall perform duties regulated under this chapter in a uniform which bears at least one patch or emblem visible at all times clearly identifying the employing agency. Upon resignation or termination of employment, a Class "D" licensee shall immediately return to the employer any uniform and any other equipment issued to her or him by the employer.

(2) Class "D" licensees may perform duties regulated under this chapter in nonuniform status on a limited special assignment basis, and only when duty circumstances or special requirements of the client necessitate such dress.

(3) Class "D" licensees who are also Class "G" licensees and who are performing limited, special assignment duties may carry their authorized firearm concealed in the conduct of such duties.

ACCESSIBILITY BY HANDICAPPED PERSONS Florida Statutes- Chapter 553, Part II

553.501 Short title.--Sections 553.501-553.513 may be cited as the "Florida Americans With Disabilities Accessibility Implementation Act."

553.502 Intent.--The purpose and intent of ss. 553.501-553.513 is to incorporate into the law of this state the accessibility requirements of the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 42 U.S.C. ss. 12101 et seq., and to obtain and maintain United States Department of Justice certification of the Florida Accessibility Code for Building Construction as equivalent to federal standards for accessibility of buildings, structures, and facilities. All state laws, rules, standards, and codes governing facilities covered by the guidelines shall be maintained to assure certification of the state's construction standards and codes. Nothing in ss. 553.501- 553.513 is intended to expand or diminish the defenses available to a place of public accommodation under the Americans with Disabilities Act and the federal Americans with Disabilities Act Accessibility Guidelines, including, but not limited to, the readily achievable standard, and the standards applicable to alterations to places of public accommodation.

553.503 Adoption of guidelines.--Subject to the exceptions in s. 553.504, the federal Americans with Disabilities Act Accessibility Guidelines, as adopted by reference in 28 C.F.R., part 36, subparts A and D, and Title II of Pub. L. No. 101-336, are hereby adopted and incorporated by reference as the law of this state. The guidelines shall establish the minimum standards for the accessibility of buildings and facilities built or altered within this state. The 1997 Florida Accessibility Code for Building Construction must be adopted by the Florida Building Commission in accordance with chapter 120.

553.504 Exceptions to applicability of the guidelines.--Notwithstanding the adoption of the Americans with Disabilities Act Accessibility Guidelines in s. 553.503, all buildings, structures, and facilities in this state shall meet the following additional requirements when they provide increased accessibility:

(1) All new or altered buildings and facilities subject to ss. 553.501-553.513 which may be frequented in, lived in, or worked in by the public shall comply with ss. 553.501-553.513.

(2) All new single-family houses, duplexes, triplexes, condominiums, and townhouses shall provide at least one bathroom, located with maximum possible privacy, where bathrooms are provided on habitable grade

36 levels, with a door that has a 29-inch clear opening. However, if only a toilet room is provided at grade level, such toilet room shall have a clear opening of not less than 29 inches.

(3) All required doors and walk-through openings in buildings excluding single-family homes, duplexes, and triplexes not covered by the Americans with Disabilities Act of 1990 or the Fair Housing Act shall have at least 29 inches of clear width except under ss. 553.501-553.513.

(4) In addition to the requirements in reference 4.8.4 of the guidelines, all landings on ramps shall be not less than 60 inches clear, and the bottom of each ramp shall have not less than 72 inches of straight and level clearance.

(5) All curb ramps shall be designed and constructed in accordance with the following requirements:

(a) Notwithstanding the requirements of reference 4.8.5.2 of the guidelines, handrails on ramps which are not continuous shall extend not less than 18 inches beyond the sloped segment at both the top and bottom, and shall be parallel to the floor or ground surface.

(b) Notwithstanding the requirements of references 4.3.3 and 4.8.3 of the guidelines, curb ramps that are part of a required means of egress shall be not less than 44 inches wide.

(c) Notwithstanding the requirements of reference 4.7.5 of the guidelines, curb ramps located where pedestrians must use them and all curb ramps which are not protected by handrails or guardrails shall have flared sides with a slope not exceeding a ratio of 1 to 12.

(6) Notwithstanding the requirements in reference 4.13.11 of the guidelines, exterior hinged doors shall be so designed that such doors can be pushed or pulled open with a force not exceeding 8.5 foot pounds.

(7) Notwithstanding the requirements in reference 4.33.1 of the guidelines, all public food service establishments, all establishments licensed under the Beverage Law for consumption on the premises, and all facilities governed by reference 4.1 of the guidelines shall provide seating or spaces for seating in accordance with the following requirements:

(a) For the first 100 fixed seats, accessible and usable spaces must be provided consistent with the following table:

Capacity of Seating Number of Required In Assembly Areas Wheelchair Locations 1 to 25 ...... 1 26 to 50 ...... 2 51 to 100 ...... 4 (b) For all remaining fixed seats, there shall be not less than one such accessible and usable space for each 100 fixed seats or fraction thereof.

(8) Notwithstanding the requirements in references 4.32.1-4.32.4 of the guidelines, all fixed seating in public food service establishments, in establishments licensed under the Beverage Law for consumption on the premises, and in all other facilities governed by reference 4.1 of the guidelines shall be designed and constructed in accordance with the following requirements:

(a) All aisles adjacent to fixed seating shall provide clear space for wheelchairs.

(b) Where there are open positions along both sides of such aisles, the aisles shall be not less than 52 inches wide.

37 (9) In motels and hotels a number of rooms equaling at least 5 percent of the guest rooms minus the number of accessible rooms required by the guidelines shall provide the following special accessibility features:

(a) Grab rails in bathrooms and toilet rooms that comply with s. 4.16.4 of the guidelines.

(b) All beds in designed accessible guest rooms shall be open-frame type to permit passage of lift devices.

(c) All standard water closet seats shall be at a height of 15 inches, measured vertically from the 1 finished floor to the top of the seat, with a variation of plus or minus /2 inch. A portable or attached raised toilet seat shall be provided in all designated handicapped accessible rooms. All buildings, structures, or facilities licensed as a hotel, motel, or condominium pursuant to chapter 509 shall be subject to the provisions of this subsection. Nothing in this subsection shall be construed as relieving the owner of the responsibility of providing accessible rooms in conformance with ss. 9.1-9.5 of the guidelines.

(10) Notwithstanding the requirements in reference 4.29.2 of the guidelines, all detectable warning surfaces required by the guidelines shall be governed by the requirements of American National Standards Institute A117.1-1986.

(11) Notwithstanding the requirements in references 4.31.2 and 4.31.3 of the guidelines, the installation and placement of all public telephones shall be governed by the rules of the Florida Public Service Commission.

(12) Notwithstanding the requirements in references 4.1.3(11) and 4.16-4.23 of the guidelines, required restrooms and toilet rooms in new construction shall be designed and constructed in accordance with the following requirements:

(a) The standard accessible restroom stall shall contain an accessible lavatory within it, the size of such lavatory to be not less than 19 inches wide by 17 inches deep, nominal size, and wall-mounted. The lavatory shall be mounted so as not to overlap the clear floor space areas required by s. 4.17 figure 30(a) of the guidelines for the standard accessible stall and to comply with s. 4.19 of the guidelines. Such lavatories shall be counted as part of the required fixture count for the building.

(b) The accessible water closet shall be located in the corner, diagonal to the door.

(c) The accessible stall door shall be self-closing.

(13) All customer checkout aisles not required by the guidelines to be handicapped accessible shall have at least 32 inches of clear passage.

(14) Turnstiles shall not be used in occupancies which serve fewer than 100 persons, but turnstiles may be used in occupancies which serve at least 100 persons if there is an unlocked alternate passageway on an accessible route affording not less than 32 inches of clearance, equipped with latching devices in accordance with the guidelines.

(15) Barriers at common or emergency entrances and exits of business establishments conducting business with the general public that are existing, under construction, or under contract for construction which would prevent a person from using such entrances or exits shall be removed.

553.5041 Parking spaces for persons who have disabilities.--

(1) This section is not intended to expand or diminish the defenses available to a place of public accommodation under the Americans with Disabilities Act and the federal Americans with Disabilities Act Accessibility Guidelines, including, but not limited to, the readily achievable standard, and the standards applicable to alterations to places of public accommodation. Subject to the exceptions described in subsections (2), (4), (5), and (6), when the parking and loading zone requirements of the federal Americans with Disabilities Act Accessibility Guidelines (ADAAG), as adopted by reference in 28 C.F.R. part 36, subparts A and D, and Title II of Pub. L. No.

38 101-336, provide increased accessibility, those requirements are adopted and incorporated by reference as the law of this state.

(2) State agencies and political subdivisions having jurisdiction over street parking or publicly owned or operated parking facilities are not required to provide a greater right-of-way width than would otherwise be planned under regulations, guidelines, or practices normally applied to new development.

(3) If parking spaces are provided for self-parking by employees or visitors, or both, accessible spaces shall be provided in each such parking area. Such spaces shall be designed and marked for the exclusive use of those individuals who have a severe physical disability and have permanent or temporary mobility problems that substantially impair their ability to ambulate and who have been issued either a disabled parking permit under s. 316.1958 or s. 320.0848 or a license plate under s. 320.084, s. 320.0842, s. 320.0843, or s. 320.0845.

(4) The number of accessible parking spaces must comply with the parking requirements in ADAAG s. 4.1 and the following:

(a) There must be one accessible parking space in the immediate vicinity of a publicly owned or leased building that houses a governmental entity or a political subdivision, including, but not limited to, state office buildings and courthouses, if no parking for the public is provided on the premises of the building.

(b) There must be one accessible parking space for each 150 metered on-street parking spaces provided by state agencies and political subdivisions.

(c) The number of parking spaces for persons who have disabilities must be increased on the basis of demonstrated and documented need.

(5) Accessible perpendicular and diagonal accessible parking spaces and loading zones must be designed and located in conformance with the guidelines set forth in ADAAG ss. 4.1.2 and 4.6 and Appendix s. A4.6.3 "Universal Parking Design."

(a) All spaces must be located on an accessible route no less than 44 inches wide so that users will not be compelled to walk or wheel behind parked vehicles.

(b) Each space must be located on the shortest safely accessible route from the parking space to an accessible entrance. If there are multiple entrances or multiple retail stores, the parking spaces must be dispersed to provide parking at the nearest accessible entrance. If a theme park or an entertainment complex as defined in s. 509.013(9) provides parking in several lots or areas from which access to the theme park or entertainment complex is provided, a single lot or area may be designated for parking by persons who have disabilities, if the lot or area is located on the shortest safely accessible route to an accessible entrance to the theme park or entertainment complex or to transportation to such an accessible entrance.

(c) 1. Each parking space must be no less than 12 feet wide. Parking access aisles must be no less than 5 feet wide and must be part of an accessible route to the building or facility entrance. In accordance with ADAAG s. 4.6.3, access aisles must be placed adjacent to accessible parking spaces; however, two accessible parking spaces may share a common access aisle. The access aisle must be striped diagonally to designate it as a no-parking zone.

2. The parking access aisles are reserved for the temporary exclusive use of persons who have disabled parking permits and who require extra space to deploy a mobility device, lift, or ramp in order to exit from or enter a vehicle. Parking is not allowed in an access aisle. Violators are subject to the same penalties that are imposed for illegally parking in parking spaces that are designated for persons who have disabilities. A vehicle may not be parked in an access aisle, even if the vehicle owner or passenger is disabled or owns a disabled parking permit.

39 3. Any provision of this subsection to the contrary notwithstanding, a theme park or an entertainment complex as defined in s. 509.013(9) in which are provided continuous attendant services for directing individuals to marked accessible parking spaces or designated lots for parking by persons who have disabilities, may, in lieu of the required parking space design, provide parking spaces that comply with ADAAG ss. 4.1 and 4.6.

(d) On-street parallel parking spaces must be located either at the beginning or end of a block or adjacent to alley entrances. Such spaces must be designed in conformance with the guidelines set forth in ADAAG ss. 4.6.2 through 4.6.5, exception: access aisles are not required. Curbs adjacent to such spaces must be of a height that will not interfere with the opening and closing of motor vehicle doors. This subsection does not relieve the owner of the responsibility to comply with the parking requirements of ADAAG ss. 4.1 and 4.6.

(e) Parallel parking spaces must be even with surface slopes, may match the grade of the adjacent travel lane, and must not exceed a cross slope of 1 to 50, where feasible.

(f) Curb ramps must be located outside of the disabled parking spaces and access aisles.

(g) 1. The removal of architectural barriers from a parking facility in accordance with 28 C.F.R. s. 36.304 or with s. 553.508 must comply with this section unless compliance would cause the barrier removal not to be readily achievable. If compliance would cause the barrier removal not to be readily achievable, a facility may provide parking spaces at alternative locations for persons who have disabilities and provide appropriate signage directing persons who have disabilities to the alternative parking if readily achievable. The facility may not reduce the required number or dimensions of those spaces, nor may it unreasonably increase the length of the accessible route from a parking space to the facility. The removal of an architectural barrier must not create a significant risk to the health or safety of a person who has a disability or to that of others.

2. A facility that is making alterations under s. 553.507(2)(b) must comply with this section to the maximum extent feasible. If compliance with parking location requirements is not feasible, the facility may provide parking spaces at alternative locations for persons who have disabilities and provide appropriate signage directing persons who have a disability to alternative parking. The facility may not reduce the required number or dimensions of those spaces, nor may it unnecessarily increase the length of the accessible route from a parking space to the facility. The alteration must not create a significant risk to the health or safety of a person who has a disability or to that of others.

(6) Each such parking space must be prominently outlined with blue paint, and must be repainted when necessary, to be clearly distinguishable as a parking space designated for persons who have disabilities and must be posted with a permanent above-grade sign of a color and design approved by the Department of Transportation, which is placed on or at a distance of 84 inches above the ground to the bottom of the sign and which bears the international symbol of accessibility meeting the requirements of ADAAG s. 4.30.7 and the caption "PARKING BY DISABLED PERMIT ONLY." Such a sign erected after October 1, 1996, must indicate the penalty for illegal use of the space. Any provision of this section to the contrary notwithstanding, in a theme park or an entertainment complex as defined in s. 509.013(9) in which accessible parking is located in designated lots or areas, the signage indicating the lot as reserved for accessible parking may be located at the entrances to the lot in lieu of a sign at each parking place. This subsection does not relieve the owner of the responsibility of complying with the signage requirements of ADAAG s. 4.30.

553.505 Exceptions to applicability of the Americans with Disabilities Act.--Notwithstanding the Americans with Disabilities Act of 1990, private clubs are governed by ss. 553.501-553.513. Parking spaces, parking lots, and other parking facilities are governed by s. 553.5041 when that section provides increased accessibility.

40 553.506 Powers of the commission.--In addition to any other authority vested in the Florida Building Commission by law, the commission, in implementing ss. 553.501-553.513, may, by rule, adopt revised and updated versions of the Americans with Disabilities Act Accessibility Guidelines in accordance with chapter 120.

553.507 Exemptions.--Sections 553.501-553.513 do not apply to any of the following:

(1) Buildings, structures, or facilities that were either under construction or under contract for construction on October 1, 1997.

(2) Buildings, structures, or facilities that were in existence on October 1, 1997, unless:

(a) The building, structure, or facility is being converted from residential to nonresidential or mixed use, as defined by local law;

(b) The proposed alteration or renovation of the building, structure, or facility will affect usability or accessibility to a degree that invokes the requirements of s. 303(a) of the Americans with Disabilities Act of 1990; or

(c) The original construction or any former alteration or renovation of the building, structure, or facility was carried out in violation of applicable permitting law.

553.508 Architectural barrier removal.--Removal of architectural barriers, pursuant to 28 C.F.R. s. 36.304, from buildings, structures, or facilities to which this act applies shall comply with ss. 553.501-553.513 unless compliance would render the removal not readily achievable. In no instance shall the removal of an architectural barrier create a significant risk to the health or safety of an individual with a disability or others.

553.509 Vertical accessibility.--

(1) Nothing in ss. 553.501-553.513 or the guidelines shall be construed to relieve the owner of any building, structure, or facility governed by those sections from the duty to provide vertical accessibility to all levels above and below the occupiable grade level, regardless of whether the guidelines require an elevator to be installed in such building, structure, or facility, except for:

(a) Elevator pits, elevator penthouses, mechanical rooms, piping or equipment catwalks, and automobile lubrication and maintenance pits and platforms;

(b) Unoccupiable spaces, such as rooms, enclosed spaces, and storage spaces that are not designed for human occupancy, for public accommodations, or for work areas; and

(c) Occupiable spaces and rooms that are not open to the public and that house no more than five persons, including, but not limited to, equipment control rooms and projection booths.

(2) (a) Any person, firm, or corporation that owns, manages, or operates a residential multifamily dwelling, including a condominium, that is at least 75 feet high and contains a public elevator, as described in s. 399.035(2) and (3) and rules adopted by the Florida Building Commission, shall have at least one public elevator that is capable of operating on an alternate power source for emergency purposes. Alternate power shall be available for the purpose of allowing all residents access for a specified number of hours each day over a 5-day period following a natural disaster, manmade disaster, emergency, or other civil disturbance that disrupts the normal supply of electricity. The alternate power source that controls elevator operations must also be capable of powering any connected fire alarm system in the building.

(b) At a minimum, the elevator must be appropriately prewired and prepared to accept an alternate power source and must have a connection on the line side of the main disconnect, pursuant to National Electric Code Handbook, Article 700. In addition to the required power source for the elevator and connected fire alarm system in the building, the alternate power supply must be sufficient to provide emergency lighting to the interior lobbies, hallways, and other portions of the building used by the public.

41 Residential multifamily dwellings must have an available generator and fuel source on the property or have proof of a current contract posted in the elevator machine room or other place conspicuous to the elevator inspector affirming a current guaranteed service contract for such equipment and fuel source to operate the elevator on an on-call basis within 24 hours after a request. By December 31, 2006, any person, firm or corporation that owns, manages, or operates a residential multifamily dwelling as defined in paragraph (a) must provide to the local building inspection agency verification of engineering plans for residential multifamily dwellings that provide for the capability to generate power by alternate means. Compliance with installation requirements and operational capability requirements must be verified by local building inspectors and reported to the county emergency management agency by December 31, 2007.

(c) Each newly constructed residential multifamily dwelling, including a condominium, that is at least 75 feet high and contains a public elevator, as described in s. 399.035(2) and (3) and rules adopted by the Florida Building Commission, must have at least one public elevator that is capable of operating on an alternate power source for the purpose of allowing all residents access for a specified number of hours each day over a 5-day period following a natural disaster, manmade disaster, emergency, or other civil disturbance that disrupts the normal supply of electricity. The alternate power source that controls elevator operations must be capable of powering any connected fire alarm system in the building. In addition to the required power source for the elevator and connected fire alarm system, the alternate power supply must be sufficient to provide emergency lighting to the interior lobbies, hallways, and other portions of the building used by the public. Engineering plans and verification of operational capability must be provided by the local building inspector to the county emergency management agency before occupancy of the newly constructed building.

(d) Each person, firm, or corporation that is required to maintain an alternate power source under this subsection shall maintain a written emergency operations plan that details the sequence of operations before, during, and after a natural or manmade disaster or other emergency situation. The plan must include, at a minimum, a lifesafety plan for evacuation, maintenance of the electrical and lighting supply, and provisions for the health, safety, and welfare of the residents. In addition, the owner, manager, or operator of the residential multifamily dwelling must keep written records of any contracts for alternative power generation equipment. Also, quarterly inspection records of lifesafety equipment and alternate power generation equipment must be posted in the elevator machine room or other place conspicuous to the elevator inspector, which confirm that such equipment is properly maintained and in good working condition, and copies of contracts for alternate power generation equipment shall be maintained on site for verification. The written emergency operations plan and inspection records shall also be open for periodic inspection by local and state government agencies as deemed necessary. The owner or operator must keep a generator key in a lockbox posted at or near any installed generator unit.

(e) Multistory affordable residential dwellings for persons age 62 and older that are financed or insured by the United States Department of Housing and Urban Development must make every effort to obtain grant funding from the Federal Government or the Florida Housing Finance Corporation to comply with this subsection. If an owner of such a residential dwelling cannot comply with the requirements of this subsection, the owner must develop a plan with the local emergency management agency to ensure that residents are evacuated to a place of safety in the event of a power outage resulting from a natural or manmade disaster or other emergency situation that disrupts the normal supply of electricity for an extended period of time. A place of safety may include, but is not limited to, relocation to an alternative site within the building or evacuation to a local shelter.

(f) As a part of the annual elevator inspection required under s. 399.061, certified elevator inspectors shall confirm that all installed generators required by this chapter are in working order, have current inspection records posted in the elevator machine room or other place conspicuous to the elevator inspector, and that the required generator key is present in the lockbox posted at or near the installed generator. If a building does not have an installed generator, the inspector shall confirm that the appropriate prewiring and switching capabilities are present and that a statement is posted in the elevator machine room or other place conspicuous to the elevator inspector affirming a current guaranteed contract exists for contingent services for alternate power is current for the operating period. However, buildings, structures,

42 and facilities must, as a minimum, comply with the requirements in the Americans with Disabilities Act Accessibility Guidelines.

553.511 Parking facilities; minimum height clearance requirement.--Every nonresidential structure built on or after January 1, 1991, which is designed to use covered or underground parking as the primary available parking space shall design the covered or underground parking facility to maintain a minimum height for the portion of the street-accessible level of the parking facility directly over van-accessible parking spaces and for providing ingress and egress to such parking spaces of at least 8 feet 2 inches. Signs shall be posted to warn operators of handicapped-equipped vans that they cannot pass beyond a certain point due to height limitations. If compliance with this minimum height clearance requirement will cause the structure to exceed local height limitations imposed by local zoning, planning, or fire ordinances, or will result in the imposition of any additional requirements of such ordinances, the structure may exceed the height limitation specified in those particular codes as necessary to comply with the requirements of this section and is exempt from such additional requirements. Structures for which the plans were sealed by an architect prior to January 1, 1991, are exempt from this section.

553.512 Modifications and waivers; advisory council.--

(1) The Florida Building Commission shall provide by regulation criteria for granting individual modifications of, or exceptions from, the literal requirements of this part upon a determination of unnecessary, unreasonable, or extreme hardship, provided such waivers shall not violate federal accessibility laws and regulations and shall be reviewed by the Accessibility Advisory Council. Notwithstanding any other provision of this subsection, if an applicant for a waiver demonstrates economic hardship in accordance with 28 C.F.R. s. 36.403(f) (1), a waiver shall be granted. The commission may not consider waiving any of the requirements of s. 553.5041 unless the applicant first demonstrates that she or he has applied for and been denied waiver or variance from all local government zoning, subdivision regulations, or other ordinances that prevent compliance therewith. Further, the commission may not waive the requirement of s. 553.5041(5)(a) and (c)1. governing the minimum width of accessible routes and minimum width of accessible parking spaces.

(2) The Accessibility Advisory Council shall consist of the following seven members, who shall be knowledgeable in the area of accessibility for persons with disabilities. The Secretary of Community Affairs shall appoint the following: a representative from the Advocacy Center for Persons with Disabilities, Inc.; a representative from the Division of Blind Services; a representative from the Division of Vocational Rehabilitation; a representative from a statewide organization representing the physically handicapped; a representative from the hearing impaired; a representative from the President, Florida Council of Handicapped Organizations; and a representative of the Paralyzed Veterans of America. The terms for the first three council members appointed subsequent to October 1, 1991, shall be for 4 years, the terms for the next two council members appointed shall be for 3 years, and the terms for the next two members shall be for 2 years. Thereafter, all council member appointments shall be for terms of 4 years. No council member shall serve more than two 4-year terms subsequent to October 1, 1991. Any member of the council may be replaced by the secretary upon three unexcused absences. Upon application made in the form provided, an individual waiver or modification may be granted by the commission so long as such modification or waiver is not in conflict with more stringent standards provided in another chapter.

(3) Members of the council shall serve without compensation, but shall be entitled to reimbursement for per diem and travel expenses as provided by s. 112.061.

(4) Meetings of the advisory council shall be held in conjunction with the regular meetings of the commission.

553.513 Enforcement.--It shall be the responsibility of each local government and each code enforcement agency established pursuant to s. 553.80 to enforce the provisions of this part. This act expressly preempts the establishment of handicapped accessibility standards to the state and supersedes any county or municipal ordinance on the subject. However, nothing in this section shall prohibit municipalities and counties from enforcing the provisions of this act.

43 CORPORATE NAME Florida Statutes Section 617.0401

617.0401 Corporate name. -

(1) A corporate name:

(a) Must contain the word "corporation" or"incorporated" or the abbreviation "corp." or "inc." or words or abbreviations of like import in language, as will clearly indicate that it is a corporation instead of a natural person, unincorporated association, or partnership. The name of the corporation may not contain the word "company" or its abbreviation "co.";

(b) May contain the word "cooperative" or "co-op" only if the resulting name is distinguishable from the name of any corporation, agricultural cooperative marketing association, or nonprofit cooperative association existing or doing business in this state under chapter 607, chapter 618, or chapter 619;

(c) May not contain language stating or implying that the corporation is organized for a purpose other than that permitted in this act and its articles of incorporation;

(d) May not contain language stating or implying that the corporation is connected with a state or federal government agency or a corporation chartered under the laws of the United States; and

(e) Must be distinguishable from the names of all other entities or filings, except fictitious name registrations pursuant to s. 865.09, organized, registered, or reserved under the laws of this state, that are on file with the Division of Corporations.

(2) Any corporation eligible to reincorporate under s. 617.0901, may do so and retain its corporate name, subject to the requirements of paragraphs (1)(a) and (b).

PERFORMANCE OR ACCEPTANCE UNDER RESERVATION OF RIGHTS Florida Statutes Chapter 671.207

671.207 Performance or Acceptance Under Reservation of Rights. -

(1) A party who, with explicit reservation of rights, performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.

(2) Subsection (1) does not apply to an accord and satisfaction.

LEGAL HOLIDAYS Florida Statutes Chapter 683.01 through 683.325

683.01 Legal holidays.-- (1) The legal holidays, which are also public holidays, are the following: (a) Sunday, the first day of each week. (b) New Year's Day, January 1. (c) Birthday of Martin Luther King, Jr., January 15. (d) Birthday of Robert E. Lee, January 19. (e) Lincoln's Birthday, February 12. (f) Susan B. Anthony's Birthday, February 15. (g) Washington's Birthday, the third Monday in February. (h) Good Friday. (i) Pascua Florida Day, April 2.

44 (j) Confederate Memorial Day, April 26. (k) Memorial Day, the last Monday in May. (l) Birthday of Jefferson Davis, June 3. (m) Flag Day, June 14. (n) Independence Day, July 4. (o) Labor Day, the first Monday in September. (p) Columbus Day and Farmers' Day, the second Monday in October. (q) Veterans' Day, November 11. (r) General Election Day. (s) Thanksgiving Day, the fourth Thursday in November. (t) Christmas Day, December 25. (u) Shrove Tuesday, sometimes also known as "Mardi Gras," in counties where carnival associations are organized for the purpose of celebrating the same. (2) Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.

683.02 Meaning of term "legal holidays" as used in contracts.--Whenever, in contracts to be performed in the state, reference is made to "legal holidays," the term shall be understood to include those holidays designated in s. 683.01 and such others as may be designated by law.

683.04 Arbor Day.--The third Friday in January of each year is hereby designated as "Arbor Day" in the state.

683.05 Pan-American Day.--

(1) The Governor shall proclaim April 14 of each year to be "Pan-American Day," which day shall be suitably observed in the public schools of the state as a day honoring the republics of Latin America, and which day shall otherwise be suitably observed by such public exercises in the State Capitol and elsewhere as the Governor may designate. If April 14 shall fall on a day which is not a school day, "Pan-American Day" shall be observed in the schools on the school day next preceding or on such preceding day as may be designated by local school authorities.

(2) The purpose of the law is to establish a day on which the mutually friendly relationship between the state and the Pan-American Republics will be recognized and perpetuated.

683.06 Pascua Florida Day.--

(1) April 2 of each year is hereby designated as "Florida State Day." The day to be known as "Pascua Florida Day."

(2) The Governor may annually issue a proclamation designating April 2 as said State Day and designating the week of March 27 to April 2 as "Pascua Florida Week" and calling upon public schools and citizens of Florida to observe the same as a patriotic occasion.

683.08 Gasparilla Day, legal holiday in Hillsborough County.--The day known and designated as "Gasparilla Day" in Hillsborough County shall be a legal holiday within said county, and all city, county, and state offices, and banking institutions may remain closed on Gasparilla Day.

683.09 DeSoto Day, legal holiday in Manatee County.--The last Friday of DeSoto Week every year shall be known as "DeSoto Day" and shall be a legal holiday in Manatee County, and all city, county, and state offices and banking institutions may remain closed on DeSoto Day.

683.10 Grandparents' and Family Caregivers' Day.--

(1) The first Sunday after Labor Day of each year is designated "Grandparents' and Family Caregivers' Day."

45 (2) The Governor may issue annually a proclamation designating the first Sunday after Labor Day as Grandparents' and Family Caregivers' Day and calling upon public schools and citizens of the state to observe the occasion.

683.11 Law Enforcement Appreciation Month.--

(1) The month of May of each year is hereby designated "Law Enforcement Appreciation Month."

(2) The Governor and the mayor of each municipality may issue annually a proclamation designating the month of May as "Law Enforcement Appreciation Month" and urging all civic, fraternal, and religious organizations and public and private educational institutions to recognize and observe this occasion through appropriate programs, meetings, services, or celebrations in which state, county, and local law enforcement officers are invited to participate.

683.115 Law Enforcement Memorial Day.--

(1) May 15 of each year is hereby designated as "Law Enforcement Memorial Day."

(2) The Governor may issue annually a proclamation declaring May 15 to be a day of mourning throughout the state.

683.12 Parade Day, Hillsborough County.--The day known and designated as "Parade Day" of the Hillsborough County Fair and Plant City Strawberry Festival in Hillsborough County shall be a legal holiday within said county, and all city and county offices and banking institutions may remain closed on Parade Day of the Hillsborough County Fair and Plant City Strawberry Festival.

683.13 State observance of national day of mourning.--Observance by the state of any day of mourning, as proclaimed by the Governor in response to the designation of a national day of mourning by the President of the United States, may be by declaring that the following Sunday shall be observed as the day of mourning.

683.14 Patriots' Day.--Patriots' Day is hereby recognized by the Florida Legislature as one of great historical significance. Public officials, schools, private organizations, and all citizens are encouraged to commemorate Patriots' Day on April 19 of each year.

683.145 I Am An American Day.--The third Sunday in October of each year is hereby designated as "I Am An American Day."

683.15 Teacher's Day.--

(1) The third Friday in May of each year is designated as Teacher's Day.

(2) The Governor may issue annually a proclamation designating the third Friday in May as Teacher's Day and calling upon public schools and citizens of the state to observe the occasion.

683.16 Retired Teachers' Day.--

(1) The Sunday commencing the third week of November of each year is hereby designated as "Retired Teachers' Day."

(2) The Governor may issue annually a proclamation designating the Sunday commencing the third week of November of each year as Retired Teachers' Day and calling upon public schools and citizens of the state to observe the occasion and to take the opportunity to honor the retired teachers of the state.

683.17 Parents' and Children's Day.--The first Sunday in April of each year is designated as Parents' and Children's Day. On this day local communities and families, together with public officials, schools, private organizations, and all citizens, are encouraged to celebrate the lives and blessings of Florida's children with love, respect, gratitude, and encouragement; to acknowledge our children as the resource giving our state the greatest

46 hope of future excellence; to listen to children and reaffirm our shared commitment to help them develop their unique qualities, strengths, and potential, resulting in greater productive capacity and enlightened citizenship; and to observe this day with appropriate activities, ceremonies, public awareness materials, and programs. All citizens of the state are encouraged to wear a white ribbon on Parents' and Children's Day which shall indicate that our children are considered to be special gifts and are valued for their part in the circle of life.

683.18 Save the Florida Panther Day.--

(1) The third Saturday of March of each year is designated as "Save the Florida Panther Day."

(2) The Governor may issue annually a proclamation designating the third Saturday of March as Save the Florida Panther Day and calling upon public schools and citizens of the state to observe the occasion.

683.19 Rosh Hashanah, Yom Kippur, and Good Friday; designation as legal holiday by chief circuit judges.--The chief judge of any judicial circuit is authorized to designate Rosh Hashanah, Yom Kippur, and Good Friday as legal holidays for the courts within the judicial circuit. If the holidays are so designated, the courts in the judicial circuit may remain closed on Rosh Hashanah, Yom Kippur, and Good Friday and those days will be holidays for persons employed by the courts.

683.195 Florida Jewish History Month.--

(1) The month of January of each year is designated as "Florida Jewish History Month."

(2) The Governor may issue a proclamation annually designating the month of January as "Florida Jewish History Month" and calling upon the citizens of the state to observe the occasion.

683.21 Juneteenth Day.--

(1) June 19th of each year is hereby designated "Juneteenth Day" to commemorate the traditional observance of the day the slaves in Florida were notified of the Emancipation Proclamation.

(2) The Governor may issue annually a proclamation designating June 19th as Juneteenth Day and calling on public officials, schools, private organizations, and all citizens to honor the historic significance of the day.

683.22 Law Day and Law Week.--

(1) May 1 of each year is designated as "Law Day," and the week starting with the Sunday preceding May 1 is proclaimed "Law Week" in Florida. If May 1 falls on a Sunday, Law Week begins on that day. During the week, all residents, schools, businesses, and clubs and the mass media are invited to commemorate the role of law in our lives. The theme to be celebrated will be determined by the Supreme Court of Florida and publicized and supported by the lawyers of Florida through The Florida Bar.

(2) The Governor may issue annually a proclamation celebrating these events, with a theme to be determined by the Supreme Court of Florida and supported by the lawyers of Florida through The Florida Bar.

683.23 Florida Missing Children's Day.--The second Monday in September of each year is hereby designated as "Florida Missing Children's Day" in remembrance of Florida's past and present missing children and in recognition of our state's continued efforts to protect the safety of children through prevention, education, and community involvement.

683.231 Citizen support organization for Florida Missing Children's Day.--

(1) The Department of Law Enforcement may establish a citizen support organization to provide assistance, funding, and promotional support for activities authorized for Florida Missing Children's Day under s. 683.23.

(2) As used in this section, the term "citizen support organization" means an organization that is:

47 (a) A Florida corporation not for profit incorporated under chapter 617 and approved by the Department of State.

(b) Organized and operated to conduct programs and activities; raise funds; request and receive grants, gifts, and bequests of money; acquire, receive, hold, invest, and administer, in its own name, securities, funds, objects of value, or other property, either real or personal; and make expenditures to or for the direct or indirect benefit of the department in furtherance of Florida Missing Children's Day.

(3) The citizen support organization is not a registered lobbyist within the meaning of s. 11.045.

(4) The citizen support organization is specifically authorized to collect and expend funds to be used for awards; public awareness and awards ceremonies, workshops, and other meetings, including distribution materials for public education and awareness; travel; Internet and web-hosting services; administrative costs, including personnel costs; costs of audits; and costs of facilities rental.

(5) The activities of the citizen support organization must be determined by the department to be consistent with the goals and mission of the department and in the best interests of the state and approved in writing by the department to operate for the direct or indirect benefit of the department. The approval shall be given in a letter of agreement from the department.

(6) (a) The department may fix and collect charges for the rental of facilities and properties managed by the department and may permit, without charge, appropriate use of administrative services, property, and facilities of the department by the citizen support organization, subject to this section. The use must be directly in keeping with the approved purposes of the citizen support organization and may not be made at times or places that would unreasonably interfere with opportunities for the public to use such facilities for established purposes. Any money received from rentals of facilities and properties managed by the department may be held in the Operating Trust Fund of the department or in a separate depository account in the name of the citizen support organization and subject to the provisions of the letter of agreement with the department. The letter of agreement must provide that any funds held in the separate depository account in the name of the citizen support organization must revert to the department if the citizen support organization is no longer approved by the department to operate in the best interests of the state.

(b) The department may adopt rules with which a citizen support organization must comply in order to use department administrative services, property, or facilities.

(c) The department may not permit the use of any administrative services, property, or facilities of the state by a citizen support organization that does not provide equal membership and employment opportunities to all persons regardless of race, color, religion, gender, age, or national origin.

(7) The citizen support organization shall provide for an independent annual financial audit in accordance with s. 215.981. Copies of the audit shall be provided to the department, the Office of Policy and Budget in the Executive Office of the Governor, and the Florida Cabinet.

683.24 Florida Alzheimer's Disease Day.--February 6th of each year is designated Florida Alzheimer's Disease Day.

683.25 Bill of Rights Day.--

(1) December 15 of each year is designated as "Bill of Rights Day."

(2) The Governor may issue annually a proclamation designating December 15 as "Bill of Rights Day" and calling upon all citizens of the state to observe the occasion.

683.325 Homeless Persons' Memorial Day.--The Legislature designates December 21, the first day of winter and the longest night of the year as a Homeless Persons' Memorial Day to bring attention to the tragedy of homelessness. The State Office on Homelessness, local homeless coalitions, and local governments are encouraged

48 to sponsor events to promote awareness of the plight of the homeless and identify actions that individuals and organizations can take to address the problem of homelessness.

683.26 Ronald Reagan Day.--

(1) February 6 of each year is designated as "Ronald Reagan Day."

(2) The Governor may issue annually a proclamation designating February 6 as "Ronald Reagan Day." Public officials, schools, private organizations, and all citizens are encouraged to honor the legacy of opportunity and optimism left by America's 40th President by commemorating Ronald Reagan Day on February 6 of each year.

683.325 Homeless Persons' Memorial Day.--The Legislature designates December 21, the first day of winter and the longest night of the year as a Homeless Persons' Memorial Day to bring attention to the tragedy of homelessness. The State Office on Homelessness, local homeless coalitions, and local governments are encouraged to sponsor events to promote awareness of the plight of the homeless and identify actions that individuals and organizations can take to address the problem of homelessness.

683.33 Three Kings Day.--

(1) January 6 of each year is designated as "Three Kings Day."

(2) Local governments may annually issue a proclamation commemorating January 6 as "Three Kings Day" and recognize that many residents of the state celebrate the occasion as a time to be with their family and friends, attend services, exchange gifts, and celebrate their cultural heritage.

683.331 Child Welfare Professionals Recognition Day.--Beginning in May 2008, the Legislature designates the second Monday in May as "Child Welfare Professionals Recognition Day" to recognize the efforts of all professionals who work with abused children and dysfunctional families. The Department of Children and Family Services, local governments, and other agencies are encouraged to sponsor events to promote awareness of the child welfare system and the personnel who work in the system.

CONSTRUCTION LIENS Florida Statutes Section 713.10

713.10 Extent of Liens. - Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor. When the lease expressly provides that the interest of the lessor shall not be subject to liens for improvements made by the lessee, the lessee shall notify the contractor making any such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between the lessee and the contractor voidable at the option of the contractor. The interest of the lessor shall not be subject to liens for improvements made by the lessee when:

(1) The lease or a short form thereof is recorded in the clerk's office and the terms of the lease expressly prohibit such liability; or

(2) All of the leases entered into by a lessor for the rental of premises on a parcel of land prohibit such liability and a notice which sets forth the following is recorded by the lessor in the public records of the county in which the parcel of land is located:

(a) The name of the lessor.

(b) The legal description of the parcel of land to which the notice applies.

49 (c) The specific language contained in the various leases prohibiting such liability.

(d) A statement that all leases entered into for premises on the parcel of land contain the language identified in paragraph (c).

(3) The lessee is a mobile home owner who is leasing a mobile home lot in a mobile home park from the lessor.

TOWING OF VEHICLES Florida Statutes Section 715.07 715.07 Vehicles or vessels parked on private property; towing.--

(1) As used in this section, the term:

(a) "Vehicle" means any mobile item which normally uses wheels, whether motorized or not.

(b) "Vessel" means every description of watercraft, barge, and airboat used or capable of being used as a means of transportation on water, other than a seaplane or a "documented vessel" as defined in s. 327.02(9).

(2) The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances:

(a) The towing or removal of any vehicle or vessel from private property without the consent of the registered owner or other legally authorized person in control of that vehicle or vessel is subject to strict compliance with the following conditions and restrictions:

1. a. Any towed or removed vehicle or vessel must be stored at a site within a 10- mile radius of the point of removal in any county of 500,000 population or more, and within a 15-mile radius of the point of removal in any county of less than 500,000 population. That site must be open for the purpose of redemption of vehicles on any day that the person or firm towing such vehicle or vessel is open for towing purposes, from 8:00 a.m. to 6:00 p.m., and, when closed, shall have prominently posted a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephoned request to open the site to redeem a vehicle or vessel, the operator shall return to the site within 1 hour or she or he will be in violation of this section.

b. If no towing business providing such service is located within the area of towing limitations set forth in sub-subparagraph a., the following limitations apply: any towed or removed vehicle or vessel must be stored at a site within a 20-mile radius of the point of removal in any county of 500,000 population or more, and within a 30-mile radius of the point of removal in any county of less than 500,000 population.

2. The person or firm towing or removing the vehicle or vessel shall, within 30 minutes after completion of such towing or removal, notify the municipal police department or, in an unincorporated area, the sheriff, of such towing or removal, the storage site, the time the vehicle or vessel was towed or removed, and the make, model, color, and license plate number of the vehicle or description and registration number of the vessel and shall obtain the name of the person at that department to whom such information was reported and note that name on the trip record.

50 3. A person in the process of towing or removing a vehicle or vessel from the premises or parking lot in which the vehicle or vessel is not lawfully parked must stop when a person seeks the return of the vehicle or vessel. The vehicle or vessel must be returned upon the payment of a reasonable service fee of not more than one-half of the posted rate for the towing or removal service as provided in subparagraph 6. The vehicle or vessel may be towed or removed if, after a reasonable opportunity, the owner or legally authorized person in control of the vehicle or vessel is unable to pay the service fee. If the vehicle or vessel is redeemed, a detailed signed receipt must be given to the person redeeming the vehicle or vessel.

4. A person may not pay or accept money or other valuable consideration for the privilege of towing or removing vehicles or vessels from a particular location.

5. Except for property appurtenant to and obviously a part of a single-family residence, and except for instances when notice is personally given to the owner or other legally authorized person in control of the vehicle or vessel that the area in which that vehicle or vessel is parked is reserved or otherwise unavailable for unauthorized vehicles or vessels and that the vehicle or vessel is subject to being removed at the owner's or operator's expense, any property owner or lessee, or person authorized by the property owner or lessee, prior to towing or removing any vehicle or vessel from private property without the consent of the owner or other legally authorized person in control of that vehicle or vessel, must post a notice meeting the following requirements:

a. The notice must be prominently placed at each driveway access or curb cut allowing vehicular access to the property, within 5 feet from the public right-of-way line. If there are no curbs or access barriers, the signs must be posted not less than one sign for each 25 feet of lot frontage.

b. The notice must clearly indicate, in not less than 2-inch high, light-reflective letters on a contrasting background, that unauthorized vehicles will be towed away at the owner's expense. The words "tow-away zone" must be included on the sign in not less than 4-inch high letters.

c. The notice must also provide the name and current telephone number of the person or firm towing or removing the vehicles or vessels.

d. The sign structure containing the required notices must be permanently installed with the words "tow-away zone" not less than 3 feet and not more than 6 feet above ground level and must be continuously maintained on the property for not less than 24 hours prior to the towing or removal of any vehicles or vessels.

e. The local government may require permitting and inspection of these signs prior to any towing or removal of vehicles or vessels being authorized.

f. A business with 20 or fewer parking spaces satisfies the notice requirements of this subparagraph by prominently displaying a sign stating "Reserved Parking for Customers Only Unauthorized Vehicles or Vessels Will be Towed Away At the Owner's Expense" in not less than 4-inch high, light-reflective letters on a contrasting background.

g. A property owner towing or removing vessels from real property must post notice, consistent with the requirements in sub-subparagraphs a.-f., which apply to vehicles, that unauthorized vehicles or vessels will be towed away at the owner's expense. A business owner or lessee may authorize the removal of a vehicle or vessel by a towing company when the vehicle or vessel is parked in such a manner that restricts the normal operation of business; and if a vehicle or vessel parked on a public right-of-way obstructs access to a private driveway the owner, lessee, or agent may have the vehicle or vessel

51 removed by a towing company upon signing an order that the vehicle or vessel be removed without a posted tow-away zone sign.

6. Any person or firm that tows or removes vehicles or vessels and proposes to require an owner, operator, or person in control of a vehicle or vessel to pay the costs of towing and storage prior to redemption of the vehicle or vessel must file and keep on record with the local law enforcement agency a complete copy of the current rates to be charged for such services and post at the storage site an identical rate schedule and any written contracts with property owners, lessees, or persons in control of property which authorize such person or firm to remove vehicles or vessels as provided in this section.

7. Any person or firm towing or removing any vehicles or vessels from private property without the consent of the owner or other legally authorized person in control of the vehicles or vessels shall, on any trucks, wreckers as defined in s. 713.78(1)(c), or other vehicles used in the towing or removal, have the name, address, and telephone number of the company performing such service clearly printed in contrasting colors on the driver and passenger sides of the vehicle. The name shall be in at least 3-inch permanently affixed letters, and the address and telephone number shall be in at least 1-inch permanently affixed letters.

8. Vehicle entry for the purpose of removing the vehicle or vessel shall be allowed with reasonable care on the part of the person or firm towing the vehicle or vessel. Such person or firm shall be liable for any damage occasioned to the vehicle or vessel if such entry is not in accordance with the standard of reasonable care.

9. When a vehicle or vessel has been towed or removed pursuant to this section, it must be released to its owner or custodian within one hour after requested. Any vehicle or vessel owner or agent shall have the right to inspect the vehicle or vessel before accepting its return, and no release or waiver of any kind which would release the person or firm towing the vehicle or vessel from liability for damages noted by the owner or other legally authorized person at the time of the redemption may be required from any vehicle or vessel owner, custodian, or agent as a condition of release of the vehicle or vessel to its owner. A detailed, signed receipt showing the legal name of the company or person towing or removing the vehicle or vessel must be given to the person paying towing or storage charges at the time of payment, whether requested or not.

(b) These requirements are minimum standards and do not preclude enactment of additional regulations by any municipality or county including the right to regulate rates when vehicles or vessels are towed from private property.

(3) This section does not apply to law enforcement, firefighting, rescue squad, ambulance, or other emergency vehicles or vessels that are marked as such or to property owned by any governmental entity.

(4) When a person improperly causes a vehicle or vessel to be removed, such person shall be liable to the owner or lessee of the vehicle or vessel for the cost of removal, transportation, and storage; any damages resulting from the removal, transportation, or storage of the vehicle or vessel; attorney's fees; and court costs.

(5) (a) Any person who violates subparagraph (2)(a)2. or subparagraph (2)(a)6. commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Any person who violates subparagraph (2)(a)1., subparagraph (2)(a)3., subparagraph (2)(a)4., subparagraph (2)(a)7., or subparagraph (2)(a)9. commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

DISPOSAL OF ABANDONED PERSONAL PROPERTY Florida Statutes Section 715.10 through 715.111

715.10 Disposition of Personal Property Landlord and Tenant Act; short title.--Sections 715.10- 715.111 may be cited as the "Disposition of Personal Property Landlord and Tenant Act."

715.101 Application of ss. 715.10-715.111.--

(1) Sections 715.10-715.111 apply to all tenancies to which part I or part II of chapter 83 are applicable, and to tenancies after a writ of possession has been issued pursuant to s. 723.062.

(2) Sections 715.10-715.111 provide an optional procedure for the disposition of personal property which remains on the premises after a tenancy has terminated or expired and the premises have been vacated by the tenant through eviction, surrender, abandonment, or otherwise.

(3) Sections 715.10-715.111 do not apply to property which exists for the purpose of providing utility services and is owned by a utility, whether or not such property is actually in operation to provide such utility services.

(4) If the requirements of ss. 715.10-715.111 are not satisfied, nothing in ss. 715.10-715.111 affects the rights and liabilities of the landlord, the former tenant, or any other person.

715.102 Definitions of terms used in ss. 715.10-715.111.--As used in ss. 715.10-715.111, unless some other meaning is clearly indicated, the term:

(1) "Landlord" means any operator, keeper, lessor, or sublessor of furnished or unfurnished premises for rent, or her or his agent or successor-in-interest.

(2) "Owner" means any person other than the landlord who has any right, title, or interest in personal property.

(3) "Premises" includes any common areas associated therewith.

(4) "Reasonable belief" means the actual knowledge or belief a prudent person should have without making an investigation, including any investigation of public records; except that, when the landlord has specific information indicating that such an investigation would more probably than not reveal pertinent information and the cost of such an investigation would be reasonable in relation to the probable value of the personal property involved, the term "reasonable belief" includes the actual knowledge or belief a prudent person would have if such an investigation were made.

(5) "Tenant" includes any paying guest, lessee, or sublessee of any premises for rent, whether a dwelling unit or not.

715.103 Lost property.--Personal property which the landlord reasonably believes to have been lost shall be disposed of as otherwise provided by law. However, if the appropriate law enforcement agency or other government agency refuses to accept custody of property pursuant to chapter 705, the landlord may dispose of the property pursuant to ss. 715.10-715.111. The landlord is not liable to the owner of the property if she or he complies with this section and the other provisions of ss. 715.10-715.111.

715.104 Notification of former tenant of personal property remaining on premises after tenancy has terminated.--

(1) When personal property remains on the premises after a tenancy has terminated or expired and the premises have been vacated by the tenant, through eviction or otherwise, the landlord shall give written notice to such tenant and to any other person the landlord reasonably believes to be the owner of the property.

53 (2) The notice shall describe the property in a manner reasonably adequate to permit the owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by s. 715.11 does not protect the landlord from any liability arising from the disposition of property not described in the notice, except that a trunk, valise, box, or other container which is locked, fastened, or tied in a manner which deters immediate access to its contents may be described as such without describing its contents. The notice shall advise the person to be notified that reasonable costs of storage may be charged before the property is returned, and the notice shall state where the property may be claimed and the date before which the claim must be made. The date specified in the notice shall be a date not fewer than 10 days after the notice is personally delivered or, if mailed, not fewer than 15 days after the notice is deposited in the mail.

(3) The notice shall be personally delivered or sent by first-class mail, postage prepaid, to the person to be notified at her or his last known address and, if there is reason to believe that the notice sent to that address will not be received by that person, also delivered or sent to such other address, if any, known to the landlord where such person may reasonably be expected to receive the notice.

715.105 Form of notice concerning abandoned property to former tenant.--

(1) A notice to the former tenant which is in substantially the following form satisfies the requirements of s. 715.104: Notice of Right to Reclaim Abandoned Property To: (Name of former tenant) (Address of former tenant) When you vacated the premises at (address of premises, including room or apartment number, if any) , the following personal property remained: (insert description of personal property) . You may claim this property at (address where property may be claimed) . Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim, not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail) , this property may be disposed of pursuant to s. 715.109. (Insert here the statement required by subsection (2)) Dated:_____ (Signature of landlord) (Type or print name of landlord) (Telephone number) (Address) (2) The notice set forth in subsection (1) shall also contain one of the following statements:

(a) "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money."

(b) "Because this property is believed to be worth less than $500, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above."

715.106 Form of notice concerning abandoned property to owner other than former tenant.--

(1) A notice which is in substantially the following form given to a person who is not the former tenant and whom the landlord reasonably believes to be the owner of any of the abandoned personal property satisfies the requirements of s. 715.104:

Notice of Right to Reclaim Abandoned Property To: (Name)

54 (Address) When (name of former tenant) vacated the premises at (address of premises, including room or apartment number, if any) , the following personal property remained: (insert description of personal property) . If you own any of this property, you may claim it at (address where property may be claimed) . Unless you pay the reasonable costs of storage and advertising, if any, and take possession of the property to which you are entitled, not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail) , this property may be disposed of pursuant to s. 715.109. (Insert here the statement required by subsection (2)) Dated:_____ (Signature of landlord) (Type or print name of landlord) (Telephone number) (Address) (2) The notice set forth in subsection (1) shall also contain one of the following statements:

(a) "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within 1 year after the county receives the money."

(b) "Because this property is believed to be worth less than $500, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above."

715.107 Storage of abandoned property.--The personal property described in the notice either shall be left on the vacated premises or be stored by the landlord in a place of safekeeping until the landlord either releases the property pursuant to s. 715.108 or disposes of the property pursuant to s. 715.109. The landlord shall exercise reasonable care in storing the property, but she or he is not liable to the tenant or any other owner for any loss unless caused by the landlord's deliberate or negligent act.

715.108 Release of personal property.--

(1) The personal property described in the notice shall be released by the landlord to the former tenant or, at the landlord's option, to any person reasonably believed by the landlord to be its owner, if such tenant or other person pays the reasonable costs of storage and advertising and takes possession of the property not later than the date specified in the notice for taking possession.

(2) Where personal property is not released pursuant to subsection (1) and the notice has stated that the personal property will be sold at a public sale, the landlord shall release the personal property to the former tenant if she or he claims it prior to the time it is sold and pays the reasonable costs of storage, advertising, and sale incurred prior to the time the property is withdrawn from sale.

715.109 Sale or disposition of abandoned property.--

(1) If the personal property described in the notice is not released pursuant to s. 715.108, it shall be sold at public sale by competitive bidding. However, if the landlord reasonably believes that the total resale value of the property not released is less than $500, she or he may retain such property for her or his own use or dispose of it in any manner she or he chooses. Nothing in this section shall be construed to preclude the landlord or tenant from bidding on the property at the public sale. The successful bidder's title is subject to ownership rights, liens, and security interests which have priority by law.

(2) Notice of the time and place of the public sale shall be given by an advertisement of the sale published once a week for two consecutive weeks in a newspaper of general circulation where the sale is to be held. The sale

55 must be held at the nearest suitable place to that where the personal property is held or stored. The advertisement must include a description of the goods, the name of the former tenant, and the time and place of the sale. The sale must take place at least 10 days after the first publication. If there is no newspaper of general circulation where the sale is to be held, the advertisement must be posted at least 10 days before the sale in not less than six conspicuous places in the neighborhood of the proposed sale. The last publication shall be at least 5 days before the sale is to be held. Notice of sale may be published before the last of the dates specified for taking possession of the property in any notice given pursuant to s. 715.104.

(3) The notice of the sale shall describe the property to be sold in a manner reasonably adequate to permit the owner of the property to identify it. The notice may describe all or a portion of the property, but the limitation of liability provided by s. 715.11 does not protect the landlord from any liability arising from the disposition of property not described in the notice, except that a trunk, valise, box, or other container which is locked, fastened, or tied in a manner which deters immediate access to its contents may be described as such without describing its contents.

(4) After deduction of the costs of storage, advertising, and sale, any balance of the proceeds of the sale which is not claimed by the former tenant or an owner other than such tenant shall be paid into the treasury of the county in which the sale took place not later than 30 days after the date of sale. The former tenant or other owner or other person having interest in the funds may claim the balance within 1 year from the date of payment to the county by making application to the county treasurer or other official designated by the county. If the county pays the balance or any part thereof to a claimant, neither the county nor any officer or employee thereof is liable to any other claimant as to the amount paid.

715.11 Nonliability of landlord after disposition of property.--

(1) Notwithstanding the provisions of s. 715.101, after the landlord releases to the former tenant property which remains on the premises after a tenancy is terminated, the landlord is not liable with respect to that property to any person.

(2) After the landlord releases property pursuant to s. 715.108 to a person who is not the former tenant and who is reasonably believed by the landlord to be the owner of the property, the landlord is not liable with respect to that property to:

(a) Any person to whom notice was given pursuant to s. 715.104; or

(b) Any person to whom notice was not given pursuant to s. 715.104 unless such person proves that, prior to releasing the property, the landlord believed or reasonably should have believed that such person had an interest in the property and also that the landlord knew or should have known upon reasonable investigation the address of such person.

(3) Where property is disposed of pursuant to s. 715.109, the landlord is not liable with respect to that property to:

(a) Any person to whom notice was given pursuant to s. 715.104; or

(b) Any person to whom notice was not given pursuant to s. 715.104 unless such person proves that, prior to disposing of the property pursuant to s. 715.109, the landlord believed or reasonably should have believed that such person had an interest in the property and also that the landlord knew or should have known upon reasonable investigation the address of such person.

715.111 Assessing costs of storage.--

(1) Costs of storage for which payment may be required under ss. 715.10-715.111 shall be assessed in the following manner:

56 (a) When a former tenant claims property pursuant to s. 715.108, she or he may be required to pay the reasonable costs of storage for all the personal property remaining on the premises at the termination of the tenancy, which costs are unpaid at the time the claim is made.

(b) When an owner other than the former tenant claims property pursuant to s. 715.108, she or he may be required to pay the reasonable costs of storage for only the property in which she or he claims an interest.

(2) In determining the costs to be assessed under subsection (1), the landlord may not charge more than one person for the same costs.

(3) If the landlord stores the personal property on the premises, the costs of storage shall be the fair rental value of the space reasonably required for such storage for the term of the storage.

NEGLIGENCE PART I. NEGLIGENCE; GENERAL PROVISIONS Florida Statutes Section 768.075

768.075 Immunity from liability for injury to trespassers on real property.--

(1) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for any civil damages for death of or injury or damage to a trespasser upon the property when such trespasser was under the influence of alcoholic beverages with a blood-alcohol level of 0.08 percent or higher, when such trespasser was under the influence of any chemical substance set forth in s. 877.111, when such trespasser was illegally under the influence of any substance controlled under chapter 893, or if the trespasser is affected by any of the aforesaid substances to the extent that her or his normal faculties are impaired. However, the person or organization owning or controlling the interest in real property shall not be immune from liability if gross negligence or intentional misconduct on the part of such person or organization or agent thereof is a proximate cause of the death of or injury or damage to the trespasser.

(2) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser, except as provided in paragraphs (3)(a), (b), and (c), and regardless of whether the trespasser was intoxicated or otherwise impaired.

(3) (a) As used in this subsection, the term:

1. "Invitation" means that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.

2. "Discovered trespasser" means a person who enters real property without invitation, either express or implied, and whose actual physical presence was detected, within 24 hours preceding the accident, by the person or organization owning or controlling an interest in real property or to whose actual physical presence the person or organization owning or controlling an interest in real property was alerted by a reliable source within 24 hours preceding the accident. The status of a person who enters real property shall not be elevated to that of an invitee, unless the person or organization owning or controlling an interest in real property has issued an express invitation to enter the property or has manifested a clear intent to hold the property open to use by persons pursuing purposes such as those pursued by the person whose status is at issue.

3. "Undiscovered trespasser" means a person who enters property without invitation, either express or implied, and whose actual physical presence was not detected, within 24 hours

57 preceding the accident, by the person or organization owning or controlling an interest in real property.

(b) To avoid liability to undiscovered trespassers, a person or organization owning or controlling an interest in real property must refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser, but has no duty to warn of dangerous conditions. To avoid liability to discovered trespassers, a person or organization owning or controlling an interest in real property must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser, and must warn the trespasser of dangerous conditions that are known to the person or organization owning or controlling an interest in real property but that are not readily observable by others.

(c) This subsection shall not be interpreted or construed to alter the common law as it pertains to the "attractive nuisance doctrine."

(4) A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property.

PREVENTING OR OBSTRUCTING EXTINGUISHMENT OF FIRE Florida Statutes Section 806.10

806.10 Preventing of obstructing extinguishment of fire. -

(1) Any person who willfully and maliciously injures, destroys, removes, or in any manner interferes with the use of, any vehicles, tools, equipment, water supplies, hydrants, towers, buildings, communication facilities, or other instruments or facilities used in the detection, reporting, suppression, or extinguishment of fire shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who willfully or unreasonably interferes with, hinders, or assaults, or attempts to interfere with or hinder, any firefighter in the performance of his or her duty shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

FALSE ALARMS OF FIRES Florida Statutes Section 806.101

806.101 False alarms of fires. - Whoever, without reasonable cause, by outcry or the ringing of bells, or otherwise, makes or circulates, or causes to be made or circulated, a false alarm of fire, shall for the first conviction be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A second or subsequent conviction under this section shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

CRIMINAL MISCHIEF Florida Statutes Section 806.13 806.13 Criminal mischief; penalties; penalty for minor.--

(1) (a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

(b) 1. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

58 3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

4. If the person has one or more previous convictions for violating this subsection, the offense under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) Any person who willfully and maliciously defaces, injures, or damages by any means any church, synagogue, mosque, or other place of worship, or any religious article contained therein, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the damage to the property is greater than $200.

(3) Whoever, without the consent of the owner thereof, willfully destroys or substantially damages any public telephone, or telephone cables, wires, fixtures, antennas, amplifiers, or any other apparatus, equipment, or appliances, which destruction or damage renders a public telephone inoperative or which opens the body of a public telephone, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; provided, however, that a conspicuous notice of the provisions of this subsection and the penalties provided is posted on or near the destroyed or damaged instrument and visible to the public at the time of the commission of the offense.

(4) Any person who willfully and maliciously defaces, injures, or damages by any means a sexually violent predator detention or commitment facility, as defined in part V of chapter 394, or any property contained therein, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the damage to property is greater than $200.

(5) (a) The amounts of value of damage to property owned by separate persons, if the property was damaged during one scheme or course of conduct, may be aggregated in determining the grade of the offense under this section.

(b) Any person who violates this section may, in addition to any other criminal penalty, be required to pay for the damages caused by such offense.

(6) (a) Any person who violates this section when the violation is related to the placement of graffiti shall, in addition to any other criminal penalty, be required to pay a fine of:

1. Not less than $250 for a first conviction.

2. Not less than $500 for a second conviction.

3. Not less than $1,000 for a third or subsequent conviction.

(b) Any person convicted under this section when the offense is related to the placement of graffiti shall, in addition to any other criminal penalty, be required to perform at least 40 hours of community service and, if possible, perform at least 100 hours of community service that involves the removal of graffiti.

(c) If a minor commits a delinquent act prohibited under paragraph (a), the parent or legal guardian of the minor is liable along with the minor for payment of the fine. The court may decline to order a person to pay a fine under paragraph (a) if the court finds that the person is indigent and does not have the ability to pay the fine or if the court finds that the person does not have the ability to pay the fine whether or not the person is indigent.

59 (7) In addition to any other penalty provided by law, if a minor is found to have committed a delinquent act under this section for placing graffiti on any public property or private property, and:

(a) The minor is eligible by reason of age for a driver's license or driving privilege, the court shall direct the Department of Highway Safety and Motor Vehicles to revoke or withhold issuance of the minor's driver's license or driving privilege for not more than 1 year.

(b) The minor's driver's license or driving privilege is under suspension or revocation for any reason, the court shall direct the Department of Highway Safety and Motor Vehicles to extend the period of suspension or revocation by an additional period of not more than 1 year.

(c) The minor is ineligible by reason of age for a driver's license or driving privilege, the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of the minor's driver's license or driving privilege for not more than 1 year after the date on which he or she would otherwise have become eligible.

(8) A minor whose driver's license or driving privilege is revoked, suspended, or withheld under subsection (7) may elect to reduce the period of revocation, suspension, or withholding by performing community service at the rate of 1 day for each hour of community service performed. In addition, if the court determines that due to a family hardship, the minor's driver's license or driving privilege is necessary for employment or medical purposes of the minor or a member of the minor's family, the court shall order the minor to perform community service and reduce the period of revocation, suspension, or withholding at the rate of 1 day for each hour of community service performed. As used in this subsection, the term "community service" means cleaning graffiti from public property.

(9) Because of the difficulty of confronting the blight of graffiti, it is the intent of the Legislature that municipalities and counties not be preempted by state law from establishing ordinances that prohibit the marking of graffiti or other graffiti-related offenses. Furthermore, as related to graffiti, such municipalities and counties are not preempted by state law from establishing higher penalties than those provided by state law and mandatory penalties when state law provides discretionary penalties. Such higher and mandatory penalties include fines that do not exceed the amount specified in ss. 125.69 and 162.21, community service, restitution, and forfeiture. Upon a finding that a juvenile has violated a graffiti-related ordinance, a court acting under chapter 985 may not provide a disposition of the case which is less severe than any mandatory penalty prescribed by municipal or county ordinance for such violation.

BURGLARY Florida Statutes Section 810.02

810.02 Burglary.--

(1) (a) For offenses committed on or before July 1, 2001, "burglary" means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(b) For offenses committed after July 1, 2001, "burglary" means:

1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or

2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:

a. Surreptitiously, with the intent to commit an offense therein;

60 b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or

c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person; or

(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or

(c) Enters an occupied or unoccupied dwelling or structure, and:

1. Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damages the dwelling or structure; or

2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

(c) Structure, and there is another person in the structure at the time the offender enters or remains;

(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains; or

(e) Authorized emergency vehicle, as defined in s. 316.003. However, if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(4) Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Structure, and there is not another person in the structure at the time the offender enters or remains; or

61 (b) Conveyance, and there is not another person in the conveyance at the time the offender enters or remains. However, if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

TRESPASS Florida Statutes Section 810.011, 810.08 and 810.10

810.011 Definitions.--As used in this chapter:

(1) "Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term means a building of any kind or such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

(2) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

(3) "Conveyance" means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and "to enter a conveyance" includes taking apart any portion of the conveyance. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term "conveyance" means a motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car or such portions thereof as exist.

(4) An act is committed "in the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

(5) (a) "Posted land" is that land upon which:

1. Signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words "no trespassing" and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line; or

2. a. Conspicuous no trespassing notice is painted on trees or posts on the property, provided that the notice is:

(I) Painted in an international orange color and displaying the stenciled words "No Trespassing" in letters no less than 2 inches high and 1 inch wide either vertically or horizontally;

62 (II) Placed so that the bottom of the painted notice is not less than 3 feet from the ground or more than 5 feet from the ground; and

(III) Placed at locations that are readily visible to any person approaching the property and no more than 500 feet apart on agricultural land.

b. Beginning October 1, 2007, when a landowner uses the painted no trespassing posting to identify a "no trespassing" area, those painted notices shall be accompanied by signs complying with subparagraph 1. and placed conspicuously at all places where entry to the property is normally expected or known to occur.

(b) It shall not be necessary to give notice by posting on any enclosed land or place not exceeding 5 acres in area on which there is a dwelling house in order to obtain the benefits of ss. 810.09 and 810.12 pertaining to trespass on enclosed lands.

(6) "Cultivated land" is that land which has been cleared of its natural vegetation and is presently planted with a crop, orchard, grove, pasture, or trees or is fallow land as part of a crop rotation.

(7) "Fenced land" is that land which has been enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, steel, barbed wire, other wire, or other material, which stands at least 3 feet in height. For the purpose of this chapter, it shall not be necessary to fence any boundary or part of a boundary of any land which is formed by water.

(8) Where lands are posted, cultivated, or fenced as described herein, then said lands, for the purpose of this chapter, shall be considered as enclosed and posted.

(9) "Litter" means any garbage, rubbish, trash, refuse, debris, can, bottle, box, container, paper, tobacco product, tire, domestic or commercial appliance, mechanical equipment or part, building or construction material, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, or farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.

(10) "Dump" means to dump, throw, discard, place, deposit, or dispose of any litter.

(11) "Commercial horticulture property" means any property that is cleared of its natural vegetation and is planted in commercially cultivated horticulture products that are planted, grown, or harvested. The term also includes property that is used for the commercial sale, use, or distribution of horticulture products.

(12) "Agricultural chemicals manufacturing facility" means any facility, and any properties or structures associated with the facility, used for the manufacture, processing, or storage of agricultural chemicals classified in Industry Group 287 contained in the Standard Industrial Classification Manual, 1987, as published by the Office of Management and Budget, Executive Office of the President.

(13) "Construction site" means any property upon which there is construction that is subject to building permit posting requirements.

810.08 Trespass in structure or conveyance.--

(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

(2) (a) Except as otherwise provided in this subsection, trespass in a structure or conveyance is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

63 (b) If there is a human being in the structure or conveyance at the time the offender trespassed, attempted to trespass, or was in the structure or conveyance, the trespass in a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and he or she reasonably believes that the person to be taken into custody and detained has committed or is committing such violation. In the event a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention by such person, if done in compliance with the requirements of this paragraph, shall not render such person criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

(3) As used in this section, the term "person authorized" means any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare.

810.10 Posted land; removing notices unlawful; penalty.--

(1) It is unlawful for any person to willfully remove, destroy, mutilate, or commit any act designed to remove, mutilate, or reduce the legibility or effectiveness of any posted notice placed by the owner, tenant, lessee, or occupant of legally enclosed or legally posted land pursuant to any law of this state for the purpose of legally enclosing the same.

(2) Any person violating the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

BREAKING OR INJURING FENCES Florida Statutes Section 810.115

810.115 Breaking or injuring fences. –

(1) Whoever willfully and maliciously breaks down, mars, injures, defaces, cuts, or otherwise creates or causes to be created an opening, gap, interruption, or break in any fence, or any part thereof, belonging to or enclosing land not his or her own, or whoever causes to be broken down, marred, injured, defaced, or cut any fence belonging to or enclosing land not his or her own, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who commits a second or subsequent offense under this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(2) If the offender breaks or injures a fence as provided in subsection (1) and the fence or any part thereof is used to contain animals at the time of the offense, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) The court may require full compensation to the owner of the fence for any and all damages or losses resulting directly or indirectly from the act or commission pursuant to s. 775.089

THEFT Florida Statutes Section 812.014 812.014 Theft.--

64 (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

(2) (a) 1. If the property stolen is valued at $100,000 or more or is a semitrailer that was deployed by a law enforcement officer; or

2. If the property stolen is cargo valued at $50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or

3. If the offender commits any grand theft and:

a. In the course of committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; or

b. In the course of committing the offense the offender causes damage to the real or personal property of another in excess of $1,000, the offender commits grand theft in the first degree, punishable as a felony of the first degree, as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) 1. If the property stolen is valued at $20,000 or more, but less than $100,000;

2. The property stolen is cargo valued at less than $50,000 that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock;

3. The property stolen is emergency medical equipment, valued at $300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401; or

4. The property stolen is law enforcement equipment, valued at $300 or more, that is taken from an authorized emergency vehicle, as defined in s. 316.003, the offender commits grand theft in the second degree, punishable as a felony of the second degree, as provided in s. 775.082, s. 775.083, or s. 775.084. Emergency medical equipment means mechanical or electronic apparatus used to provide emergency services and care as defined in s. 395.002(9) or to treat medical emergencies. Law enforcement equipment means any property, device, or apparatus used by any law enforcement officer as defined in s. 943.10 in the officer's official business. However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the theft is committed after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the theft is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this paragraph, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

65 1. Valued at $300 or more, but less than $5,000.

2. Valued at $5,000 or more, but less than $10,000.

3. Valued at $10,000 or more, but less than $20,000.

4. A will, codicil, or other testamentary instrument.

5. A firearm.

6. A motor vehicle, except as provided in paragraph (a).

7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed.

8. Any fire extinguisher.

9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.

10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).

11. Any stop sign.

12. Anhydrous ammonia. However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the property is stolen after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property is valued at $5,000 or more, but less than $10,000, as provided under subparagraph 2., or if the property is valued at $10,000 or more, but less than $20,000, as provided under subparagraph 3. As used in this paragraph, the term "conditions arising from the emergency" means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or the response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(d) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1).

(e) Except as provided in paragraph (d), if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree, as provided in s. 775.082 or s. 775.083.

(3) (a) Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and as provided in subsection (5), as applicable.

(b) A person who commits petit theft and who has previously been convicted of any theft commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

66 (d) 1. Every judgment of guilty or not guilty of a petit theft shall be in writing, signed by the judge, and recorded by the clerk of the circuit court. The judge shall cause to be affixed to every such written judgment of guilty of petit theft, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge's signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect:

"I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, _____, and that they were placed thereon by said defendant in my presence, in open court, this the _____ day of _____, (year) ."

Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word "Judge."

2. Any such written judgment of guilty of a petit theft, or a certified copy thereof, is admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge are the fingerprints of the defendant against whom such judgment of guilty of a petit theft was rendered.

(4) Failure to comply with the terms of a lease when the lease is for a term of 1 year or longer shall not constitute a violation of this section unless demand for the return of the property leased has been made in writing and the lessee has failed to return the property within 7 days of his or her receipt of the demand for return of the property. A demand mailed by certified or registered mail, evidenced by return receipt, to the last known address of the lessee shall be deemed sufficient and equivalent to the demand having been received by the lessee, whether such demand shall be returned undelivered or not.

(5) (a) No person shall drive a motor vehicle so as to cause it to leave the premises of an establishment at which gasoline offered for retail sale was dispensed into the fuel tank of such motor vehicle unless the payment of authorized charge for the gasoline dispensed has been made.

(b) In addition to the penalties prescribed in paragraph (3)(a), every judgment of guilty of a petit theft for property described in this subsection shall provide for the suspension of the convicted person's driver's license. The court shall forward the driver's license to the Department of Highway Safety and Motor Vehicles in accordance with s. 322.25.

1. The first suspension of a driver's license under this subsection shall be for a period of up to 6 months.

2. The second or subsequent suspension of a driver's license under this subsection shall be for a period of 1 year.

(6) A person who individually, or in concert with one or more other persons, coordinates the activities of one or more persons in committing theft under this section where the stolen property has a value in excess of $3,000 commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

VIOLATIONS INVOLVING CHECKS AND DRAFTS Florida Statutes Sections 832.05 and 832.07

832.05 Giving worthless checks, drafts, and debit card orders; penalty; duty of drawee; evidence; costs; complaint form.--

(1) PURPOSE.--The purpose of this section is to remedy the evil of giving checks, drafts, bills of exchange, debit card orders, and other orders on banks without first providing funds in or credit with the depositories on which the same are made or drawn to pay and satisfy the same, which tends to create the circulation

67 of worthless checks, drafts, bills of exchange, debit card orders, and other orders on banks, bad banking, check kiting, and a mischief to trade and commerce.

(2) WORTHLESS CHECKS, DRAFTS, OR DEBIT CARD ORDERS; PENALTY.--

(a) It is unlawful for any person, firm, or corporation to draw, make, utter, issue, or deliver to another any check, draft, or other written order on any bank or depository, or to use a debit card, for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing, or delivering such check or draft, or at the time of using such debit card, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation; except that this section does not apply to any check when the payee or holder knows or has been expressly notified prior to the drawing or uttering of the check, or has reason to believe, that the drawer did not have on deposit or to the drawer's credit with the drawee sufficient funds to ensure payment as aforesaid, nor does this section apply to any postdated check.

(b) A violation of the provisions of this subsection constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the check, draft, debit card order, or other written order drawn, made, uttered, issued, or delivered is in the amount of $150, or its equivalent, or more and the payee or a subsequent holder thereof receives something of value therefor. In that event, the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) CASHING OR DEPOSITING ITEM WITH INTENT TO DEFRAUD; PENALTY.--

(a) It is unlawful for any person, by act or common scheme, to cash or deposit any item, as defined in s. 674.104(1)(i), in any bank or depository with intent to defraud.

(b) A violation of the provisions of this subsection constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) OBTAINING PROPERTY OR SERVICES IN RETURN FOR WORTHLESS CHECKS, DRAFTS, OR DEBIT CARD ORDERS; PENALTY.--

(a) It is unlawful for any person, firm, or corporation to obtain any services, goods, wares, or other things of value by means of a check, draft, or other written order upon any bank, person, firm, or corporation, knowing at the time of the making, drawing, uttering, issuing, or delivering of such check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation. However, no crime may be charged in respect to the giving of any such check or draft or other written order when the payee knows, has been expressly notified, or has reason to believe that the drawer did not have on deposit or to the drawer's credit with the drawee sufficient funds to ensure payment thereof. A payee does not have reason to believe a payor does not have sufficient funds to ensure payment of a check solely because the payor has previously issued a worthless check to him or her.

(b) It is unlawful for any person to use a debit card to obtain money, goods, services, or anything else of value knowing at the time of such use that he or she does not have sufficient funds on deposit with which to pay for the same or that the value thereof exceeds the amount of credit which is available to him or her through an overdraft financing agreement or prearranged line of credit which is accessible by the use of the card.

(c) A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is for an amount less than $150 or its equivalent, constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A violation of the provisions of this subsection, if the check, draft, other written order, or debit card order is in the amount of $150, or its equivalent, or more, constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

68 (5) PAYMENT NO DEFENSE.--Payment of a dishonored check, draft, bill of exchange, or other order does not constitute a defense or ground for dismissal of charges brought under this section.

(6) "CREDIT," "DEBIT CARD" DEFINED.--

(a) The word "credit" as used herein shall be construed to mean an arrangement or understanding with the drawee for the payment of such check, draft, or other written order.

(b) As used in this section, the term "debit card" means a card, code, or other device, other than a check, draft, or similar paper instrument, by the use of which a person may order, instruct, or authorize a financial institution to debit a demand deposit, savings deposit, or other asset account.

(7) REASON FOR DISHONOR, DUTY OF DRAWEE.--It is the duty of the drawee of any check, draft, or other written order, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto the reason for the drawee's dishonor or refusal to pay it. In any prosecution under this section, the introduction in evidence of any unpaid and dishonored check, draft, or other written order having the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, is prima facie evidence of the making or uttering of such check, draft, or other written order, of the due presentation to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped, or attached by the drawee on such dishonored check, draft, or other written order. As against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft, or other written order of the funds on deposit with such drawee necessary to ensure payment of such check, draft, or other written order upon presentation within a reasonable time after negotiation or the drawing, making, uttering, or delivering of a check, draft, or written order, payment of which is refused by the drawee, is prima facie evidence of knowledge of insufficient funds in or credit with such drawee. However, if it is determined at the trial in a prosecution hereunder that the payee of any such check, draft, or written order, at the time of accepting such check, draft, or written order, had knowledge of or reason to believe that the drawer of such check, draft, or other written order did not have sufficient funds on deposit in or credit with such drawee, then the payee instituting such criminal prosecution shall be assessed all costs of court incurred in connection with such prosecution.

(8) COSTS.--When a prosecution is initiated under this section before any committing trial court judge, the party applying for the warrant shall be held liable for costs accruing in the event the case is dismissed for want of prosecution. No costs shall be charged to the county in such dismissed cases.

(9) STATE ATTORNEYS; WORTHLESS CHECKS; FORM OF COMPLAINT.--The state attorneys of Florida shall collectively promulgate a single form to be used in all judicial circuits by persons reporting a violation of this chapter.

(10) CONSTRUCTION; PAYEE OR HOLDER; INSUFFICIENT FUNDS.--For the purposes of construction of this section, a payee or holder does not have knowledge, express notification, or reason to believe that the maker or drawer has insufficient funds to ensure payment of a check, draft, or debit card solely because the maker or drawer has previously drawn or issued a worthless check, draft, or debit card order to the payee or holder. 832.07 Prima facie evidence of intent; identity.--

(1) INTENT.-- (a) In any prosecution or action under this chapter, the making, drawing, uttering, or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud or knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company, or other depository, unless such maker or drawer, or someone for him or her, shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed the service fees authorized under s. 832.08(5) or an amount of up to 5 percent of the face amount of the check, whichever is greater, within 15 days after written notice has been sent to the address printed on the check or given at the time of issuance that such check, draft, or order has not been paid to the holder

69 thereof, and bank fees incurred by the holder. In the event of legal action for recovery, the maker or drawer may be additionally liable for court costs and reasonable attorney's fees. Notice mailed by certified or registered mail, evidenced by return receipt, or by first-class mail, evidenced by an affidavit of service of mail, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The form of such notice shall be substantially as follows:

"You are hereby notified that a check, numbered _____, in the face amount of $_____, issued by you on (date) , drawn upon (name of bank) , and payable to _____, has been dishonored. Pursuant to Florida law, you have 15 days from the date of this notice to tender payment of the full amount of such check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $_____ and _____ cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50, together with the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065."

Subsequent persons receiving a check, draft, or order from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, provided such subsequent persons give notice in a substantially similar form to that provided above. Subsequent persons providing such notice shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice, so long as the maker of the instrument has the same defenses against these subsequent persons as against the original payee. However, the remedies available under this section may be exercised only by one party in interest.

(b) When a check is drawn on a bank in which the maker or drawer has no account or a closed account, it shall be presumed that such check was issued with intent to defraud, and the notice requirement set forth in this section shall be waived.

(2) IDENTITY.--

(a) In any prosecution or action under the provisions of this chapter, a check, draft, or order for which the information required in paragraph (b), paragraph (d), paragraph (e), or paragraph (f) is available at the time of issuance constitutes prima facie evidence of the identity of the person issuing the check, draft, or order and that such person is authorized to draw upon the named account.

(b) To establish this prima facie evidence:

1. The driver's license number or state identification number, specifying the state of issuance of the person presenting the check must be written on the check; or

2. The following information regarding the identity of the person presenting the check must be obtained by the person accepting such check: The presenter's full name, residence address, home phone number, business phone number, place of employment, sex, date of birth, and height.

(c) The information required in subparagraph (b)2. may be provided by either of two methods:

1. The information may be recorded on the check; or

2. The number of a check-cashing identification card issued by the accepter of the check may be recorded on the check. In order to be used to establish identity, such check-cashing identification card may not be issued until the information required in subparagraph (b)2. has been placed on file with the accepter of the check.

70 (d) If a check is received by a payee through the mail or by delivery to a representative of the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the original contract, order, or request for services that the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. which is on file with the accepter of the check together with the signature of the person presenting the check.

(e) If a check is received by a payee and the drawer or maker has a check-cashing identification card on file with the payee, the prima facie evidence referred to in paragraph (a) may be established by presenting the signature found on the check-cashing identification card bearing the signature of the person who signed the check.

(f) If a check is received by the Department of Revenue through the mail or by delivery to a representative of the Department of Revenue, the prima facie evidence referred to in paragraph (a) may be established by presenting the original tax return, certificate, license, application for certificate or license, or other document relating to amounts owed by that person or taxpayer which the check purports to pay for, bearing the signature of the person who signed the check, or by presenting a copy of the information required in subparagraph (b)2. which is on file with the accepter of the check together with the signature of the person presenting the check. The use of taxpayer information for purposes of establishing the identity of a person pursuant to this paragraph shall be considered a use of such information for official purposes.

FICTITIOUS NAME STATUTE Florida Statutes Section 865.09

865.09 Fictitious name registration.--

(1) SHORT TITLE.--This section may be cited as the "Fictitious Name Act."

(2) DEFINITIONS.--As used in this section:

(a) "Fictitious name" means any name under which a person transacts business in this state, other than the person's legal name.

(b) "Business" means any enterprise or venture in which a person sells, buys, exchanges, barters, deals, or represents the dealing in any thing or article of value, or renders services for compensation.

(c) "Division" means the Division of Corporations of the Department of State.

(3) REGISTRATION.--A person may not engage in business under a fictitious name unless the person first registers the name with the division by filing a sworn statement listing:

(a) The name to be registered.

(b) The mailing address of the business.

(c) The name and address of each owner and, if a corporation, its federal employer's identification number and Florida incorporation or registration number.

(d) Certification by the applicant that the intention to register such fictitious name has been advertised at least once in a newspaper as defined in chapter 50 in the county where the principal place of business of the applicant will be located.

(e) Any other information the division may deem necessary to adequately inform other governmental agencies and the public as to the persons so conducting business. Such statement shall be accompanied by the applicable processing fees and any other taxes or penalties owed to the state.

71 (4) CHANGE OF OWNERSHIP.--If the ownership of a business registered under this section changes, the owner of record with the division shall file a cancellation and reregistration that meets the requirements set forth in subsection (3) within 30 days after the occurrence of such change.

(5) TERM.--A fictitious name registered under this section shall be valid for a period of 5 years and expires on December 31 of the 5th year.

(6) RENEWAL.--

(a) Renewal of a fictitious name registration shall occur on or after January 1 and on or before December 31 of the expiration year. Upon timely filing of a renewal statement, the effectiveness of the name registration is continued for 5 years as provided in subsection (5).

(b) In the last year of the registration, the division shall notify the owner or registrant of the expiration of the fictitious name. If the owner or registrant of the fictitious name has provided the department with an electronic mail address, such notice shall be by electronic transmission.

(c) If the owner of the name registration fails to file a renewal and pay the appropriate processing fees prior to December 31 of the year of expiration, the name registration expires. The division shall remove any expired or canceled name registration from its records and may purge such registrations. Failure to receive the statement of renewal required by paragraph (b) shall not constitute grounds for appeal of a registration's expiration or removal from the division's records.

(7) EXEMPTIONS.--A business formed by an attorney actively licensed to practice law in this state, by a person actively licensed by the Department of Business and Professional Regulation or the Department of Health for the purpose of practicing his or her licensed profession, or by any corporation, partnership, or other commercial entity that is actively organized or registered with the Department of State is not required to register its name pursuant to this section, unless the name under which business is to be conducted differs from the name as licensed or registered.

(8) EFFECT OF REGISTRATION.--Notwithstanding the provisions of any other law, registration under this section is for public notice only, and gives rise to no presumption of the registrant's rights to own or use the name registered, nor does it affect trademark, service mark, trade name, or corporate name rights previously acquired by others in the same or a similar name. Registration under this section does not reserve a fictitious name against future use.

(9) PENALTIES.--

(a) If a business fails to comply with this section, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with. An action, suit, or proceeding may not be maintained in any court of this state by any successor or assignee of such business on any right, claim, or demand arising out of the transaction of business by such business in this state until this section has been complied with.

(b) The failure of a business to comply with this section does not impair the validity of any contract, deed, mortgage, security interest, lien, or act of such business and does not prevent such business from defending any action, suit, or proceeding in any court of this state. However, a party aggrieved by a noncomplying business may be awarded reasonable attorney's fees and court costs necessitated by the noncomplying business.

(c) Any person who fails to comply with this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(10) POWERS OF DEPARTMENT.--The Department of State is granted the power reasonably necessary to enable it to administer this section efficiently, to perform the duties herein imposed upon it, and to adopt reasonable rules necessary to carry out its duties and functions under this section.

72 (11) FORMS.--Registration, cancellation, and renewal shall be made on forms prescribed by the Department of State, which may include the uniform business report, pursuant to s. 606.06, as a means of satisfying the requirement of this 1part.

(12) PROCESSING FEES.--The Department of State shall charge and collect nonrefundable processing fees as follows:

(a) For registration of a fictitious name, $50.

(b) For cancellation and reregistration of a fictitious name, $50.

(c) For renewal of a fictitious name, $50.

(d) For furnishing a certified copy of a fictitious name document, $30.

(e) For furnishing a certificate of status, $10.

(13) DEPOSIT OF FUNDS.--All funds required to be paid to the Department of State pursuant to this section shall be collected and deposited into the General Revenue Fund.

(14) PROHIBITION.--A fictitious name registered as provided in this section may not contain the words "Corporation" or "Incorporated," or the abbreviations "Corp." or "Inc.," unless the person or business for which the name is registered is incorporated or has obtained a certificate of authority to transact business in this state pursuant to chapter 607 or chapter 617.

(15) LEGAL DESIGNATION OF ENTITY.--Notwithstanding any other provision of law to the contrary, a fictitious name registered as provided in this section for a corporation, limited liability company, limited liability partnership, or limited partnership is not required to contain the designation of the type of legal entity in which the person or business is organized, including the terms "corporation," "limited liability company," "limited liability partnership," "limited partnership," or any abbreviation or derivative thereof.

1Note.--Chapter 865 is not divided into parts.

73 U. S. BANKRUPTCY CODE

Sec. 362. - Automatic stay

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and (8) the commencement or continuation of a proceeding before the United States Tax Court concerning a corporate debtor’s tax liability for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title.

(b) The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970, does not operate as a stay—

(1) under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor; (2) under subsection (a)—

(A) of the commencement or continuation of a civil action or proceeding—

(i) for the establishment of paternity; (ii) for the establishment or modification of an order for domestic support obligations; (iii) concerning child custody or visitation; (iv) for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate; or (v) regarding domestic violence;

(B) of the collection of a domestic support obligation from property that is not property of the estate; (C) with respect to the withholding of income that is property of the estate or property of the debtor for payment of a domestic support obligation under a judicial or administrative order or a statute;

74 (D) of the withholding, suspension, or restriction of a driver’s license, a professional or occupational license, or a recreational license, under State law, as specified in section 466(a)(16) of the Social Security Act; (E) of the reporting of overdue support owed by a parent to any consumer reporting agency as specified in section 466(a)(7) of the Social Security Act; (F) of the interception of a tax refund, as specified in sections 464 and 466(a)(3) of the Social Security Act or under an analogous State law; or (G) of the enforcement of a medical obligation, as specified under title IV of the Social Security Act;

(3) under subsection (a) of this section, of any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546 (b) of this title or to the extent that such act is accomplished within the period provided under section 547 (e)(2)(A) of this title; (4) under paragraph (1), (2), (3), or (6) of subsection (a) of this section, of the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature on January 13, 1993, to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power; [(5) Repealed. Pub. L. 105–277, div. I, title VI, § 603(1), Oct. 21, 1998, 112 Stat. 2681–866;] (6) under subsection (a) of this section, of the exercise by a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency of any contractual right (as defined in section 555 or 556) under any security agreement or arrangement or other credit enhancement forming a part of or related to any commodity contract, forward contract or securities contract, or of any contractual right (as defined in section 555 or 556) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such contracts, including any master agreement for such contracts; (7) under subsection (a) of this section, of the exercise by a repo participant or financial participant of any contractual right (as defined in section 559) under any security agreement or arrangement or other credit enhancement forming a part of or related to any repurchase agreement, or of any contractual right (as defined in section 559) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such agreements, including any master agreement for such agreements; (8) under subsection (a) of this section, of the commencement of any action by the Secretary of Housing and Urban Development to foreclose a mortgage or deed of trust in any case in which the mortgage or deed of trust held by the Secretary is insured or was formerly insured under the National Housing Act and covers property, or combinations of property, consisting of five or more living units; (9) under subsection (a), of—

(A) an audit by a governmental unit to determine tax liability; (B) the issuance to the debtor by a governmental unit of a notice of tax deficiency; (C) a demand for tax returns; or (D) the making of an assessment for any tax and issuance of a notice and demand for payment of such an assessment (but any tax lien that would otherwise attach to property of the estate by reason of such an assessment shall not take effect unless such tax is a debt of the debtor that will not be discharged in the case and such property or its proceeds are transferred out of the estate to, or otherwise revested in, the debtor).

(10) under subsection (a) of this section, of any act by a lessor to the debtor under a lease of nonresidential real property that has terminated by the expiration of the stated term of the lease before the commencement of or during a case under this title to obtain possession of such property;

75 (11) under subsection (a) of this section, of the presentment of a negotiable instrument and the giving of notice of and protesting dishonor of such an instrument; (12) under subsection (a) of this section, after the date which is 90 days after the filing of such petition, of the commencement or continuation, and conclusion to the entry of final judgment, of an action which involves a debtor subject to reorganization pursuant to chapter 11 of this title and which was brought by the Secretary of Transportation under section 31325 of title 46 (including distribution of any proceeds of sale) to foreclose a preferred ship or fleet mortgage, or a security interest in or relating to a vessel or vessel under construction, held by the Secretary of Transportation under chapter 537 of title 46 or section 109 (h) of title 49, or under applicable State law; (13) under subsection (a) of this section, after the date which is 90 days after the filing of such petition, of the commencement or continuation, and conclusion to the entry of final judgment, of an action which involves a debtor subject to reorganization pursuant to chapter 11 of this title and which was brought by the Secretary of Commerce under section 31325 of title 46 (including distribution of any proceeds of sale) to foreclose a preferred ship or fleet mortgage in a vessel or a mortgage, deed of trust, or other security interest in a fishing facility held by the Secretary of Commerce under chapter 537 of title 46; (14) under subsection (a) of this section, of any action by an accrediting agency regarding the accreditation status of the debtor as an educational institution; (15) under subsection (a) of this section, of any action by a State licensing body regarding the licensure of the debtor as an educational institution; 16) under subsection (a) of this section, of any action by a guaranty agency, as defined in section 435(j) of the Higher Education Act of 1965 or the Secretary of Education regarding the eligibility of the debtor to participate in programs authorized under such Act; (17) under subsection (a) of this section, of the exercise by a swap participant or financial participant of any contractual right (as defined in section 560) under any security agreement or arrangement or other credit enhancement forming a part of or related to any swap agreement, or of any contractual right (as defined in section 560) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such agreements, including any master agreement for such agreements; (18) under subsection (a) of the creation or perfection of a statutory lien for an ad valorem property tax, or a special tax or special assessment on real property whether or not ad valorem, imposed by a governmental unit, if such tax or assessment comes due after the date of the filing of the petition; (19) under subsection (a), of withholding of income from a debtor’s wages and collection of amounts withheld, under the debtor’s agreement authorizing that withholding and collection for the benefit of a pension, profit-sharing, stock bonus, or other plan established under section 401, 403, 408, 408A, 414, 457, or 501(c) of the Internal Revenue Code of 1986, that is sponsored by the employer of the debtor, or an affiliate, successor, or predecessor of such employer—

(A) to the extent that the amounts withheld and collected are used solely for payments relating to a loan from a plan under section 408(b)(1) of the Employee Retirement Income Security Act of 1974 or is subject to section 72(p) of the Internal Revenue Code of 1986; or (B) a loan from a thrift savings plan permitted under subchapter III of chapter 84 of title 5, that satisfies the requirements of section 8433(g) of such title; but nothing in this paragraph may be construed to provide that any loan made under a governmental plan under section 414 (d), or a contract or account under section 403(b), of the Internal Revenue Code of 1986 constitutes a claim or a debt under this title;

(20) under subsection (a), of any act to enforce any lien against or security interest in real property following entry of the order under subsection (d)(4) as to such real property in any prior case under this title, for a period of 2 years after the date of the entry of such an order, except that the debtor, in a subsequent case under this title, may move for relief from such order based upon changed circumstances or for other good cause shown, after notice and a hearing; (21) under subsection (a), of any act to enforce any lien against or security interest in real property —

76 (A) if the debtor is ineligible under section 109 (g) to be a debtor in a case under this title; or (B) if the case under this title was filed in violation of a bankruptcy court order in a prior case under this title prohibiting the debtor from being a debtor in another case under this title;

(22) subject to subsection (l), under subsection (a)(3), of the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor; (23) subject to subsection (m), under subsection (a)(3), of an eviction action that seeks possession of the residential property in which the debtor resides as a tenant under a lease or rental agreement based on endangerment of such property or the illegal use of controlled substances on such property, but only if the lessor files with the court, and serves upon the debtor, a certification under penalty of perjury that such an eviction action has been filed, or that the debtor, during the 30-day period preceding the date of the filing of the certification, has endangered property or illegally used or allowed to be used a controlled substance on the property; (24) under subsection (a), of any transfer that is not avoidable under section 544 and that is not avoidable under section 549; (25) under subsection (a), of—

(A) the commencement or continuation of an investigation or action by a securities self regulatory organization to enforce such organization’s regulatory power; (B) the enforcement of an order or decision, other than for monetary sanctions, obtained in an action by such securities self regulatory organization to enforce such organization’s regulatory power; or (C) any act taken by such securities self regulatory organization to delist, delete, or refuse to permit quotation of any stock that does not meet applicable regulatory requirements;

(26) under subsection (a), of the setoff under applicable nonbankruptcy law of an income tax refund, by a governmental unit, with respect to a taxable period that ended before the date of the order for relief against an income tax liability for a taxable period that also ended before the date of the order for relief, except that in any case in which the setoff of an income tax refund is not permitted under applicable nonbankruptcy law because of a pending action to determine the amount or legality of a tax liability, the governmental unit may hold the refund pending the resolution of the action, unless the court, on the motion of the trustee and after notice and a hearing, grants the taxing authority adequate protection (within the meaning of section 361) for the secured claim of such authority in the setoff under section 506 (a); (27) under subsection (a) of this section, of the exercise by a master netting agreement participant of any contractual right (as defined in section 555, 556, 559, or 560) under any security agreement or arrangement or other credit enhancement forming a part of or related to any master netting agreement, or of any contractual right (as defined in section 555, 556, 559, or 560) to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more such master netting agreements to the extent that such participant is eligible to exercise such rights under paragraph (6), (7), or (17) for each individual contract covered by the master netting agreement in issue; and (28) under subsection (a), of the exclusion by the Secretary of Health and Human Services of the debtor from participation in the Medicare program or any other Federal health care program (as defined in section 1128B(f) of the Social Security Act pursuant to title XI or XVIII of such Act).

The provisions of paragraphs (12) and (13) of this subsection shall apply with respect to any such petition filed on or before December 31, 1989.

(c) Except as provided in subsections (d), (e), (f), and (h) of this section—

77 (1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; (2) the stay of any other act under subsection (a) of this section continues until the earliest of—

(A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under chapter 7 of this title concerning an individual or a case under chapter 9, 11, 12, or 13 of this title, the time a discharge is granted or denied;

(3) if a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707 (b)—

(A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case; (B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; and (C) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)—

(i) as to all creditors, if—

(I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to—

(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or

(III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded—

(aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and

(ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such

78 case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor; and

(4) (A) (i) if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under section 707 (b), the stay under subsection (a) shall not go into effect upon the filing of the later case; and (ii) on request of a party in interest, the court shall promptly enter an order confirming that no stay is in effect;

(B) if, within 30 days after the filing of the later case, a party in interest requests the court may order the stay to take effect in the case as to any or all creditors (subject to such conditions or limitations as the court may impose), after notice and a hearing, only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; (C) a stay imposed under subparagraph (B) shall be effective on the date of the entry of the order allowing the stay to go into effect; and (D) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)—

(i) as to all creditors if—

(I) 2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period; (II) a previous case under this title in which the individual was a debtor was dismissed within the time period stated in this paragraph after the debtor failed to file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney), failed to provide adequate protection as ordered by the court, or failed to perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under this title, or any other reason to conclude that the later case will not be concluded, if a case under chapter 7, with a discharge, and if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; or

(ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, such action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to such action of such creditor.

(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—

(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; (2) with respect to a stay of an act against property under subsection (a) of this section, if—

(A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization;

79 (3) with respect to a stay of an act against single asset real estate under subsection (a), by a creditor whose claim is secured by an interest in such real estate, unless, not later than the date that is 90 days after the entry of the order for relief (or such later date as the court may determine for cause by order entered within that 90-day period) or 30 days after the court determines that the debtor is subject to this paragraph, whichever is later—

(A) the debtor has filed a plan of reorganization that has a reasonable possibility of being confirmed within a reasonable time; or (B) the debtor has commenced monthly payments that—

(i) may, in the debtor’s sole discretion, notwithstanding section 363 (c)(2), be made from rents or other income generated before, on, or after the date of the commencement of the case by or from the property to each creditor whose claim is secured by such real estate (other than a claim secured by a judgment lien or by an unmatured statutory lien); and (ii) are in an amount equal to interest at the then applicable nondefault contract rate of interest on the value of the creditor’s interest in the real estate; or

(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scheme to delay, hinder, and defraud creditors that involved either—

(A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or (B) multiple bankruptcy filings affecting such real property.

If recorded in compliance with applicable State laws governing notices of interests or liens in real property, an order entered under paragraph (4) shall be binding in any other case under this title purporting to affect such real property filed not later than 2 years after the date of the entry of such order by the court, except that a debtor in a subsequent case under this title may move for relief from such order based upon changed circumstances or for good cause shown, after notice and a hearing. Any Federal, State, or local governmental unit that accepts notices of interests or liens in real property shall accept any certified copy of an order described in this subsection for indexing and recording.

(e) (1) Thirty days after a request under subsection (d) of this section for relief from the stay of any act against property of the estate under subsection (a) of this section, such stay is terminated with respect to the party in interest making such request, unless the court, after notice and a hearing, orders such stay continued in effect pending the conclusion of, or as a result of, a final hearing and determination under subsection (d) of this section. A hearing under this subsection may be a preliminary hearing, or may be consolidated with the final hearing under subsection (d) of this section. The court shall order such stay continued in effect pending the conclusion of the final hearing under subsection (d) of this section if there is a reasonable likelihood that the party opposing relief from such stay will prevail at the conclusion of such final hearing. If the hearing under this subsection is a preliminary hearing, then such final hearing shall be concluded not later than thirty days after the conclusion of such preliminary hearing, unless the 30-day period is extended with the consent of the parties in interest or for a specific time which the court finds is required by compelling circumstances. (2) Notwithstanding paragraph (1), in a case under chapter 7, 11, or 13 in which the debtor is an individual, the stay under subsection (a) shall terminate on the date that is 60 days after a request is made by a party in interest under subsection (d), unless—

(A) a final decision is rendered by the court during the 60-day period beginning on the date of the request; or (B) such 60-day period is extended—

80 (i) by agreement of all parties in interest; or (ii) by the court for such specific period of time as the court finds is required for good cause, as described in findings made by the court.

(f) Upon request of a party in interest, the court, with or without a hearing, shall grant such relief from the stay provided under subsection (a) of this section as is necessary to prevent irreparable damage to the interest of an entity in property, if such interest will suffer such damage before there is an opportunity for notice and a hearing under subsection (d) or (e) of this section.

(g) In any hearing under subsection (d) or (e) of this section concerning relief from the stay of any act under subsection (a) of this section—

(1) the party requesting such relief has the burden of proof on the issue of the debtor’s equity in property; and (2) the party opposing such relief has the burden of proof on all other issues.

(h) (1) In a case in which the debtor is an individual, the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521 (a)(2)—

(A) to file timely any statement of intention required under section 521 (a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524 (c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365 (p) if the trustee does not do so, as applicable; and (B) to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms.

(2) Paragraph (1) does not apply if the court determines, on the motion of the trustee filed before the expiration of the applicable time set by section 521 (a)(2), after notice and a hearing, that such personal property is of consequential value or benefit to the estate, and orders appropriate adequate protection of the creditor’s interest, and orders the debtor to deliver any collateral in the debtor’s possession to the trustee. If the court does not so determine, the stay provided by subsection (a) shall terminate upon the conclusion of the hearing on the motion.

(i) If a case commenced under chapter 7, 11, or 13 is dismissed due to the creation of a debt repayment plan, for purposes of subsection (c)(3), any subsequent case commenced by the debtor under any such chapter shall not be presumed to be filed not in good faith.

(j) On request of a party in interest, the court shall issue an order under subsection (c) confirming that the automatic stay has been terminated.

(k) (1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. (2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.

81 (l) (1) Except as otherwise provided in this subsection, subsection (b)(22) shall apply on the date that is 30 days after the date on which the bankruptcy petition is filed, if the debtor files with the petition and serves upon the lessor a certification under penalty of perjury that—

(A) under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment for possession was entered; and (B) the debtor (or an adult dependent of the debtor) has deposited with the clerk of the court, any rent that would become due during the 30-day period after the filing of the bankruptcy petition.

(2) If, within the 30-day period after the filing of the bankruptcy petition, the debtor (or an adult dependent of the debtor) complies with paragraph (1) and files with the court and serves upon the lessor a further certification under penalty of perjury that the debtor (or an adult dependent of the debtor) has cured, under nonbankrupcty [1] law applicable in the jurisdiction, the entire monetary default that gave rise to the judgment under which possession is sought by the lessor, subsection (b)(22) shall not apply, unless ordered to apply by the court under paragraph (3).

(3) (A) If the lessor files an objection to any certification filed by the debtor under paragraph (1) or (2), and serves such objection upon the debtor, the court shall hold a hearing within 10 days after the filing and service of such objection to determine if the certification filed by the debtor under paragraph (1) or (2) is true. (B) If the court upholds the objection of the lessor filed under subparagraph (A)—

(i) subsection (b)(22) shall apply immediately and relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (ii) the clerk of the court shall immediately serve upon the lessor and the debtor a certified copy of the court’s order upholding the lessor’s objection.

(4) If a debtor, in accordance with paragraph (5), indicates on the petition that there was a judgment for possession of the residential rental property in which the debtor resides and does not file a certification under paragraph (1) or (2)—

(A) subsection (b)(22) shall apply immediately upon failure to file such certification, and relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (B) the clerk of the court shall immediately serve upon the lessor and the debtor a certified copy of the docket indicating the absence of a filed certification and the applicability of the exception to the stay under subsection (b)(22).

(5) (A) Where a judgment for possession of residential property in which the debtor resides as a tenant under a lease or rental agreement has been obtained by the lessor, the debtor shall so indicate on the bankruptcy petition and shall provide the name and address of the lessor that obtained that pre-petition judgment on the petition and on any certification filed under this subsection. (B) The form of certification filed with the petition, as specified in this subsection, shall provide for the debtor to certify, and the debtor shall certify—

(i) whether a judgment for possession of residential rental housing in which the debtor resides has been obtained against the debtor before the date of the filing of the petition; and

82 (ii) whether the debtor is claiming under paragraph (1) that under nonbankruptcy law applicable in the jurisdiction, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after that judgment of possession was entered, and has made the appropriate deposit with the court.

(C) The standard forms (electronic and otherwise) used in a bankruptcy proceeding shall be amended to reflect the requirements of this subsection. (D) The clerk of the court shall arrange for the prompt transmittal of the rent deposited in accordance with paragraph (1)(B) to the lessor.

(m) (1) Except as otherwise provided in this subsection, subsection (b)(23) shall apply on the date that is 15 days after the date on which the lessor files and serves a certification described in subsection (b)(23). (2) (A) If the debtor files with the court an objection to the truth or legal sufficiency of the certification described in subsection (b)(23) and serves such objection upon the lessor, subsection (b)(23) shall not apply, unless ordered to apply by the court under this subsection. (B) If the debtor files and serves the objection under subparagraph (A), the court shall hold a hearing within 10 days after the filing and service of such objection to determine if the situation giving rise to the lessor’s certification under paragraph (1) existed or has been remedied. (C) If the debtor can demonstrate to the satisfaction of the court that the situation giving rise to the lessor’s certification under paragraph (1) did not exist or has been remedied, the stay provided under subsection (a)(3) shall remain in effect until the termination of the stay under this section. (D) If the debtor cannot demonstrate to the satisfaction of the court that the situation giving rise to the lessor’s certification under paragraph (1) did not exist or has been remedied— (i) relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to proceed with the eviction; and (ii) the clerk of the court shall immediately serve upon the lessor and the debtor a certified copy of the court’s order upholding the lessor’s certification.

(3) If the debtor fails to file, within 15 days, an objection under paragraph (2)(A)—

(A) subsection (b)(23) shall apply immediately upon such failure and relief from the stay provided under subsection (a)(3) shall not be required to enable the lessor to complete the process to recover full possession of the property; and (B) the clerk of the court shall immediately serve upon the lessor and the debtor a certified copy of the docket indicating such failure.

(n) (1) Except as provided in paragraph (2), subsection (a) does not apply in a case in which the debtor—

(A) is a debtor in a small business case pending at the time the petition is filed; (B) was a debtor in a small business case that was dismissed for any reason by an order that became final in the 2-year period ending on the date of the order for relief entered with respect to the petition; (C) was a debtor in a small business case in which a plan was confirmed in the 2-year period ending on the date of the order for relief entered with respect to the petition; or (D) is an entity that has acquired substantially all of the assets or business of a small business debtor described in subparagraph (A), (B), or (C), unless such entity establishes by a preponderance of the evidence that such entity acquired substantially all of the assets or business of such small business debtor in good faith and not for the purpose of evading this paragraph.

(2) Paragraph (1) does not apply—

83 (A) to an involuntary case involving no collusion by the debtor with creditors; or (B) to the filing of a petition if—

(i) the debtor proves by a preponderance of the evidence that the filing of the petition resulted from circumstances beyond the control of the debtor not foreseeable at the time the case then pending was filed; and (ii) it is more likely than not that the court will confirm a feasible plan, but not a liquidating plan, within a reasonable period of time.

(o) The exercise of rights not subject to the stay arising under subsection (a) pursuant to paragraph (6), (7), (17), or (27) of subsection (b) shall not be stayed by any order of a court or administrative agency in any proceeding under this title.

84 THE AUTOMATIC STAY IN BANKRUPTCY

One of the provisions of the Bankruptcy Code that has the most widespread effect on creditors is the automatic stay provision of Bankruptcy Code (Section 362(a)). It stops virtually all creditor action against the person or business that files bankruptcy (the debtor). A violation of the automatic stay can be punished as a contempt of court.

Sections 365(b) and (e) suspend the effectiveness of most standard bankruptcy and insolvency lease termination clauses for the duration of the bankruptcy. Instead, the tenant has the option to assume, assign or reject the lease as discussed below.

The purpose of the automatic stay is to prevent creditors from taking assets of the debtor or taking any collection action without the permission of the Bankruptcy Court. This preserves the status quo until the bankruptcy trustee has the opportunity to liquidate the assets in a straight bankruptcy case (Chapter 7), or until the debtor has the opportunity to try to rehabilitate its financial affairs in a reorganization case (Chapter 11 for corporations, Chapter 12 for farmers, and Chapter 13 for individuals).

What It Stays

The automatic stay stops the creditor from asking the debtor for payment, making any demands on the debtor, filing suit, prosecuting a pending suit, repossessing collateral, evicting a tenant, perfecting liens or security interests, and enforcing liens. If a creditor has taken possession of collateral such as a car, equipment, or inventory, with or without judicial process, and has not yet disposed of it, the stay stops the creditor from selling or otherwise disposing of the collateral.

If an eviction suit is pending when the bankruptcy case is filed, the stay stops the action, even if the sheriff is on the way to serve the writ of possession and the locksmith is standing by.

If a security deposit has been applied to the account by the Landlord, the security deposit is not involved in the bankruptcy. If it has not been applied at the time the petition is filed, the landlord is a secured creditor to the extent of the deposit, but must seek a lift of the stay to apply the deposit to the account.

The stay does not stop a creditor from taking action against a codebtor or guarantor who has not filed bankruptcy. However, action against a co-debtor on a consumer debt in a Chapter 13 individual reorganization case is stayed.

The Automatic Nature of the Stay

Under Bankruptcy Code Section 362(a) the stay comes into effect automatically upon the filing of a bankruptcy petition. No order is entered by the court staying creditors. The Bankruptcy Code does not require that creditors be given notice of the stay. If a creditor knows that bankruptcy has been filed, the creditor is charged with notice of the existence of the automatic stay. The automatic stay exists in every Chapter of the Bankruptcy Code.

Violation of the Stay

If a creditor willfully violates the automatic stay, it can be required to pay the debtor's actual damages, attorney's fees and punitive damages. Creditors and their attorneys have been required to pay as much as $20,000 and more for violations of the automatic stay. Therefore, if the debtor tells the creditor that the debtor has filed bankruptcy, or the creditor has any information from any other source that the debtor has filed bankruptcy, the creditor should not proceed with collection action unless it checks with the Bankruptcy Court and determines that a bankruptcy case has not been filed.

85 Relief from the Stay

On the day the bankruptcy case is filed, or at any time after that time, a creditor can file a motion for relief from the automatic stay. The statutory grounds for relief are (1) a creditor lacks adequate protection for its interest in its collateral, or (2) there is no equity in the collateral, and it is not necessary for reorganization, or (3) for other cause.

A lien holder lacks adequate protection for its interest in its collateral where the creditor is not receiving current payments, and there is little or no equity in the collateral or the collateral is deteriorating or otherwise declining in value. This is often the case with cars and equipment which depreciate in value as time passes.

Chapter 7

In a Chapter 7 straight liquidating bankruptcy the collateral is never necessary for reorganization because there is no reorganization in a Chapter 7 case. Therefore, in a Chapter 7 case the only fact the creditor needs to prove is lack of equity.

There is often no equity in cars above the lien. The same is true in regard to mortgages on houses where there is no equity or such a small equity that a Chapter 7 trustee would not receive any net proceeds from a sale of the house after deducting the costs of the sale.

Chapter 11

In a Chapter 11 reorganization case, the debtor usually needs to keep the collateral and use it to continue its business enterprise, resulting in a decline in the amount of collateral. The Court will often provide the lien holder on such assets adequate protection by requiring the debtor to make periodic payments to the lien holder, and by giving the creditor a replacement lien on receivables generated and inventory purchased during Chapter 11.

Other Grounds for Relief from Stay

There may be other grounds for relief from the stay. A landlord may want to evict a tenant who is not paying rent or whose lease has expired.

Procedure

A creditor files a motion for relief from stay in the Bankruptcy Court and an order is sent from the judge giving the debtor ten days to respond. This procedure usually takes about two weeks from the day the motion is filed until the tenth day. If the motion is not contested, an order is normally entered in the following week granting the creditor's motion to permit the eviction but not to allow any further collection or enforcement efforts to continue.

If the motion is contested, a preliminary hearing is held. At the preliminary hearing, the judge will either continue the stay and order adequate protection, usually requiring the debtor to bring the post-petition rent to be brought current on a schedule of a few months, or the court will, under some circumstances, order a final evidentiary hearing. The final hearing will usually be scheduled within the following 30 days.

If a final evidentiary hearing is scheduled, the Federal Rules of Bankruptcy Procedure make most of the discovery rules of the Federal Rules of Civil Procedure applicable so that the creditor and the debtor may conduct discovery in preparation for the final hearing. At the final hearing the creditor has the burden of proof on the issue of the debtor's ability to provide adequate protection. The debtor or trustee has the burden of proof on all other issues.

At the final hearing the creditor must present evidence in the form of testimony or documents establishing the facts on which the creditor's motion for relief from stay is based. The Federal Rules of Evidence apply at the hearing.

86 Termination of the Stay Other Than By Motion

When the collateral is no longer property of the bankruptcy estate, as when it has been allowed as exempt or abandoned by the trustee, the stay terminates as to action against that property. So if restaurant equipment is allowed as exempt to the debtor or abandoned by the trustee, the stay terminates as to that property. But there is some case law that holds that when the property thus becomes property of the debtor, the stay still protects the debtor from process.

While the automatic stay has the benefit of preserving the status quo while the debtor attempts to reorganize or while a trustee proceeds to liquidate the assets of the bankruptcy estate, it has a paralyzing effect on creditors who need to pursue eviction, foreclosure, replevin, or other remedies which they are entitled to pursue. While creditors must be careful not to violate the stay, there are ample means for them to try to obtain a modification of the stay so they may pursue their remedies by filing a motion for relief from the stay in the Bankruptcy Court.

Tenant's Options

The tenant may assume, assign or reject the lease. If the lease is rejected, in most cases the landlord's claim for lost future rent is limited to one year's rent under the lease, or if longer, the rent for 15% of the remaining lease term, not to exceed a claim for three years of lost future rent.

A tenant may choose to assume or assign the lease if the tenant (1) cures all defaults under the lease, or provides prompt assurance that the defaults will be cured, and (2) provides adequate assurance of future performance of the lease obligations. Under Section 365(f), the tenant may assign a lease even if assignment is prohibited by the lease and applicable law, except with respect to shopping center leases where other rules apply. Section 365(d)(3) requires the tenant to make current rent payments during bankruptcy, but often tenants fail to do this. In addition, the tenant must either file a motion to assume the lease within 60 days of the bankruptcy filing, or must file a motion for an extension of time to determine whether to assume or reject the lease. Ordinarily, a bankruptcy court will give the tenant substantial additional time only if the tenant is making current rental payments during the bankruptcy case.

Landlord's Options

The landlord can avoid the bankruptcy quagmire by terminating the lease before the tenant files bankruptcy. To terminate the lease, the landlord must: (1) declare a default under the lease by sending the notice and permitting the cure period required by the lease; (2) terminate the lease with a second notice or any required statutory notice declaring a forfeiture; and (3) at lease according to one court, file an eviction action. Under the Bankruptcy Code, a tenant may be evicted after the stay has been lifted, if the lease has been validly terminated prior to the filing of bankruptcy.

Security Deposits

The landlord is a secured creditor for all security deposits in existence on the date of the filing of the bankruptcy petition.

Guarantees

Carefully drafted guarantees can specify that the entire future rent is immediately due from the guarantor upon a tenant's bankruptcy filing.

Pleading to be Filed

87 1. Proof of claim of rent due through the date of the filing of the tenant's bankruptcy petition, and damages for rejection of the lease if the tenant does not assume the lease. 2. Motion for administrative expense for the payment of current post-petition rent. 3. Motion to shorten the time for tenant to accept or reject the lease.

88 FILING PROOFS OF CLAIM

Creditors may collect 100 cents on the dollar on their claims against a debtor who has filed bankruptcy simply by filing a proof of claim in the bankruptcy case. There is rarely enough in a bankruptcy case to pay all creditors in full. However, sometimes so few creditors file proofs of claim that those who do file receive full payment of their claims. In other cases, creditors receive a partial payment on their claims. Therefore, it is always worthwhile to file a proof of claim.

Necessity of Filing a Proof of Claim

In a Chapter 7 straight liquidating bankruptcy case all unsecured creditors must file proofs of claim by the deadline set by the courts. Secured creditors who want to look only to their collateral for payment need not file a proof of claim unless the bankruptcy trustee sells their collateral. In that case, the creditor must file a secured proof of claim and will be entitled to payment from the proceeds of the collateral. If a secured creditor wants to liquidate its collateral and assert a deficiency claim, the creditor must file a proof of claim for its general unsecured claim.

In a Chapter 11 reorganization case, claims are deemed allowed in the amounts, and with the priority (or secured or unsecured status), as scheduled by the debtor, if the debtor also schedules the claim as not contingent, unliquidated or disputed. If the claim is not scheduled by the debtor in the correct amount or with the correct status, then the creditor must file a proof of claim by the deadline set by the court in order to have the claim allowed in the correct amount and with the correct status. The safest course for a creditor is to file a proof of claim. Then the creditor is assured that its claim will be allowed in the correct amount and with the correct status. This is true of both secured and unsecured.

In a Chapter 13 individual or in Bankruptcy Court small business reorganization, all creditors must file a proof of claim by the deadline set by the court.

Deadline for Filing

The deadline for filing proofs of claim in Chapter 7 and 13 is 90 days after the meeting of creditors. In Chapter 11 the deadline is set by the court. The deadline is usually contained in the first notice to creditors. This notice also states the date the bankruptcy was filed, the date and time of the meeting of creditors, and other information.

In some Chapter 7 straight liquidating bankruptcy cases, the notice of the bankruptcy will state that the case appears to be a no-asset case and the court is not accepting claims for filing. If the bankruptcy trustee later finds assets and brings money into the bankruptcy estate, the court will send out another notice to creditors stating that creditors may file claims and stating the deadline for filing claims. The claim must be received by the court clerk's office by the deadline for filing the claim.

If a claim is filed late, it is subordinated to all timely filed claims and will receive no payment unless all timely filed claims are paid in full and there remains a balance of money on hand in the case. If a claim is filed late because of excusable neglect, the claim may be allowed and treated as a timely filed.

Form for Proof of Claim

Official Form No. 19 should be used in preparing the proof of claim. This form may be obtained from the clerk of the bankruptcy court. The form is relatively simple. The creditor should attach to it a copy of the contract, promissory note, statement of account, or other written document or record which is the basis of the claim or evidence of the claim. The proof of claim may be signed by the creditor's attorneys. The creditor need file only an original proof of claim with the court. Service of copies is not required. Some creditors think that they should increase the amount of their claims to get as much from the bankruptcy case as possible since the distribution will be

89 based on the amount of the claim. Filing of such a claim constitutes the filing of a fraudulent claim and is punishable as a crime. Priority Claims

Certain unsecured claims have priority under the Bankruptcy Code. They include administrative claims for goods or services that are furnished to the bankruptcy estate which benefited the estate, such as rent for premises occupied by the debtor or trustee. Other priority claims include claims for wages up to $2,000 per person, other employee benefits up to $2,000 per person, claims of consumers for money paid to purchase property or services for personal, family or household use up to $900 per claimant, and certain government tax claims.

It is especially important to file claims having priority status because they are more likely to be paid than general unsecured claims. All claims that are not secured and are not priority claims are general unsecured claims.

Landlord Claims

A landlord may have several claims, each having a different status. Under Florida law a landlord has a lien on the tenant's personal property the premises for unpaid rent. The Bankruptcy Code provides that a debtor in bankruptcy or a bankruptcy trustee may invalidate such a lien. Often a bankruptcy trustee will not invalidate the landlord's lien because there is another lien on the personal property, such as a bank lien or financing company lien, so that there is no equity in the personal property for the bankruptcy trustee to liquidate. In such a case the bankruptcy trustee will abandon the personal property.

When the trustee abandons the personal property, it is no longer property of the bankruptcy estate. If the trustee has not invalidated the landlord's lien, the landlord may attempt to enforce its lien on the personal property as against the bank or financing company that also holds a lien on the personal property. If the bank or financing company's lien did not attach to the personal property before it came on the premises, then the landlord's lien is superior.

In bankruptcy court, the landlord may have a Chapter 7 priority administrative expense claim for unpaid rent during Chapter 7 if the bankruptcy trustee occupied the premises or permitted the personal property to remain on the premises and if the bankruptcy trustee received some proceeds from the personal property. In a Chapter 11 case or a Chapter 11 case that converts to Chapter 7, the landlord may have a Chapter 11 priority administrative expense claim for unpaid rent that accrued during Chapter 11 and other damages that accrued during the Chapter 11 case. Such claims for Chapter 7 or Chapter 11 administrative rent should be made by application rather than by proof of claim and may have special filing deadlines.

The landlord has a general unsecured claim for pre-bankruptcy unpaid rent and other amounts which came due under the lease before bankruptcy, for damages for breach of the lease subject to a limitation in amount and for other damages such as repair and clean up. The landlord may file one proof of claim stating separately in it different statuses for different parts of the claim.

Objections to Claims

The bankruptcy trustee in a Chapter 7 case or the debtor in a Chapter 11 or Chapter 13 case will examine the claims that are filed with the court. The trustee or the debtor or even another creditor has the right to file an objection to a claim on the ground that it is filed with the wrong status, in the wrong amount, or on the ground that nothing is owing.

If an objection to claim is filed, a copy will be served on the creditor or the creditor's attorney if the claim was filed by an attorney. The court will enter an order requiring the creditor to file a response to the objection by a certain date. If no response is filed, an order will be entered treating the claim as stated in the objection. If a response is filed, an evidentiary hearing will be set on the objection. The objection to claim is a contested matter under the bankruptcy rules. The objecting party and the creditor may conduct discovery and may file motions for summary judgment. If the claim is not disposed of by summary judgment, an evidentiary hearing will be held at which the

90 claimant should present evidence in the form of witnesses and documents. The Federal Rules of Evidence apply in such a hearing. The result of the hearing will be an order disallowing the claim or allowing the claim in the amount and with the status decided on by the bankruptcy judge.

Often a secured creditor will improperly file a secured proof of claim in a Chapter 7 case where the trustee has not sold the collateral. The trustee will file a motion to allow the secured claim with the creditor allowed to pursue its rights in the collateral but to receive no distribution as a general unsecured creditor from the bankruptcy estate. Usually, the court will enter an order ex parte allowing the claim as secured and providing that the creditor will receive no distribution as an unsecured creditor from the bankruptcy estate. The order will also provide that the creditor may file a motion for rehearing by a certain date if the creditor wishes to contest the order. If the creditor believes that it will have a deficiency claim which it wishes to assert, it can file a motion for rehearing alleging that it does have such a deficiency claim which it wants allowed as a general unsecured claim.

Often the creditor may negotiate with the bankruptcy trustee and reach an agreement as to the amount of the deficiency which will be allowed as a general unsecured claim. If an agreement cannot be reached, then the creditor will need to present at a hearing evidence to the court of the amount of the claim, the value of the collateral, and the amount of the deficiency.

Distribution of Money

The money in the bankruptcy estate at the end of a Chapter 7 straight liquidating bankruptcy case will be distributed first to administrative claims, including the trustee’s fee, trustee's attorney's fees, appraiser's fees and auctioneer's fees until these claims are paid in full. Then, the surplus, if any, will be distributed to the priority claimants until they are paid in full. Any remaining surplus will be distributed to the general unsecured creditors pro rata based upon the amounts of their claims.

Conclusion

The filing of a proof of claim is a relatively simple matter which should always be done because of the possibility of receiving a payment which may be as much as 100%. An attorney who is consulted by a creditor in a bankruptcy should immediately determine from the bankruptcy court the last date for filing claims and calendar that deadline. The attorney can then make a timely filing to establish the creditor claim and enable the creditor to share in the money in the bankruptcy case.

91 CASES EVERYONE SHOULD READ

516 So.2d 1029 Roy A. Glisson Realty, Inc. (Glisson) and ROY A. GLISSON, INC. and Forum Realty, Inc., Forum Realty, Inc. (Forum) appeal from a judgment Appellants, in the amount of $295,854.74 for alleged negligence v. in the procurement of a tenant. Anne Marie GILBERT, Appellee. Appellee, Anne Marie Gilbert, entered into a Nos. 4-86-1324, 4-86-1512. six-month exclusive listing agreement with Glisson. The agreement provided for an asking price of District Court of Appeal of Florida, $490,000 and a broker's commission. Glisson placed Fourth District. the listing with a multiple listing service. Rodolfo Sanchez contacted Forum looking for a property to Dec. 9, 1987. rent. A sales associate took his name, work number, address and social security number. The sales Rehearing and Rehearing En Banc Denied Jan. 13, representative spoke to Rip Glisson about the 1988. possibility of Sanchez renting appellee's house. Glisson told appellee of Sanchez's interest in renting Lessor of residential property which was her house. damaged by lessee brought suit against real estate brokerages for alleged negligence in procurement of Appellee testified that she did not wish to rent, the lessee. The Circuit Court, Palm Beach County, but after talking with her daughter, appellee changed Walter N. Colbath, Jr., J., entered judgment on a jury her mind. Glisson and appellee disagreed as to verdict in the amount of $295,854.74, and defendants whether he told her that he knew nothing about the appealed. The District Court of Appeal, Dell, J., held prospective lessee. After appellee entered into a that real estate brokers could not be held liable for lease agreement with Sanchez, the bank dishonored negligence in failing to discover adverse information Sanchez's check for the first and last month's rent and concerning prospective lessee where record failed to a $3,000 security deposit. Sanchez then paid Forum show that a reasonably competent and diligent the $9,000 in cash. During the next three months investigation would have disclosed such information. Sanchez made late rent payments.

Reversed and remanded. When Rip Glisson and appellee went to the property to investigate a report that the gate to the Fla.App. 4 Dist. 1987. property had been damaged, they found the house Real estate brokers could not be held liable for abandoned and severely damaged with large pipes negligence in failing to discover adverse information running from the pool through the living room and concerning prospective lessee where record failed to into the garage, large vats of ether and acetone in the show that a reasonably competent and diligent garage and holes drilled through the garage and a investigation would have disclosed such information. doorway for the placement of pipes. They also found that carpet had been removed from one of the rooms Larry Klein and Julie Pressly of Klein & Beranek, and damaged in another, as well as damage to the P.A., West Palm Beach, and James Miller of Nagle & pool area and to a number of the interior furnishings. Miller, West Palm Beach, for appellant-Roy A. The total cost of the repairs amounted to $5,563.88 of Glisson, Inc. which appellee paid $2,473.00. Appellee filed suit seeking damages and alleging that appellants Terry Watterson of Watterson & Dickenson, negligently procured a tenant for her property. The West Palm Beach, for appellant-Forum Realty, Inc. jury found in favor of appellee and awarded the sum of $2,095.18 for damage to the property, $16,200 for Richard A. Sherman and Rosemary B. Wilder loss of rental income, and $291,000 for loss of equity of Richard A. Sherman, P.A., Fort Lauderdale, for and/or reduction in the value of the home. The trial appellee. court reduced the amount of the verdict by the percentage of appellee's comparative negligence. DELL, Judge.

92 Appellants contend that the trial court erred affirmative obligation to discover adverse factors when it failed to direct a verdict in their favor concerning a prospective tenant that a reasonably because a real estate broker may not be held liable for competent and diligent investigation would disclose. damage to the property because of negligent Appellees did not present any other evidence procurement of a lessee, if the broker discloses concerning the standards of the industry. We do not everything he knows about the lessee to his client. find sufficient evidence in this record for us to Appellants also contend that they are not liable for conclude that the standards of the industry require a the loss of rental income and loss in equity and/or broker to make a diligent investigation of a reduction in the value of the home. prospective tenant. Furthermore, the record does not contain any evidence showing that an independent As we see it, the facts of this case raise the investigation of Sanchez would have disclosed question of whether a real estate broker may be held adverse information which would have affected liable for negligence in failing to discover adverse appellee's decision to lease her home to him. factors concerning a prospective lessee where the record fails to show that a reasonably competent and Therefore, we hold that the trial court erred diligent investigation would have disclosed that when it failed to direct a verdict in favor of information. Appellants do not contest the duty of a appellants. See Salinetro v. Nystrom, 341 So.2d broker to disclose information in the broker's 1059, 1061 (Fla. 3d DCA 1977) (directed verdict in possession concerning a prospective lessee. favor of defendant proper where it is not shown that However, appellants argue that in the absence of an the injury suffered by plaintiff was caused by the express contractual undertaking, they have no alleged wrongful act or omission to act by the affirmative obligation to discover adverse factors defendant). In view of this holding we need not concerning the lessee. Appellees respond to this address the issues concerning damages. Accordingly, argument by directing this court's attention to the we reverse the judgment in favor of appellees and testimony of the expert witnesses presented by the remand this cause to the trial court with instructions parties. to enter judgment in favor of appellants.

Experts testified in response to questions REVERSED and REMANDED. pertaining to the code of the board of real estate and national code of ethics, that realtors have an ANSTEAD and LETTS, JJ., concur.

499 So.2d 49 lease and had thus forfeited right of first refusal under lease due to certain late payments, where lessor PROTEAN INVESTORS, INC. and Larry accepted all late payments without protest and never Meinstein and June Meinstein, Appellants, notified lessee that it was in default of lease. v. TRAVEL, ETC., INC., Appellee. Affirmed.

No. 86-1099. Fla.App. 3 Dist. 1986. Notwithstanding presence of antiwaiver District Court of Appeal of Florida, provision in subject lease, lessor was estopped to Third District. claim that lessee was in default of lease due to certain late payments made under lease and that, by virtue of Dec. 23, 1986. such default, lessee had forfeited right of first refusal under lease, where lessor accepted all late rental Lessee brought action for specific performance payments without protest and never at any time of lease agreement against lessor and parties to whom notified lessee that it was in default of lease and that lessor sold condominium units. The Circuit Court, right of first refusal had thus been forfeited. Dade County, Francis X. Knuck, J., entered judgment for lessee, and lessor and parties to whom Abrams, Anton, Robbins, Resnick, Schneider & condominium units were sold appealed. The District Mager and Joseph J. Huss and Jack F. Weins, Court of Appeal held that notwithstanding presence Hollywood, for appellants. of antiwaiver provision in subject lease, lessor was estopped to claim that lessee was in default of subject

93 Wilbur G. Silverman, Miami Beach, for appellee. Before BARKDULL, HUBBART and NESBITT, JJ.

PER CURIAM.

This is an appeal from a final decree of specific performance involving two condominium units. The decree was entered in favor of the plaintiff lessee [Travel, Etc., Inc.], who was the holder of a right of first refusal under a lease in which it rented the above condominium units from the defendant lessor [Protean Investors, Inc.]. The defendant lessor [Protean Investors, Inc.] contests this decree on appeal--as do Larry and June Meinstein, the parties to whom Protean Investors, Inc. sold the condominium units without giving the plaintiff [Travel, Etc., Inc.] a right of first refusal. We affirm.

We conclude that, notwithstanding the presence of an anti-waiver provision in the subject lease, the defendant lessor [Protean Investors, Inc.] is estopped to claim that the plaintiff lessee [Travel, Etc., Inc.] was in default of the subject lease due to certain late rental payments made thereunder, and therefore had forfeited the right of first refusal under the lease. This is so because the lessor defendant [Protean, Investors, Inc.] (a) accepted all the late rental payments without protest, and (b) never at any time notified the plaintiff lessee [Travel, Etc., Inc.] that it was in default of the lease and that the right of first refusal had thus been forfeited. See Farmers Bank & Trust Co. v. Palm Publishing Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So.2d 795, 796 (Fla. 4th DCA 1971); Tropical Attractions, Inc. v. Coppinger, 187 So.2d 395, 396 (Fla. 3d DCA 1966); U.S. Properties, Inc. v. Marwin Corp., 123 So.2d 371, 376 (Fla.3d DCA 1960). We have not overlooked Philpot v. Bouchelle, 411 So.2d 1341 (Fla. 1st DCA 1982), relied upon by the defendants herein, but find it not controlling because there, unlike the instant case, the lessor accepted the late rental payments under protest and notified the lessee that the right of first refusal under the lease had thereby been broken.

Finding the balance of the other points raised on appeal to have no merit and to require no discussion, see Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976), the final judgment under review is, accordingly,

Affirmed.

94 462 So.2d 844 Action for intentional interference with a business relationship is appropriate even though it is F.T. LANDRY, Appellant, predicated on unenforceable agreement, if jury finds v. that understanding between parties would have been Michael HORNSTEIN and Curtiss Pharmacy, completed had defendant not interfered; however, Inc., a Florida corporation, Appellees. mere offer to sell does not by itself give rise to sufficient legal rights to support claim of intentional No. 84-984. interference with a business relationship.

District Court of Appeal of Florida, Fla.App. 3 Dist. 1985. Third District. Evidence that landlord had undertaken negotiations with prospective tenant regarding rental Jan. 22, 1985. of drugstore premises while current tenant was still involved in the negotiations with prospective tenant Rehearing Denied Feb. 12, 1985. to sell business and assign lease was sufficient to support determination that landlord had unjustifiably Landlord brought action against commercial interfered with current tenant's business relationship. tenant for unpaid rent, and tenant counterclaimed for interference with advantageous business relationship Fla.App. 3 Dist. 1985. and wrongful exclusion from his rented premises. Where substantial evidence supports a jury The Circuit Court, Dade County, Philip Cook, Acting determination, appellate court lacks authority to J., entered judgment awarding landlord damages for interfere; appellate court should not reevaluate unpaid rent and awarding tenant compensatory evidence and substitute its judgment for that of the damages and punitive damages on his counterclaim. jury. Landlord appealed and tenant cross-appealed. The District Court of Appeal, Baskin, J., held that: (1) Evidence that commercial tenant's damages evidence was sufficient to support determination that arising from landlord's interference with business landlord had unjustifiably interfered with tenant's relationship between tenant and prospective business relationship; (2) evidence was sufficient to purchaser of his business included loss of purchaser support award to tenant of $5,000 in compensatory and proceeds of negotiated sale of approximately damages; (3) affirmance of judgment on interference $35,000 was sufficient to support award to tenant of with business relationship issue rendered $5,000 in compensatory damages. consideration of wrongful exclusion claim unnecessary under "two issue" rule; (4) evidence was Fla.App. 3 Dist. 1985. sufficient to support finding that landlord's Under "two issue" rule, where two or more interference was malicious and that punitive damages determinative issues are resolved by a general were appropriate; and (5) landlord had standing to verdict, affirmance is appropriate when either ground bring action against tenant for unpaid rent. is sustained.

Affirmed. Fla.App. 3 Dist. 1985. On appeal from jury verdict in favor of tenant Jorgenson, J., filed dissenting opinion. based on evidence of landlord's interference with a business relationship and wrongful exclusion, Fla.App. 3 Dist. 1985. affirmance of judgment on interference with business In order to establish tort of interference with a relationship issue rendered consideration of wrongful business relationship, it is necessary to prove exclusion claim unnecessary under "two issue" rule. existence of a business relationship under which claimant has legal rights; intentional and unjustified Fla.App. 3 Dist. 1985. interference with that relationship by defendant; and Evidence that landlord had nothing to gain by damage to claimant as a result of breach of a business interfering with negotiations between commercial relationship. tenant and prospective purchaser of tenant's business was sufficient to support finding that landlord's Fla.App. 3 Dist. 1985. interference was malicious and that punitive damages were appropriate.

95 contends that his award was insufficient and that Fla.App. 3 Dist. 1985. Landry lacked standing to bring the action for unpaid Landlord had standing to bring action against rent. commercial tenant for unpaid rent where landlord executed lease in his own name, personally collected [1] In order to establish the tort of interference rent money, and was directly injured by tenant's with a business relationship, it is necessary to prove failure to pay rent. (1) the existence of a business relationship under which the claimant has legal rights; (2) intentional Michael Lechtman and Burton B. Loebl, North and unjustified interference with that relationship by Miami Beach, for appellant. defendant; and (3) damage to the claimant as a result of the breach of a business relationship. Ethyl Corp. Edward C. Vining, Jr., Miami, for appellees. v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, Before HENDRY, BASKIN and JORGENSON, JJ. 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981); International Funding Corp. v. Krasner, 360 BASKIN, Judge. So.2d 1156, 1157 (Fla. 3d DCA 1978).

This is an appeal from a judgment entered upon [2] The thwarted business relationship need not a jury verdict awarding Landry damages for unpaid be evidenced by an enforceable contract. An action rent and awarding Hornstein compensatory damages for intentional interference is appropriate even and punitive damages on his counterclaim for though it is predicated on an unenforceable interference with an advantageous business agreement, if the jury finds that an understanding relationship and wrongful exclusion from his rented between the parties would have been completed had premises. Appellee cross-appeals. We affirm. (FN*) the defendant not interfered. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Scussel Hornstein, a pharmacist, rented premises for his v. Balter, 386 So.2d 1227 (Fla. 3d DCA 1980), drugstore from Landry. When Hornstein's review denied, 392 So.2d 1371 (Fla.1981). A mere pharmaceutical license was suspended, Hornstein, offer to sell, however, does not, by itself, give rise to with Landry's permission, entered into negotiations sufficient legal rights to support a claim of intentional with prospective purchaser Moreno to sell the interference with a business relationship. Lake business and to assign the lease. Discussions Gateway Motor Inn, Inc. v. Matt's Sunshine Gift between the parties ceased, and Moreno subsequently Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), rented the drugstore from Landry. When Hornstein cert. denied, 368 So.2d 1370 (Fla.1979). sold most of his business stock, halted day to day operations, and failed to pay rent on time, Landry [3] The evidence in the case before us was instituted an action for unpaid rent, entered the store, sufficient to sustain a jury finding that the and changed the locks. Hornstein had often been late negotiations had progressed beyond the stage of a with rent payments; at the time Landry commenced mere offer, to an understanding between Hornstein his action, however, Hornstein had failed to pay only and Moreno for the sale of the business and one month's rent. Hornstein filed a counterclaim assignment of the lease, transactions which would alleging interference with a business relationship and have been consummated had Landry not interfered. wrongful exclusion from his rented premises. The Evidence disclosed that Landry or his attorney had jury awarded Landry $1,824 for unpaid rent and undertaken their own negotiations with Moreno Hornstein $5,000 compensatory damages as well as regarding the rental of the drugstore premises while $10,000 punitive damages. The court entered final Moreno and Hornstein were still involved in judgment in accordance with the verdict. negotiations. That evidence demonstrated an intentional and unjustified interference. In his appeal, Landry asserts that Hornstein failed to prove the elements necessary to establish Hornstein testified, without objection: intentional interference with an advantageous business relationship and failed to establish a What had happened was I was seriously wrongful exclusion. In addition, Landry challenges negotiating with the man Siegfred Moreno, and he the award of punitive damages and claims entitlement and we had several conversations and he kept telling to additional rent. Hornstein, on the other hand, me that he spoke with Landry and he was very

96 frustrated by this also that it was--the thing wouldn't basis. We disagree. Under the "two issue" rule, be consummated. where two or more determinative issues are resolved by a general verdict, affirmance is appropriate when We had sort of been to contract and all of either ground is sustained. Whitman v. Castlewood that. He asked me to call his attorney because he International Corp., 383 So.2d 618 (Fla.1980); couldn't calm him anymore and he was ashamed and Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 I pretty much wanted to get out of the store at that (Fla.1978); Middelveen v. Sibson Realty, Inc., 417 time and I had called his attorney, a man by the name So.2d 275 (Fla. 5th DCA), review denied, 424 So.2d of Mr. Dias. 762 (Fla.1982). The jury returned a general verdict for Hornstein on evidence of interference with a And Mr. Dias said the problem is I really business relationship and wrongful exclusion. Our don't want my client to buy it from you because I affirmance of the judgment on the issue of have spoken with your landlord and your landlord is interference with a business relationship renders going to get rid of you as a tenant, and there's no need consideration of the wrongful exclusion claim for him to buy it from you. And that was the end of unnecessary. that. [8] Insofar as Landry's challenge to the award of Hornstein's testimony justified a conclusion that punitive damages to Hornstein is concerned, we find negotiations between Hornstein and Moreno ceased no error. "A legal basis for punitive damages exists only because Landry told Moreno or his attorney that where torts are committed in an outrageous manner he was "going to get rid of" Hornstein as a tenant and and with fraud, malice, wantonness or oppression." would rent the premises directly to Moreno. Wackenhut Corp. v. Canty, 359 So.2d 430, 435-36 (Fla.1978); Aero International Corp. v. Florida [4] Reconciliation of conflicting testimony that National Bank of Miami, 437 So.2d 156, 158 (Fla. 3d negotiations ceased for other reasons rested upon a DCA 1983), review denied, 449 So.2d 264 credibility determination within the province of the (Fla.1984). This court has upheld jury awards of factfinder. Povia v. Melvin, 66 So.2d 494 (Fla.1953); punitive damages in actions for interference with an S. Kornreich & Sons, Inc. v. Titan Agencies, Inc., 423 advantageous business relationship under appropriate So.2d 940 (Fla. 3d DCA 1982); Hunt v. Palm circumstances. Puga v. Suave Shoe Corp., 427 So.2d Springs General Hospital, Inc., 352 So.2d 582 (Fla. 288 (Fla. 3d DCA 1983); Scussel; Susman v. 3d DCA 1977). Where substantial evidence supports Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976). The a jury determination, an appellate court lacks evidence established that Landry had nothing to gain authority to interfere. Estate of Cohen v. Holland, by interfering with the negotiations between 370 So.2d 40 (Fla. 3d DCA 1979). An appellate Hornstein and Moreno. Thus, there was support for a court should not reevaluate evidence and substitute jury finding that Landry's interference was malicious its judgment for that of the jury. Helman v. Seaboard and that punitive damages were appropriate. By Coast Line R.R. Co., 349 So.2d 1187 (Fla.1977). We excluding Hornstein from the premises, Landry therefore approve the jury determination that Landry foreclosed the possibility of Hornstein selling the unjustifiably interfered with Hornstein's business business to another purchaser and prevented relationship. Hornstein from reopening the store on reinstatement of his license for the purpose of resuming his [5] As to the next element, damage resulting business. from the interference with a business relationship, we find ample evidence. See Born v. Goldstein, 450 We find no merit in Landry's remaining point. So.2d 262 (Fla. 5th DCA 1984); E.T. Legg & Landry has failed to demonstrate a basis for Associates, Ltd. v. Shamrock Auto Rentals, Inc., 386 increasing the amount of the award on his claim for So.2d 1273 (Fla. 3d DCA 1980), review denied, 392 unpaid rent. So.2d 1379 (Fla.1981). Hornstein's damage included the loss of a purchaser and the proceeds of a [9] Turning next to the points raised by negotiated sale in the vicinity of $35,000. Hornstein on his cross-appeal, we reject his contention that Landry lacks standing to sue for [6] [7] Landry's next point is that Hornstein unpaid rent. Landry executed the lease in his own failed to prove that he was wrongfully excluded from name, personally collected rent money, and was the premises and that reversal is required on that directly injured by Hornstein's failure to pay rent, acts

97 which afford him standing. Thus, the trial court was from Landry. The only evidence regarding the nature correct in offsetting Landry's award for unpaid rent of these conversations is Moreno's testimony that against the amounts recovered by Hornstein on his Landry and his attorney discussed the possibility of claims. See Rebozo v. Royal Indemnity Co., 369 Landry's granting an extension on the lease between So.2d 644 (Fla. 3d DCA), cert. denied, 379 So.2d Landry and Hornstein. Moreno testified that his 209 (Fla.1979). negotiations with Landry did not begin until July, 1982. (Negotiations between Moreno and Hornstein As to Hornstein's last point, the record provides had ceased in October, 1981.) Moreno's testimony is no support for his contention that the jury award on bolstered by the fact that he did not begin occupying his counterclaim was insufficient. the store until August, 1982. Moreover, there is no evidence that Landry made the alleged statement that For these reasons, we affirm the judgment. he was going to "get rid of" Hornstein with the intent to interfere with the negotiations between Moreno JORGENSON, Judge, dissenting. and Hornstein. (FN3)

I respectfully dissent. The majority's reliance Because the evidence does not support a upon the "two-issue" rule is misplaced. The jury was recovery of compensatory damages, it cannot support instructed only upon the issue of wrongful eviction. the award of punitive damages. The intentional interference with a business relationship claim was not submitted to the jury. FN* We have jurisdiction. Landry's claim was filed Because it is clear from a reading of the record that in county court; Hornstein's claim was filed in circuit the evidence could not support a jury finding that court, and the two cases were consolidated for trial Landry wrongfully evicted Hornstein, I would before an acting circuit judge. Hornstein's claim was reverse. treated as a compulsory counterclaim to Landry's action. The uncontroverted evidence is that Landry changed the locks on the store after Hornstein closed FN1. Landry testified that he had stopped by the down his business and that a key to the new lock was store, found it closed down, smelled an obnoxious made available to Hornstein. (FN1) These facts belie odor emanating from it, saw through the store any claim that Hornstein was evicted. Moreover, window thousands of dead cockroaches littering the even if Landry's act of changing the locks on the floor, and, since he did not have a key to the store, store constituted an eviction, the eviction was not broke the lock on the door to gain entrance. Once wrongful. The lease entered into between Landry inside, he found the source of the stench to be rotting and Hornstein provided that Landry could retake food that apparently had been left behind when the possession of the premises upon Hornstein's failure to store was closed. Landry then replaced the broken pay the rent promptly. (FN2) lock with a new lock.

Assuming the issue of intentional interference FN2. Landry did not waive this provision. The with a business relationship was properly submitted evidence established that Landry had brought earlier to the jury, the evidence does not support a jury suits to collect payments of rent from Hornstein. finding that Landry intentionally interfered with the negotiations between Moreno and Hornstein. The lease provided that Landry could retake Hornstein's testimony, quoted in relevant part by the possession of the premises upon Hornstein's failure to majority, can support, at the most, that (1) Moreno's comply with its terms. One term provided that attorney had conversations with Landry at the time Hornstein would "run [his] business as a clean and Hornstein was negotiating with Moreno, during orderly establishment and prevent and control which Landry made the statement that he intended to unhealthy or obnoxious odors." Thus, under the "get rid of" Hornstein; (2) as a result of Landry's lease, Landry was justified in evicting Hornstein for statement, Moreno's attorney advised Moreno that he Hornstein's failure to keep the premises clean, see n. need not buy Hornstein's business, and (3) Moreno 1, as well as for Hornstein's failure to pay rent ceased negotiations based on his attorney's advice. promptly. There is no evidence that the conversations between Landry and Moreno's attorney consisted of FN3. At the time Landry allegedly made this negotiations for the rental of the drugstore by Moreno statement, Landry may have honestly and justifiably

98 intended to "get rid of" Hornstein for Hornstein's pay his rent when due was settled in November, failure to pay his rent on time. An earlier suit by 1981. Landry to remove Hornstein for Hornstein's failure to

99 450 So.2d 1114 Allegations of mere instrumentality and improper DANIA JAI-ALAI PALACE, INC., Carrousel conduct clearly state a cause of action against a Concessions, Inc., and Saturday Corporation, parent corporation for the acts of its subsidiary. Petitioners, v. The corporate veil may not be pierced absent a Gladys SYKES, Respondent. showing of improper conduct; clarifying Mayer v. Eastwood-Smith & Co., 122 Fla. 34, 164 So. 684; No. 63394. Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247; Aztec May 3, 1984. Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849; Levenstein v. Sapiro, 279 So.2d 858, and Vantage Rehearing Denied June 27, 1984. View, Inc. v. Bali East Development Corp., 421 So.2d 728. Action was brought by patron of jai-alai to recover damages for personal injuries sustained when Evidence presented jury question as to whether she was crushed between two cars in parking lot. corporation and sister corporation were a single The Circuit Court, Broward County, James F. operation or were operating independently of each Minnet, J., entered judgment on verdict for patron, other, precluding a directed verdict against sister and defendant corporations appealed. The District corporation for the tort liability of corporation which Court of Appeal, Hurley, J., 425 So.2d 594, affirmed arose when its employee struck a patron of sister in part and reversed in part and remanded. On corporation while parking patron's car. application for review based on grounds of direct conflict of decision, the Supreme Court, Shaw, J., Answer briefs should be prepared in the same held that: (1) rebuttable presumption of negligence manner as the initial brief so that the issues before the when driver of vehicle strikes another vehicle in the Supreme Court are joined; further, answer brief rear was inapplicable to patron, who walked to the should omit the statement of the case and of the facts front of her car after attendant entered the car to park unless there are areas of disagreement, which should it, walked in between her car and car ahead, and was be clearly specified. West's F.S.A. R.App.P.Rule crushed between the cars when attendant's foot 9.210. slipped from brake onto accelerator; (2) corporate veil of defendant corporations, which were related, Evidence that patron of fronton walked in front of could not be pierced absent a showing of improper her car after an attendant entered the car to park it, conduct; (3) evidence raised jury question as to walked in between her car and the car ahead to enter whether two of the three defendant corporations were fronton, and was crushed between the cars when a single operation or were operating independently of attendant's foot slipped from brake onto accelerator, each other; and (4) evidence raised jury question as raised jury question as to whether patron was to whether patron was comparatively negligent. comparatively negligent in action by patron to recover damages for her personal injuries sustained in Quashed in part, approved in part, and remanded. the accident.

There is a rebuttable presumption of negligence Guy B. Bailey, Jr. and Sara Soto of Bailey & Dawes, when the driver of a vehicle strikes another vehicle in Miami, for petitioners. the rear. Gilbert A. Haddad of Haddad, Josephs & Jack, Rebuttable presumption of negligence when the Coral Gables, for respondent. driver of a vehicle strikes another vehicle in the rear was inapplicable to pedestrian who walked to the SHAW, Justice. front of her car after an attendant entered the car to park it, walked in between her car and car ahead, and This cause is before the Court on petition for was crushed between the two cars when attendant's review based on grounds of express and direct foot slipped from brake onto accelerator. conflict between the decision of the district court

100 below, Dania Jai-Alai Palace, Inc. v. Sykes, 425 Lincoln v. Miggins, 249 So.2d 88 (Fla. 3d DCA So.2d 594 (Fla. 4th DCA 1982), and numerous 1971). We have no quarrel with the district court's decisions of this Court. We have jurisdiction. Art. statement of the law, but find it inapplicable to the V, § 3(b)(3), Fla. Const. facts of this case. Petitioners were sued by respondent, who walked between the two cars, not by Dania Jai-Alai Palace, Inc. (Dania) owns and the driver of the car ahead which was struck from the operates a jai-alai fronton. Certain aspects of the rear. In this connection, we note that the district business, including valet parking, are handled by a court reversed the trial court's directed verdict finding sister corporation, Carrousel Concessions, Inc. that respondent was not comparatively negligent in (Carrousel). Both Dania and Carrousel are wholly walking between the two cars. This suggests that owned subsidiaries of Saturday Corporation respondent might have prevented the accident by not (Saturday). Respondent Sykes arrived at the fronton walking between the cars. The basis for the on 15 December 1977. Respondent pulled into a rebuttable presumption is that the driver of the struck short line of cars awaiting parking and purchased a vehicle could have done nothing to prevent the parking ticket from a Carrousel attendant. collision. The presumption is inapplicable to a Respondent alighted from her car and the attendant pedestrian who might have prevented the collision. entered the car to park it. Respondent walked to the We quash the district court's holding on this point. front of her car and turned right, between her car and the car ahead, toward the fronton entrance. The district court affirmed the judgment against Simultaneously, the attendant shifted the car into Saturday on the ground that Carrousel and Dania drive, saw respondent in the space (approximately were mere instrumentalities of Saturday and that it four feet) between the two cars and attempted to was not necessary to establish fraud or other brake. His foot slipped from the brake onto the wrongdoing on the part of Saturday under the mere accelerator and the car moved forward, crushing instrumentality doctrine. At trial, respondent's respondent between the two cars. counsel stipulated that there was no wrongdoing or fraud involving Saturday and that the theory of Respondent sued all three corporations. The respondent's case was that the mere instrumentality theories of her case were that Carrousel was liable for doctrine alone, without improper conduct, was the negligence of its parking attendant and for sufficient to permit piercing of the corporate veil. independent negligence, that Dania was liable under The issue of whether, as a matter of law, it was alternative rationales of premises liability, apparent necessary to show wrongdoing or fraud on the part of agency or single business entity, and "alter ego" or Saturday in order to pierce the corporate veil was "mere instrumentality," and that Saturday was liable thus squarely posed. The district court recognized because Carrousel and Dania were its mere that there were conflicting lines of cases on this instrumentalities. At the conclusion of the evidence, point, but relied on Vantage View, Inc. v. Bali East the trial court directed verdicts against Carrousel on Development Corp., 421 So.2d 728 (Fla. 4th DCA employee negligence, against Dania on finding that 1982), and the cases cited therein (Levenstein v. the public had been led to believe the fronton was a Sapiro, 279 So.2d 858 (Fla.1973); Aztec Motel, Inc. single entity, and in favor of respondent on the issue v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971); of comparative negligence. The trial court submitted Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941); the issues of Saturday's liability for the acts of its Mayer v. Eastwood-Smith & Co., 122 Fla. 34, 164 subsidiary corporations and the amount of So. 684 (1935)), for the proposition that it is not respondent's damages to the jury. The jury returned a necessary to show improper conduct in order to verdict against Saturday and the two subsidiary pierce the corporate veil. We acknowledge that there corporations for $775,000. is language in this line of cases which seems to support the holding of the district court, but find on [1][2] On appeal, the district court affirmed the closer examination that each of them is judgment against Carrousel for the negligence of its distinguishable on fact or law from the present case. employee on the basis that there is a rebuttable presumption of negligence when the driver of a [3] In Vantage View, the district court reversed a trial vehicle strikes another vehicle in the rear. Brethauer court's dismissal for failure to state a cause of action v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977); against a parent corporation for the acts of its

101 subsidiary. The court grounded its reversal on the separate and distinct from its members, since mere instrumentality doctrine alone, without when fraud or illegal act is attempted, fiction will improper conduct. The court's justification for be disregarded by the court and the acts of the piercing the corporate veil ignores salient facts upon real parties dealt with as though no corporation which it prefaced its analysis: had been formed.

We said earlier that the ultimate facts Mayer, 122 Fla. at 42-43, 164 So. at 687. We alleged by appellant are: (1) the parent then went on: established the subsidiary as a mere instrumentality and a sham; and (2) the parent The overwhelming weight of authority is to the did so to mislead creditors and to avoid liability. effect that courts will look through the screen of corporate entity to the individuals who compose it Vantage View, 421 So.2d at 733 (emphasis in cases in which the corporation was a mere supplied). Thus, there was clearly an allegation of device or sham to accomplish some ulterior improper conduct on the part of the parent purpose, or is a mere instrumentality or agent of corporation. The issue which the court posed for another corporation or individual owning all or itself was hypothetical and its answer dicta. most of its stock, or where the purpose is to evade However, its decision was correct because allegations some statute or to accomplish some fraud or of mere instrumentality and improper conduct clearly illegal purpose. state a cause of action. Nothing like that exists in this case. In Mayer, the seminal case on which the district court relied, an individual (Olds) loaned certain Mr. Olds was not one of the individuals composing valuable bonds to a corporation in return for 25% of that corporation; he owned none of the stock, and, in the net profits of the corporation. All of the stock of the end, he merely held the stock as security and the corporation was given to Olds to hold as security never made use of or claimed any ownership in it. for the amounts due him. When the corporation went There is no evidence of any purpose on the part of bankrupt, Olds was sued for its debts under various Mr. Olds to evade any statute or accomplish any theories: partnership; wholly owned corporation fraud. Nor did the evidence show any other illegal controlled by and run in interest of Olds; joint design or purpose. He did not direct the transaction adventure; and undisclosed principal. All of these with the plaintiff, nor is there any evidence that he theories were rejected on the facts. In examining even knew of any such deal until long after it was whether Olds used the corporate vehicle as a fiction consummated. to conceal his liability, we relied on Biscayne Realty & Insurance Co. v. Ostend Realty Co., 109 Fla. 1, Nor was Olds any more a joint adventurer then [sic] 148 So. 560, 564 (1933). he was a partner. Drew v. Hobbs, 104 Fla. 427, 140 Sou.Rep. 211; Tidewater Const. Co. v. Monroe So long as proper use is made of the fiction County, 107 Fla. 648, 146 Sou.Rep. *1118 209; that corporation is entity apart from stockholders, Willis v. Fowler, 102 Fla. 35, 136 Sou.Rep. 358. fiction will not be ignored * * *. Where stockholders enter into a transaction in individual Id. at 43-44, 164 So. at 687 (emphasis supplied). interests and utilize corporate name merely to mislead creditors or perpetrate fraud, legal entity A close reading of the above excerpt leads to will be ignored and stockholders held individually several conclusions. First, Biscayne Realty & liable * * *. The rule that corporate entity will be Insurance Co., on which we relied in Mayer, requires disregarded where name of corporation is used by improper action on the part of the corporation or its stockholders in transactions to mislead creditors members before the corporate veil may be pierced. or perpetrate fraud on them is but a logical Second, the reference to "or is a mere sequence of the principle that a corporation instrumentality" (emphasis supplied) is drawn from cannot be formed for the purpose of unspecified authority. Its significance goes to the accomplishing fraud or other illegal act, under the factual issue of whether Olds owned all or any of the guise of fiction that the corporation is legal entity corporate stock and the legal issues or theories of

102 whether Olds was a stockholder, a partner, a joint "Disregard of the Corporate Fiction," page 84, adventurer, or an undisclosed principal. We found reading in part as follows: that Olds owned none of the stock, held it only as security, never made use or claimed ownership of the "When the conception of corporate entity is stock, and did not commit any improper act. In other employed to defraud creditors, to evade an existing words, Olds had no relationship with the corporation obligation, to circumvent a statute, to achieve or under any theory that would warrant holding him perpetuate monopoly, or to protect knavery or crime, liable for the debts of the corporation and had not the courts will draw aside the web of entity, will committed any improper act. This reading of Mayer regard the corporate company as an association of is supported by Riesen v. Maryland Casualty Co., live, up-and-doing, men and women shareholders, 153 Fla. 205, 14 So.2d 197 (1943), where we directly and will do justice between real persons. This is faced the question of whether the corporate veil could particularly true in courts of equity, but finds many be pierced without a showing of improper conduct illustrations in courts of law as well, for it must not and reiterated that in Biscayne Realty & Insurance be thought that 'Our Lady of the Common Law,' is Co.: not sufficiently powerful to explode sophistry or scholastic theory where used as a cloak for [T]his Court held that so long as proper use is wrongdoing." made of the fiction that a corporation is an entity apart from its stockholders, the fiction will not be Barnes, 146 Fla. at 238, 1 So.2d at 254 (emphasis ignored, yet where stockholders enter into a in original). What the Alabama and Florida cases transaction in their individual interest and utilize have in common is their holding that the corporate the corporate name merely to mislead creditors or veil may be pierced at law as well as equity, which perpetrate a fraud, the legal entity will be ignored was the pertinent issue in Barnes. The Vantage and the stockholders held individually liable. View analysis would have us believe that this Court in Barnes adopted the view that the corporate veil Riesen, 153 Fla. at 208, 14 So.2d at 199. may be pierced without a showing of improper conduct, based on an Alabama case which did not In analyzing Barnes, the Vantage View court comment on the issue and in contradiction to a misperceived the issue. The issue was not whether Florida case from this Court which explicitly held to the alter ego theory required a showing of improper the contrary. See also Riesen, issued two years after conduct, but rather "whether liability of a corporation Barnes, in which it was held that the corporate entity can be predicated on the alter ego theory in an action would be respected, absent a showing of wrongdoing. at law, or whether this doctrine is exclusively an equitable one." Barnes, 146 Fla. at 235, 1 So.2d at In Aztec Motel, Inc. v. State ex rel. Faircloth, 251 253 (emphasis supplied). Looking more closely at So.2d 849 (Fla.1971), we recognized that illegal acts the Alabama case (FN1) on which the Barnes court of all the stockholders or members of a corporation, relied, we see that the two corporations were a sham, acting as individuals, instead of by formal corporate that the negligent employee worked for both actions, could be grounds for revoking the charter of corporations, and that the ambulances, hearses, and the corporation, but that statutes which permitted other properties of the two corporations were used revocation of the corporate charter because of the interchangeably without regard to corporate identity. illegal acts of less than all the stockholders or In other words, the stockholders and the corporations members of the corporation violated due process and improperly disregarded the corporate identities. The were unconstitutional and void. Aztec Motel Vantage View court overlooked the fact that the factually involves illegal acts. The prefatory Barnes court also cited a Florida case which comments we made, to mere instrumentality or agent explicitly stated that wrongdoing must be shown of another corporation or individual owning all or before the corporate veil may be pierced, and that the most of its stock, were excerpted from Mayer merely action may be maintained at law as well as equity. to show that the corporate veil is not inviolate. Aztec Motel does not hold or stand for the proposition that In the case of Bellaire Securities Corp. v. the corporate veil may be pierced without a showing Brown, 124 Fla. 47, 168 So. 625, we quoted with of improper conduct. approval from Professor Wormser's treatise on

103 In Levenstein v. Sapiro, 279 So.2d 858 corporate veil because: (Fla.1973), Sapiro, the sole shareholder, conveyed the title of land to his wholly-owned corporation. The rule is that the corporate veil will not be The land constituted the corporation's sole asset, and pierced, either at law or in equity, unless it be after the corporation sold the land to Levenstein, the shown that the corporation was organized or used corporation was immediately dissolved. The sale to mislead creditors or to perpetrate a fraud upon contract to Levenstein contained assurances as to the them.... In the absence of pleading and proof that availability of adequate water and sewer facilities. It the corporation was organized for an illegal later developed that adequate water and sewer purpose or that its members fraudulently used the facilities were not available and, in the absence of a corporation as a means of evading liability with successor to the dissolved corporation to carry out its respect to a transaction that was, in truth, personal contractual obligations, Levenstein brought suit and not corporate, Fatt cannot be heard to against Sapiro. We recognized that there could be question the corporate existence but must confide instances "where the nature of the relationship his efforts to the remedies provided by law for between the individual and his alter ego, his satisfying his judgment from the assets of the corporation and their activity is so completely corporation, if any can be found. (Citations personalized that the ingredient of actual fraud is omitted, emphasis in original.) unnecessary in order for the individual to be held liable for a contractual obligation made in the name In Gross v. Cohen, 80 So.2d 360 (Fla.1955), we of his corporation." Levenstein, 279 So.2d at 860. affirmed a trial court judgment refusing to pierce the Unlike the corporation in Levenstein, both Dania and corporate veil because the evidence did not show that Carrousel existed at the time of trial and there is no the corporation was actually organized or used to suggestion that either was not a solvent corporation mislead creditors or to perpetrate a fraud upon them. capable of meeting its obligations. Levenstein presented a different issue and problem from the In Advertects, Inc. v. Sawyer Industries, Inc., 84 issue presented here. The problem in Levenstein was So.2d 21 (Fla.1955), we rejected the proposition that the inequity of permitting a corporation to avoid a rule could be issued against individual stockholders contractual obligations by dissolving itself. In to show cause why they should not be personally Levenstein we fashioned an equitable remedy responsible for corporate debts absent a preliminary appropriate to the facts and circumstances of a showing completely personalized corporation with one asset received from its sole shareholder which was that the corporation is in actuality the alter ego of dissolved after selling that asset. Levenstein became the stockholders and that it was organized or after an anachronism with the enactment of the Florida organization was employed by the stockholders General Corporation Act by chapter 75-250, Laws of for fraudulent or misleading purposes, or in some Florida. If the Levenstein cause of action arose fashion that the corporate property was converted today, there would be no need to devise an equitable or the corporate assets depleted for the personal remedy or to pierce the corporate veil. Section benefit of the individual stockholders, or that the 607.297, Florida Statutes (1983) provides a legal corporate structure was not bona fidely remedy "against such corporation or its directors, established or, in general, that property belonging officers, or shareholders for any right or claim to the corporation can be traced into the hands of existing, or any liability incurred prior to such the stockholders. dissolution if action ... is commenced within 3 years after the date of such dissolution." It isn't sufficient merely to show that the corporation exists and that there are a limited number In contrast to the above cases which offer little of stockholders doing business in good faith through support for the district court decision, there is a line the corporate entity. From a procedural standpoint of cases which squarely faces the question of piercing we hold that a showing similar to that suggested in the corporate veil and holds that doing so required a summary above be made before the rule nisi is issued showing of improper conduct. In Riley v. Fatt, 47 and directed against the individual stockholders. If So.2d 769, 773 (Fla.1950), we reversed a trial court this requirement were not made then every judgment judgment which allowed a creditor to pierce the against a corporation could be exploited as a vehicle

104 for harassing the stockholders and entering upon the corporation is formed or used for some illegal, fishing expeditions into their personal business and fraudulent or other unjust purpose which justifies assets. piercing of the corporate veil. This is the reason for the rule, stated in all Florida cases, that the Id. at 24. In so holding we stated the controlling courts are reluctant to pierce the corporate veil law on piercing the corporate veil and delineated why and will do so only in a court of competent it was so: jurisdiction, after notice to and full opportunity to be heard by all parties, and upon showing of The corporate veil will not be penetrated either at cause which necessitates the corporate entity law or in equity unless it is shown that the being disregarded in order to prevent some corporation was organized or employed to injustice. mislead creditors or to work a fraud upon them. Id. at 721. Every corporation is organized as a business organization to create a legal entity that can do [4] We conclude that the district court decision business in its own right and on its own credit as directly and expressly conflicts with decisions of this distinguished from the credit and assets of its Court which hold that the corporate veil may not be individual stockholders. The mere fact that one or pierced absent a showing of improper conduct. We two individuals own and control the stock structure decline to recede from these cases. The district court of a corporation does not lead inevitably to the holding is quashed on this point. conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the At the close of the evidence, the trial court extent that the debts of the corporation should be directed a verdict on the issue of Dania's liability, imposed upon them personally. If this were the rule, finding that Dania and Carrousel were operating a it would completely destroy the corporate entity as a close-knit operation and held themselves out to the method of doing business and it would ignore the public as a single enterprise. The district court historical justification for the corporate enterprise agreed, holding that when two corporations hold system. themselves out to the public as a single enterprise and that enterprise involves an inherent risk to members Id. at 23-24. of the public, both corporations incur tort liability for the torts of the enterprise. Stuyvesant Corp. v. Stahl, In Roberts' Fish Farm v. Spencer, 153 So.2d 718 62 So.2d 18 (Fla.1952); Orlando Executive Park, (Fla.1963), we held that the Florida Industrial Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981). Commission did not have jurisdiction to pierce the (FN2) corporate veil. Although Roberts' Fish Farm presented different factual and legal issues than those [5] In its holding, the district court did not address presented here, our remarks on the purpose of what we consider to be the controlling question. corporate entities and the rationale for the law Under the evidentiary facts presented to the trial controlling the piercing of the corporate veil are court, was the court correct in taking the issue from apropos: the jury and directing a verdict against Dania? We think not. The corporate entity is an accepted, well used and highly regarded form of organization in In granting a motion for directed verdict, the the economic life of our state and nation. As we Court must determine that there is no evidence to said in State ex rel. Continental Distilling Sales support a jury finding for the party against whom Co. v. Vocelle, 1946, 158 Fla. 100, 27 So.2d 728, the verdict is sought. Cadore v. Karp, 91 So.2d "Their purpose is generally to limit liability and 806 (Fla.1957). It does not lie within the serve a business convenience." Those who province of the Court to weigh evidence or utilize the laws of this state in order to do determine questions of credibility and, where business in the corporate form have every right to there is the possibility of different conclusions or rely on the rules of law which protect them inferences from the evidence the Court should against personal liability unless it be shown that submit the issue to the jury. Bruce Construction

105 Corp. v. The State Exchange Bank, 102 So.2d 288 subject to the stringent rules of review governing (Fla.1958). See also 25 F.L.P., Verdict, § 9. directed verdicts. We quash the district court's holding on this point. Parsons v. Reyes, 238 So.2d 561, 563 (Fla.1970) (emphasis in original). The record here indicates Petitioners also raise various issues concerning there was evidence which, if accepted by the jury, asserted improper trial court rulings and improper tended to show that Dania and Carrousel operated argument to the jury which petitioners contend independently of each other. Carrousel had offices at denied them a fair trial. The district court found them the fronton and a written concession agreement with to be meritless without further comment. In her brief, Dania. Carrousel exercised control of valet-parking respondent concluded that the issues were meritless services and food, beverage, and program sales and and declined to respond to them before this Court. paid Dania for use of the premises and for the This could prove hazardous as we said in Bould v. concessions. Carrousel had separate bank accounts Touchette, 349 So.2d 1181, 1183 (Fla.1977), "[i]f and profit and loss statements. Carrousel dealt with conflict appears, and this Court acquires jurisdiction, independent suppliers. Carrousel had about 120 we then proceed to consider the entire cause on the employees which it independently hired, fired, and merits." controlled, including the parking attendant involved here. Respondent Sykes, and other patrons, received [6] Because these issues are mooted by our parking tickets which identified Carrousel as the holdings on other issues, they are not likely to recur parking operator. We express no opinion on what the on retrial, and because there is well-settled law preponderance of the evidence shows; that question controlling these issues, we express no opinion on the is properly for the jury to determine. We have no merits. We caution respondent, and others who doubt, however, that there was a jury question posed might appear before this Court, that answer briefs and that it was error to direct a verdict on this issue. should be prepared in the same manner as the initial Petitioners also assert that there is no record evidence brief so that the issues before the Court are joined. supporting the district court's findings that Dania and Further, that the answer brief should omit the Carrousel advertised themselves as Dania Jai-Alai statement of the case and of the facts unless there are and that the public had no reason to suspect there was areas of disagreement, which should be clearly more than one entity involved. Surprisingly, specified. Fla.R.App.P. 9.210. respondent did not answer with citations to the record to support the district court finding. However, it is [7] Respondent urges that the district court erred not necessary to resolve this question, as we are not in reversing the trial court's directed verdict on reviewing the issue as to the preponderance of the comparative negligence. We agree with the district evidence. court that the issue of negligence on respondent's part was a jury question and that it was error to direct a The district court cited Stuyvesant and Orlando verdict on this issue. Executive Park as supporting its decision. Neither case involved a directed verdict. In Stuyvesant, a Quashed in part, approved in part, and remanded hotel and a parking concession were involved but, for further proceedings consistent with this opinion. unlike here, the parking was free, the parking tickets were issued in the name of the hotel, and the parking It is so ordered. concessionaire employees wore uniforms with the name of the hotel on them. In Orlando Executive ALDERMAN, C.J., and BOYD, OVERTON, Park, the motel was one of a national chain, Howard McDONALD and EHRLICH, JJ., concur. Johnson, indistinguishable from other motels in the same chain, and presented to the public under the (FN1.) Jefferson County Burial Soc'y v. Cotton, 222 name of the national chain. The fact that the Ala. 578, 133 So. 256 (1930). individual motel was owned and operated under a licensing agreement with the national chain did not (FN2.) We have since approved in Orlando preclude a jury verdict against the national chain on Executive Park, Inc. v. Robbins, 433 So.2d 491 an agency theory. Again, we emphasize that neither (Fla.1983). case involved a directed verdict and, thus, was not

106 QUESTIONS AND ANSWERS

Q: Are there laws about security deposits such as those found in Florida's residential Landlord/Tenant statute? A: No. Generally, whatever the lease provides binds the parties, although liquidated damage provisions require special attention.

Q: Will service on the Tenant of a statutory three day notice relieve the Tenant from the obligations of the lease for monetary damages for the Tenant's failure to honor the remaining term of the lease? A: No. The Tenant cannot force you into abandoning your right to claim damages for your losses (past and future) in the event of a default by the Tenant. The notice only gives the Tenant the option to cure the rent default or give over possession. It does not give the Tenant the option of walking away from the Tenant's obligations under the lease and to make you whole for the monetary losses you have suffered and will suffer.

Q: Is the Tenant worth pursuing for the collection of money damages once possession is obtained? A: Maybe. The expense in legal fees and court costs are usually reasonable for the completion of the damage claim portion of the suit, as most eviction suits should demand possession and money damages when filed. By the time the decision has to be made whether to continue or not, you should be fairly knowledgeable about the viability of the Tenant's defenses and assets. If the Tenant is a corporation and has few assets and is out of business, perhaps it is not worth proceeding no matter how small the additional legal fees may be. If there are personal guarantees, or the Tenant is a natural person, it is almost always worth obtaining a judgment in uncontested or lightly contested cases. In the highly contested cases, or cases where the Tenant counterclaims, it depends on the probability of both winning the judgment and collecting the judgment. Many claims can be settled for something, at least enough to reimburse you for your expenses for attorney's fees and court costs. Other Tenants in the building often find out about your collection efforts and think twice about defaulting on their leases.

Q: Should I accept a check that has incorrect notations on it or in the accompanying letter? A: No. Of course, if your lease covers this issue, the answer may be different. It should be returned with accompanying correspondence explaining that the payment is conditional and will not be accepted.

Q: Should I require a personal guaranty? A: If the Tenant is a thinly capitalized, closely held corporation, you will realize nothing from pursuing a judgment unless you have other pockets to go after. Also, people try harder when they are on the line personally. Try to get both spouses to sign, even if only one is involved in the business, as a judgment against one spouse will only reach property owned solely by that one spouse. Most husbands and wives own major assets jointly and without both personal signatures on the guaranty, you will not be able to reach joint assets. You will never recover any equity in their residence or proceeds from it because a residence and its proceeds are protected from creditors' claims. Likewise, the garnishment of wages may only be had against those who are not the head of a family. One spouse will always be the "head of the family". A single person is the head of his or her family. The amount able to be garnished from earnings of non-head of family defendant is exempt if the disposable earnings are less or equal to $500.00 per week. If more than $500.00 per week, the head of the family may agree in writing to garnishment so long as the amount is not in excess of the federal Consumer Protection Act, 15 U.S.C. §1673. Garnishment of bank accounts will not reach funds derived from exempt earnings for six months after receipt if the funds can be traced and properly identified as exempt earnings. Wages and commissions are now considered earnings under Florida's laws.

Q: How do I collect a judgment? A: After obtaining the judgment, the judgment should be certified and re-recorded in the public records of every county in which you believe the Tenant owns or may own real property. Thereby, it becomes a judgment lien and will affect all non-homestead real property. The clerk issues an "execution" which is recorded in the sheriff’s office. The execution becomes a lien on the defendant's personal property. Generally, the date of recording of the judgment and execution prioritizes it in relation to other creditors' claims. A deposition should be scheduled where the defendants and others who may be knowledgeable about the defendant's assets are required to appear and bring requested documents such as tax returns and bank account statements. Depositions about assets and liabilities usually may not be discovered pre-judgment because this information is not relevant to whether or not a contract

107 was breached. There are some exceptions to this rule, for example, when punitive damages or lost profits are claimed, assets and liabilities are relevant for the trial. If the defendants do not appear or do not bring the requested documents, the court may hold the defendants in contempt, eventually resulting in a fine and/or incarceration. It is through the post-judgment discovery process that assets and liabilities are determined. Instructions may then be made to the sheriff to levy on and sell valuable assets. Bank accounts can be garnished. The depositions do not have to be taken if you already know about assets to recover. Garnishments can be issued the day after the judgment is obtained. Executions can only be issued ten (10) days after the judgment is issued. The proceeds of assets that are collected and sold by levy go first to the earliest judgment/execution holders recorded. Monies that are garnished go to the first plaintiff to serve the garnishee. Books have been written on this subject, so this is just a short outline to give you some basic information.

Q: Can we pierce the corporate veil if individuals use the corporation as a guise to keep creditors from collecting their judgments? A: Yes, under certain circumstances. Read the Dania Jai-Alai Palace v. Sykes case included in this Guide!

Q: Should I send a statement each month to each Tenant? A: Absolutely. Although not legally required, by always carrying forward any arrearage and demanding timely payment, you are always in a better position to argue that you did not waive your claim to past due amounts nor to the timely payment of rent.

Q: Should I protest defaults of the Tenant when they occur even if I accept the rent? A: Absolutely. A prompt and specific protest of any default is very smart. It keeps the Tenant from later arguing waiver. Anti-waiver clauses work only if they specifically cover the event sought to be upheld, and if there are no other actions by the Landlord that may act as an acquiescence which may be held to supersede the anti-waiver clause.

Q: Should I take pictures of everything that is unusual? A: Yes. Photographs are the best evidence. Especially when the Tenant leaves a mess.

Q: Should I keep a telephone log of all Tenant calls? A: Yes. With details of each call and the action taken, you can be a better witness in court.

Q: Should I send the Tenant an annual questionnaire? A: Yes. The lack of written complaints will “estop” the Tenant from later complaining about a default in the Landlord's obligations. Always document your responses to the Tenant's complaints, and try to obtain a clearance letter from the Tenant.

Q: Should I follow up any Tenant dealings with a letter? A: Yes. Letters are a great method of detailing problems and expected or agreed solutions. But please write a decent letter. Have others read it to be sure it covers everything and says it clearly. Have your attorney review any important letters as what you write and how you write it may haunt you later. Send any notices as required by the lease (except three day notices which are served as explained elsewhere in this Guide).

Q: Can I send a bad check letter and a three day statutory notice at the same time? A: Yes. You should!

Q: Can I terminate a month-to-month tenancy and give a three day statutory notice at the same time? A: Yes. But you may be smarter to give the three day statutory notice first so that the "third" day ends before the date you have to give the month-to-month termination notice. Tenants are less likely to scrape together the rent if they know they are going to have to vacate at the end of the month anyway.

Q: Are "letters of intent" good to sign before the lease is drawn? A: Non-binding letters of intent help clarify some of the issues to see if a lease is worth preparing. A letter of intent without protection language stating that it is non-binding is dangerous because if it covers the basic material

108 elements of a lease, the parties may be considered to have reached an agreement to sign a lease that is as binding as if they had signed a lease itself.

Q: Can I "lockout" a Tenant? A: Never. You can only change the locks after the Tenant has abandoned, has surrendered possession, or has been legally evicted and the sheriff is present to put you in possession pursuant to a Writ of Possession. Abandonment may be presumed if the statutory provisions of Section 83.05 (3), Florida Statutes, are met (see the text contained in this Guide). Surrender may be presumed if the Tenant gives you possession, such as handing over the keys (remember to send the "No Surrender Accepted Letter" contained in this Guide). The word "surrender" in the context of this paragraph refers to the Tenant’s giving over of actual possession. Accepting "surrender" means that you are releasing the Tenant from its obligations under the lease for rent after the demised property is vacated, which you want to avoid. Hence, you want the Tenant to surrender possession, but you do not want to accept a surrender of the leasehold estate.

Q: What is the most frequent mistake made in the drafting of leases? A: In my opinion, it is improperly naming the Tenant as a trade name such as "Billy's Bar", which is not a legally recognized entity. If the Tenant is a sole proprietorship or a partnership, the sole proprietor's or partners' names should appear as the Tenants. Partners should be held “jointly and severally” liable, If the trade name is mentioned anywhere in the lease, it should be in a separate section of the lease providing that the Landlord expects the Tenant to be doing business under the trade name of "Billy's Bar". If "Billy's Bar" is supposed to be a corporate name, it is incomplete as it does not contain the required words (see Section 617.0401, Florida Statutes, in this Guide). The signatures format on the last page of the lease must be consistent with the name of the Tenant on the first page of the lease.

Q: Should I get the Tenant to sign a promissory note for rent in arrears? A: I do not recommend that you have the Tenant sign a note since you already have a written obligation from the Tenant, namely, the lease itself. If there is a dispute about how much is owed, a modification of the lease clarifying the disputed issues is useful. The danger of a promissory note is that it can be argued that upon acceptance of the note by the Landlord, the money is no longer due under the lease as rent and the Landlord's right to enforce the lease for non-payment of rent is lost. If you simply must get a note signed, be sure it contains a provision that states that the money owed under the note is deemed rent and a default in the payments due under the note constitute a default in the payment of rent under the lease and allows the Landlord to avail itself of the remedies contained in the lease for non-payment of rent. If you are adding obligors by having them sign the note, then be sure to have the money owed under the note continue to be deemed rent under the lease. It is better, however, to add them as guarantors, even if the guaranty is limited to the arrears. I make this suggestion because the guaranty, in effect, guarantees performance of all of the terms and conditions of the lease and there may be good reason to have the guaranty for protection in the event of defaults other than non-payment of rent.

Q: What is the second most common mistake made in leasing? A: In my opinion, not scrutinizing the drafting of the signature blocks and then confirming that the proper signatures appear on the proper blanks after it is signed. Slick Tenants try all kinds of tricks to limit their liability, such as writing the word "President" after their names when they are supposed to be signing personally.

Q: What is the effect of providing that the Landlord must consent to certain acts by the Tenant? A: If the lease states that the Tenant may not do something, then the Tenant is agreeing that it has no right to do it whatsoever. If the lease states that the Tenant may not do something without the Landlord's consent, the case law in Florida holds that a Landlord may not arbitrarily refuse consent unless a contrary provision is stated.

Q: What rights do Landlords have when agreeing to an assignment or subletting requiring the Landlord's consent, which consent may not be unreasonably withheld? A: The trier of fact may consider at least the following factors in determining the good faith and commercial reasonableness of the Landlord regarding assignment and subletting: (a) financial responsibility of the proposed subtenant (b) the "identity" or "business character" of the subtenant, i. e., suitability for the particular building, (c)

109 the need for alteration of the premises, (d) the legality of the proposed use, and (d) the nature of the occupancy, i. e., office, factory, clinic, etc. (Fernandez v. Vazquez, 397 So.2d 1171)

Q: Is acceleration of the rent now illegal? A: No. Although often negotiated out of the lease by strong Tenants, acceleration clauses are enforceable. Accelerating the rent is rarely a remedy chosen by the Landlord in that it is inconsistent with eviction and cannot be claimed in conjunction with an eviction. More discussion of this subject is found in the Article entitled "Election of Remedies" in this Guide.

Q. Can I accept the rent and still pursue the Tenant? A. Yes, under certain circumstances. The Landlord waives the right to assert a forfeiture of the lease when the Landlord accepts the rent with knowledge of the breach. Farmers Bank & Trust Co. v. Palm Publishing Co., 86 Fla. 371, 98 So. 143 (1923); U.S. Properties, Inc. v. Marwin Corp., 123 So.2d 371 (Fla. 3d DCA 1960). The Landlord's agent's acceptance of the rent with knowledge of the breach is imputed to the Landlord. Wilson v. Cogen, 26 Fla.Supp.2d 161 (11th Cir. 1988). The Landlord's retention of the Tenant's tender of rent by check, even if not cashed, will be considered to be an acceptance of the rent. Moskos v. Hand, 247 So.2d 795 (Fla. 4th DCA 1971); Hawkins v. DeVecht, 2 Fla.Supp. 169 (11th Cir. 1983). If, however, the Landlord finds the rent slipped under the door and promptly returns it, no acceptance of the rent shall be deemed to have occurred. Gene B. Glick Co., Inc. v. Oliver, 36 Fla.Supp.2d (Broward Co. 1989). The Landlord does not waive the right to assert a forfeiture if the Landlord accepts the rent during the period of time the Tenant is given to cure the default. Cricket Club Management Corp. v. Cricket Club Condominium, Inc., supra. The Landlord does not waive the right to assert a breach if he accepts the rent with knowledge of the breach if the lease contains an "anti-waiver clause," clearly and unambiguously worded. City of Gainesville v. Charter Leasing Corp., 483 So.2d 465 (Fla. 1st DCA 1986). However, an "anti-waiver" clause does not permit the Landlord to accept late rent payments and then claim a forfeiture due to a late rental payment without protest each time. Protean Investors Inc. v. Travel, Etc., Inc., 499 So.2d 49 (Fla. 3d DCA 1986). If the Landlord regularly accepts late payments of rent without putting the Tenant on notice that the Landlord intends to enforce the right to prompt payment, the Landlord will be estopped to terminate the lease based on a late payment. Vines v. Emerald Equipment Co., 342 So.2d 137 (Fla. 1st DCA 1977); Royal American Management, Inc. v. Keith, 20 Fla.Supp.2d 95 (Volusia Co. 1986).

110 CLAUSES EVERY LEASE SHOULD CONTAIN (Listed in no particular order)

Most non-residential leases are drawn by attorneys and therefore contain all of the essential elements. But some leases are more sophisticated than others. The following is a discussion of clauses that most leases should contain but often do not.

1. Additional Rent. The Landlord can only file a summary removal action against a Tenant for non-payment of rent, for holding over after the lease term has expired, or for other defaults for which the lease provides such a remedy. However, leases usually provide for 15 or 30 days' notice of non-compliance other than nonpayment of rent. Late charges, attorney's fees, reimbursement for repairs, non-payment of security deposits, et cetera, are not "rent" unless the lease defines them as "rent".

2. Late Charges, Bad Checks, Notation on Checks Not Binding. If late charges are not provided for in the lease, the Tenant does not have to pay them. Late charges are not deemed "rent" unless specifically stated, and cannot be used as the basis for an eviction using a 3 day notice to pay or quit. (See paragraph 1. above.) Late charges should increase daily, as otherwise there is no incentive for the Tenant to pay once the rent is late. You should retain the right to refuse late payment of rent, so that the Tenant cannot argue that you agreed to accept late rent payments as long as the late charge is tendered as well. Also, provisions should be included to provide that checks deposited will not be controlled by notations on the checks or accompanying letters, such as "paid in full". Note, however, that interest is due on rent payments not paid when due (Section 83.06(02) Florida Statutes.) Finally, a provision should require a cashier's check for payment of rent pursuant to a 3 day notice to pay or quit.

3. Opening Date and Store Hours. Often Tenants who are current on their rent do not initially open their businesses to the public when the landlord expects, and do not maintain regular and usual store hours. Sometimes the Tenant will not keep the store open continuously, and may close it for days or weeks at a time. Large national claims and corporations can afford to close a store and continue to pay the rent, thereby not being in default. A well drawn lease provision can remedy these problems. If the Tenant is required to pay percentage rent in addition to a base rent, this suggested provision is usually already contained in the lease.

4. Parking. Good parking provisions are rare. Be sure to clearly define the Landlord's right to alter the lot, reserve spaces, diminish the number of spaces, construct buildings, require off property parking, and prohibit vehicle parking to display signage. Retain the right to tow Tenant's employees' vehicles as well as those of Tenant's customers if left in the lot for purposes other than intended, with the Tenant's obligation to hold you harmless and indemnify you if are found to have wrongfully towed a vehicle belonging to the Tenant or Tenant's customers. Note that it is illegal to tow anyone's vehicle without their consent or if the other requirements for towing are not met (see Vehicle Towing in this Guide), except when the vehicle is parked in such a manner as to restrict the normal operation of the business or if it is on a public right-of-way and obstructs access. If you have no choice, it is my opinion the hold harmless language would arguably require the Tenant to pay for your towing of the Tenant's employees' or customers' vehicles. You may want to provide the right to "boot" vehicles and charge to remove the boot. "Booting" is not towing and does not come under the purview of the towing statute.

5. Waiver of Jury Trial. This eliminates the Tenant's ability to delay proceedings by requesting trial by jury.

6. "As Is". If you expect the Tenant to accept the premises in its present condition, you should say so. If there are exceptions, for example, you intend to replace carpet, use the phrase "as is", and then list the exceptions in great detail.

7. Require Tenant To Complain In Writing Of Any Landlord Defaults. This clause requires the Tenants to complain or waive the complaint. This clause is especially handy when you try to evict and the Tenant interposes a defense of your non-compliance as required. With the proper lease clause, you can often eliminate this defense because the Tenant did not notify you of your noncompliance. Since you did not have an opportunity to cure the default alleged to have occurred, your argument that the Tenant waived the right to complain is sensible. These Tenant defenses usually surface from long standing technical Landlord non-compliance used only during the

111 eviction to create a delaying issue which must then be tried by the judge or jury. Using an annual Tenant questionnaire or survey inviting comments of your non-performance can later be used by you to cut off Tenant's defenses arising before the questionnaire or survey. (Tenant estoppel certificates used by lenders may also be used in this regard.)

8. Lease Not Accepted Until It Is Accepted. So that your lease is not interpreted as an outstanding offer which can be accepted by the Tenant beyond the time you intend for it to remain outstanding, or interpreted as a binding "agreement to agree", you can protect yourself by providing that until fully executed by all parties, the lease is not binding in any way.

9. Acceptance Of Keys Or Possession Is Not Acceptance Of Surrender. Courts may interpret the Landlord's acceptance of the keys or possession of the premises when a Tenant leaves as an acceptance of surrender by the Tenant. Since this cuts off your right to sue the Tenant for the rent for the balance of the remaining term of the lease, use this clause to prohibit such an adverse ruling.

10. No Landlord Representations. To cut off any claims of the Tenant, such as "you promised the center was fully rented", a clause can be drafted to discuss every matter that may reasonably form the basis of a claim that the landlord made a certain representation. Although a clever Tenant can claim that the lease was fraudulently induced in spite of this clause, I would still rather have it than not.

11. Landlord's Inability to Perform. This clause protects the Landlord from having to perform when the time for such performance should be extended or excused for causes beyond the Landlord's control.

12. Landlord's Consent or Approval May Be Withheld. This permits the Landlord to withhold consent unless otherwise specified. Without this clause, any condition that requires the Landlord's consent without additional language could be found to imply that the Landlord must act reasonably and that an unreasonable withholding of consent could be actionable.

13. Schedule of Attachments. The listing of attachments precludes any misunderstanding of what was given to the Tenant as part of the lease transaction.

14. Landlord's Lien and Security Agreement. Landlords have a statutory lien on the Tenant's property usually kept on the premises, even if it has been removed, subject to liens existing on the Tenant's property before the time it was originally brought onto the premises, and subject to other liens and interests more fully discussed in the article on "Distress for Rent" contained in this Guide. The statutory lien is automatic and no mention of it is required in the lease. But it is better practice to provide for a contractual lien in the lease. Landlords should require Tenants to sign security agreements and UCC-1 Financing Statements to perfect the Landlord's lien so that certain items of the Tenant's property can be replevied as secured property without the necessity of filing for distress and posting a distress bond. A secured creditor also fares better in the event the Tenant files bankruptcy, as the Landlord's lien can be avoided in the bankruptcy, but a properly perfected contractual lien can not generally be avoid. Of course, there are advantages to obtaining a distress writ, which are discussed in the Article "Distress for Rent" in this Guide.

15. Landlord's Right to Alter the Premises and/or Relocate Tenants. Landlords may want to provide for the right to update their buildings, changing facades, doorways, windows, signage, et cetera. Landlords also want the right to relocate Tenants at the Landlord's expense.

16. Interest on Past Due Obligations. A provision should require that interest at the highest lawful rate should accrue on all past due obligations of the Tenant.

17. Signs. You may want to require the Tenant to erect a sign and maintain it instead of merely granting the Tenant the right to erect a sign. You should provide that Landlord’s consent to changing a sign does not constitute consent, directly or indirectly, to an assignment or subletting.

112 18. Release of Landlord When Property Sold. This provision releases the property owner once the property is sold.

19. Tenant May Look to Landlord's Equity Only. This provision protects the Landlord from putting at risk more than the equity the Landlord has in the property.

20. On Surrender, Property Remaining is Deemed Abandoned. Upon surrender for whatever reason, a provision should set forth that any property left behind by the Tenant shall be deemed abandoned and may be disposed of by the Landlord as the Landlord elects.

21. Upon Default, Rent Concessions to be Repaid to Landlord. This provision allows the Landlord to indefinitely defer rent concessions and to recoup them in the event of a Tenant default.

22. Joint and Several Liability. If two or more Tenants are named, whether corporations, partnerships or individuals, or any combination thereof, a provision should require all parties to be jointly and severally liable. This permits the Landlord to sue and/or collect from any or all of the parties.

23. Notices; Waiver of Technical Defects. Provide that all notices, including those required by statute, may be served at the premises on the person then in charge or may be posted on the front door if no-one is present at the time of delivery. The Landlord should provide that the Tenant waive technical defects in statutory three-day notices and other notices so long as the notice reasonably apprizes the Tenant of the purpose for the notice.

24. Landlord's Inability to Deliver Possession. The Landlord may be unable to deliver possession due to a current Tenant's refusing to vacate, or for some other reason beyond the Landlord's control. The Landlord's inability to deliver possession on time can be excused.

25. Define Trade Fixtures with List. Leases commonly permit the Tenant to remove "trade fixtures" at the expiration of the lease, so long as the Tenant is not in default. The Tenant's interpretation of the words "trade fixture" is often different from the interpretation of the Landlord. This often is a basis for litigation when expensive bars, walk-in coolers, et cetera are at stake. You should attach a detailed list of what is defined as "trade fixtures", and include a good definition to cover the Tenant's newly acquired items.

26. Mechanics' Lien. You may avoid mechanics' liens for work or materials furnished at the Tenant's request for the leased premises by recording in the public records of the county in which the project is located, either a statement that sets forth the language in all leases on the project with lien prohibitions, or with regard to a single Tenant, a "short form" lease providing that such liens are prohibited. See Mechanics' Liens, Section 713.10, Florida Statutes, reproduced in this Guide.

27. Confidentiality Clause. You may want to require the Tenant to keep the lease terms secret. You can add penalties in the form of liquidated damages for disclosure. I know of no cases in Florida testing this provision but it obviously has merit. It reinforces the Tenant's belief that he got a "good deal", and it keeps you from having to negotiate with another Tenant based on what you agreed upon with the Tenant who has agreed to keep quiet.

28. No pornographic, sexually explicit, obscene or other similar activities. To protect from having a restaurant become topless, or a book store become "x rated", I suggest a clause in every lease protecting against pornography, sexually explicit activity, nudity, obscenity, and similar activities.

29. ADA. The Landlord usually accepts liability for compliance outside of the demised premises. The tenant usually accepts liability for compliance within the demised premises. In any event, the responsibility for compliance should be addressed in the lease.

30. CFCs. To protect from actions by governmental authorities when the Tenant is responsible for the HVAC system or manufactures a product using CFCs, use a clause requiring the Tenant and Tenant's contractors to comply with the law, and to indemnify and hold the Landlord harmless in the event of governmental action. Of course, the

113 strength of this protection is only as good at the Tenant's pockets are deep, or in the event of tenant's insurance, to the extent the policy grants coverage. The Landlord will always be ultimately liable. See the discussion of CFC's in this Guide.

31. Air Quality. To avoid liability for indoor air quality, the Landlord should address the state of the building's HVAC system and require the Tenant to accept it "as is".

32. Provide for Procedure for Landlord's Duty to Repair. The impact of Section 83.201, Florida Statutes, which took effect on October 1, 1993, allowing the Tenant to withhold rent or vacate after 20 days' notice if the Landlord does not cure the Landlord's failure to repair, can be avoided if the Landlord has a duty to make repairs or effect maintenance pursuant to a written lease, and provides in the lease for a procedure to be followed regarding these duties and the payment of rent relating thereto.

33. Provide for Telephone Access. Competition and technological advances may cause Tenants to demand telephone and data providers who may need entry to the building for the installation of fiber optics. Lease clauses should be placed in force now to require Landlord's consent for Tenant's utilities suppliers entering into their buildings so that liability issues can be identified, duties and responsibilities can be assigned, and compensation can be collected. The Tenant should waive claims against the Landlord for losses resulting from interruption even if caused by the Landlord’s negligence. Tenant should indemnify Landlord from third party claims.

34. Prohibit Use Which May Cause Protests and Demonstrations. Although Landlords are rarely caught with initial Tenants who may cause protests and demonstrations, such as abortion clinics or other controversial businesses, when subletting occurs or the Tenant changes the use of the premises, and the Landlord is not permitted to unreasonably withhold consent, the issue is presented as to whether the Landlord can withhold consent to such a subtenant or change in use. Having a clause that prohibits controversial Tenants or uses will assist the Landlord in convincing a court that the Landlord's withholding of consent in such a situation was contemplated by the parties when the lease was initially negotiated.

35. Limit Tenant's Right to Damages for Refusal to Consent to Assignment. The Landlord may provide that the Tenant's remedies for the Landlord's failure or refusal to consent to an assignment or subletting or other matters are limited to injunctive relief. This prohibits the Tenant from suing for damages if the Landlord acts in good faith in refusing to consent to an assignment.

36. Limit Tenant's Remedies on Landlord's Default. The Landlord may provide that the Tenant's remedies for the Landlord's default is limited to direct damages against Landlord’s equity in the property, waiving the right to terminate the lease or sue for consequential damages.

37. Stipulate to Square Footage. Floor measurement firms are now soliciting tenants for engagements to measure floor areas. Obviously, if errors can be found in the Tenant's favor, the Landlord may be forced to refund substantial money to the Tenant. To eliminate this problem, either leave out square footage altogether or provide that the Tenant has had an opportunity to measure the premises themselves, and stipulates that the figures are deemed correct even if inconsistencies are later found.

38. Stipulate to Expert Decision Instead of Auditors. Many leases grant the Tenant the right to audit the Landlord's operating expenses or common area expenses. The Landlord should provide that any dispute will be resolved by a consultant mutually agreed to between the parties and that the cost of the consultant for any change over five (5%) percent be paid by the losing party.

39. Limit the Bodies. To keep from having unexpected employee density (“boiler rooms”), provide only a certain number of people may occupy the premises at any one time on a sustained basis.

40. Electricity. Provide that Landlord has the sole and absolute discretion to designate the providers of electric energy to the premises and the building. This is necessary to control electric supply in the event Florida comes under electric energy deregulation by state or federal law.

114 EXPLANATION OF GENERAL LEASE PROVISIONS

1. Introduction

One of the primary objectives of the owner of commercial property is to lease as much space as possible to qualified tenants at market rent. To do so as efficiently as possible, the owner must have a good understanding of the issues which commonly arise in the leasing context. Care must be taken to create an acceptable form of lease. In addition, the landlord and the landlord's attorney must identify the specific requirements of a given lease transaction and include satisfactory provisions adding such requirements in the form of lease. The landlord's negotiation posture for a proposed lease transaction will depend upon a number of factors, including the general state of the real estate market in the area, the location of the project in question, the availability of comparable space elsewhere and earnestly the landlord wants the prospective tenant in the project. After taking all these factors into consideration, but before commencing negotiations, the landlord and the landlord's attorney should determine what the landlord has to obtain in terms of lease form and substance and what concessions it would make as opposed to abandoning the proposed transaction.

2. Parties

A. Names. The complete names of the landlord and the tenant should be set forth in the lease. It is surprising how often incorrect or incomplete names are used in commercial lease. If there is to be more than one tenant sharing the leased premises, the lease should include a provision creating joint and several liability for the base rent, additional rent and other sums payable under the lease. Such a provision will prevent one tenant from arguing that it is only liable for one half of the sums payable under the lease in the event the other tenant breaches the lease or abandons the leased premises.

B. Financial Condition; Authority. The landlord should also carefully examine the prospective tenant's financial statement prior to executing the lease. With the implementation and increasing use of criminal forfeiture laws, the background and nature of the prospective tenant should be carefully examined. References from prior landlords should also be obtained if possible. Unsatisfactory references from prior landlords should be taken seriously. A tenant who breaches one lease is a good bet to breach another. If the lease is to be executed by an agent on behalf of the tenant, proof of authority should be required and documented. For corporations, such proof of authority can take the form of certificates of good standing from the Florida's Secretary of State, and proper corporate resolutions; for partnerships, a certified copy of the partnership agreement may suffice.

C. Affiliated Entities. If the lease is executed in the name of a corporation or a division of a corporation, the lease should specify if the parent is liable, and whether the leased premises can be occupied by another division or corporate affiliate. In Florida, the parent is usually not liable for a subsidiary corporation's liability unless so provided. As a general rule, occupancy by another division of the corporation is probably acceptable as long as the other corporate division's intended use of the leased premises are consistent with the "use" clause and other provisions of the lease and the lease provides that the parent corporation is primarily liable for the division's performance. In such event, the parent corporation should be the named tenant and should expressly remain primarily liable if the leased premises are subsequently occupied by another corporate division.

3. Description of the Leased Premises

The lease must include a detailed description of the leased premises sufficient to identify it with reasonable certainty. The description should identify the floor or location on the project on which the leased premises are located and the particular part of such floor or location constituting the leased premises. The description should also describe the project and contain a complete legal description of the land on which the project is situated. Floor plans of the leased premises should be used when possible because floor plans generally show access to hallways, restrooms, parking spaces and common areas.

115 4. Guaranties

If the tenant is a corporation or limited partnership, serious consideration should be given to acquiring a personal guaranty from a financially qualified individual guaranteeing the tenant's performance under the lease. In many instances a lease to a small corporation or a limited partnership leaves the landlord with no satisfactory remedy if the tenant fails to perform its obligations under the lease. Most tenants will vigorously oppose attempts to obtain personal guaranties. If the parties agree to perform certain obligations under the lease, however, it does not seem unreasonable for the landlord to request an individual guaranty from a financially qualified individual, thereby providing reasonable comfort that the tenant will perform its obligations and providing an acceptable method of recourse in the event the tenant fails to do so. A compromise position is to require a guaranty at the onset of the lease, limited either by dollar amount or duration, such that the guarantor's liability is either limited or subject to reduction upon the tenant's timely payment of rent and other sums for a specified period of time. This allows the landlord to acquire a level of comfort with regard to the tenant while avoiding the unlimited or long-term liability that is often distasteful to potential guarantors.

5. Rent

Leases commonly include two components of rent: base rent, generally a fixed amount on the square footage of the leased premises, and additional rent, generally an amount grounded on the landlord's operating costs, adjusted as such costs change.

A. Base Rent. If the amount of the base rent is to be based on the square footage of the leased premise, the lease should set forth the manner in which the square footage of the leased premises are computed. Such square footage may be measured from the exterior surfaces, interior surfaces, glass surfaces, or midpoints of the walls. Obviously, the tenant would prefer the measurement to be made from the interior surface of the walls, thereby reducing the square footage. The landlord would like the measurements to be made from the exterior surface. A good compromise is to measure the outer walls from the exterior surface and the dividing walls from the midpoint. BOMA's standards of measurement are considered an industry standard and should be used when possible.

If the lease is to be a true net lease, a lease where all ordinary costs are passed through to the tenants, the computation of square footage should include portions of common areas and nonusable areas such as hallways, air conditioning ducts and utility rooms. This procedure allows the landlord to directly pass through to the tenant the expense of maintaining such areas that at least indirectly benefit the leased premises. The bottom line, however, is that the allocation of such expenses and the computation of the square footage of the leased premises should affect the amount of the base rent and, therefore, the overall economics of the proposed transaction.

The term "net rentable area" is not necessarily the same as "net usable area." Thus, if the prospective tenant seeks to gain an upper hand in negotiations through a comparison of rent provisions from one proposed lease to another, the landlord must ensure that the methods for computing square footage are comparable or, if such methods are not comparable, suggest that the tenant make appropriate adjustments. Regardless of the method of computation, the parties should stipulate the square footage of the leased premises in the lease to prevent subsequent disputes concerning its amount or its computation.

B. Additional Rent. The elements comprising additional rent commonly include ad valorem taxes, certain insurance premiums, including rent abatement insurance, and general operating costs. The computation of operating costs should include the cost of security (providing it is spelled out that the landlord has no obligation to furnish security and if begun, to continue it, and that it is provided only for the protection of the landlord's property), maintenance, cleaning and utility charges if such utilities are furnished by the landlord but not separately metered. Additional rent is normally estimated and adjusted based on a base year, usually the full calendar year immediately preceding the date of the lease, or an expense stop, meaning a portion of the base rent expressly allocated for the payment of such expenses. If the actual qualified costs for any given year are greater than the estimated costs based on the base year or the expense stop, the tenant is required to pay the difference on or before a specified date. If the actual qualified costs are less than the estimated costs, the landlord should be entitled to either refund such excess to

116 the tenant or to credit such excess toward subsequent installments of base rent or additional rent. Provisions should always be included in the lease providing for a final payment or refund in the event the actual qualified costs are different than the estimated costs in the final year of the lease term.

The qualified costs which are factored into additional rent are generally the subject of much negotiation, with the tenant attempting to exclude as much as possible and the landlord attempting to include as much as possible. The landlord should try to include costs of compliance with the ADA in common areas, CFC laws, and other such governmental requirements that reduce operating costs.

The actual amount of additional rent, as well as any increase over the estimated amount, should be determined within a specified time after the end of each calendar year. Additional rent for the next calendar year should be estimated on the actual additional rent incurred during the previous year, and one-twelfth of such estimated amount should be deposited by the tenant monthly, along with installments of base rent, during the next twelve month period. Adjustments are usually made at the beginning of each calendar year. The landlord should be able to defer the computation of actual operating expense and the resulting adjustments until it has access to all necessary data. After the computations and adjustments are made, the adjustments should be retroactive to the first day of the calendar year and the tenant should be required to immediately pay the excess of the adjusted estimate over the amount previously collected. The tenant usually will request that the computation and adjustment be made by a specified time or, if such computations and adjustments are not made within the specified time, that the subsequent adjustment not be retroactive to the beginning of the calendar year. A good compromise is to spread the increase in the adjusted estimate for those months prior to the month in which the computations and adjustments are made over the remainder of the calendar year. This procedure allows the landlord to recover such costs while avoiding a lump sum payment by the tenant.

The lease should also set forth the basis on which the tenant is charged its pro rata share of the qualified costs which constitute additional rent. The tenant's share of such costs and expenses normally correspond to the tenant's percentage of rentable space within the building. The lease may also require that the landlord provide the tenant with reasonable supporting documentation concerning the computation of additional rent. The tenant should not be given the right to audit but only the right to disagree. Upon notice of disagreement, the landlord would have the right to hire a public accountant to decide the dispute. The tenant should be required to pay for the costs of the accountant if the results are less than 5% incorrect. The tenant should be required to keep the matter confidential.

6. Lease Term.

The lease should specify the date on which the tenant is entitled to take possession of the leased premises. If no such date is included, the tenant is probably entitled to take possession on the date of the lease. If the lease term begins or ends on a date other than the first day of a calendar month, the lease should provide for the proration of base rent and additional rent for the partial months included at the beginning and/or end of the lease term. The lease should provide that the occupancy date will be automatically extended by delays caused by factors beyond the landlord's control. To avoid rule against perpetuities problems, a second date should be specified on which the lease will automatically terminate if the leased premises are not ready for occupancy.

7. Construction of Improvements.

Commercial leases are often executed prior to completion of the leased premises. In such instances, the landlord will normally undertake to complete the leased premises by a specified date. As previously noted, the landlord should be excused from completing the leased premises by such date if the delay results from reasons beyond the landlord's control.

A. Methods of Completion. The parties should agree on one of several methods of completing the leased premises. The lease may provide that the leased premises are to be completed by the landlord at its expense with all improvements to be of a kind and character consistent with other space in the building, commonly referred to as "building standard." Flexibility is usually permitted concerning the location of partitions, doorways and other matters of concern to the tenant. Alternatively, the leased premises may be completed in accordance with plans and

117 specifications furnished by the tenant and approved in writing by the landlord. In such instances, the landlord generally provides a stated construction allowance. To the extent the tenant desires improvements that cost more than the allowance, the tenant must absorb these additional expenses. Finally, the lease may provide for the completion by the landlord of only the shell of the leased premises, with electrical, air-conditioning and plumbing stubbed to the boundaries of the leased premises. The tenant is required to complete the leased premises at its expense, in accordance with plans and specifications submitted by the tenant and approved in writing by the landlord.

B. Construction Liens. The landlord should take precautions to prohibit the tenant from allowing any mechanic's or materialman's liens to attach to the landlord's interest in the leased premises or the building. The lease should expressly provide that the tenant is contracting with contractors on its own account and has no right to create any liens against the landlord's interest in the leased premises or the building. The lease should require the tenant to immediately pay or have discharged any and all liens and encumbrances filed by, through or under the tenant against either the leased premises or the project. The landlord should record a statement prohibiting contractor's liens in the county's public records as permitted by Florida law. A recordable form for this purpose is supplied in this Guide.

C. Compliance with Laws. The landlord should also ensure that federal, state and local laws, such as the Americans with Disabilities Act, and the Florida Americans with Disabilities Accessibility Implementation Act, requiring that the leased premises be accessible to persons with disabilities are complied with. These laws can require, among other things, wheelchair ramps, wider doors, special rest-room facilities, special elevator controls, and lowered utility switches. Generally, the tenant is contractually made responsible for interior improvements required by the ADA, and the landlord is contractually made responsible for other requirements of the ADA. Certainly on construction of the initial tenant build-out, the landlord and tenant must decide who will pay for these costs.

8. Use of the Premises

If the lease does not specify the use for which the leased premises may be employed, the tenant can probably use the leased premises for any lawful purpose. Such discretion is generally not acceptable to the landlord who desires to control and regulate the type of businesses operating in the project. Accordingly, the lease should contain a provision that restricts the use of the leased premises to a certain stated purpose which allows all uses contemplated by the parties. For example, a strict reading of a lease prohibiting cooking and related activities may technically prohibit the existence and use of an employee's snack bar, vending area or coffee bar. The careful drafter will address all contemplated uses and prepare a lease which allows the tenant to enjoy the leased premises for its contemplated purpose while allowing the landlord control over the tenant mix in the project. The lease should also contain restrictions either in the body of the lease or in the attached and incorporated building rules and regulations relating to food services, noise levels, energy use, hazardous materials, fire hazards and similar matters.

9. Exclusivity Clauses

The landlord should use extreme caution in including exclusivity clauses in any lease. For example, a particular tenant may request that it be the only restaurant allowed to operate in the project. If the landlord grants an exclusivity clause but does not condition such exclusivity on the tenant actually and continuously operating the restaurant during specified hours of operation, the landlord could find itself in a potentially devastating position. If the tenant closes the restaurant but continues to perform its obligations under the lease, the landlord will be unable to lease any space in the project to another restaurant because of the exclusivity clause but will have no restaurant in the building. When considering exclusivity clauses, the landlord must also consider the use clauses contained in existing leases within the project. For example, if a number of existing leases in the project allow other tenants to use their leased premises for "any lawful purpose," the landlord should not include an exclusivity clause in any lease, unless expressly subject to the rights of existing leases. Radius restrictions should be included with any exclusivity clause granted by the landlord.

10. Ownership of Improvements

118 The ownership of fixtures and leasehold improvements should be clearly set forth in the lease. Valuable improvements made by the tenant which are readily removable without damage to the leased premises normally remain the property of the tenant. This is especially true in the case of expensive items, such as medical equipment, walk-in coolers, and the like. The tenant's property should be subject to removal by the tenant, however, only as long as the tenant is not in default under the lease. Any permanent improvements made to the leased premises during the term of the lease, whether made by landlord or tenant, should become the property of the landlord and should not be permitted to be removed by the tenant at the expiration of the term of the lease. However, the landlord should be given the right to demand that tenant improvements be removed at the end of the lease term at the tenant's cost and at the election of the landlord. Finally, the lease should expressly require the tenant to repair any damage to the leased premises caused by the tenant's removal of its property.

11. Landlord's Liens

Florida has a statute that creates a lien in favor of the landlord against the tenant's property in the leased premises to secure the tenant's obligations under the lease. A refinement of this law is often contained in the lease. Removal of the clause in the lease does not affect the Landlord's statutory lien. The statutory lien is made null and void only if the lease contains a provision specifically waiving it. The lease should, where possible, include a contractual lien recognized by the Uniform Commercial Code on the tenant's property located in the leased premises. The contractual lien should be enforceable pursuant to the remedies provided by the Uniform Commercial Code and should be perfected and maintained by the filing of appropriate financing statements (UCC 1) with the Secretary of State.

12. Utilities and Services

The lease should clearly provide which utilities and services will be furnished to the leased premises and the specific days (including or excluding holidays and weekends) and times such utilities and services will be supplied. The lease should also state whether the utilities are to be separately metered and, if not separately metered, how utilities will be billed to the tenant. As previously noted, the cost of such utilities are normally a component of additional rent. Finally, telecommunications and electric energy should be addressed. The tenant should waive any claims for loss of data and business due to interruptions from any cause. The tenant’s right to demand access for its telecommunications vendors should be limited to require landlord’s written consent which may be withheld if the vendor does not execute landlord’s license agreement and pay a reasonable fee. The landlord should retain the exclusive right to chose the electric energy supplier so that deregulation will not permit the tenant to choose the electric energy supplier.

A. After Hours Utilities. If the tenant requires after hours utilities, the lease should provide that such after-hour utilities and services will be provided only upon request and if available, the tenant to be billed for the actual cost of providing such utilities and service plus a specified percentage to cover the landlord's overhead. Similarly, if some of the tenant's equipment, such as computers or x-ray machines, require additional or twenty-four hour air conditioning, the lease should specify which party bears the costs of the additional services.

B. Landlord's Obligation to Provide. The lease should not contain an absolute covenant obligating the landlord to provide heating, air conditioning and other services. Such a covenant could result in the landlord being considered in default under the lease for reasons beyond its control. The landlord should only be required to use its reasonable or, at most, best efforts to provide such services. The lease will normally provide for a partial or total abatement of base rent during any period of time such service are interrupted for any reason, whether or not within the reasonable control of the landlord. Tenants will often request the right to terminate the lease if such services are not reserved within a stated period of time. If the landlord grants the tenant the right to terminate the lease if the service are not resumed within a specified period of time, the landlord should ensure that such provision allows the landlord ample time to cause the interrupted services to be resumed.

13. Security

119 If any mention must be made regarding security, the lease should generally set forth what security measures and services will be provided by the landlord. No mention of security should occur in the operating expense or common area clause. Given the landlord's potential liability for the criminal acts of third parties, the lease should not contain any language that could be interpreted as a warranty of the existence or effectiveness of security. Further, the lease should include carefully drafted disclaimers stating that no such warranty is made and that the landlord will not be liable for any personal injury, wrongful death, or property damage suffered by the tenant at the hands of a third party.

14. Other Warranties

In some jurisdictions, the rule of caveat emptor has traditionally applied to commercial lease transactions such that no implied warranty of habitability was imposed upon landlords in commercial lease transactions. The law in some such jurisdictions is evolving, however, to a point where an implied warranty of suitability does exist in commercial lease transactions, such that the landlord impliedly warrants that the leased premises are suitable for their intended commercial purpose. The effect of this warranty is that the landlord impliedly warrants that at the inception of the term of the lease there are no latent defects in or about the leased premises that are vital for its use for the intended purpose and that the leased premises and the project of which leased premises are a part will remain in a suitable condition during the term of the lease. If a lease expressly requires the tenant to repair certain defects, the provisions of the lease will control. Accordingly, the landlord should ensure that the lease expressly allocates those repairs intended to be the tenant's responsibility to the tenant and contains a waiver of any and all implied warranties so that, to the extent possible, the landlord will avoid liability under the implied warranty of suitability doctrine. Other issues of warranty and representation should also be excluded. See paragraph 10. No Landlord Representations. in the article, "Clauses Every Lease Should Contain,", in this Guide.

15. Transfer of Interest

A. By the Tenant. The lease should prohibit the assignment of the lease or the subletting of a portion of the leased premise without the landlord's prior written consent, which consent should be subject to the landlord's sole and absolute discretion. If the lease is silent on the issues, the tenant may assign or sublet without the landlord's consent. As previously noted, the tenant may attempt to negotiate the right to assign or sublet the leased premises to other divisions and corporate affiliates. In such event, the original tenant should remain primarily liable on the lease. The lease should also expressly provide which party is entitled to receive any profit made by the tenant upon any permitted subleasing or assignment. The landlord should take the position that, since it is the landlord that is engaged in the leasing of the leased premises for a profit, any profit made by the tenant upon any permitted sublease or assignment should be passed through to the landlord.

B. By the Landlord. Unless specifically prohibited by the lease, the landlord is generally able to freely assign its interest in the building. The careful drafter will include language in the lease expressly permitting the landlord to transfer it interest in the project. Additionally, the lease should provide that any assignment by the landlord of its interest in the leased premise will automatically release the landlord from all subsequent duties and obligations under the lease. In such event, the tenant should be required to look to the landlord's successor in interest for performance under the lease.

16. Repairs, Alterations and Condition of the Leased Premises Upon Surrender

A. Repairs by Landlord. The landlord will commonly want to reserve the right to make repairs and alterations to the project and the premises without any obligation to abate the rent or to grant other concessions to the tenant as a result of any interference with the tenant's possession, use or enjoyment of the premises. The tenant, however, may seek affirmative covenants by the landlord to use reasonable diligence in the performance of any repairs and alterations, to provide adequate measures to ensue the safety of the tenant and its employees and invitees, and to undertake such repairs and alterations in a manner to minimize inconvenience to the tenant. A good compromise is to provide that the landlord shall not have any liability to the tenant with regard to any damages the tenant may suffer as a result of any repairs or alterations made to the project or the leased premises by landlord, unless such damages are caused by the gross negligence of the landlord or the landlord's agents or employees.

120 B. Alterations by Tenant. The tenant should not be permitted to make any material improvements or alterations to the leased premises without the prior written consent of the landlord. The lease should provide that all permanent improvements made by the tenant automatically become the property of the landlord upon the expiration or earlier termination of the lease. This provision must be consistent with the provision of the lease, previously noted, regarding ownership of improvements. Once the tenant has removed its equipment and trade fixtures, the landlord should have the option to either cause the tenant to leave the premises as they are or to cause the tenant to restore the leased premises to their condition at the commencement of the lease term, possibly excepting reasonable wear and tear.

C. Surrender of Possession. The lease should require the tenant to immediately surrender possession of the leased premises to the landlord upon the expiration or earlier termination of the lease in as good a condition as they were in when the tenant took possession, possibly subject to reasonable wear and tear.

17. Landlord's Right of Entry

The lease should allow the landlord to enter the premises for certain purposes including repairs, inspections and cleaning. Accordingly, the landlord should retain a key to the leased premises. The tenant may attempt to limit the landlord's right of entry to reasonable times and upon reasonable notice, except in the case of emergency. In addition, the tenant may attempt to limit the landlord's right of entry for the purpose of showing the premises to prospective tenants to the last few months of the lease term.

18. Default

The lease should contain numerous provisions setting forth the acts or omissions by the tenant which will constitute an event of default and specifying the landlord's resulting remedies. Events which constitute default should, where possible, relate to specific occurrences independent of the subjective judgment of any party. The lease may require written notice and an opportunity to cure any default prior to the exercise by the landlord of one or more of its remedies. The amount of time allowed to cure nonmonetary defaults should generally be longer than the time period allowed to cure a default in the payment of money.

19. Common Law Remedies. As a general rule, the lease should mirror and, where appropriate, expand on the landlord's available common legal remedies. Florida law, for example, provides three options to the landlord when the tenant defaults under the lease. The landlord may accept a return of the premises, or sue to evict, and in either case, sue for arrears in rent through the date the tenant vacated the premises. Second, the landlord may sue to evict and for general damages and may recover from the tenant the present value of the rentals to accrue under the lease, reduced by the reasonable cash market value of the lease for the unexpired term. Third, the landlord may decline to repossess the premises, not evicting the tenant nor retaking possession if the tenant surrenders or abandons, electing instead to maintain the lease in full force and effect. In this case, the landlord can sue on the lease for the rent as it comes due or accelerate the rent if permitted in the contract. A further discussion of these options is contained under an article entitled "Remedies" in this Guide.

20. Attorney’s Fees

The lease should contain a provision providing for the recovery of attorney's fees, accountant's fees and court costs if the landlord places enforcement of the lease in the hands of an attorney. Provisions specifying a minimum amount of attorney's fees and costs should be avoided in favor of an obligation to pay whatever reasonable fees and costs are incurred.

21. Holdover

The lease should contain provisions obligating the tenant to surrender the leased premises upon the expiration or earlier termination of the lease term and negating any implication that the tenant, by occupying the premises after the expiration or earlier termination of the lease term, is entitled to an extension of the lease. Such provisions

121 normally provide that if the tenant retains possession of the leased premises after the specified term of the lease, the tenant occupies the premises as a tenant at sufferance, usually at a rental of double the rental rate in effect during the last month of the lease term. The tenant will occasionally request that the landlord provide that the holdover rent will not exceed an amount equal to the current rental rates for similar space located in the building. This arrangement should be avoided since it undermines the purpose of the provision, which to ensure that the tenant will vacate the premises at the end of the lease term. In addition, the lease should provide that the tenant will be liable to the landlord for all damages the landlord may incur as a result of the tenant's failure to timely surrender the leased premises.

22. Non-waiver

The lease should contain a provision negating any waiver argument in the event the landlord fails to exercise one or more of its rights under the lease. The tenant may require this provision be mutual, thereby applying equally to both the landlord and the tenant and not just to inaction by the landlord.

23. Casualty Damage

The lease should include a provision allowing the landlord the option of terminating the lease or restoring the leased premises if the leased premises are damaged or destroyed by fire or other casualty, especially if the leased premises cannot be repaired within a specified period of time, such as six months. Alternatively, the lease can require the landlord to restore the leased premises and provide a partial or total abatement of base rent until the leased premises are repaired and made ready for occupancy. In no event, however, should the landlord be required to expend funds other than those actually received through applicable insurance to restore the leased premises. Furthermore, the tenant should be required to repair any damage to the leased premises caused by the tenant's negligence or that of its employees or invitees.

24. Condemnation

The condemnation clause is, unfortunately, often ignored in the context of negotiations. This can have devastating results when all or a portion of the leased premises are unexpectedly condemned. If the entire leased premises are taken, the lease will terminate. As a general rule, if only part of the leased premises are taken and the remainder can be occupied, the lease will remain in effect. If the landlord and the tenant are unable to agree on a division of the award, the condemning authority will usually interplead the funds into a court and leave the parties to fight it out. This expensive and time consuming process should be avoided by setting forth in detail the division of any condemnation award in the lease. The landlord should be entitled the entire award made for the leased premises, including the tenant's leasehold interest. The tenant should, however, be entitled to seek a separate condemnation award for any of its personal property taken by the condemning authority and moving expenses. The tenant should not, however, be permitted to share in any award for the premises, the project or the land on which such project is situated, even though the tenant has lost its right to occupy the leased premises.

25. Compliance with Laws

A. In General. The lease should contain a provision requiring the tenant to comply with applicable laws relating to the operation, use and occupancy of the premises and the tenant's activities thereon. This is especially true with regard to federal, state and local laws concerning the handling and disposal of hazardous materials, medical waste, and other regulated substances.

B. Americans with Disabilities Act. One of the most vigorously negotiated provisions of commercial leases at the present time is the allocation of the responsibility of ensuring compliance with the Americans with Disabilities Act of 1990 and now the Florida Americans with Disabilities Accessibility Implementation Act. Generally, the Landlord desires to place responsibility on the tenant for changes within the premises required by law after the date of the lease.

26. Mortgages

122 Many tenants will vigorously seek to obtain a non-disturbance agreement providing that, so long as the tenant is not in default under the lease, the tenant will preserve its rights and be entitled to occupy the leased premises in the event the landlord's lender forecloses a senior mortgage. The tenant may request that the landlord provide a written agreement to this effect from any existing lender. Because this request may require significant time and money, and may prove impossible, the landlord should resist this obligation for all but the most significant leases.

27. Effect of Foreclosure.

Under Florida law, the foreclosure of a senior mortgage serves to extinguish most junior encumbrances, including subordinate leases. In some cases, mortgages can be reforeclosed by the purchaser at the foreclosure sale permitting the purchaser to go back and foreclose out the interest of a tenant who was not joined in the original foreclosure. However, if the tenant sought to be reforeclosed has a non-disturbance agreement, reforeclosure is of course precluded.

28. Estoppel Certificates

The lease should obligate the tenant to furnish, upon written request, estoppel certificate to lenders and potential purchasers of the building. The purpose of estoppel certificates is to give lenders and potential purchasers comfort that the landlord is not in default under the lease or, if such a default exists, to give such individuals information regarding the nature of such default. The contents of estoppel certificates should be expressly set forth in the lease. The failure of the tenant to timely provide an estoppel certificate upon request should constitute a default under the lease. The lease should also include a provision granting the landlord a power of attorney to execute an estoppel certificate on behalf of the tenant if the tenant fails to execute and return a proper estoppel certificate within a certain period of time, such as ten days. The lease may also include an obligation on the part of the landlord to furnish, upon written request, estoppel certificates stating that the tenant is not in default under the lease or, if a default exists, the nature of such default.

29. Project Rules

The lease should require the tenant to obey the rules and regulations promulgated or to be promulgated by the landlord for the project. Such rules and regulations should be carefully reviewed to ensure they adequately regulate activity in and around the project. The landlord should retain the right to change the rules and regulations, provided any such change is uniform and applied to all tenants in the project. If the tenant is a major occupant of the project, it may attempt to bargain for the right to approve proposed changes in project rules and regulations.

30. Parol Evidence and Amendments

The lease should provide that there are no understandings, written or oral, except as incorporated into the lease and that any amendments to the lease must be in writing and signed by both the landlord and the tenant. Specific reference should be made to the landlord's nonliability for the unusual matters that tenant use for fraud in the inducement counterclaims when it comes time to defend suits against the tenant. "You did not tell me about the road construction you knew about, et cetera.

31. Signs

The lease should prohibit the placing of signs around the project other than signs with building standard graphics located in a designated place. If the tenant desires to exhibit a special logo, the landlord's written approval of such logo should be required prior to the use of the same. If the landlord maintains a common sign for the use of all tenants, the tenant may be provided with an appropriate space for such sign. The allocation of the cost of providing and maintaining all signs should be clearly set forth in the lease. The tenant's obligation to maintain its sign should be specifically set out.

32. Project Directory

123 Many commercial properties have directories that list the names and specialties of the tenants occupying space in the project. If such a directory exists, the lease should provide for the tenant's inclusion thereon. At a minimum, directories should include the name and location of the tenant. The tenant may also wish to include the name of certain of the tenant's officers or employees.

33. Indemnification

The lease should contain an express indemnification by the tenant in favor of the landlord against death, injury or damage to property caused by the acts and omissions tenant, its agents, employees or invitees. If the landlord desires indemnification from the tenant for death, injury or damage occasioned by the landlord's own negligence, the indemnification provision must expressly state that it covers such losses occasioned by the landlord's own negligence or that of the landlord's agents or employees.

34. Insurance

The lease should require the tenant to obtain specified insurance for both the tenant's and the landlord's benefit. Mutual waivers of subrogation rights should be included in the lease to prevent an insurance carrier from seeking redress from the landlord or the tenant in the event of an uninsured loss. The insurance provisions of the lease should be carefully reviewed and approved by the landlord's and the tenant's insurance carriers.

35. Waiver of Subrogation

Most leases will provide for a waiver by tenant of rights of subrogation, pursuant to which tenant waives any claim it has for property damage to tenant's property caused by the negligence of landlord, its employees or invitees. A mutual waiver of subrogation, pursuant to which the landlord also waives property damage to the project caused by the negligence of tenant, is also appropriate when requested by the tenant. Applicable law must be carefully complied with in this regard. The present Florida law for a fire and extended coverage insurance policy, for example, requires an effective waiver of subrogation to be in writing and be executed before the loss occurs. The careful drafter, however, would require each party to obtain an express waiver from its insurance carrier, if necessary, and would also provide that the waiver is effective only so long as it is obtainable under the form of fire and extended coverage insurance policy required by the other terms of the lease. If the inclusion of the waiver of subrogation provision causes the insurance premiums for the waiving party to increase, the lease should specify which party bears the additional cost. It is common for the lease to provide that the party for whose benefit the waiver is included is responsible to pay for any increase in premiums.

36. Covenant of Quiet Enjoyment

Most leases contain a covenant by the landlord that the tenant will not be disturbed in its possession, use or enjoyment of the leased premise for any reason so long as the tenant fulfills its obligations under the lease. Even if no specific covenant of quiet enjoyment is contained in the lease, in Florida a lease will be presumed to contain an implied covenant of quiet enjoyment. Accordingly, the covenant should be set forth in the lease and should be expressly conditioned upon the tenant's timely discharge of all of its duties and obligations under the lease. The covenant should also be expressly subject to any mortgages or other security interests that may then or thereafter encumber the leased premises, to prevent exposure to the tenant should foreclosure occur.

37. Notice

The lease should contain the mailing address of the landlord and the tenant and should specify the procedures pursuant to which notices regarding the lease are to be given by one party to the other. This provision should require that all notices be in writing, forwarded by certified mail, return receipt requested, postage prepaid, hand delivery, courier and overnight courier, and should provide the date on which such notices will be deemed received, such as

124 upon deposit in the U.S. mail, twenty-four hours following such deposit, or upon actual receipt. Often, one or both parties require an additional address, such as the home office or legal department, to which copies of such notices are also to be sent.

38. Partial Invalidity

Leases usually provide that in the event a particular provision of the lease is invalid, the remainder of the lease will nevertheless be enforceable. It is better practice to provide that, in the event a lease provision is deemed invalid, the court should interpret the lease in a manner consistent with the intent of the parties as expressed in the lease. Otherwise, a key provision in the lease, such as the obligation to maintain specified office hours, may be unenforceable while the remaining provisions of the lease, such as an exclusivity provision, remain in effect.

39. Brokerage Commissions

The lease should address the payment of brokerage commissions or similar fees. These costs are normally paid by the landlord. The landlord should, however, require the tenant to indemnify the landlord for brokerage commission claims made by, through or under the tenant, other than those expressly set forth in the lease. If there is a broker for the landlord, the appropriate disclosure should be contained in the lease.

40. Radon Disclosure

This provision is required by Florida law. See Section 404.056, Florida Statutes, in this Guide.

125 OFFICE LEASE CHECKLIST

 Article 1 Basic Lease Information  Article 18 Damage and Destruction  1.1 Basic Lease Information  Article 19 Subordination  1.2 Definitions  19.1 General  1.3 Exhibits  19.2 Attornment and Non-disturbance  Article 2 Agreement  Article 20 Entry by Landlord  Article 3 Term, Delivery, and  Article 21 Indemnification, Waiver, and Acceptance of Premises Release  3.1 Delivery of Possession  21.1 Indemnification  3.2 Early Entry  21.2 Waiver and Release  Article 4 Monthly Rent  Article 22 Security Deposit  Article 5 Operating Expenses  Article 23 Quiet Enjoyment  5.1 General  Article 24 Effect of Sale  5.2 Estimated Payments  Article 25 Default  5.3 Annual Settlement  25.1 Events of Default  5.4 Final Proration  25.2 Landlord's Remedies  5.5 Other Taxes  25.3 Certain Damages  5.6 Additional Rent  25.4 Continuing Liability After Termination  Article 6 Insurance  25.5 Cumulative Remedies  6.1 Landlord's Insurance  25.6 Waiver of Redemption  6.2 Tenant's Insurance  Article 26 Parking  6.3 Forms of Policies  Article 27 Miscellaneous  6.4 Waiver of Subrogation  27.1 No Offer  6.5 Adequacy of Coverage  27.2 Joint and Several Liability  Article 7 Use  27.3 No Construction Against Drafting Party  Article 8 Requirements of Law; Fire  27.4 Time of the Essence Insurance  27.5 No Recordation  8.1 General  27.6 No Waiver  8.2 Hazardous Materials  27.7 Limitation on Recourse  8.3 Certain Insurance Risks  27.8 Estoppel Certificates  Article 9 Assignment and Subletting  27.9 Waiver of Jury Trial  9.1 General  27.10 No Merger  9.2 Submission of Information  27.11 Holding Over  9.3 Payments to Landlord  27.12 Notices; Waiver of Technical Defects  9.4 Prohibited Transfers  27.13 Severability  9.5 Permitted Transfer  27.14 Written Amendment Required  9.6 Remedies  27.15 Entire Agreement  Article 10 Rules and Regulations  27.16 Captions  Article 11 Common Areas  27.17 Notice of Landlord's Default  Article 12 Landlord's Services  27.18 Authority  12.1 Landlord's Repair and Maintenance  27.19 Brokers  12.2 Landlord's Other Services  27.20 Governing Law  12.3 Tenant's Costs  27.21 Late Payments  12.4 Limitation on Liability  27.22 No Easements for Air or Light  Article 13 Tenant's Care of the Premises  27.23 Tax Credits  Article 14 Alterations  27.24 Relocation of the Premises  14.1 General  27.25 Financial Reports  14.2 Free-Standing Partitions  27.26 Landlord's Fees  14.3 Removal  27.27 Binding Effect  Article 15 Mechanics' Liens  27.28 Criminal Acts  Article 16 End of Term  27.29 Radon Disclosure  Article 17 Eminent Domain  27.30 Rights Reserved to Landlord

126  27.31 ADA  27.35 Survival of Rights  27.32 CFC's  Exhibit A: The Premises  27.33 Limitation on Telephone Utilities  Exhibit B: Legal Description of the Land  27.34 Limitation on Tenant’s Right to  Exhibit C: Workletter Terminate  Exhibit D: Rules and Regulations  27.34 Force Majeure  Exhibit E: Commencement Date Certificate  27.35 Consent Denial by Landlord Gives Tenant Only Right to Injunctive Relief

127 SHOPPING CENTER LEASE CHECKLIST

 Article 1 Basic Lease Information  Article 18 Damage and Destruction  Article 2 Agreement  Article 19 Subordination  Article 3 Term, Delivery, and  19.1 General Acceptance of Premises  19.2 Attornment  3.1 General  Article 20 Entry by Landlord  3.2 Failure to Deliver Possession  Article 21 Indemnification, Waiver,  3.3 Early Access and Release  3.4 Condition of the Premises  21.1 Indemnification  Article 4 Monthly Base Rent  21.2 Waiver and Release  4.1 General  Article 22 Security Deposit  4.2 Annual Monthly Base Rent Adjustment  Article 23 Quiet Enjoyment  Article 5 Common Area Operating Expenses  Article 24 Effect of Sale  5.1 General  Article 25 Default  5.2 Estimated Payments  25.1 Events of Default  5.3 Annual Settlement  25.2 Landlord's Remedies  5.4 Proration Upon Termination  25.3 Certain Damages  5.5 Other Taxes  25.4 Continuing Liability After Termination  5.6 Additional Rent  25.5 Cumulative Remedies  Article 6 Insurance  Article 26 Rules and Regulations  6.1 Landlord's Insurance  Article 27 Signs  6.2 Tenant's Insurance  Article 28 Miscellaneous  6.3 Forms of Policies  28.1 No Offer  6.4 Waiver of Subrogation  28.2 Joint and Several Liability  6.5 Adequacy of Coverage  28.3 No Construction Against Drafting Party  Article 7 Utilities  28.4 Time of the Essence  Article 8 Use, Operation of  28.5 No Recordation Business, Financial Statements  28.6 No Waiver  8.1 Use--General  28.7 Limitation on Recourse  8.2 Operation of Tenant's Business  28.8 Estoppel Certificates  8.3 Manner of Conducting Business  28.9 Waiver of Jury Trial  8.4 Financial Statements  28.10 No Merger  Article 9 Requirements of Law, Fire  28.11 Holding Over Insurance  28.12 Notices; Waiver of Technical Defects  9.1 General  28.13 Severability  9.2 Toxic Materials  28.14 Written Amendment Required  9.3 Certain Insurance Risks  28.15 Entire Agreement  9.4 Tenant's Insurance Payments  28.16 Captions  Article 10 Assignment and Subletting  28.17 Notice of Landlord's Default  10.1 General  28.18 Authority  10.2 Limitation on Remedies  28.19 Brokers  Article 11 Common Areas  28.20 Governing Law  Article 12 Landlord's Services  28.21 Force Majeure  12.1 Landlord's Repair and Maintenance  28.22 Late Payments  12.2 Landlord's Other Services  28.23 No Easements for Air or Light  12.3 Limitation on Liability  28.24 Tax Credits  12.4 Grand Opening Fund  28.25 Relocation of the Premises  12.5 Promotional Fund  28.26 Landlord's Fees  Article 13 Tenant's Repairs  28.27 Binding Effect  Article 14 Alterations  28.31 ADA  Article 15 Mechanics' Liens  28.32 CFC's  Article 16 End of Term  28.33 Limitation on Right to Terminate  Article 17 Eminent Domain  28.34 Consent Denial by Landlord

128 Gives Tenant Only Right to  Exhibit C: Workletter Injunctive Relief  Exhibit D: Rules and Regulations  28.35 Survival of Rights  Exhibit E: Sign Criteria  Exhibit A: Legal Description of the Shopping Center  Exhibit B: The Premises

129 FIXTURES

A fixture is a former chattel which by reason of its annexation to or association in use with land is so connected with the land that it is considered that the former chattel is part of the realty. A fixture is distinguished from an accession because some fixtures are removable by the tenant where as accessions are not removable. A fixture is a chattel which retains its separate identity in spite of its annexation to the realty, such as a roof mounted HVAC unit. An accession is a chattel which losses its separate identity such as bricks, nails, drywall and the like, which become part of a building.

Generally, most courts in the United States hold that whether a chattel becomes fixture is a matter of intent of the parties. There are basically three (3) criteria for determining whether a chattel has become a fixture. The first is the actual annexation to the realty or something appurtenant thereto. Although physical annexation is usually required, in certain circumstances, a chattel will be deemed to be constructively annexed. For example, a storm window that would normally pass to the purchaser of the land because it was attached to the house will normally pass to the purchaser of the house even though the storm window was in the storage at the time of the conveyance.

The second criterion is that the chattel be appropriated to the use or purpose of that part of the realty with which it is connected. Consequently, where the chattel is necessary or convenient to the use of the land on which it is located, then it will be regarded as a fixture, such as seats in a theater.

The third criterion is that it be the intention of the party making the annexation to make the article a permanent succession to the freehold. This is an objective intent as manifested by the tenant's conduct and surrounding circumstances.

Not to be confused with fixtures discussed above, tenant's trade fixtures are one of three categories of "tenant fixtures." These three categories are: trade fixtures, agricultural fixtures, and domestic fixtures. Tenant trade fixtures are usually considered removable at the end of the lease. Landlords often dispute what is removable at the end of the lease term. Landlords are advised to list, in advance, at the time the lease is negotiated, the disposition of tenant-installed items such as bars, walk-in coolers, HVAC systems, and the like.

THIRD PARTY ITEMS LEFT IN PREMISES

Sometimes a third party contacts the Landlord to permit them entry into the premises to recover a copier or some other piece of leased equipment. They may even assert that they sold the item to the tenant but retained title to it. In any event, the Landlord must never permit entry into the premises before the Landlord recovers possession without a court order from the third party specifically ordering the Landlord to give over the item of property. To obtain such an order, the third party must join the Landlord as a defendant in the suit or in some other way obtain a “break order” from the judge permitting entry.

If the Landlord has possession of the premises due to a writ of possession or the legal surrender or legal abandonment of the premises by the tenant, then a different issue arises. The Landlord has the right to enter the premises and the only remaining question is if the Landlord wants to cooperate with the third party or require the third party to get a court order requiring that the Landlord permit the collection of the item in question. It is always safest to require a court order, but unless something seems fishy or the third party is not a substantial company, we almost always permit the item to be collected. However, we always require copies of the pertinent ownership or other papers supporting the claim, a statement that the third party is entitled to collect the item, and an indemnification letter. A form for this letter is provided in the Forms section of this Guide.

THE AMERICANS WITH DISABILITIES ACT (ADA)

The Americans with Disabilities Act ("ADA"), was enacted into law on July 26, 1990. The ADA is intended to prohibit discrimination against persons with disabilities. It is divided into four parts, Title I, Employment; Title II, Public Services and Transportation; Title III, Public Accommodations and Commercial Facilities; Title IV, Telecommunications.

130 A person with a disability is defined, briefly, as someone who has a physical or mental impairment that substantially limits one or more major life activities, such as hearing or seeing or speaking, someone who has record of such an impairment, or someone regarded as having such an impairment.

Title III may require the removal of architectural and communications barriers to the disabled and may require providing auxiliary aids and services. Alterations made to the premises after January 26, 1993, must conform to the specific accessibility requirements of the law.

Title III divides facilities into two types, "Public Accommodations" and "Commercial Facilities." A mixed use building may have certain portions that are considered public such as a bank office, and some portions that are considered commercial facilities such as business offices.

A commercial facility is an office that is used for private business purposes and is not for the use of the general public although some non-employees may visit from time to time. If the business is not strictly for private office use, it is probably considered a public accommodation. The obligation to remove barriers and to provide auxiliary aids and services does not affect commercial facilities, although reasonable provisions must be made for job applicants and employees with disabilities to enter and use the facilities. Alterations made after January 26, 1993 must be accessible.

Banks, travel agencies, and lawyers' officers are all considered public accommodations. If a public accommodation, then by January 26, 1992, architectural and communications barriers where "readily achievable" must be removed. "Readily achievable" means that it will not cost much money or involve much difficulty. There are two major types of barriers, architectural and communications. An architectural barrier impedes access to or use of a facility. A narrow door way that will not let a wheelchair pass is considered such a barrier. A communications barrier, for example, would consist of a sign that is without Braille.

A public accommodation intended for use only by employees will not require changes, such as the employees' break room.

You must provide auxiliary aids and services to make certain that no-one entering or using a public accommodation is excluded or denied services. Such aids and services may include Braille, telephone handset amplifiers, and the like.

For alterations to either public accommodations or commercial facilities after January 26, 1992, you must comply with the ADA requirements. Alterations include installing or replacing items such as faucets, doors, door handles, electrical outlets, Tenant build-outs, and the like.

When major work or activity areas are altered, the path to the altered area must also comply with ADA requirements. The "path of travel" is defined as a clear and direct path from an accessible building entrance to the altered area. Rest rooms, telephones, and drinking fountains serving the altered areas must also be made accessible to the extent the cost of so doing is reasonable in relation to the cost of the total alteration. The cost of providing the path of travel may be the responsibility of the Tenant or Landlord, or both. For example, if the lease is silent on the issue, and a Tenant alters the leased premises, then the Tenant would usually be responsible for providing the accessible path of travel.

This area of emerging law is very complicated. This article is only intended to acquaint you with the ADA and should not be used for any purpose.

For more information on requirements for public accommodations and commercial facilities, call (202)514- 0301. For more information on technical requirements concerning alterations, call 800-USA-ABLE. BOMA also has an excellent 80 page publication entitled ADA Compliance Guidebook. Call the local BOMA office in Tampa at 886-3215 for more information.

131 The Florida Americans with Disabilities Accessibility Implementation Act, amended during the 1997 legislative session, is contained in this Guide. Please note that it has numerous requirements that exceed the federal guidelines.

BUILDING OWNER'S ALERT REGARDING TELECOMMUNICATIONS ISSUES

In 1990, the Federal Communications Commission (FCC) adopted regulations intended to expand competition within the telecommunications industry. Telephone companies across the country are attempting to use these regulations to unilaterally relocate their current telephone service demarcation points, the locations throughout buildings where service to individual tenants ends, to a single location at the building's first inside entry. California has already adopted this standard. Consequently, building owners could find themselves liable for providing the telecommunications cables through the building's telecommunications pathways from the minimum point of entry to the tenant's equipment.

The choice as to the location of the demarcation point is obviously of great importance. Building owners want to have smart buildings with copper and fiber capabilities to entice telecommunications intensive tenants. On the other hand, building owners do not want to forego the opportunity to generate revenue from telecommunications providers who use their buildings, nor give up control of their building's telecommunications pathways. Furthermore, building owners do not want to deal with the liabilities associated with providing telecommunications cables unless they can protect themselves with insurance. Some building owners want to remain removed from the entire process, and allow the tenants to deal directly with the telecommunications providers.

BOMA International has participated in proclaiming building owner's concerns to the Federal Communications Commission. These concerns include the fact that relocation of demarcation points to the minimum point of entry into the building do not promote competition among telecommunications providers, compromises tenant service and security, requires an inventory of existing networks which does not currently exist, requires new insurance coverage not yet available, and will cost building owners money for the relocation of the demarcation points in buildings and transfer responsibilities for inside wiring.

In Florida, BOMA Florida, an organization of the state's five local member BOMA chapters, is monitoring the situation at the Florida Public Service Commission, which continues to require that the telecommunications providers run cable to the tenant's equipment. BOMA Florida plans to participate in any state action on these issues. The situation must be monitored to allow building owners and managers an opportunity to participate in any proposed legislative or administrative rules changes.

Currently, local exchange telecommunications providers are trying to seek footholds in buildings to prepare for the future, possibly with the payment of cash incentives and rent, so that they will be well placed to compete with alternate access telecommunications providers, who also desire to serve building tenants.

Curiously, this author has not found any prohibition in either Florida Statutes or the Florida Administrative Code requiring building owners who do not provide shared tenant services, to provide access to any telecommunications providers. Although current leases typically provide express or implied provisions allowing telecommunications access without the building owner's consent, sophisticated leases regulate the Tenant’s right to demand access for their telecommunications providers of choice and limit the Landlord’s liability for interruptions.

What can our industry do? Monitor current FCC and state legislation and administrative rules so that building owners and managers can participate in any proposed changes; fight any proposed mandatory access laws; insert lease clauses to regulate tenant's rights to telecommunications access to the building owner's facilities and limit the Landlord’s exposure to liability for interruption; and provide responsibilities for cable and equipment installation, repair, and maintenance through license agreements.

This is an evolving issue building owners and their trade organizations must monitor and react to in order to protect themselves from incurring liability, losing control of space, and losing deserved revenue.

132 NON-DISTURBANCE AGREEMENTS

The Landlord desires to provide that the lease is and will remain subordinate or inferior to existing and future mortgages. This will enable the Landlord to seek a wide range of financing options as many lenders desire the right to foreclose and therefore terminate unfavorable leases.

The Tenant, on the other hand, desires to obtain a non-disturbance agreement from the mortgage holder ensuring that if the Landlord defaults on the mortgage, the Tenant will not be disturbed by the lender's foreclosure action.

An alternative to a non-disturbance agreement is the personal liability of the Landlord for relocation expenses in the event of a foreclosure. This, of course, will only be of value if the Landlord is a large institutional owner who sells the property or owns it in a shell, but nevertheless will guarantee relocation. A bond or letter of credit could also be posed to guarantee the Landlord's performance of the relocation agreement.

SALES TAX

The state of Florida requires the Landlord to pay sales tax on all rental payments received from Tenants. It requires the Tenants to pay the sales tax to the Landlord. Any monies received by the Landlord from the Tenant are deemed taxable with one exception. The case of Omni v. Department of Banking and Finance, 444 So.2d 540 (3rd DCA, 1984) provides that if a Landlord has a master electric meter and initially pays the electric bill, and then is reimbursed for the total charge from the Tenant, then the Landlord is not required to collect and pay a second sales tax on the amount collected by the Landlord.

Sales tax may be avoided in some circumstances when a lease cancellation or termination fee is contemplated. Usually, sales tax can be avoided to the extent the fee is not for use of the premises, the Landlord does not record it as rental income on its books, and the Tenant does not record it as rental expense on its books.

EMINENT DOMAIN

Eminent domain is the power of a sovereign to take private property for a public use or purpose without the owner's consent, on the payment of just compensation.

Exercise of the power of eminent domain is subject to constitutional provisions, chiefly that no person shall be deprived of property without the due process of law, and that no private property shall be taken except for a public purpose with full compensation paid.

In an eminent domain proceeding involving the taking of property encumbered by a leasehold interest, a jury is first called upon to consider evidence relating to the value of both the fee and leasehold interests, and it must evaluate each interest before rendering an inclusive verdict as to damages. Carter v. State Rd. Dep't., 189 So.2d 793 (Fla. 1966). After the jury verdict, the parties may then proceed to a hearing at which a trial court determines their proportionate rights to the jury's award. National Advertising Co. v. Florida Dep't of Transp., 611 So.2d 566 (Fla. 1st DCA 1991): Section 73.101, Florida Statutes (1993). In apportioning the proceeds, the trial court must make an equitable distribution which reflects the respective values of the fee and leasehold interest. Dama v. Record Bar, Inc., 512 So.2d 206 (Fla. 1st DCA 1987), rev. denied, 519 So.2d 988 (Fla.1987). However, the sum of the amounts awarded to the parties cannot exceed the total value of the condemnation verdict. Valls v. Arnold Indust., Inc., 328 So.2d 471 (Fla. 2d DCA), cert. denied, 341 So.2d 1084 (Fla. 1976) and 342 So.2d 1104 (Fla. 1977).

In the absence of an agreement between a landlord/owner and a tenant in possession, the tenant is entitled to share proportionately in the condemnation award for the value of its leasehold interest. Simpson v. Fillichio, 560 So.2d 331 (Fla. 4th DCA), review dismissed 574 S0.2d 140 (Fla. 1990). However, the parties have a right to provide in their lease agreement the specific manner in which a condemnation award is to be apportioned between them.

133 Elmore v. Broward County, 507 So.2d 1220 (Fla. 4th DCA 1987). If they dispute how the award is to be distributed, it is resolved at the apportionment hearing.

If there are lease provisions governing non-residential property providing that the landlord is entitled to all damages from any partial or total taking, these provisions are honored in Florida. (Simpson v. Fillichio). Consequently, most landlord's strive to enter into leases which provide that the tenant is not entitled to any damages. In other words, the landlord desires to receive the entire award for the land as if it were not encumbered by a lease. After negotiation, however, the tenant with bargaining power will usually wind up with the right to recover for relocation costs, some right to the bonus value of the lease, and in the case of a partial taking, business damages. The bonus value of the lease is the difference between the contract rent stated in the lease and the fair market value of the space.

SIGNATURE BLOCK FORMS

The following is my suggested signature block form:

Witnesses: Landlord:

______By: ______

______

Witnesses: Tenant:*

______By:______

______Title (if applicable): ______

(CORPORATE SEAL)

*Note: If Tenant is a corporation, an appropriate corporate officer must sign plus either affix the corporate seal or have two subscribing witnesses. If Tenant is a limited partnership, then a general partner of the limited partnership must sign in the form required for the signature of the general partner. If Tenant is an individual or a general partnership, there must be two subscribing witnesses to each Tenant’s signature. Following execution, four originals hereof shall be returned to Landlord.

Note: The attesting signature of a secretary is superfluous and not necessary to the validity of a corporate conveyance in Florida using a corporate seal. It serves merely to confirm the genuineness of the seal. A president or vice president may sign on behalf of the corporation. Assistant vice presidents are not authorized to sign under Florida law. Corporate resolutions are not needed according to Florida Statute 692.01.

If lease is being guaranteed, use a separate guaranty form. Never have guarantor merely sign below the Tenant's name.

Although Florida Statute 689.01 requires a lease to be witnessed by two subscribing witnesses unless using the corporate seal with respect to corporations or any member of a member-managed company or manager of a manager-managed company signs with respect to a limited liability company (unless the articles of organization or operating agreement limit the authority of a member). The two subscribing witnesses do not have to be disinterested. In other words, even the Landlord or the Landlord's agent could conceivably bear witness to the Tenant's signature. See Ross v. Richter, 187 So.2d 653 (Fla. 2nd DCA 1966). A subscribing witness is a person who actually sees the signature affixed to the paper. If the lease is not witnessed by two subscribing witnesses, it can be deemed to be a lease for a term of one year, and then month-to-month thereafter. Partial performance of the

134 lease by the Tenant may not act to rectify the absence of two subscribing witnesses if the Landlord is suing the Tenant solely for damages. Part performance applies to equitable claims only.

135 PARTIES AND FORMALITIES OF EXECUTION

A lease for a term in excess of one year must be in writing and executed with the formalities of a deed. It must be signed by the landlord and Tenant, and their signatures must be witnessed by two subscribing witnesses unless a party is (i) a corporation, in which event, the signature of the president or vice president may we accompanied by the corporate seal, or (ii) a limited liability company, in which the signature of any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the limited liability company's interest in real property unless the articles of organization or operating agreement limit the authority of a member. The instrument is conclusive in favor of a person who gives value without knowledge of the lack of the authority of the person signing and delivering the instrument. The witnesses do not have to be disinterested, so the Landlord may witness the Tenant's signature. The witnesses must be subscribing witnesses, which means they must actually see the person sign whose signature they are witnessing. Landlords usually do not want to record leases because it may cloud their title. Consequently, notary provisions are not usually found on leases. Usually, if there is a reason to record the lease, "short form" versions of the lease are drawn and signed simultaneously with the lease. The Landlord may want to record a "short form" lease to avoid the recording of construction liens by contractors. These documents, if sought to be recorded must be notarized. (Notaries do not have to actually see the person sign whose signature they are notarizing, as long as that person acknowledges that he or she did in fact sign, and as long as that acknowledgment is made in the presence of the notary by the person whose signature is being notarized.) If the Landlord puts a Tenant in possession and accepts the rent, then the Landlord may be estopped from denying the validity of the lease due to the lack of witnesses or other such defect. Unsigned commercial leases where there is partial performance may be recognized if there was an oral agreement upon which the Tenant justifiably relied.

All lease modifications should be in writing and executed with the same formalities as the lease itself. However, there are exceptions to this rule as well. Oral agreements may be upheld if the agreement has been accepted and acted upon by the parties where the refusal to enforce would amount to a fraud upon either party.

Assignments of a lease for more than one (1) year must also be executed with the same formalities as a lease for a term of more than one (1) year.

The name of the Tenant must be in a legally recognized form. If the Tenant is a corporation, limited liability company or partnership, review the online records of Florida's Secretary of State, showing that the entity is recognized by the State and that its status is one of "good standing" (has complied with the state's minimum annual reporting requirements). All Florida and foreign (out-of-state) corporations, limited liability companies or partnerships corporations are required to register with the Florida Secretary of State. You can view Florida’s Secretary of State’s registry and documents at www.sunbiz.org. This search only takes a few minutes, and can save time and money and avoid headaches later on. Always use the complete corporate name. If the name does not contain the words "corporation", "incorporated" or another word, abbreviation, affix, prefix, or suffix clearly indicating corporate status, it is not a corporation or you do not have its complete name. See "Corporate Name" (Section 607.041) as set forth in this Guide. Be aware of the fact that registration with Florida’s Secretary of State is not a measure of solvency or compliance with anything other than having sent in the annual fee and report.

If the Tenant is a limited liability company, general partnership, limited partnership or a sole proprietorship, the Tenant(s) must sign without reference to a corporate office. No corporate title such as "President" should appear because there are no corporate officers in any of these entities. If a person writes "President" or a similar title after his or her name, you should be alerted and then clear up the inconsistency. Any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the limited liability company's interest in real property. All limited partnership obligations should be signed by the general partner(s). Limited partnerships have general and limited partners. The general partners are liable for the debts of the limited partnership. The limited partners are only at risk for the amount of their investment.

136 Always consider personal guarantees for any Tenant entity when the corporation is not substantial. Always try to obtain both husband's and wife's signatures on any guaranty, as just one spouse's signature will not allow you to reach joint assets of a husband and wife in the event a judgment for rent, et cetera, is obtained.

Always examine the Tenant's signature, as Tenants have been known to sign in mysterious ways. I once examined a lease where the "signature" was that of "John Hancock".

Acknowledgments by a notary are not necessary unless it is intended that the lease be recorded in the county's public records - not something many building owners desire since it could cloud the title.

GUIDE TO INSURANCE RATINGS

There are five major insurance rating agencies. Each essentially rates insurance companies from the same financial data. However, each interprets the data differently.

Best Duff & Moody’s Standard Weiss Phelps & Poor’s A++ AAA Aaa AAA A+ A+ AA+ Aa1 AA+ A A AA Aa2 AA A- A- AA- Aa3 AA- B+ B++ A+ A1 A+ B B+ A A2 A B- B A- A3 A- C+ B- BBB+ Baa1 BBB+ C C++ BBB Baa2 BBB C- C+ BBB- Baa3 BBB- D+ C BB+ Ba1 BB+ D C- BB Ba2 BB D- D BB- Ba3 BB- E+ E B+ B1 B+ E

Note that most landlords require a Best’s Secure Rating of “A VII”. Do not use Best’s Financial Performance Rating system, as this is for new insurers that don’t meet Best’s Secure Rating criteria.

LANDLORD'S INSURANCE OUTLINE

1. Liability Insurance

I. Commercial General Liability policy (CGL) is the name of the promulgated policy of the Insurance Services Offices, Inc., (ISO) which is used by many insurance companies. (The old policies were called "comprehensive general liability polices" and were unfortunately also referred to as "CGL policies".)

A. Coverage provided either on claims-made or occurrence coverage basis. Claims-made insures against claims that are made during the term of the policy. Occurrence policies insure against events that occurred during the term of the policy even if made subsequent to the expiration of the policy. Trend is toward claims-made policies. Occurrence policies are better for the insured.

B. Under current CGL policies, limits of insurance are aggregated against a single claim. If there is $1 million in coverage, 5 claims of $200,000 each will exhaust the policy. Under the old CGL policies, $1 million limits would be the limit for any one claim. Some policies also include the cost of legal defense in the coverage limits. There are also separate sublines for medical payments, personal injury, advertising injury, and fire damage legal liability coverages.

137 C. Sublines of CGL policies: a) products/completed operations; b) premises/ operations. The latter, more relevant to landlords, includes the older sublines of manufacturers and contractors, owners, landlord and tenants, personal injury and advertising injury, medical payments, and fire damage legal liability.

D. The CGL policy has three basic insurance coverages:

1. Bodily injury and property damage. (Excludes intentional acts of insured, liquor-related accidents if the insured is in the liquor business, injuries to employees covered by worker's compensation insurance, and pollution incidents. Includes what used to be known as contractual liability coverage which insures against bodily injury or property damage that the insured assumes by contract such as in a lease. Included is fire damage legal liability insurance for fire damage to the premises rented to the insured, but only if the insured has liability for the fire. This particular coverage has separate limits, and does not apply to personal property for which the tenant is usually required to obtain separate coverage.)

2. Personal injury and advertising injury (personal injury is not bodily injury involving physical harm, but includes false arrest, malicious prosecution, wrongful eviction, and defamation. Advertising injury includes violation of a person's right of privacy, misappropriation of advertising ideas, and copyright infringement. A sub-limit applies.)

3. Medical payments (pays for bodily injury on or on the way to the premises owned or rented by the insured. It pays regardless of the insured's negligence.

The landlord has the benefit of the tenant's liability policy if it is name as an "additional insured".

2. Property Insurance

First, the landlord must review the lease to be certain that the various provisions applying to the property are consistent. The repairs and maintenance, casualty and surrender provisions must be made consistent. If the tenant is required to return the premises in good condition, ordinary wear and tear excepted, while the landlord is required to repair the premises after a casualty damage, and the tenant is required to maintain and repair the premises, who is responsible for repair after an accidental fire caused by the tenant?

There are several ISO designations for property insurance. There are the Basic Form, Broad Form and Special Form policies. The Special Form is preferred as it most closely resembles the “all risk policy” previously used in the industry. The Basic Form policy is akin to the old “standard fire and extended coverage” policy.

3. Rent Stream Insurance Either party is able to obtain insurance to pay the rent so long as that party has a liability in the lease to pay the rent.

A. Landlord - rental value insurance B. Tenant - business income insurance

4. Miscellaneous

A. Be certain to check policies to determine if reimbursement is for actual cash (old for old) or replacement cost (new for old).

B. Inflation guard endorsement reduces risk of self-insurance or agreed amount or stated amount endorsement.

C. Policies, or in their absence, laws provide whether policies will share liability (contributing) vs. one pays first and other will pay excess (primary and secondary or excess). Landlords desire to have the Tenant’s policy as primary.

138 D. Tenant's liability policy protects Landlord if Landlord is named as "additional insured" (gives defense and primary coverage).

139 CASUALTY CLAUSES IN LEASES

The casualty clause of a lease determines such issues as the obligation to restore the leasehold premises, the time frames of restoration, and the abatement of rent. Florida law provides that the non-residential landlord has no duty to repair absent a contrary contractual obligation.

The extent of destruction is one of the threshold issues. The procedure is usually set out in the casualty clause. Usually a percentage or dollar amount is tied to the determination of whether the leasehold premises are rendered untenantable due to the casualty. The "extent of damage" issue is usually of major importance to both parties, each with a different economic motivation. Tenants want as low a percentage or dollar amount to trigger their rights to terminate, even in the event of a partial destruction. In certain leases, the tenant's rights are important in the event there is a partial destruction of the shopping center but no damage to the tenant's premises. Obviously, if the shopping center is not fully open and drawing patrons, the tenant will be adversely affected. In the event of a total destruction, the tenant may be forced to wait many months to reopen. It may be to the tenant's advantage to move to another location and recommence business again. The tenant will also want the right to the prompt return of the security deposit and advance rent.

Landlords have the opposite interest from tenants. In the event of partial destruction, landlords want the lease to terminate, especially when the casualty occurs late in the tenant's lease term. The landlord may be able to obtain a higher rent for the newly improved premises. Alternatively, the landlord may desire to build a different building or change the use of the property. If the casualty occurs early in the lease term, the conditions that brought about the lease probably would not have changed much, and the landlord would want to keep the income stream coming with as little interruption as possible. In the event of a total destruction, the landlord often reserves the right to terminate, and with good reason. This is especially important when the landlord's ability to rebuild is dependent on the terms and conditions pertaining to the application of insurance proceeds contained in the mortgage. Many mortgages have "due on fire clauses," that accelerate the mortgage in the event of a casualty and provide that the insurance proceeds be paid first to the mortgagee.

Another main issue is the time granted to the landlord to notify the tenant as to the landlord's election to rebuild or not. A landlord needs sufficient time to evaluate the percentage or dollar amount of the damages, negotiate claims with insurance companies, obtain bids from contractors, and negotiate with lenders to obtain permission, if necessary, to use the proceeds. In the case of a natural disaster, such as a hurricane, the time frames can often become exaggerated. Landlords usually use a 180 day time frame. Conversely, the tenant wants to know its fate as soon as possible. The tenant wants to shorten the time.

Florida case law provided, absent a contrary lease provision, that if the landlord had a duty to repair and failed to do so, leaving the premises untenantable, the tenant could abandon the premises without further liability for rent. Now, Section 83.201, Florida Statutes (1993), which took effect on October 1, 1993, provides that if the lease is silent on the procedure to be followed and the payment of rent relating thereto, but requires the landlord to make repairs and perform maintenance, and there is an event of destruction which renders the premises wholly untenantable, certain requirements are forced on the parties. A more complete discussion of this issue is contained in the Article "Tenants New Right to Withhold Rent," in this Guide.

A partial destruction does not relieve the tenant from the rental obligations absent a contrary provision in the lease. Consequently, tenants want to contract for an abatement of the base rent in proportion to the percentage of destruction, and total abatement of rent if the tenant's right to open is completely ended. Pass-through charges are usually contracted to continue even in the event of a total destruction. After all, the county does not abate property taxes due to the destruction. The tenant wants to abate or proportionately reduce these obligations.

The landlord should consider carrying "rental loss" insurance to insure that if the rental income from tenants terminates, there are still funds in order to pay the mortgage, taxes, management expenses and insurance. The tenant should carry "business interruption" insurance to provide funds to pay the rent and pass-throughs to the landlord. Typically, the landlord disclaims the liability for the tenant's loss of income due to casualty.

140 Another issue arises as to when the obligation to recommence rent begins. The landlord wants the date to be when the certificate of occupancy is delivered to the tenant. The tenant in a retail space who is dependent on an anchor tenant may want to trigger the rent payment to the date the shopping center is put back to the way it was. The office or warehouse tenant may want the date triggered by the completion of the parking garage or other amenities upon which the tenant may be dependent. Furthermore, tenants will want a "fixturing period" within which to finish out their space, or restock their inventory.

The landlord's obligation typically requires the furnishing of the structure. But what about the leasehold improvements or allowances supplied by the landlord at the inception of the lease? Tenants can insure against these expenses if they have the foresight to insure for them.

What happens when the insurance companies fail? This situation occurred in the Hurricane Andrew aftermath. Florida's insurance guaranty fund limits claims to a maximum of $300,000.00 per claim. Therefore, landlords should limit their obligation to rebuild when there is inadequate or no insurance proceeds available. In some cases, Tenants are now requiring the landlord to maintain the landlord's casualty insurance with a company with a certain minimum rating with A.M. Best or other national evaluation service. The landlord is then required to have its carrier notify the tenant in the event of an expected lapse.

The time frame for reconstruction bears discussion. Short time frames are favored by tenants and opposed by landlords. With the shortage of materials after Hurricane Andrew, the landlord must be careful to make provisions to protect against matters beyond its control. A "force majeure" clause can accomplish this end.

141 REQUIREMENTS OF THE FICTITIOUS NAME ACT

Florida, like many states, has long required by statute that any person operating a business under a fictitious name file a certificate in a public office disclosing the true names of the owners of the business. The purpose for this registration is to provide notice to the public, and especially to creditors, of the identities of persons who are doing business under fictitious names for the purpose of protecting creditors from fraud and deceit.

Because fictitious name registrations were being filed in all counties throughout the state, it was often difficult to ascertain the true ownership of a business operating under a fictitious name in more than one county. A single, state-wide system of registration was needed to effectuate the statute's purpose of providing notice to the public.

On July 1, 1990, the Florida Fictitious Name Statute became the Florida Fictitious Name Act. Florida Statutes Section 865.09 was amended in its entirety by Chapter 90-267, Laws of Florida, by changing the notice publishing from four times one time and changing the place of registration from the clerks of court to the Division of Corporations of the Florida Department of State. The penalties for not registering a fictitious name remained the same under the new law: second degree misdemeanor criminal penalties, and prohibition against maintaining a lawsuit in this state until compliance.

The registration requirements under the new law are as follows, which are reflected in forms promulgated by the Division of Corporations:

(1) advertise the intention to register the business at least once in a newspaper in the county of the principal place of business; and (2) file a sworn statement with the Division of Corporations listing the name to be registered, the mailing address of the business, and the name and address of each owner; and the federal employer's identification number and Florida incorporation or registration number if the owner is a corporation; and (3) payment of a filing (processing) fee to the Division of Corporations, initially $50.00.

The new law defines a fictitious name as any name under which a person transacts business other than his, her or its legal name. For example, the following would be fictitious names of a person legally named John Smith: ABC Lumber, John's Lumber, Jack's Gas Station. But John Smith may engage in business as "John Smith" or "Smith" without registering the name. In addition, if John Smith is a lawyer or other licensed professional, he may use any trade name allowed by the profession and need not register the name since attorneys and persons licensed by the Department of Professional Regulation are exempt from the new law. F.S.A. Section 865.09(7).

The word "person" is broadly defined in F.S.A. Section 1.01 to include individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. Thus, the new law applies to any person, firm, partnership or corporation engaging in business in Florida under a name other than its legal name.

It is important to note that, if a corporation is the owner of a business, it is the corporation that must register and not the shareholders of that corporation. Thus, the sworn statement to be filed with Division of Corporations should be signed by the president or other authorized officer of the corporation and not by the shareholders.

"Business" is defined as any enterprise in which a person sells, buys, exchanges, barters, deals or represents the dealing in any thing or article of value, or renders services for compensation. It is not clear from this whether a nonprofit corporation engaged in a charitable purpose without compensation is required to register a fictitious name. For example, if a nonprofit corporation named Charity Health Concerns, Inc. owns a hospital named Charity Health Clinic and does not charge for its services or goods, then it might not be required to register the fictitious name since it is not in business, as defined by the new law.

Fictitious names registered under the new law are valid for five years and expire on December 31 of the fifth year. Registration may be renewed for five years by filing a renewal statement in the fifth year.

142 If the ownership of a business changes, the owner of record must file a cancellation and reregistration of the fictitious name on forms prescribed by the Division of Corporations. F.S.A. Sections 865.09(4) and 865.09(11).

There is a common misconception that registration of a fictitious name assures the registrant of exclusive rights to the name. The new law clearly states that registration is for public notice only, registration does not give rise to any presumption of the registrant's rights to own or use the name registered, and registration does not affect trade mark, service mark, trade name, or corporate name rights previously acquired by others in the same or similar name. F.S.A. Section 865.09(8). Registration itself does not grant any trademark or other proprietary rights in the name. However, it is not yet clear whether registration of a fictitious name will make it more difficult for another in the future to use that name as its corporation name.

Any and all fictitious names still in use registered in each of the 67 counties from 1940 to December 31, 1990, must be re-filed with the Division of Corporations by the owner after January 1, 1991, and no later than December 31, 1992.

(This article reprinted with permission from Martin and Yadley - West's Florida Legal Forms - Business Organizations, Copyright 1990 by West Publishing Company, 610 Opperman Drive, P.O. Box 65426, St. Paul, Minnesota 55164-0526; 1-800-328-9352.)

143 EVICTION PROCEDURE

Once the default notice and curative period have run, if any notice and cure period is specified in the lease, and the statutory three day notice has been served and the requisite three days have elapsed, or other default notice and curative period have run, if any are specified in the lease, for non-monetary defaults the landlord may then file an eviction action. Usually, a claim for eviction and money damages are filed in the same action, but in separate counts. (If the tenant has already vacated and the premises has been deemed abandoned, or if the tenant has surrendered the premises, then only a collection action is filed.)

The eviction count of the suit must be answered by the tenant within five business days after service of process. The counts for money damages must be answered to by the tenant and/or guarantor(s) within twenty days after service of process. If the suit is posted, jurisdiction is only obtained on the eviction count and not for the damage counts, so only a judgment for removal and attorney's fees and court costs can be obtained unless personal service of process is subsequently obtained.

The tenant is required to pay the rent claimed to be due into the court’s registry during the five day answer period unless the tenant claims it has paid the rent, disputes the amount claimed, or has good cause for the inability to pay. The court must then decide these preliminary issues if called upon to do so. Failure of the tenant to pay the rent supposedly forfeits the tenant’s right to possession without further notice or hearing. (See the article “Tenant Required to Pay Rent During Eviction Action” in this Guide).

Once the answer is filed regarding the eviction count, the eviction hearing can be scheduled and heard by the court. Of course, if the tenant has not paid the rent into the court's registry prior to the end of the fifth day, the tenant will loose the opportunity to defend the case unless the tenant claims in its answer that the rent has already been paid. At the eviction hearing, the only issue for the court's determination will be the tenant's right to continued occupancy. If the tenant does not prevail, a final judgment granting possession to the landlord is signed by the judge and a writ based upon it is issued by the clerk and taken to the sheriff for service. The sheriff then meets the landlord and the locksmith to put the landlord in possession of the premises. If the tenant prevails, the tenant may remain in the premises, although the suit for damages may continue. If the tenant does not answer the suit within five business days after service, a default judgment may be entered against the tenant upon proper application and affidavit in proof of claim. If the tenant is a person, the affidavit must also contain a statement to the effect that the tenant is not in the military service.

After twenty days, the tenant's responsive pleading is due on the money damage counts, and if a pleading is filed, trial on damages may then be set. Again, if no answer is filed, a default final money judgment may be obtained against the tenant.

Before either the eviction count or the money damage counts can be heard, a notice for trial must be filed. The notice for trial on each count may not be filed until the tenant's answers on each count is filed. The trial is then scheduled and an order setting the trial is signed by the judge. The trial on either eviction or money damages may not be set for less than thirty days after the filing of the notice for trial and the signed order setting the trial is served.

144 TENANT'S RIGHT TO WITHHOLD RENT

The 1993 Florida Legislature added Section 83.201, effective October 1, 1993, to provide that if a lease is silent on the procedure to be followed to effect repair or maintenance of the leased premises and at the same time is silent on the issue of payment of rent relating to repair or maintenance, but affirmatively and expressly places a duty on the landlord to make repairs or perform maintenance, the tenant has certain new rights as set out in the statute. The statute provides, however, that it applies only if the leased premises are rendered wholly untenantable as a result of the landlord's failure to repair or maintain.

The tenant must first give the landlord written notice declaring that the leased premises are wholly untenantable, specifically describing the repair or maintenance to be performed, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance is performed. The landlord's notice must provide that the landlord has 20 days within which to perform the repair or maintenance. The lease may provide a longer period.

Once the repair or maintenance is performed, the tenant is required to pay the rents withheld. If the landlord does not complete the repair or maintenance within the allotted time, the parties may extend the time or the tenant may abandon the leased premises and terminate its liability under the lease, retaining the amount withheld.

There are no reported appellate cases on this new statutory section, and there will not be many for years. Consequently, questions raised by the statute will not be answered for a long time.

Questions that immediately arise are, for example, whether a lease that provides that rent shall be paid without "deduction or setoff" is sufficient to satisfy the requirement that the lease address the issue of payment of rent relating to repair and maintenance? The statute excepts such leases from its purview. (The reason leases provide that rent is due without "deduction or setoff" is to make the payment of rent a covenant independent of the landlord's non-compliance with its obligations under the lease. In other words, this language arguably requires the tenant to pay rent regardless of the landlord's breach. The tenant's remedy is to sue the landlord for damages or if the breach is serious enough, constructive eviction.)

Another question is whether a lease may specifically waive the statutory provision. After all, a well drawn lease may excuse the landlord's requirement for the giving of a three day notice for non-payment of rent, why not the new statutory provision as well?

What happens when there are causes beyond the landlord's control that prohibit the repair or maintenance? For example, acts of God such as rain could prohibit roof repairs. What happens if the repairs or maintenance are not completed in the allotted 20 days for this reason? The statute does not address this important issue. (When passage of this provision was inevitable, I tried to convince those pushing this bill to extend the 20 days for delays beyond the landlord's control, but they would have none of it!)

Will the tenant be required to place all of the required matters in the notice for it to be effective? Is the notice defective if it does not "specifically describe" the repair or maintenance needed? After all, the three day notice for non-payment of rent requires certain matters and is defective if they are not provided or are provided incorrectly.

Since the new statute will probably be found to apply to existing leases, landlords should make the appropriate provisions to protect themselves with regard to existing leases at every opportunity. For example, when consent to assignment or modification is sought, landlords should try to add a provision that will protect against the application of this statute.

145 TENANT REQUIRED TO PAY RENT DURING EVICTION ACTION

The Florida Legislature passed three important changes to the non-residential landlord and tenant act during the 1992-93 legislative session. The most important change is the requirement that non-residential tenants pay the rent into the court's registry within five days (excluding weekends and legal holidays), following the day an eviction suit is served, if the tenant intends to defend the suit. Accruing rent must also be paid during the pendency of the suit. If the rent is not paid accordingly, the tenant will be summarily evicted. However, the parties' other claims against each other, aside from the issue of possession, will survive to be litigated.

If the tenant contests the amount alleged in the complaint to be due, the court is required to determine the amount due. The court can only consider whether the landlord has properly credited the tenant with the rent paid, and what properly constitutes rent under the lease. Since the landlord is only able to demand rent in the statutory three day notice, if late charges are included, for example, in the calculation of the demand in the notice, but the late charges are not deemed "rent" in the lease, then the notice has improperly demanded amounts that are in excess of the rent. The notice is therefore defective. If the notice is defective, the suit will fail. The tenant is required to pay on the date of the hearing the amount found to be due. If the tenant contends that the rent has been paid or satisfied, then no rent deposit is required. However, accruing rent must be paid into the court's registry if the court so orders. What constitutes a "satisfaction" of the rent is unclear.

The court is empowered to extend the time periods to allow for later payment for "good cause shown." The definition of "good cause" is not supplied, so some judges may find that good cause is demonstrated when a tenant, for example, who may be able to pay the rent when the "season" picks up, has shown "good cause" if the season is just around the proverbial corner, the tenant has earned money in the past during the season, the tenant has invested a great deal of money in the premises, employs many people, depends on the business for his family's income, et cetera. As cases are decided interpreting this question, and appealed, the body of decisional law will somewhat frame the parameters that the courts will be bound to follow in making this determination, but that will probably be years away.

The landlord is entitled to apply for an early disbursement of the funds held in the court's registry if the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income.

The filing of a counterclaim does not relieve the tenant from the tenant's obligation to deposit rent into the court's registry. This partially codifies the concept that the tenant's obligation to pay rent, and moreover, right to remain in possession, is independent of the landlord's obligations to perform under the lease. It is somewhat of a compromise, however, to the extent that the landlord may not utilize the rent money during the pendency of the suit unless in actual danger of loss of the property or hardship. On the other hand, it forces the tenant to demonstrate the ability to pay, and at the same time secures the landlord while fighting the battle for possession. In the past, if the tenant was able to frame a legally cognizable defense, the tenant could remain in possession without security to the landlord. Prior to the statutory change, the landlord was able to argue that the court had the equitable power and duty to require the tenant to pay the rent into the court's registry, but the landlord's right was always tempered by the tenant's arguments that it was unfair to require the tenant to pay the delinquent rent into the court registry since it was the landlord's breach of the lease that put the tenant into the posture of not having the rent money in the first instance.

146 ABANDONMENT OF THE PREMISES

Clients often have questions about their rights and liabilities when a tenant has apparently vacated the premises. There are two scenarios when a tenant vacates, surrender and abandonment. Surrender of the premises occurs when the tenant notifies the landlord verbally or in writing that it has or intends to vacate the premises as of a date certain. Sometimes a tenant will provide notice to the landlord that it is vacating the premises, and will return the keys to the premises to the landlord. When surrender has occurred, the landlord should send a notice of “no surrender accepted” found in the Guide. Depending on whether the tenant returns the keys, use the appropriate letter fitting that scenario.

Abandonment occurs when the landlord has reason to believe the tenant has vacated the premises, but the tenant has provided no written or verbal notice to the landlord that it has done so. Section 83.05(3), Florida Statutes, states that abandonment can be presumed if the following three things have occurred:

a. The landlord reasonably believes that the tenant has been absent from the rented premises for a period of thirty (30) consecutive days; b. The rent is not current; and c. A notice pursuant to Section 83.20(2) [the statutory Three Day Notice] has been served and ten (10) days have elapsed since service of such notice.

To form a reasonable belief that the tenant has been absent from the premises for thirty (30) consecutive days, the landlord can determine if the tenant’s telephone system has been disconnected, the electricity has been turned off, there is a “We’ve Moved” sign displayed at the premises, or there has been no activity at the premises for at least thirty (30) days.

It is important to note that the statute specifically states that the abandonment presumption does not apply if the rent is current or if the tenant has notified the landlord in writing of an intended absence. Therefore, if you have knowledge that the tenant has a planned absence from the premises, you cannot use the abandonment presumption statute to take possession of the premises.

If you have reason to believe that the tenant has been out of the premises for say, one (1) week, and if the tenant is delinquent in the payment of rent, post a three (3) day notice on the front door of the premises, even though you know no one is there to accept it, so that the ten (10) day period can begin to run from the giving of the three (3) day notice. The thirty (30) day provision and the ten (10) day provision can run simultaneously. In other words, you do not need to wait until the premises have been abandoned for thirty (30) days to serve a three (3) day notice at the premises. You should serve the three (3) day notice at the premises as soon as the tenant becomes delinquent in the payment of rent (and any and all curative notices required by the lease have been served.)

Once all of the three conditions provided by Section 83.05 have occurred, you may presume abandonment, change the locks at the premises, and begin the re-letting process. There is no further action required, and it is not necessary to commence an eviction proceeding. You may still want to evaluate whether to file a lawsuit against the tenant for money damages as a result of its breach of the lease. The statute speaks only to regaining possession of the premises, and does not preclude the landlord’s rights to seek money damages from the tenant. Since a landlord’s primary concern when a tenant defaults in the payment of rent is regaining possession of the premises, the abandonment statute is a helpful tool in regaining possession as soon as possible. Many times a property manager is unaware that the premises have been vacated until the thirty (30) days have passed or more. If you are uncertain as to when the premises were vacated, you can check with the various utility companies and telephone companies as referenced above for the dates that those services were discontinued, and you can also interview the neighboring tenants regarding their knowledge of the tenant’s vacating the premises. If you are unable to obtain any information through those methods, you should begin counting the thirty (30) days from the date you first have actual knowledge that the tenant is vacant from the premises, serve the statutory three (3) day notice at that time, and refrain from changing the locks until after the full thirty (30) days have run from that date.

147 LANDLORD'S RIGHT TO EVICT FOR NON “RENT” NON-COMPLIANCES

The Florida legislature made three significant additions to the statute governing non-residential landlord and tenant law during the 1993 legislative session. One requires the tenant, under certain conditions, to pay rent into the registry of the court during the pendency of an eviction suit. A second permits the tenant, under certain conditions, to withhold rent or terminate the lease if the landlord does not make repairs after twenty (20) days' notice and the premises are untenantable. These were discussed in previous articles.

A third significant addition to the statute is the granting of the remedy of eviction for landlords whose leases do not provide for this particular remedy in the event of a default other than for the payment of “rent”. Although almost all non-residential leases provide for the landlord's right to retake possession in the event of a default in the payment of rent, some leases fail to provide for this remedy in the event of defaults other than the non- payment of rent. Since a landlord's remedies are limited by the language in their leases, this statutory fix permits the eviction of tenants when the lease is silent on the matter or is an oral lease, and there is a failure to cure a material breach of a lease or oral agreement when the breach is for reasons other than the non-payment of rent. Fifteen (15) days’ written notice must first be given, allowing the tenant fifteen days to cure the default or vacate.

Curiously, the legislature provided that if the lease is oral or silent on the method of delivery of notices, the service of the notice shall be made by mail, hand delivery or if the tenant is absent from the rental premises or address designated by the lease, by posting. Certified mail is not mandated if not required by the lease. However, mailing the notice certified mail and regular mail at the same time is recommended. Placing the certified mail number on the letter itself helps to tie the green card (return receipt) to the letter. Since the period of time given in the notice for the cure or vacating exceeds seven days, the rules of civil procedure requiring the addition of five (5) days for mailing does not apply. Also, intervening weekends and legal holidays are counted, although if the last day falls on a weekend or legal holiday, the next day would be the fifteenth day. So fifteen calendar days from the date of mailing will end the cure period and an eviction action can thereafter be filed.

A suitable form for giving the notice appears below:

You are hereby notified that you are in violation of your lease for the above addressed premises by your failure to ______. If you do not cure the violation or vacate within fifteen (15) days following the date of this notice, legal action may be commenced against you.

If legal action is initiated against you, you may be held liable for attorney's fees and court costs.

If you vacate the premises, you will remain liable under the lease, as the owner's re-entry into the demised premises shall be to re-let it on your account, and shall neither constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate.

This notice is given to you pursuant to your lease and Section 83.20(3), Florida Statutes.

148 ELECTION OF REMEDIES

Although Florida Appellate decisions are somewhat confused in use of terminology, the following can be generally used as a guide in understanding the Landlord's remedies unless the lease provides for different remedies or the remedies in the lease are found to be inconsistent or void as against public policy.

Option 1. Surrender. If the tenant surrenders possession of the premises, you may resume possession of the premises for your own exclusive purposes. If surrender occurs, you can only sue for arrears in rent, not future rent or damages. This option may be forced upon you if you intend another remedy but do not attend to it correctly. Acceptance of the keys, without an agreement to the contrary, is usually deemed an acceptance of surrender by the Landlord. Your lease should provide that acceptance of the keys is not an acceptance of surrender. In any event, you should write a letter to the Tenant (I suggest within ten (10) days), informing the Tenant that your acceptance of the keys is not an acceptance of surrender, but to allow you to inspect and show the premises to prospective new Tenants on the Tenant's behalf. Even if the keys are not surrendered, but the space is vacated by the Tenant, a notice of your intentions to reenter on the Tenant's behalf is critical. A form for these notices are contained in this Guide.

Option 2. Terminate the Lease. You may terminate the lease and retake possession of the premises for the account of Tenant, holding the Tenant in general damages for the difference between the rents stipulated to be paid, including arrears, and what in good faith you are able to recover from a re-letting. Your claim for prospective amounts is for damages, not rent. You can use expert testimony at trial to estimate future chances to mitigate or you can wait until the mitigation has occurred or the lease term ended before having a trial on damages. In the latter instances, you will be presenting testimony on what has occurred as opposed to projected scenarios. All amounts must be reduced to present value. If you terminate the lease and the Tenant fails or refuses to vacate the premises, you must still file an eviction suit and obtain and serve a Writ of Possession, having the sheriff restore you to possession, before you may resume possession of the premises. You may evict and still sue for damages for future loss under this option. You may sue for possession and damages in the same action or in separate actions.

Option 3. Enforce the Lease. You may treat the lease as still in existence, stand by and do nothing, and sue the Tenant for arrears and as each installment of prospective rent matures, or if you have the right to accelerate the rent, you can demand it all upon your election to accelerate. This is a suit for rent, not damages. You may not use this option if you have filed an eviction action. You may not use this option if you want to file an eviction action. All amounts must be reduced to present value. You must account to the Tenant at the end of the term for any net monies recovered from any releting.

Option 4. Anticipatory Breach. You may sue the Tenant in damages for anticipatory breach of contract. This means you can accept a recession of the lease and surrender of the leasehold estate and still maintain an action for damages for anticipatory breach of contract against the Tenant.

Since any conduct by the Landlord that is inconsistent with any particular remedy that the Landlord seeks to impose seems to automatically be interpreted by the courts as an acceptance of a surrender of the leasehold estate, it is important that the Landlord, as soon as the Landlord learns of the Tenant's proposed abandonment or abandonment, or as soon as the Landlord decides on a course of action, declare in writing to the Tenant, the Landlord's refusal to accept a recession of the lease or a surrender of the leasehold estate. In addition, the option chosen should be expressed in the notice.

We sometimes recommend delivering a termination notice to the Tenant after the default notice and curative period have run, if any. This terminates the lease and removes from the court (and in bankruptcy, the power of the court to deal with the lease although the automatic stay still controls), the power to reinstate the lease. Although it should not cut off the Landlord’s rights to sue for arrears in rent, physical damage to the premises and prospective rent, some trial courts have taken the position that the Landlord’s remedy to claim prospective damages for the “loss of the benefit of the bargain” ends. This is an erroneous decision however, it could occur and unless appealed and won, the net effect is that although the lease is terminated, so might be Landlord’s right to prospective damages. 149 LANDLORD'S DUTY TO MITIGATE DAMAGES

Due to the possible legal requirement (the case law is conflicting on this issue in Florida), that the Landlord mitigate damages from the date the Landlord learns of the Tenant's intention to vacate the demised premises until the end of the term of the Lease, it is incumbent upon the Landlord to take reasonable steps to relet the property. In order to prove that the Landlord has made a reasonable effort to mitigate damages, I recommend that the Landlord take the following actions and be prepared to testify at the trial accordingly.

1. Place "For Rent" signs in the window of the demised premises as well as on the shopping center marquee or other places where such signage is permitted. Take photographs of the sign(s) in the window and the sign(s) on the property and bring them to the trial;

2. List the property with a broker for rent and bring the listing agreement to the trial;

3. Keep copies of any advertisements, MLS listings, brochures, and other advertisements, and bring them to the trial;

4. Keep a log of all inquiries by prospective Tenants, no matter how casual the inquiry is, keeping a record of the person's name, telephone number and address, or if the person would not give it, an appropriate notation accordingly, the method that the prospective Tenant learned about the vacancy, the reason that the prospective Tenant decided not to pursue the inquiry, and if pursued, the details concerning the information that was supplied to the prospective Tenant, any dates and times of showing the property, and bring your records to the trial;

5. Keep records of the rental rates quoted to the prospective Tenants and all correspondence and drafts of proposed leases, and bring to trial;

6. Take photographs of the interior of the demised premises from all angles of each room showing the condition of the premises at the time the Tenant(s) vacated, and the condition of it after it is made ready for re- renting, and bring the photographs to the trial;

7. Because you can only testify about things within your own knowledge, arrange for any leasing agents, brokers or other relevant witnesses to be present at the trial to testify concerning their personal knowledge regarding mitigation;

8. Notify leasing agents and brokers in writing of what you expect them to do in anticipation of trial.

150 DISTRESS FOR RENT

A landlord has a lien for rent upon the property of the tenant usually kept on the demised premises, even if it is temporarily off the demised premises. The lien is authorized by Section 83.08, Florida Statutes. The statutory lien is automatic, however, you may additionally have agreed in the lease to a contractual landlord's lien, in which case your rights may be spelled out more particularly. The landlord's lien attaches at the beginning of the lease term or as soon thereafter as the property subject to the lien is brought onto the premises. It only relates back to the date of the then current lease. The lien, of course, attaches only to property belonging to the tenant. Under the Uniform Commercial Code Article 9, Florida Statutes, Chapter 679, a secured party, such as a bank, has a superior lien to the landlord's lien when the secured party perfects its interest before the tenant's property is brought onto the leased premises.

To enforce the landlord's lien, the landlord must bring an action under the statutory distress for rent procedures as set forth in Section 83.11, Florida Statutes. The landlord's lien is superior to any judgments, executions, or attachments on the property that are obtained after the landlord's lien has attached. In bankruptcy, a landlord's lien is accorded priority unless it is set aside by the bankruptcy judge, which the court will do upon request of the debtor or trustee.

A landlord's lien for rent is enforced by a distress proceeding. A distress proceeding is commenced by the filing of a complaint to enforce the landlord's lien which requires a court order and the posting of cash or a bond for an amount equal to double the amount of rent sought to be recovered or the value of the property sought to be distressed, whichever is less.

A distress writ can be issued only for rent that has accrued. However, if a lease provides that future rent can be accelerated to the present, then that rent has "accrued".

Once the complaint has been filed, and once the order by the court authorizing the clerk to issue the distress writ has been signed, and the bond has been posted, the sheriff then serves the writ on the tenant or premises enjoining the tenants from damaging, disposing of, secreting, or removing from the leased premises any property which is subject to the writ. The injunction remains from the time the distress writ is served until the sheriff's levy on the property, or until the writ is otherwise vacated. A tenant may be punished with contempt of court for violating the distress writ. If the tenant does not file a motion to dissolve the distress writ before the time for answering the complaint has expired, after default judgment, the sheriff will sell the personal property seized after advertisement. The distrained property will be sold either at the leased premises or at the courthouse steps, to the highest bidder. If the landlord's lien is first in priority, the landlord may "credit bid" up to the amount of its judgment. If the landlord is the highest bidder, the landlord will own the property. The net proceeds are distributed by the priority of the recorded liens based on perfection dates.

A landlord's lien is not superior to tangible personal property taxes that may be due to the county in which the personal property is located. This lien follows the personal property. The service of the distress writ acts to prioritize the landlord's claim so that other subsequently filed liens, such as State of Florida Department of Revenue Delinquent Sales Tax Liens and State of Florida Unemployment Tax Liens, and executions on judgments are subordinate to the landlord's claims. IRS liens and other federal liens and writs cannot be foreclosed. In fact, the law permits IRS liens to be filed months after the assessment date, and relate back to the date of assessment.

151 ACCEPTING PARTIAL RENT PAYMENT AND ACCEPTING RENT AFTER FILING EVICTION SUIT FOR NON-PAYMENT

Your company may have a management policy not to accept partial rent payments, but legally you can do so prior to the filing of a suit, and still preserve your right to sue if you then give the Tenant a new curative or default notice if required by the lease, and a three-day notice for the remaining balance after the rent is accepted. The Tenant gains only the time it takes to re-serve the default notice (if required), and the three-day notice. You gain whatever money you collect and lose the three days (plus the curative period, if any), plus intervening weekends and holidays. If you accept partial payment after giving a three-day notice, you must give a new three- day notice before suit can be filed as the suit is predicated upon the notice.

If suit has been filed and a Tenant wants to pay and stay, you can accept payment, but you should insist on payment of your court costs and legal fees as well as past due rent, and you should also enter into a written agreement with the Tenant regarding the timely payment of future rent. Even if a Tenant can initially make only partial payment, you can accept this as long as you enter into a written agreement for payment of the balance. In either event, you should use the leverage of the suit to your advantage. Get the Tenant to agree to your terms if the Tenant wants to stay.

Our Settlement Stipulation form provides that the suit will remain pending. If the Tenant fails to pay any unpaid balance as agreed or fails to pay monthly rent when due, the Tenant can be evicted upon presentation to the court of an affidavit of failure to pay. This avoids the time and expense of filing a new suit or having additional hearings.

Judges encourage settlement of disputes, and often a Landlord would not settle with the prospect of having to file a new suit against the same Tenant for a repeated nonpayment in the near future. We have had only one judge refuse to enforce the portion of the stipulation dealing with future rent payments and that judge enforced all other portions of the stipulation.

152 ACCEPTANCE OF CHECK “UNDER PROTEST”

It is not unusual to receive a check with a notation or accompanying letter implying that negotiation of the check will act as an acceptance of the facts presented by the notation. “October 1999 rent in full” or “Paid in Full” or similar notations are not unusual. Can you accept the check without regard to the notation? If your lease says that you can, then you are Okay. However, if the lease is silent on the issue, does the UCC provision of Florida statutory law permitting you to write “without prejudice”, “under protest”, or similar language on the check eliminate the problem?

The following cases are concerning the Second District Court of Appeals’ view on the acceptance of payments “under protest.”

Section 671.207, Florida Statutes, states:

(1) A party who, with explicit reservation of rights, performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.

(2) Subsection (1) does not apply to an accord and satisfaction.

In Miller v. Jung, 361 So.2d 788 (Fla. 2d DCA 1978), a landscaper received a check for payment of services with the words “LANDSCAPING PAID IN FULL” and “cashing of this check constitutes a waiver of any lien” written on it. The amount of the check was less than the amount owed the landscaper. The landscaper endorsed the check and wrote “negotiated by named payees under protest and with reservation of all their rights” on the check. The Second District held that, pursuant to Section 671.207, Florida Statutes, the landscaper did not waive his rights to collect the balance owed by negotiating the check “under protest.” The court held that the landscaper was not required to give prior notice to the payor before negotiating the check. Id. at 362.

No other cases on this issue have been decided by the Second District Court of Appeal since Miller.

In Eder v. Yvette B. Gervey Interiors, Inc., 407 So.2d 312 (Fla. 4th DCA 1981), the Fourth District Court of Appeals certified its opinion as in direct conflict with Miller. In Elder, Defendants sent Plaintiff a check for less than the amount allegedly owed, and wrote, “balance in full for all work done.” Plaintiff negotiated the check after writing on it the words, “the above is not acceptable as full payment.” The trial court entered judgment in favor of Plaintiff for the deficiency, and the appellate court reserved. The court held that without prior notice to the payor, the payee cannot rely on its reservation of rights when the payee tendered the payment in full and final performance of the obligation, reasoning that Section 671.207, Florida Statutes applies only when there is the possibility or necessity of continuing performance of the obligation. Id. at 314.

The Fourth District Court of Appeals followed Eder in Ennia General Ins. Co. v. Auld, 506 So.2d 62 (Fla. 4th DCA 1987). In Ennia, the insurance company sent a settlement draft to claimant as full and final performance of the obligation. The recipient inserted reservation of rights language on the check and negotiated it. The court held that the recipient did not preserve its rights, and negotiating the check constituted acceptance of payment in full. Id. at 63.

The Third District Court of Appeals follows the law as interpreted in the Fourth District. Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3d DCA 1980); Yelen v. Cindy’s Inc., 386 So.2d 1234 (Fla. 3d DCA 1980).

The Florida Supreme Court has not addressed the conflict between the districts, and there are no Supreme Court cases on this issue.

153 CONCLUSION

The law in the Second District Court of Appeals seems to be that accepting payment “under protest” does not constitute a waiver of rights under any circumstances. However, the Fourth and Third Districts seem to align more closely with the strict wording of Section 671.207(2), Florida Statutes, which provides that non-waiver by acceptance of payment “under protest” does not apply to situations where the payment is tendered in full and final satisfaction of payment. Eder, supra; Ennia, supra; Hannah, supra. Therefore, if a landlord in the Second District accepts a late or partial installment payment of rent “under protest,” there is arguably no waiver of the right to collect the balance. However, if the landlord in the Second District accepts a final check from the tenant “under protest” which is less than the disputed amount, the court will likely find that the landlord has waived the right to collect the balance.

154 COLLECTING BAD CHECKS AND FORM LETTERS

Writing a bad check with the intent to defraud the payee is a crime which can be punished by imprisonment and/or a fine. Intent to defraud generally means that the writer knows the check is bad when written. In addition, writing a bad check is a civil wrong, and the holder of the check can obtain a civil judgment for the amount of the check plus other damages (legal jargon for money). Both actions can be taken for the same bad check. The crime is prosecuted by the state attorney at state expense like any other crime. The civil judgment is obtained by litigation in civil court proceedings like other suits involving money disputes at the initial expense of the plaintiff (holder of the check).

The 1986 Florida Legislature increased the civil penalties for writing bad checks and provided a new form letter for notifying the writer of the civil penalty. For many years Florida Statutes have provided a form letter for use in notifying bad check writers of the criminal penalty, but it did not mention civil penalties. Now there are two separate (and partially redundant) form letters in the Statutes. They are:

CRIMINAL PROSECUTION LETTER (FLORIDA STATUTE 832.07):

"You are hereby notified that a check, numbered _____, in the face amount of $_____, issued by you on (date) , drawn upon (name of bank) , and payable to _____, has been dishonored. Pursuant to Florida law, you have 15 days from the date of this notice to tender payment of the full amount of such check plus a service charge of $25, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $_____ and _____ cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution. You may be additionally liable in a civil action for triple the amount of the check, but in no case less than $50, together with the amount of the check, a service charge, court costs, reasonable attorney fees, and incurred bank fees, as provided in s. 68.065."

CIVIL PENALTY LETTER (FLORIDA STATUTE 68.065):

"You are hereby notified that a check numbered ____ in the face amount of $______issued by you on (date), drawn upon (name of bank) , and payable to , has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the check plus a service charge of $25, if the face value does not exceed $50, $30 if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or 5 percent of the face amount of the check, whichever is greater, the total amount due being $____ and ____ cents. Unless this amount is paid in full within the 30-day period, the holder of the check or instrument may file a civil action against you for three times the amount of the check, but in no case less than $50, in addition to the payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action."

The Criminal Prosecution Statute provides: "Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received or not." The Civil Penalty Statute says only that the letter must be "delivered by certified or registered mail, evidenced by return receipt." However, actual receipt probably is not necessary. Both letters obviously can be sent in the same envelope.

Seven days after sending the criminal prosecution letter to the writer of a bad check, you can take the check, a copy of the letter, and your certified mail return receipt to the state attorney's office in your county and ask that the writer be criminally prosecuted. You can file a civil suit anytime after you are aware that a check has been

155 dishonored for the amount of the check, but you can only get the triple penalty 31 days after the civil penalty letter is sent.

After a civil suit is filed against a bad check writer, he or she can avoid the triple penalty if payment is made before trial in the amount of the check, plus the service charge, court costs, and incurred bank fees. Once the trial starts, the writer is subject to these charges plus the holder's attorney fees and the triple penalty. However, all or part of the statutory damages may be waived by the judge or jury if "the dishonored check was due to economic hardship." You can file a civil suit at the same time the State Attorney is prosecuting the criminal case.

You may wonder why the holder of a bad check would ever file a civil suit since the law provides for criminal prosecution at no expense to the holder. Often the state attorney may not be vigorous in prosecuting a bad check complaint because of other "more important" cases. It is more difficult to obtain a criminal conviction than a civil judgment because the procedural requirements and amount of proof required are less for a civil suit. Even if a person is convicted of the crime of writing a bad check, this will not result in a judgment against him or her for the amount of the check or the other civil penalties. However, the judge in a criminal case may make restitution (payment of the check) a requirement for probation or other leniency. Before spending the money to file a civil suit, you need to make a decision about the probability of collecting the judgment. If the writer is a "bum" who is not likely to ever have anything, then you may not want to throw good money after bad. However, remember that judgments accrue interest at 10% per year, acts as a judgment lien on real property owned, and screws up the defendant's credit. Judgments are good for seven (7) years and can be renewed.

Finally, Florida Statute Section 832.07, provides that to establish the writer's identity ... "the following information regarding the identity of the party presenting the check shall be obtained by the party accepting such check: The full name, residence address, home phone number, business phone number, place of employment, sex, date of birth, height, and race". If the check is from a Tenant, this information should be on the application. If the check is from a non-Tenant, this information should be placed on the check. Always properly identify prospective Tenants before entering into leases, including recording their drivers license and social security numbers.

156 VEHICLE TOWING

Vehicle towing in Florida is governed by the provisions of Section 715.07, entitled "Vehicles Parked on Private Property, Towing". By definition, a vehicle means any mobile item which normally uses wheels, whether motorized or not. If you follow the law, you will not have any liability for the cost of removal, transportation, storage or damages caused by the removal, transportation or storage of the motor vehicles. If the vehicle is parked on the property obviously a part of a single family residence, no notice of any kind need be given and the vehicle may be towed away in accordance with the other provisions of the statute which are discussed below concerning the mechanics of the towing.

If the vehicle is parked in an area reserved or otherwise unavailable for unauthorized vehicles and a notice to that effect also stating that the vehicle is subject to being removed at the owner's or operator's expense, is personally given to the owner or other legally authorized person in control of the vehicle, then the vehicle may be towed in accordance with the mechanics of towing as set forth below. Although there are no cases on the subject, it is my position when advising Landlords, that a well-drawn lease containing provisions clearly spelling out what is expected of a Tenant with regard to parking vehicles, constitutes notice having been personally given to the Tenant to comply with the requirements discussed in this paragraph. The lease does not constitute notice to the Tenant's guests or customers, however, and I do not believe that you can tow a guest's or customer's vehicle without personally giving notice, unless you comply with the provisions of the following paragraph.

Finally, you may tow a vehicle without personal notice to the owner or operator if you prominently place at each driveway access or curb cut allowing vehicular access to the property, within five feet from the public right-of- way line, signs which clearly indicate, in not less than 2" high, light-reflective letters on a contrasting background, that unauthorized vehicles will be towed away at the owner's expense. The words "tow-away zone" must be included on the sign in not less than 4" high letters. If there are no curbs or access barriers, the sign must be posted not less than one sign each 25 feet of lot frontage. The notice must also provide the name and current telephone number of the tower if the property owner or Landlord has a written contract with the towing company. The sign containing the required notice must be permanently installed with the bottom of the sign not less than 4 feet above ground level and must be continuously maintained on the property for not less than 24 hours prior to the towing or removal of any vehicles. Note also that local government may require permitting and inspecting of the signs prior to any towing or removal of vehicles.

The mechanics of the towing itself require that the vehicle must be stored at a site within 5 miles from the point of removal in counties of 500,000 persons or more, and within 15 miles from the point of removal in any counties with a population of less than 500,000. The site must be opened for the purpose of redemption of the vehicles on any day that the towing firm is open for towing purposes, from 11:00 a.m. to 11:00 p.m. When the firm is closed, it shall prominently post a sign indicating a telephone number where the operator of the site can be reached at all times. Upon receipt of a telephone request to open the site to redeem a vehicle, the operator shall have one hour to return to the site or he shall be in violation of this section. Within 30 minutes after the completion of the towing or removal, the tower must notify the municipal police department or sheriff's office of the towing, the storage site, the time it was towed or removed, the make, model, color and license plate number of the vehicle, and shall obtain the name of the person at the department to whom such information was reported and note that name on the trip records. If the owner or operator of the vehicle shall arrive at the scene prior to the removal of the vehicle, the vehicle shall be disconnected from the towing apparatus, and the person allowed to remove the vehicle without interference upon the payment of a reasonable service fee of not more than one-half of the posted rate for such towing services, for which a receipt must be given, unless the person refuses to remove the vehicle which is otherwise unlawfully parked. The tower is prohibited from giving any valuable consideration to the owner of the premises for the privilege of removing vehicles. If you are still awake at this point, you only have a little further to go.

When the vehicle is improperly removed, the person causing it to be removed shall be liable to the owner of the vehicle for the cost of removal, transportation and storage, and shall also be required to pay for any damages resulting from the removal, transportation or storage of the vehicle, attorney's fees and court costs. The statute is 157 unclear as to whether or not the Landlord, for example, would be liable for damages if the towing company that is regularly engaged in the business of towing violated some particular requirement placed upon the tower. It is also unclear as to whether or not the tower should be liable for a Landlord's violation of the statute.

Remember, the requirements concerning signage are not applicable to a situation where you are towing a Tenant's car, when the lease permits you to tow the Tenant's violating vehicle at the Tenant's expense. If you do not know who owns a certain vehicle, you can telephone the Division of Motor Vehicles in Tallahassee, give them the serial number and they will tell you the name of the registered owner. You can obtain the serial number by viewing the number through the driver's side of the front windshield. If the vehicle turns out to be owned by someone other than a Tenant, you must actually give personal notice to the owner or operator, unless you have the appropriate signage. This does not mean that you can put the notice on the car, unless you see the owner or driver actually receive it as well. Slipping the notice into the locked car, so that it falls face up on the driver's seat would seem to preclude the owner or operator from claiming that he never received the notice, as he would have to unlock the car to get it, but the statute does not define "personal" service and does not authorize this manner of service of the notice; it would probably result in your being found liable for damages.

The notice should contain the following: Your vehicle is parked in an unauthorized place or is not authorized to be on our property and must be removed immediately. If it is not removed immediately, it will be towed away at your risk and expense pursuant to Section 715.07, Florida Statutes (1985).

Remember, if you have the signage as required by the statute and discussed above, you can eliminate the need to worry about the towing of any vehicles on the property, as you can tow any vehicle not in compliance with the directives of the sign.

Finally, businesses may tow vehicles when the vehicle is parked in such a manner as to restrict the normal operation of the business or if it is on a public right-of-way and obstructs access, even if no signs are posted.

158 THE THREE DAY NOTICE PROCEDURE

Evictions of non-residential tenants for non-payment of rent commences with the serving of a Three Day Notice required by statute (Section 83.20(2)). The Three Day Notice is a legal prerequisite for an eviction suit, consequently, if improperly drafted or served, will form the basis for the dismissal of the eviction suit, sometimes as late as at the end of the trial. If the Three Day Notice is found to be invalidly drafted or served, a new Three Day Notice is required.

Although the Three Day Notice has been hotly litigated by tenants who seek to delay the tenant's eviction, preparing and serving a proper Notice is not difficult. Here are the rules to follow:

1. The statutory Three Day Notice can only be given after the curative period or grace period and notice, if any, required by the lease has been served, and the time for cure has elapsed. The default notice required by the lease, if any, must be served pursuant to the “notice” provision of the lease. The statutory Three Day Notice should be hand delivered, irrespective of the notice language in the lease unless the notice provision specifically provides for service of the statutory Three Day Notice.

2. Use the same form as provided in the statute for residential tenants. (see the following pages of this Guide). Some trial judges have ruled that if the Notice does not exactly compare to the residential Three Day Notice, the Notice is defective. This is the case even though the residential statute only requires that the Notice "substantially" comport to the statutory example.

3. Address the Notice to the tenant or tenants named in the lease, and any other occupant in possession from whom you have accepted rent in the past. Use the complete formal legal name of the tenant or other occupant. Serve a separate copy of the Notice on each such party. Do not use trade names alone, as trade names are not legal entities. Use the complete address of the demised premises, such as "Suite 101".

4. You do not have to compute the "third day" if you modify the Notice form to eliminate the actual date, but if you do compute it, you must compute it correctly. In counting the "three days", exclude the date of hand delivery, weekends and legal holidays. Legal holidays (see Section 683.01, Florida Statutes in this Guide) must be reviewed in each case as days such as Pascua Florida Day, April 2nd of each year, must be excluded.

5. Only a demand for "rent" can be included in the Notice. The lease can define late charges, impounds, pass-throughs or any other monetary payments due from the tenant to the landlord as "rent" and then these sums may be included in the demand. If the lease does not deem such amounts as "rent", then such charges may not be demanded in the Notice.

6. In the Notice, cash can be demanded. Whether cashier's checks can be demanded has not yet been decided. I would not recommend demanding a cashier's check, even if the first check was dishonored, unless the lease gives the landlord the right to do so.

7. Do not include any language in the Notice other than what is set forth in the form suggested. Use a separate letter to make other demands or to communicate with the tenant. But, be careful not to make void the Three Day Notice.

8. Serve the Three Day Notice by hand delivery, even if the lease requires Notices to be served in another manner. If you are able to talk to someone at the premises, ask them for the person in charge. Hand the Notice to the tenant or the person in charge. If you are unable to do this, hand the Notice to anyone employed at the premises. If possible, note the person's name and the time of service on your copy for future reference. Post (tape) the Notice on the front door if no one is present to receive it. Do not mail the Notice (even if the lease provides how notices should be delivered, as such provisions do not generally apply to the statutory Three Day Notice), unless you add five days to the three days (again excluding Saturdays, Sundays and legal holidays). Do not hand deliver the Notice and mail it at the same time unless you provide in a cover letter that the mailed Notice is not the operative 159 Notice but merely a courtesy copy. Otherwise, the mailed Notice will be inconsistent with the hand delivered Notice and may void the hand delivered Notice altogether.

9. You may accept a partial rent payment but you must then give a new curative/default notice if required by the lease, and a new Three Day Notice for the balance.

10. If your lease does not give you the right to demand a cashier's check during the three day curative period, take the tenant's check to the tenant's bank and exchange it for a cashier's check made payable to the same payee. You will not have to wait for it to clear. If the check is not honored, you should get a bank officer to note it on the reverse side of the check or on letterhead, as branch banks no longer stamp checks "NSF" if you present the check at the window. The bank officer merely has to note that the check is not being honored at the time of presentment.

11. You may not give the tenant any Notices or demands if the tenant has filed bankruptcy, unless and until the automatic stay is lifted.

12. Always give a Three Day Notice if the tenant is delinquent in rent, even if the tenant seems to have abandoned the demised premises. Unless the tenant surrenders the premises by some act such as giving over the keys, the fact that the tenant no longer seems to be occupying the premises may not be enough to justify changing the locks. Florida Statutes establishes a presumption that the premises may be deemed abandoned, in the absence of actual knowledge to the contrary, if (a) the tenant has not been at the premises for thirty consecutive days; and (b) the rent is not current; and (c) ten days have elapsed since the serving of the Three Day Notice.

13. Do not give a Three Day Notice if you are not seeking the payment of rent. For example, if the tenant is holding over beyond the term, the Three Day Notice invites the payment of rent and hence the establishment of a new month-to-month tenancy. On the first day of the holdover month, file the eviction. No prior Notice is necessary.

14. One Three Day Notice is a sufficient legal prerequisite to an eviction action even though subsequent rent payments have come due since the giving of the first Notice and the filing of the eviction suit. However, if rent is accepted or a check is held and not promptly returned to the Tenant, which may be tantamount to acceptance, a new Three Day Notice for the balance due must be given before filing suit.

160 NON-RESIDENTIAL THREE DAYS NOTICE TO PAY RENT OR GIVE POSSESSION

______, 200___

______

______and UNKNOWN OCCUPANTS

Dear ______:

You are hereby notified that you are indebted to the owner of the above-addressed premises in the sum of $______for rent (including sales tax), and use of the premises located as addressed above, in ______County, Florida, now occupied by you, and that this is demand for payment of the said rent or possession of said premises within three (3) days (excluding Saturdays, Sundays and legal holidays) from the date of delivery of this notice.

The owner reserves the right to claim other amounts due under the lease or otherwise and is not waiving its right to claim said amounts by its not including a demand for same in this notice.

Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages or pursue Landlord’s other remedies. Such re-entry shall neither constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate.

This notice is given to you pursuant to Section 83.20, Florida Statutes.

(Signature) (Signor's typed name and title) (Landlord's name, address and telephone number, if not on stationery) Check One:

( ) Posted on front door of demised premises on the ______day of ______, 200___, as tenant was absent. ( ) Delivered to ______(insert person's name to whom you handed notice, if known), at the demised premises, on the ____ day of ______, 200___.

161 ANNOTATED (SUGGESTED FORM WITH FOOTNOTES) NON-RESIDENTIAL THREE DAY NOTICE TO PAY RENT OR GIVE POSSESSION1

______(today's date)2

______(exact name of Tenant(s) appearing on lease)3 ______(exact address of demised premises) ______(city, state, zip) and UNKNOWN OCCUPANTS

Dear Tenant(s):

You are hereby notified that you are indebted to the owner of the above-addressed premises in the sum of $______in cash4 for rent5 (including sales tax), and use of the premises located as addressed above, in ______County, Florida, now occupied by you, and that this is demand for payment of the said rent or possession of said premises6 within three (3) days (excluding Saturdays, Sundays and legal holidays) 7 from the date of delivery of this notice.8

Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages or pursue Landlord’s other remedies. Re-entry by Landlord shall neither constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate.

This notice is given to you pursuant to Section 83.20, Florida Statutes.

(Signature) (Signor's typed name and title) (Landlord's name, address and telephone number, if not on (stationery) Check One:9 ( ) Posted on front door of demised premises on the ______day of ______, 200___, as tenant was absent. ( ) Delivered to ______(insert person's name to whom you handed notice, if known), at the demised premises, on the ____ day of ______, 200___.

162 FOOTNOTES

1. Minimum written Notice after the rent is due, required by Section 83.20(2) for Landlord electing to pursue summary possessory remedies for nonpayment of rent. Clark v. Hiett, 495 So.2d 733 (Fla. 2nd DCA 1986). If the lease requires a longer written grace period, the Landlord must provide a longer grace period in the Notice. Morris v. Knox Corp, 13 So.2d 914, (Fla. 1943); Cricket Club Management Corp. v. Cricket Club Condominium, Inc., 510 So.2d 1162 (Fla. 3d DCA 1987).

The Three Day Notice requirement may be entirely waived if such a provision is clearly set forth in the lease. Moskos v. Hand, 247 So.2d 795 (Fla. 4th DCA 1971).

2. This date is just for reference purposes, as the critical date is the date you deliver the Notice to the Tenant as reflected on the bottom of the Notice. Count the three days "following" the date of delivery, not counting the date of delivery. If you mail the Notice, you do not count the day of mailing. Investment & Income Realty, Inc. v. Bently, 480 So.2d 219 (Fla. 5th DCA 1985). However, if you mail the Three Day Notice, you must add five (5) days as explained below.

Section 83.20 (2) requires the Notice to be served by "delivery". It is my view that because this section of the statute requires the Notice to be delivered or if no one is present, by leaving a copy at the premises, it should be hand delivered despite a lease provision requiring Notices to be mailed. Although there are no cases on this point, and although one could analogize that if the lease could waive the requirement of the Three Day Notice altogether (see footnote 1 above), it could also prescribe the method of Three Day Notice delivery. However, I do not know of one judge who has found that hand delivery is unacceptable in the face of a lease provision requiring mailing, since you must add five days to the three days (excluding Saturdays, Sundays and legal holidays), when you mail a Notice, and because there are often disputes arising from certified mailings not accepted or delivered, I recommend hand delivery in every case. For cases pertaining to adding the five days for mailing, see Investment & Income Realty, Inc. v. Bently, supra; Forest Glenn Townhome Associates, Ltd. v. Gardner, 16 Fla.Supp.2d 10 (Volusia Co. 1985). The eight (8) days added for mailing excludes weekends and legal holidays. Rexmere Lake Village Management, Inc. v. Signor, 20 Fla. Supp. 2d 67 (Broward County Court 1987). If the Notice is mailed to the Tenant and the Tenant tenders full payment of the amount set forth in the Notice, the tender must be accepted within seven (7) days, not three (3) days, if the Tenant makes the tender by return mail. Fla. R. Civ. P. 1.090 (a)(e); Investment & Income Realty, Inc. v. Bently, supra.; Forest Glen, supra. Service of the Notice by regular mail is defective if the lease requires it to be mailed by certified mail. Forest Glenn, supra. "Leaving it" means posting it on the front door. I suppose you can put the Notice in an envelope addressed to the Tenant and tape it to the front door if you do not want the Notice read by passers-by.

3. Put all of the Tenants' names here, exactly as the Tenants' names are written in the lease. Do not just use the trade name of the Tenant's business. Use the full and complete legal name of the Tenant. You should not address the Notice to a person if the Tenant is a corporation. If there are several Tenants on the lease, address the Notice to all of them exactly as their names appear on the lease and deliver a copy for each tenant. If a guarantee requires Notice, also send a Notice to the guarantor as required. If there has been a waiver or subordination agreement to a Tenant's lender, be sure to send the lender a Notice as well.

4. If you want payment in cash, you can add "in cash" here. Moskowitz v. Aslam, 575 So.2d 1367 (Fla. 3 DCA 1991). However, no cases have decided whether you can require payment by cashier's check. You can try it, but your Notice may be ruled defective. I advise either leaving the Notice as written or adding "in cash", until a court rules on the cashier's check requirement. However, if your lease provides that late rent payments must be paid by cashier's check, then the Notice will probably be upheld. Of course, if the payment is by regular check, you should immediately drive it to the Tenant's bank and exchange it for a cashier's check made payable to the same payee as appears on the Tenant's check. If the bank dishonors the check but will not stamp it "dishonored" because the check was not presented through normal banking channels, you may be able to convince the bank to type "dishonored" on the reverse side of the check, with the date and time of presentment, and sign it. If the bank will not do this, try to get a letter from them stating that the check is being dishonored.

163 5. You can include only money due the Landlord as "rent". If late charges are not provided in the lease, you cannot demand them in the Three Day Notice. If late charges are provided in the lease, you cannot demand them in the Three Day Notice unless the late charges are defined in the lease as "rent". The same rule applies to pass-throughs, returned check charges, and the like. Many leases define all moneys owed to the Landlord as "additional rent", in which case these monies are owed as rent and may be included as "rent" due pursuant to the Three Day Notice. An erroneous statement of the rent due in the Three Day Notice renders the Notice defective. Light Realty, Inc. v. Jones, 21 Fla.Supp.2d 86 (Manatee Co. 1987); Baker v. Clifford-Mathew Inv. Co., 128 So. 827 (Fla. 1930); Eden Point North Condominium Assn. v. Sockolof, 2 Fla.Supp.2d 179 (11th Cir. 1983). The mere inclusion of late charges in the rent paragraph does not mean that the late charge is due as rent. Housing Authority of Daytona Beach v. Smith, 27 Fla.Supp.2d 30 (Volusia Co. 1987).

6. You must state that the Tenant has the alternative of paying the rent or giving up possession. Deauville Corp. v. Garden Suburbs Golf and Country Club, 164 F.2d 430.

7. You must advise the Tenant that the "three days" exclude Saturday, Sunday and legal holidays. Johnson v. Kallioinen, 16 Fla.Supp.2d 86 (15th Cir. 1986); Cummings v. Giles, 34 Fla.Supp.2d 117 (Broward Co. 1989). "Legal holidays" are those recognized by Florida law, and are set forth in Chapter 683. There are many little known legal holidays recognized by Florida statutes, such as April 2nd each year, which is "Pascua Florida Day", so always consult the statute in counting the three days.

8. You are not required to state the "third day", but if you get it wrong, the Notice if defective. Multach v. Snipes, 15 Fla.Supp.2d 52 (Palm Beach Co. 1986).

9. Serve the Three Day Notice by hand delivery even if the lease provides for the service of contractual notices in a different manner. If you are able to talk to someone at the premises, ask them for the person in charge. Hand the notice to the tenant or the person in charge. If you are unable to do this, hand the notice to anyone employed at the premises. Note the person's name and the time of service on your copy for future reference. If no one will take it from your hand or no one is present, post (tape) the notice on the front door. Do not mail the notice unless you add five days to the three days (excluding Saturdays, Sundays and legal holidays). Do not hand deliver the notice and mail it at the same time unless you provide in a separate cover letter that the mailed notice is not the operative notice but merely a courtesy copy. The mailed notice will be inconsistent with the hand delivered notice and may void the hand delivered notice altogether.

164 NOTICE OF NON-COMPLIANCE (Other than Non-Payment of Rent)

(Date)

(All Tenants' names and address)

Dear (Tenants' names):

You are hereby notified that you have violated your lease due to: (insert a description of the non- compliance). If you do not cure the non-compliance or give over possession of the premises in the time period required by the lease, or if the lease is silent on the matter, within fifteen (15) days, you will be in default thereof and legal action will be commenced to protect our interests.

Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages or pursue Landlord’s other remedies. Re-entry by Landlord shall neither constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate.

This notice is given to you pursuant to your lease and Section 83.20, Florida Statutes.

(Signature) (Signor's typed name and title) (Landlord's name, address and telephone number, if not on stationery)

HOW DELIVERED (Fill in as appropriate): (a) Delivered to ______(insert Tenant's name), on ______. (b) Delivered on ______by leaving at the premises in the absence of Tenant(s). (c) Sent certified mail #______.

Delivered or mailed by:

______(Signature)______

NOTE: Service of the notice must be pursuant to the lease or if no such provision is present, as set forth in Section 83.20(3), Florida Statutes, as set forth in this Guide.

165 TERMINATION NOTICE FOR MONTH-TO-MONTH TENANT

(Date)

(All Tenants' names and address)

You are hereby notified that your month-to-month tenancy is terminated. You must vacate the demised premises on or before the last day of (month) , 200___. You owe the full rent for said month even if you vacate prior to the last day of the month.

HOW DELIVERED (Fill in as appropriate):

(a) Delivered to ______(insert Tenant's name), on ______.

(b) Delivered on ______by leaving at the premises in the absence of Tenant(s).

(c) Sent first class mail and by certified mail #______.

Delivered or mailed by:

______(Signature)

NOTE: Give this notice if the Tenant remains after the term of the lease expires (and there are no operative renewal provisions), the Tenant remains with the Landlord's consent, and the rent is paid monthly. Consent will be presumed it the Landlord accepts the rent.

You must consult your lease for proper service of this notice. If your lease is silent on service of notices, you may serve it in any reasonable manner calculated to get it to the Tenant. Assuming that the rent is due on the first day of each month, you must deliver this notice at least fifteen (15) days prior to the last day of the month in which you intend the Tenant to vacate unless your lease requires a longer notice period. Add five days if this notice is mailed.

166 STATEMENT BY PROPERTY OWNER PURSUANT TO SECTION 713.10, FLORIDA STATUTES PROHIBITING CONSTRUCTION LIENS

THIS STATEMENT is made this ___ day of______, 200___, by ______, owner and landlord of the following described real property, known as ______, which premises are legally described as follows:

Insert legal here or reference an Exhibit annexed hereto

All leases entered into for premises on the above described parcel of land prohibit construction liens and contain the following language:

______and

______.

IN WITNESS WHEREOF this Statement has been executed as of the date and year first above written.

OWNER-LANDLORD:

Signed, sealed and delivered ______in the presence of :

______By: ______

______Its: ______

SWORN TO AND SUBSCRIBED before me this _____ day of ______, 200___, by ______as ______of ______. The type of identification upon which I relied is:

 Personally know the person who executed the above affidavit. OR  Relied upon the following identification: ______.

______NOTARY PUBLIC My Commission Expires:

______Type or print name of notary

NOTE: This form is required to be recorded. Please check with your real estate attorney before using.

167 NOTICE OF "NO SURRENDER" ACCEPTED LETTER

(NOTE: Use this notice if the premises are surrendered or abandoned, and the keys are turned over.)

(Date)

(All Tenants' names and address) Reference: Lease between ___ and ___ dated ____ For Premises Addressed As ______Dear (Tenants' names):

You are hereby notified that our acceptance of your keys on or about the _____ day of ______, 200___, is only to permit us to re-enter the demised premises for the purpose of inspecting it, for maintenance and repairs, for emergencies, and to permit us to show it to prospective tenants and rent it on your behalf. Under no circumstances does our acceptance of the keys and our entry into the premises constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate. Our entry into the premises are on your account.

______(Signature) (Signor's typed name and title) (Landlord's name, address and telephone number, if not on stationery)

Sent First Class and by Certified Mail #______

Note: I recommend sending this notice by certified mail, return receipt requested to the notice address provided in the lease, the demised premises, if different, and any other address you reasonably believe will result in receipt by the Tenant. This notice accomplishes two things: 1) it confirms that the Tenant has indeed surrendered possession of the premises; and 2) reserves the Landlord’s right to sue the Tenant for contract damages for the loss of the benefit of the bargain.

168 NOTICE OF "NO SURRENDER" ACCEPTED LETTER

(NOTE: Use this notice if the premises are surrendered or abandoned, but the keys are not surrendered.)

(Date)

(All Tenants' names and address) Reference: Lease between ___ and ___ dated ____ For Premises Addressed As ______

You are hereby notified that our acceptance of the premises on or about the _____ day of ______, 200___, is only to permit us to re-enter the demised premises for the purpose of inspecting it, for maintenance and repairs, for emergencies, and to permit us to show it to prospective tenants and rent it on your behalf. Under no circumstances does our entry into the premises constitute a rescission of the lease nor an acceptance of surrender of the leasehold estate. Our entry into the premises are on your account.

Note: I recommend sending this notice by certified mail, return receipt requested to the notice address provided in the lease, the demised premises, if different, and any other address you reasonably believe will result in receipt by the Tenant. This notice accomplishes two things: 1) it confirms that the Tenant has indeed surrendered possession of the premises; and 2) reserves the Landlord’s right to sue the Tenant for contract damages for the loss of the benefit of the bargain.

169 NOTICE TO POTENTIAL HOLDOVER TENANT

(NOTE: Use this notice if you believe the tenant will not vacate on the lease expiration date. By seeking and/or collecting double rent, you may not be able to evict the tenant until the tenant defaults in the payment of double rent. You can not look to the double rent and seek possession at the same time until after tenant defaults in the payment of the double rent. Also note that if you are relying on the statute (cited below) instead of a lease clause, the double rent is not due until after the end of each applicable month - see Section 83.06 of this Guide.)

(Date)

(All Tenants' names and address) Reference: Lease between ___ and ___ dated ____ For Premises Addressed As ______Dear (Tenants' names):

You are hereby notified that your lease expires on ______. Please be advised that if you holdover beyond that date, you will be holding over without the landlord's permission and will be subject to a charge for double rent pursuant to [your lease][Section 83.06, Florida Statutes]. Please do not offer to pay any rent less than double rent for the period starting on the said expiration date. If we accept your rent payment for the period after said expiration date, such acceptance of rent shall be on account and shall be applied to the amount you owe for double rent, however, by the acceptance of less than double rent, the landlord is not waiving its right to double rent.

Note: I recommend sending this notice by certified mail, return receipt requested to the notice address provided in the lease, the demised premises, if different, and any other address you reasonably believe will result in receipt by the Tenant.

170 BAD CHECK LETTER

(Date)

(Tenant's name and address)

Dear (Tenant's name):

You are hereby notified that check, numbered ______, in the face amount of $______, issued by you on ______, 200__, drawn upon ______, and payable to ______, has been dishonored. Pursuant to Florida law, you have 15 days from receipt of this notice to tender payment of the full amount of such check plus a service charge of $25.00, if the face value does not exceed $50, $30, if the face value exceeds $50 but does not exceed $300, $40, if the face value exceeds $300, or an amount of up to 5 percent of the face amount of the check, whichever is greater, the total amount due being $______and _____ cents. Unless the amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution. Furthermore, unless this amount is paid in full within 30-days from your receipt of this notice, the holder of the check or instrument may file a civil action against you for three times the amount of the check, but in no case less than $50, in addition to the payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action as provided in s. 68.065.

This is a combined form to use for both criminal and civil prosecution. See "Collecting Bad Checks and Form Letters" in this Guide. Except for sending this letter, it is criminal extortion to threaten someone with criminal charges in order to collect money or otherwise coerce others to act.

171 NOTICE TO FORMER TENANT OF RIGHT TO RECLAIM ABANDONED PROPERTY (Property valued less than $500.00)

(Date)

(Address letter to former Tenant or Tenants at last known address and hand deliver or mail by first class mail)

Notice of Right to Reclaim Abandoned Property

When you vacated the premises (insert address of rented premises), the following personal property remained:

(Insert description of all property. Locked containers need not be opened to determine contents)

You may claim this property at (insert address where property may be claimed. If it is Landlord's office, "our office" would be sufficient.) Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail), this property may be disposed of pursuant to Section 715.109, Florida Statutes.

Because this property is believed to be worth less than $500.00, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above.

172 NOTICE TO FORMER TENANT OF RIGHT TO RECLAIM ABANDONED PROPERTY (Property valued more than $500.00)

(Date)

(Address letter to former Tenant or Tenants at last known address and hand deliver or mail by first class mail)

When you vacated the premises (insert address of rented premises), the following personal property remained:

You may claim this property at (insert address where property may be claimed. If it is Landlord's office, "our office" would be sufficient.) Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail), this property may be disposed of pursuant to Section 715.109, Florida Statutes.

If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within one year after the county receives the money.

173 NOTICE TO OWNER OTHER THAN FORMER TENANT OF RIGHT TO RECLAIM ABANDONED PROPERTY (Property valued less than $500.00)

(Date)

(Address letter to property owner other than Tenant at last known address and hand deliver or mail by first class mail)

When (name of former Tenant) vacated the premises at (insert address of rented premises), the following personal property remained:

If you own any of this property, you may claim it at (address where property may be claimed). Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim, not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail), this property may be disposed of pursuant to Section 715.109, Florida Statutes.

Because this property is believed to be worth less than $500.00, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above.

174 NOTICE TO OWNER OTHER THAN FORMER TENANT OF RIGHT TO RECLAIM ABANDONED PROPERTY (Property valued more than $500.00)

(Date)

(Address letter to property owner other than Tenant at last known address and hand deliver or mail by first class mail)

When (name of former Tenant) vacated the premises at (insert address of rented premises), the following personal property remained:

If you own any of this property, you may claim it at (address where property may be claimed). Unless you pay the reasonable costs of storage and advertising, if any, for all the above-described property and take possession of the property which you claim not later than (insert date not fewer than 10 days after notice is personally delivered or, if mailed, not fewer than 15 days after notice is deposited in the mail), this property may be disposed of pursuant to Section 715.109, Florida Statutes.

If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been given by publication. You have the right to bid on the property at this sale. After the property is sold and the costs of storage, advertising, and sale are deducted, the remaining money will be paid over to the county. You may claim the remaining money at any time within one year after the county receives the money.

175 THIRD PARTY INDEMNITY RUNNING TO LANDLORD FOR RETRIEVAL OF LEASED PERSONAL PROPERTY IN PREMISES

(NOTE: Use this form by getting third parties to protect the landlord and manager in the event you decide to let someone enter the premises after you have possession of the premises to retrieve their property. An example would be to let a copier leasing company in the premises to retrieve their leased copier.)

(Third Party’s Letterhead)

To: Building Owner and To: Property Manager

Dear ______(insert Landlord’s name) and ______(insert Property Manager’s name):

Our company has the present right, without further notice or proceeding, to repossess certain items of property as described on the attached contract(s) leased to ______, our customer (“Customer”) and your tenant at ______(insert building name and premises address) due to the Customer’s default in the payment of its monetary obligations to us. This right is based upon the attached contract(s) which was (were) duly executed by ______.

Our company will, subject to your Property Manager’s requirements, pick-up such items on ______, 200___.

To the fullest extent permitted by law, our company will protect, defend, indemnify and hold free and harmless Property Manager, Owner, Landlord, all lenders, their respective partners, affiliates, agents, attorneys and employees from and against any and all claims, damages, losses or expenses, including, but not limited to, judgments, reasonable attorney's fees, court costs including the cost of appellate proceedings, and disbursements, arising out of or alleged to arise out of or as a result of our recovery of the items of personal property described on the attached contract(s) or otherwise, and/or any of our acts or omissions or those of our officers, directors, employees, agents or anyone directly or indirectly employed or contracted by us or anyone for whose acts we may be liable as it relates to the scope of this letter.

I personally represent and warrant that I have full power and authority to execute this letter on behalf of our company.

Thank you.

Very truly yours,

______Manager, Vice President, President*

Dated: ______

*must be signed by a manager or higher

176 CLIENT QUESTIONNAIRE (Please copy, complete and return to us)

Our firm is constantly striving to improve the manner in which we provide our legal services. We would appreciate your taking a few moments to answer the questions below and your giving us your comments in the space provided. Your answers and comments will be valued highly and will only be seen by the attorneys in our firm if your return envelope states that the contents are "Confidential to Charles J. Levin."

1. Do you find this booklet helpful?

{ } Yes ______

{ } No ______

2. Please give us your comments and suggestions to help us improve this booklet.

______

3. Were you treated by the attorneys and staff in a courteous and professional manner?

{ } Yes ______

{ } No ______

4. Were you fully informed at all relevant times of all pertinent matters relating to your case?

{ } Yes ______

{ } No ______

5. Were our fees and other charges clearly explained to you when you first consulted us?

{ } Yes ______

{ } No ______

6. Did you feel that we should have spent more, less, or the same amount of time on your case, considering that we charge on an hourly basis?

{ } Yes ______

{ } No ______

{ } The same amount ______

7. Do you feel that our charges were reasonable in light of all of the circumstances of the case?

{ } Yes ______

{ } No ______

177 8. Did you understand when we began work on your case that we did not guarantee any results, but that we guaranteed to conduct the case in a professional manner? { } Yes ______

{ } No ______

9. Were you satisfied that we handled your case in a professional manner?

{ } Yes ______

{ } No ______

10. Would you refer others to our firm?

{ } Yes ______

{ } No ______

11. Please make any comments that you feel would assist us in better serving our clients:

______

Your name and company name are optional. ______

______

______(telephone/email)

Dated: ______.