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LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION TAmpA, FLORIdA | JAN - FEB 2019 | VOL. 29, NO. 3 Jan-Feb 2019 HCBA Lawyer Cover 4 pages_Layout 1 12/14/18 10:27 pm page 2 HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:20 PM Page 1

THE HIllSBoRoUGH CoUNTY BAR ASSoCIATIoN LAWYER JAN - FEB 2019 | Vol. 29, No. 3

divisions features & events 7 YLD HoLDs FaLL HappY Hour 16 spECIaL FEaTurE - LEgaL gIanTs - sHapIng gEnEraTIons BY guIDanCE & ExampLE by Hon. Frances M. Perrone 18 YLD CELEBraTEs pro Bono 6 23 appELLaTE sECTIon LunCHEon 16 27 ConsTruCTIon Law sECTIon 3 wIsHIng You a JoYFuL CLE/LunCHEon nEw YEar! Editor’s Message by Ed Comey 30 8TH annuaL sEnsorY FrIEnDLY sanTa EvEnT 4 DEsTIgmaTIzIng mEnTaL HEaLTH anD wELLnEss: a 34 THanks To aLL our Fox 13 DIsCussIon among LawYErs ask-a-LawYEr voLunTEErs! HCBA President’s Message 36 YLD goLF TournamEnT by John A. Schifino 43 LaBor & EmpLoYmEnT Law 6 HaLFwaY HomE sECTIon CLE YLD President’s Message Jason Whittemore 55 aDopT-a-vETEran InITIaTIvE 36 8 HCBa rE-rELEasEs 63 sEnIor CounsEL sECTIon LunCHEon “BEForE THE Law was 68 TrIaL & LITIgaTIon sECTIon EquaL” DoCumEnTarY FILm HoLDs CanDIDaTE Forum on YouTuBE Executive Director’s Message by John F. Kynes 10 2018 YEar In rEvIEw From the State Attorney by Andrew H. Warren 12 wHaT’s nEw In THE nEw YEar 7 63 From the Thirteenth Judicial Circuit Chief Judge Ronald Ficarrotta

about the Cover We are continuing our theme this Bar year of commemorating important historic industries in Florida, and highlighting the commercial fishing industry in this issue. The photo of the cover shows shrimp boats docked at a Panama City Beach marina in the mid-20th Century. The photo was taken by photographer Jerry Francis Simon. He was the photographic director for the Florida Development Commission and was assigned to former Governor Claude Kirk as his personal photographer. There was a boom in Florida’s shrimping industry in the 1940s and ’50s, as the population of the state increased dramatically after World War II, and demand for shrimp around the country increased. In its heyday, the Florida industry involved thousands of people around the state, with tons of shrimp being caught in Florida waters and shipped to restaurants and dinner tables around the world via the railroad and the growing interstate road system. Photo used with permission from the State Archives of Florida online Florida Memory collection.

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seCtions 42 Committees 32

50 mEDIaTIng a propErTY InsuranCE CLaIm 24 Mediation & Arbitration Section by Gerald T. Albrecht 20 HCBa pro Bono rIvEr run – 22 a rEmInDEr on rEHEarIng 58 aBsoLuTE powEr no a DECaDE oF sErvICE Appellate Practice Section by LongEr nECEssarY 5K Run Committee by Hon. John Stacy Blank and Patrick Chidnese Real Property Probate & Trust Conrad & Miriam Valkenburg Section by Matthew Schnitzlein 26 FILIng a LawsuIT no LongEr 24 BLI TEaCHEs THE ImporTanCE rEquIrED To saTIsFY sTaTuTE 62 mY! How TImEs HavE CHangED! oF BaTTLE BuDDIEs In THE oF rEposE Senior Counsel Section LEgaL proFEssIon by Stann Givens Construction Law Section Bar Leadership Institute by Dara L. Dawson and 64 THIngs To BE on aLErT For as by Natasha Khoyi Jeffrey M. Paskert a smaLL FIrm praCTITIonEr 28 DIvErsITY anD FaIrnEss In THE 32 BIoBanks, BroaD ConsEnTs, Solo & Small Firm Section JuDICIaL nomInaTIon proCEss anD waIvErs: wHaT THE by Trescot Gear Diversity Committee by Gil Singer, rEvIsED Common ruLE 66 FLorIDa suprEmE CourT Bob Lindeman & Carter Andersen maY CHangE Favors FrYE 54 JuDgE JarED smITH: a mILITarY Health Care Law Section Trial & Litigation Section vETEran on THE BEnCH by Kevin Rudolph by Bridget McNamee Military & Veterans Affairs Committee 38 CopYrIgHT oFFICE 67 upDaTE on JuDgEs oF by Steve Berlin ImpLEmEnTs ExEmpTIons CompEnsaTIon CLaIms To anTI-CIrCumvEnTIon anD CasELaw provIsIons oF THE DmCa Workers’ Compensation Section in everY issue Intellectual Property Section by Anthony Cortese by Michael J. Colitz, III 14 savE THE DaTE 42 aCCommoDaTIng prEgnanCY- 31 nEw HCBa mEmBErs rELaTED LImITaTIons 64 51 100 CLuB Labor & Employment Law Section by Julie A. Girard 59 BEnEFIT provIDErs 46 pErmanEnT aLImonY 70 arounD THE assoCIaTIon In FLorIDa 71 JurY TrIaLs Marital & Family Law Section

by Mark Baseman © Cancsp0577151 Stock /Photo johnsfon/ 71 aDvErTIsIng InDEx

THE HIllSBoRoUGH CoUNTY BAR ASSoCIATIoN Editor oFFICErs Ed Comey president: John schifino assistant Editor president-Elect: grace Yang; Immediate past president: gordon Hill maria ramos secretary: scott stigall; Treasurer: robert J. scanlan LAWYER Executive Director Ex-oFFICIo John F. kynes Chief Judge ronald Ficarrotta; Judge Frances m. perrone, amy s. Farrior Chester H. Ferguson law Center DIrECTors: 1610 N. Tampa St., Tampa Fl 33602 aDvErTIsIng alex Caballero vivian C. Hodz amanda m. uliano Telephone (813) 221-7777 pr/Communications Director victoria n. Ferrentino anthony D. martino Jason k. whittemore www.hillsbar.com stacy williams paige a. greenlee Cory person [email protected] (813) 221-7779 matthew Hall Jacqueline simms-petredis

(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published six times per year by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa St., Tampa, FL 33602. Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association, 1610 N. Tampa St., Tampa, FL 33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00. (All plus tax.) The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressed in the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.

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EDITOR’S MESSAGE Ed Comey - Law Clerk to U.S. Bankruptcy Judge Michael G. Williamson

Wishing You a Joyful New Year!

“[J]oy is something that we can always hold onto.”

“Had it. Lost it.” That was Klay Thompson, all-star you want to go. I think joy is something that we can shooting guard for the Golden State Warriors, talking to always hold onto.” ESPN about his team’s quest for joy during a rare four- Thompson was more to the point about how having game losing streak. The Warriors, winners of three of the joy can change your perspective on things:”It’s been a past four NBA championships, operate on four core while since we’ve been on a losing streak like this, but at values: the first is joy. the end of the day it’s not the end of the world. We still When discussing the importance of joy, Kevin Durant, play basketball for a living and make people happy, so another Golden State Warrior all-star, mused about the it’s pretty easy to find joy in that.” distinction between joy and happiness: “I feel like a lot All this got me to thinking that maybe I need to join the of people confuse joy Warriors on this elusive and happiness. I think quest for joy. As lawyers, happiness is a feeling it’s hard not to get caught that is fleeting. It means up focusing on — and you can go back and linking our happiness forth all the time. I feel to — things like billable like joy is something that hours, col lections, books you can stand on.” of business, outcomes Until reading those of cases, etc. Although, comments, I always for me, working for a assumed happiness and judge lessens some of joy were the same. those external factors. But it turns out With the internal peace Durant is on to some - that comes from having thing. According to joy, it’s easier to say, psychologists, happiness to borrow from Klay tends to be temporary, Thompson: “At the end while joy tends to be longer lasting. More important, of the day, our hours, or collections, or book of business, happiness tends to be based on external events. We or the outcome of a case is not the end of the world. As are happy when things (jobs, relationships, etc.) go our lawyers, we still get to make a living helping people. So way. Joy, however, is internal. it’s easy to find joy in that.” And it exists even when things don’t go our way. At the end of last school year, my oldest daughter Durant explained how joy has been crucial to the came home and hung up a sign she had made at school. Warriors’ ability to grind their way through the ups It read: “Be Joyful.” (She goes to a school run by Salesian and downs of an 82-game season year after year Sisters, an order of nuns known for their cheerfulness and why it was so important for them to find their and joy). We took the sign down to hang up our joy: “[W]hen you’re enjoying what you do, you don’t Christmas decorations. But you better believe it’s going mind the adversity, the tough times, the challenges. back up January 1 as a reminder of the elusive quest to The little obstacles you got to climb to get to where find joy. Here’s wishing you a joyful New Year!

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HCBA PRESIDENT’S MESSAGE John A. Schifino – Gunster

Destigmatizing mental Health and wellness: a Discussion among Lawyers

on april 30, HCBa is partnering with the HawL to host a mental Health and wellness Town Hall meeting.

ccording to a 2016 study published by opponents’ cases, and to anticipate everything that can the Hazelden Betty Ford Foundation go wrong. Even though our true tasks are to solve and the American Bar Association problems and help others be successful, we too often fall Commission on Lawyer Assistance back on pessimisms. It’s no wonder we’re facing such Programs, 21 percent of licensed, challenges to the health and wellness of our bar. employed attorneys are clinical problem drinkers, 28 In July of 2017, the Florida Bar Board of Governors percent struggle with some level of depression, and 19 created a Special Committee on Mental Health and percentA suffer from anxiety.1 These percentages far Wellness of Florida Lawyers. Now a standing outpace those of the general population. Most troubling, committee chaired by Florida Bar President-Elect the suicide rate for lawyers is double that of the general Designate and Board of Governor Dori Foster-Morales, population.2 These statistics do not describe a healthy the committee members are working to destigmatize profession. Too many of our colleagues are suffering and mental illness within our legal community, educate we need to get to work and find a solution. lawyers, judges, and employers on how to identify and We have chosen a stressful profession. To get here, we address mental health issues among lawyers, and create endured three tough years of law school, a grueling bar “best practices” on how to address mental health exam (or two), and long work hours necessary to issues. Dori and the entire committee have been establish a practice. We often find ourselves in highly working diligently and have done a fantastic job getting competitive and adversarial arenas. Many of us are the message out. For more information and to explore driven by tight deadlines, billable demands, collection resources provided by The Florida Bar, take a moment requirements, and an increasing amount of nonbillable to visit the committee’s website at www.floridabar.org/ obligations. We gladly shoulder our clients’ burdens and member/healthandwellnesscenter/. make ourselves available 24/7. We’re taught to identify vulnerabilities and weaknesses in our cases and our Continued on page 5

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HCBA PRESIDENT’S MESSAGE John A. Schifino – Gunster

Continued from page 4 The Florida Bar going forward. Mandi Clay, vice president of programs for HAWL, and Carter The topic of mental health and wellness in the Andersen, past president of the HCBA, are passionate profession is getting some much-needed attention, but about lawyer health and have graciously agreed to there’s more to do. On April 30, 2019, the HCBA co-chair and coordinate our Town Hall. We hope to is partnering with the use this opportunity Hillsborough Association to bring Hillsborough for Women Lawyers attorneys together to (HAWL) to host a discuss this important Mental Health and topic in an open and Wellness Town Hall candid manner. Meeting. Florida Bar Lawyers must be President-Elect John more open about mental Stewart and Committee health and wellness. We Chair and President- have generally not been Elect Designate Dori the best of resources for Foster-Morales are join - each other and it’s time ing us at the Town for that to change. Hall and will share their know ledge regard - 1 Available at https:// ing men tal health and www.hazeldenbettyford. wellness in the pro- org/about-us/news- fession, and will give a media/press-release/ presentation about The 2016-aba-hazelden- Florida Bar’s efforts to release-first-study- address and foster dis - attorney-substance-use. cussion regarding lawyer 2 Dori Foster-Morales, health. An open forum Mental Health and will follow the presen - Wellness: Destigmatizing tation during which attendees can share with John and the Discussion and Promoting Solutions, The Florida Bar Dori their own experiences and what they suggest for Journal, January 2019 Volume 92, No. 1, p. 8.

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YLD PRESIDENT’S MESSAGE Jason Whittemore – Wagner McLaughlin

Halfway Home

The YLD is halfway through what is shaping up to be another outstanding year.

he first half of the YLD’s Bar year has at Temple Terrace Golf & Country Club — a course come and gone, but not without leaving its that opened in 1922 and is listed on the National Register mark. Whether it was our members of Historic Places. We welcomed over 90 golfers “braving” 90 degree heat in October at the plus sponsors for a great afternoon of golf in support Patio for our Fall Happy Hour (it’s a tough of the YLD. As always, Temple Terrace Golf & job, but someone has to do it), or coming together to Country Club provided an exceptional environment for learn about and support our local pro bono organizations our tournament. (Photos from the Golf Tournament andT charities, our members came out in droves to support on page 36.) the YLD’s mission. The YLD celebrated One of the highlights the end of 2018 with of the first half of the its annual holiday happy Bar year was the YLD’s hour on December 12 annual Pro Bono/Local at the newly opened Charity Luncheon held Sparkman Wharf. Our on Halloween. While members were able there were no costumes, to enjoy the beautiful the YLD was pleased weather and celebrate the to welcome more than end of a great year while a dozen Hillsborough looking forward to the County organizations that new year. support the legal and charitable needs of our A Look Ahead to 2019 community. Representa- The winter and spring tives from each organi- YLD Board Members Tiffany McElheran, Katelyn Ferry, and Chris are filled with a number zation took time out of Arnold (not pictured) read to local students at Graham Elementary of opportunities to come their busy schedules to on November 8 as part of the Read to Dream program. out and support the educate our membership YLD. Whether you are on opportunities to use looking to volunteer or their skills as attorneys and give back to the community. network, the YLD has an event for you to get involved in. As is the tradition, the lunch was catered by Inside the We will kick off our winter schedule with Holidays in Box — an innovative café that donates one meal to the New Year on February 2. Holidays in the New Year Metropolitan Ministries for every meal purchased by the benefits A Kid’s Place — a non-profit that provides foster YLD. (Photos from the YLD Pro Bono/Local Charity care and loving homes to abused, neglected, or Luncheon on page 18.) abandoned children. The YLD picks up the tab for the On November 9, the YLD hosted its annual golf kids so they can enjoy a day of fun at Extreme Adventure tournament. The success of this event is critical to the Sports Park. YLD’s ability to fund its charitable programs throughout the year. This year, the tournament was once again held Continued on page 7

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YLD PRESIDENT’S MESSAGE Jason Whittemore – Wagner McLaughlin

Continued from page 6 Other events to keep an eye out for in the coming months include the YLD Winter/Spring Happy Hour, One of the YLD’s premier networking events of the YLD Steak and Sports Day, and the YLD’s Annual winter is our annual Coffee at the Courthouse on Cornhole for a Cause benefitting Big Brothers and Big February 5. The event provides a unique opportunity Sisters of Tampa Bay. for our members to meet our local judiciary outside the As always, the YLD appreciates the support of its courtroom. We are excited to be partnering with the many sponsors. None of the work the YLD does to help Hillsborough Association for Women Lawyers for this the Hillsborough County community would be possible year’s event. without each of these sponsors’ support! If coffee or early mornings aren’t your thing, please consider joining us for our YLD Quarterly Luncheon on Spring/Summer YLD Save the Dates February 28, which will feature guest speaker Jennifer Strouf — founder of Improv4Lawyers. Improve4lawyers n April 20—Wills for Heroes Volunteer Opportunity is an innovative way for lawyers to sharpen their n June 14—YLD Annual State Court Trial Seminar advocacy skills outside of the traditional CLE programs. and YLD Happy Hour

YLD Holds Fall Happy Hour The Young Lawyers Division welcomed back its members for the start of the new Bar year at its fall happy hour on october 18. The members gathered at The patio Tampa to catch up and network.

Thank you to the happy hour’s sponsor:

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EXECUTIVE DIRECTOR’S MESSAGE John F. Kynes - Hillsborough County Bar Association

HCBa re-releases “Before the Law was Equal” Documentary Film on YouTube

“we hope that by re-releasing this important historical film … many more people will have the opportunity view it and learn more about the struggle for equal opportunity and civil rights in Hillsborough County’s legal community.” — HCBa president John schifino

Documentary Focuses on the Desegregation of who experienced discrimination in the 1950s, 1960s, Hillsborough’s Legal Community and 1970s, and to memorialize their stories for future generations. ampa attorney Marsha Rydberg became “The HCBA is proud to re-release the documentary the HCBA’s first female president in film ‘Before the Law Was Equal’ providing a historical 1991, and she has been recognized as a narrative of the desegregation of Hillsborough County’s trailblazer in Hillsborough County’s legal community,” said HCBA President John Schifino. legal community. “We hope that by re-releasing this important historical Rydberg also won the HCBA’s Outstanding Lawyer film on the popular video-sharing platform YouTube… Award in 2014. many more people will have the opportunity to view it TBut, Rydberg’s career path was riddled with significant and learn more about the struggle for equal opportunity obstacles along the way. and civil rights in Hillsborough County’s legal Foremost among them were the discriminatory hiring community,” Schifino added. practices and other societal attitudes that made it Besides Rydberg, the hour-long film features: the especially difficult for late Judge Don Castor, women and minorities Judge E.J. Salcines, entering the workplace. the late Judge John F. Even after graduating Germany, Judge Mary first in her law school Scriven, the late William class at Stetson in 1976, Reece Smith Jr., Lanse Rydberg had difficulty Scriven, Gwynne Young, getting a job interview, Delano Stewart, Fraser much less a full-time Himes, Carolyn House position. Stewart, and Warren But Rydberg perse - Dawson. vered and she did not The idea for the lose sight of her goal of becoming a successful attorney documentary project — which took about a year to and making a positive difference in the community. complete — dates back to 2012, said Victoria Ferrentino, Rydberg’s personal recollections about her career have who along with Luis Viera co-chaired the HCBA’s been chronicled — along with a group of other local legal Diversity Committee at the time. trailblazers — in the HCBA’s documentary film “Before With support from then-HCBA President Bob the Law Was Equal.” Nader, YLD President Rachael Greenstein and The historical film debuted in 2013 and recently was Ferrentino spearheaded the project, with the assistance re-released on the HCBA’s YouTube channel, which can of Stan Arthur, a local filmmaker affiliated with Stetson be accessed on the HCBA’s website. law school. The goal of the film — which was produced by “Everyone we reached out to was excited to the HCBA’s Young Lawyer Division and Diversity participate,” Ferrentino told me. Committee — was to capture an oral history from those Continued on page 9

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EXECUTIVE DIRECTOR’S MESSAGE John F. Kynes - Hillsborough County Bar Association

Right: Panelists at the Diversity Summit in 2012, who were interviewed as part of the “Before the Law Was Equal” documentary. From left to right: Judge E.J. Salcines, Carolyn House Stewart, Marsha Rydberg and Warren Dawson.

Continued from page 8 Ferrentino told me she and Greenstein spent many long days paring down and editing the more than five The Florida Bar and American Bar Association hours of interview footage to under one hour. supported the project with grants, and several local law The film premiered in April 2013 at a special evening firms made generous donations, which made financing event at the Tampa Bay History Center with hundreds the film possible. of HCBA members and guests in attendance. In the fall of 2012, the YLD and Diversity And later that year, the film was shown at the Committee organized a “Diversity Summit” at the Gasparilla International Film Festival held at the Centro Ferguson Law Center. Ybor movie theatre complex in Ybor City, with a panel Moderated by then President Bob Nader, the panel discussion about the film held afterwards. discussion on diversity issues was recorded, and excerpts At the conclusion of one of the diversity panel were later included in the film. discussions, Warren Dawson, one of featured Along with Greenstein, Ferrentino, and Nader, the participants, summed up the project and the progress film’s production and research team included: Dara that has been made in area of equality and civil rights: Cooley, Luis Viera, Tammy Briant, Judge Catherine Peek “Much progress has been made, but there is still much McEwen, Danny Alvarez, Jacqueline Simms-Petredis, work to be done.” Lynwood Arnold, Janae Thomas, Harley Herman, and See you around the Chet. Patricia Gomez.

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FROM THE STATE ATTORNEY Andrew H. Warren - State Attorney for the Thirteenth Judicial Circuit

2018 Year in review

nearly 300 dedicated public servants work hard every day to make our criminal justice system better.

e are making progress on the path of criminal justice reform in Hillsborough County. I am proud of our progress in 2018. We are advancing our core mission of public safety, fairness, and justice. We are embracing methods to lessen the impact of low-level, non-violent offendersW on an already overburdened criminal justice system. We are dedicating our resources to prosecuting and convicting violent criminals who are a threat to public safety. As we close the second year of my administration, I am pleased to report to you on our efforts:

Prosecutorial: • We implemented the Reduced Impaired Driving Program (RIDR) to address the plague of devices and an education program for first-time drunk/impaired driving in our county. This program offenders who have not injured a person or property. aggressively targets and reduces impaired driving through enhanced sanctions like alcohol monitoring Continued on page 11

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FROM THE STATE ATTORNEY Andrew H. Warren - State Attorney

Continued from page 10

Meaningful sanctions reduce the likelihood of future criminal violations and promote public safety. • We expanded our civil citation program for adult, first-time offenders committing misdemeanors. Our goal is to hold offenders accountable without the arrest, prosecution, and conviction that will ultimately jeopardize their job or housing. Nine hundred people participated in 2018. • We created the first-ever conviction review unit in our county to further protect the integrity of our system. This unit will review the rare circumstance where a person is wrongfully committed to ensure that the actual perpetrators are held accountable. • We handled nearly 55,000 cases in 2018.

Preventative Public Safety Steps: • We convened our school system stakeholders to address school safety following the tragedy at Marjory Stoneman Douglas High School. • We helped our criminal justice partners implement sensible steps to keep guns out of the hands of mentally unstable individuals who pose a threat to our community and themselves.

Community Outreach: • We hosted the first-ever Hillsborough County expungement clinic. This allowed people to have a criminal record sealed or expunged if they were arrested, but not prosecuted, for a criminal violation. We created a single location for nearly 200 citizens to complete the fingerprinting, application, and notarization, so they could help put past mistakes behind them and benefit our community. • We created a community council that engages community members in candid discussion with our team about public safety and our policies. These leaders provide an honest assessment of programs, promote accountability, and increase understanding of our criminal justice system. We are proud to have these volunteers who represent the diversity of our great county.

Transparency: • We have partnered with the MacArthur Foundation to study better ways to measure prosecutorial success. The MacArthur Foundation is part of a nationwide effort to study the challenges and successes of prosecutors. This groundbreaking effort will make our office stronger and our community better. • We continue to handle a huge volume of public records requests — nearly 800 in 2018. Making information available and providing insight into our work allows the community to better understand the role of the State Attorney’s Office.

Over and above these specific policies, our nearly 300 dedicated public servants work hard every day to make our criminal justice system better. We are standing up for victims and holding offenders accountable, and building a safer, stronger community.

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FROM THE THIRTEENTH JUDICIAL CIRCUIT CHIEF JUDGE Judge Ronald Ficarrotta - Chief Judge for the Thirteenth Judicial Circuit

what’s new in the new Year

The Thirteenth Circuit is planning for addressing the needs of the community we serve in way that can provide positive impact.

appy New Year! With the New Year civil, family, and domestic violence matters. Judge comes a few changes in the Thirteenth Fuson is assigned to Family Law Division A. Judicial Circuit. Change can either • Lisa Allen hails from Ansa Assuncao LLP, were she be an unwelcome enemy or an was a civil litigator involved in commercial and embraced event. Some of what we are business disputes, including employment, insurance, experiencing is bittersweet, while other events provide and business tort claims, in addition to contract and an opportunity to forge new ground. real estate litigation. Judge Allen is assigned to the HWe recently bid farewell to four distinguished newly created County Civil Division S and Domestic colleagues who have begun experiencing the joys of Violence Division K, where she will work in conjunction retirement: Judges Claudia Isom, Gaston Fernandez, with Judges Frances Perrone and Jared Smith. Robert Foster, and Herbert Berkowitz. With over 70 • Jack Gutman has been both a state prosecutor and years of judicial experience combined, we will miss their criminal defense attorney in Hillsborough County. knowledge and dedication. But most of all, we’ll miss He also has civil experience having served in the their daily friendship and collaboration. Filling the Office of the Attorney General and in private spaces they leave behind is not an easy task, one that practice, primarily in the area of eminent domain necessitates the reevaluation of judicial assignments. litigation. Judge Gutman is assigned County Several judicial reassignments are taking place, making Criminal Division A. room for three new colleagues resulting from the I look forward to their service with the best circuit in mid-term elections (and another pending appointment the state of Florida. as I write this article). I am also happy to announce that I will preside over • Robin Fuson worked in the Office of the State the new Juvenile Mental Health Delinquency Division B Attorney for eight years before venturing into private practice, where he represented clients in criminal, Continued on page 13

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FROM THE THIRTEENTH JUDICIAL CIRCUIT CHIEF JUDGE Judge Ronald Ficarrotta - Chief Judge for the Thirteenth Judicial Circuit

Continued from page 12

as of January 1, 2019. The Juvenile Mental Health court will initially address the needs of juveniles found incompetent to proceed. By agreement of parties and the court, those with behavioral or mental health issues may be transferred to Juvenile Mental Health Delinquency Division B before Hon. Robin Fuson Hon. Lisa Allen Hon. Jack Gutman being found incompetent. Children in Division B will be evaluated for services, provided service referrals, and be monitored for progress. That sounds like a lot of change, and it is. It also proves that the Thirteenth Circuit is planning for addressing the needs of the community we serve in a way that can have a positive impact. May the coming days and months bring you much success and happiness. Hon. Claudia Isom Hon. Gaston Hon. Robert Foster Hon. Herbert Fernandez Berkowitz

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SAVE the hcba DATE events

January9,2019 Diversity Membership Luncheon at the Hilton Tampa Downtown April13,2019 Pig Roast/5K Pro Bono River Run, Stetson University College of Law Tampa Campus May2,2019 Law & Liberty Dinner at the Hilton Tampa Downtown May8,2019 Law Day Membership Luncheon at the Hilton Tampa Downtown

Learn more about HCBA events at www.hillsbar.com. STAY CONNECTED

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SPECIAL FEATURE: THIRTEENTH JUDICIAL CIRCUIT PROFESSIONALISM COMMITTEE Hon. Frances M. Perrone – Thirteenth Judicial Circuit Court

Legal giants - shaping generations By guidance & Example

a great leader inspires and motivates others to be great.

he Thirteenth Judicial Circuit Professionalism Committee proudly presented the Fifth Annual Judge Gregory Holder and Chief Judge Ronald Ficarrotta Professionalism Awards at the present Robert Williams of Burr Forman with Bench Bar Conference on October 3, its Professionalism Award for a lawyer in the private sector. recognizing two superb lawyers who personify the values of professionalism. TAfter 46 years of practice, Robert “Rob” V. Mr. Williams’ legal accomplishments encompass successful Williams of Burr Forman continues to serve results for countless clients, and more importantly, direction and our profession and the local community with mentorship to an endless number of young lawyers. He leads tremendous enthusiasm, care, and honor. within his law firm and through service roles, including president TNominated by Jacqueline Simms-Petredis and of the Tampa Bay Chapter of the Federal Bar Association, Justin Bennett and with extended support from president of the Hillsborough County Bar Foundation, president colleagues and members of the judiciary, Rob of DACCO, and chairman of the board of trustees of the Williams received outstanding accolades for Hillsborough County Hospital Authority, among other his decades of accomplishments and dedication organizations and leadership positions. Serving in these to his family, career, and community on a daily capacities, he has set an example for colleagues to emulate, and basis. As Mrs. Simms-Petredis eloquently therefore, his work ethic and professionalism shall continue for declared, “He is a legal giant in the Tampa community and State of Florida.” Continued on page 17

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SPECIAL FEATURE: THIRTEENTH JUDICIAL CIRCUIT PROFESSIONALISM COMMITTEE Hon. Frances M. Perrone – Thirteenth Judicial Circuit Court

Continued from page 16

future generations of lawyers. Mr. Williams’ wife and daughter remain a priority, as he gracefully balances a demanding professional calendar with time for routine family dinners and his daughter’s activities. Judge Gregory Holder summarized it best in his award presentation, “Rob epitomizes ethics, integrity, and professionalism in his every action both within and outside of the courtroom.” Jay Pruner received this year’s recognition in the government sector. After 31 years of practice, with many of those as Hillsborough’s top homicide prosecutor, Thomas Palermo and Michael Sinacore with the Pruner’s career is simply unmatched. As Michelle Doherty U.S. Attorney’s Office congratulated their colleague Jay Pruner noted in her nomination, “Homicide trials are stressful for with the State Attorney’s Office after he received the a myriad of reasons, but Jay always treats the court, the Professionalism Award for a lawyer in the public sector. victim’s family, defense counsel, and the defendant with the respect and decorum required by our profession.” Mr. Pruner’s stellar reputation extends beyond the courtroom. footsteps joining the legal profession, with his oldest He is beloved and admired by generations of current working alongside his father as a Hillsborough Assistant and past assistant state attorneys, support staff, and State Attorney. Ms. Doherty noted and Chief Judge Ron scores of defense counsel. This is attributable to his Ficarrotta echoed in his presentation legal acumen, quick wit, and constant willingness to to Mr. Pruner, “A great leader inspires share his knowledge and experience with others. and motivates others to be great, and In addition to his lifetime commitment to public Jay is a natural born leader.” service and keeping our community safe, Mr. Pruner Cheers and gratitude to both shares his knowledge by routinely, formally and recipients for setting a stellar example informally, teaching young prosecutors and law in your professional and daily lives. enforcement officers. He also has found a harmonious work-life balance, keeping his wife and two sons a top Author: Hon. Frances M. Perrone – priority. Both of his sons followed in their father’s Thirteenth Judicial Circuit Court

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YLD Celebrates Pro Bono The Young Lawyers Division held a special luncheon on october 31 to raise awareness among its members of the many pro bono opportunities available with local agencies. The event was a great success, with more than dozen agencies in attendance. Thank you to everyone that attended.

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HCBa pro Bono rIvEr run – a DECaDE oF sErvICE 5K Run Committee Chairs: Hon. John Conrad & Miriam Valkenburg – Thirteenth Judicial Circuit Court

ast year, we celebrated the tenth year of the HCBA Pro Bono River Run. The goal of this Run is to raise awareness of the Lneed for free legal services for the many people in our community who do not have the funds required to obtain counsel. By pledging For this year’s run, we are creating the pro Bono their own pro bono hours and encouraging others to pledge hours 5,000 Hour service Challenge (#5k for 5k). to support their run, participants in the Run fill an important void by allowing access to our legal system to everyone regardless of their economic stature. By virtue runner who pledges at least 25 to commit. The best part of your of their involvement, these runners hours of pro bono service. Given participation is receiving the immediately become pro bono that we have a capacity of 350 reward that comes from helping advocates. Over the past 10 years, runners every year, the goal others who need your time, talent, the Run has generated more than of 5,000 hours is achievable. and ability in resolving legal 17,000 hours of pro bono service. matters that dramatically affect How To Find Pro Bono their daily lives. 5K for 5K Challenge Opportunities As we turn the page into the One of the common questions Updated Race Route and Times next ten years, it is essential that from new participants is where This year’s Run will be held we continue to center the focus of and how can I perform pro bono on Saturday, April 13, 2019, our River Run on awareness and service. An amazing list of pro beginning at 10:30 a.m. Because commitment from HCBA members bono opportunities is available of the significant development to the calling of pro bono service. on the Thirteenth Judicial Circuit that has occurred along the prior To this end, we are creating the website at: www.fljud13.org/ race route, we will not be able Pro Bono 5,000 Hour Service Portals/0/Forms/pdfs/Pro_Bono_ to use the route going across the Challenge for this year’s Run (#5K Opportunities_HillsCty.pdf. bridge. This year’s route will be for 5K). The goal is simple — we These opportunities include Ask located entirely along the Tampa hope that participants in this year’s A Lawyer, Project H.E.L.P., Riverwalk, beginning and ending Run will generate pledges of at Crossroads for Florida Kids, Inc., at Water Works Park (out and least 5,000 hours of pro bono Are You Safe, and the Family back). The race will be chip-timed service. In order to achieve this Forms Clinic. There truly is for the competitive at heart. After goal, we will be offering a reduced something for everyone on this list. registration fee of $25 for every So all we need is your willingness Continued on page 21

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HCBa pro Bono rIvEr run – a DECaDE oF sErvICE 5K Run Committee

Continued from page 20

you finish the “new” River Run, you can enjoy the Annual Pig Roast, which will begin at Noon at Stetson University’s Tampa Law Center. The Pig Roast is free for HCBA members and their families. So grab your running shoes and come down to Tampa’s Riverwalk for an exciting race, a fun afternoon, and the opportunity to become an advocate for pro bono services! We hope to see you there!

Authors: Hon. John Conrad & Miriam Valkenburg – Thirteenth Judicial Circuit

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a rEmInDEr on rEHEarIng Appellate Practice Section Chairs: Tom Seider – Brannock & Humphries and Joe Eagleton – Brannock & Humphries

appellate litigants considering these post-opinion [motions for rehearing] should be circumspect and frank about compliance with the applicable rules. otions for rehearing and rehearing en banc are subject to clear but exacting motion remains the same. A proper of these grounds and, in case of requirements under Florida’s Rules motion directs the court to over- the latter, identify the potentially Mof Appellate Procedure. Two recent looked points of law or fact; it does conflicting decisions. decisions from the Third and Fifth not express “mere disagreement” In a pair of recent decisions, District Courts of Appeal remind with the outcome of the appeal. two District Courts of Appeal litigants to review the rules carefully Although a motion for rehearing disapproved of motions that before submitting either of these may occasionally be appropriate deviated from these rules. In post-opinion motions. after issuance of a per curiam Jedak Corporation v. Seabreeze Office Rules 9.330 and 9.331, Florida affirmance without an opinion, Associates, LLC, the Fifth District Rules of Appellate Procedure, those rare circumstances usually Court of Appeal addressed an govern motions for rehearing and exist only where an intervening emergency motion for rehearing rehearing en banc, respectively.1 change in the law has occurred.2 and rehearing en banc.3 The court As to the former, Rule 9.330(a) Motions for rehearing en banc are disapproved of the motion for requires a movant to “state with subject to even greater constraints. rehearing as “consist[ing] primarily particularity the points of law or Rule 9.331(d) delineates the only of prohibited re-argument.” As to fact that, in the opinion of the two permissible grounds for such the motion for rehearing en banc, movant, the court has overlooked a motion: “that the case or issue is the court issued a show cause order or misapprehended.” Although the of exceptional importance or that indicating that sanctions would rule was amended in 2000 to remove such consideration is necessary to be appropriate under the court’s an express prohibition on re-arguing maintain uniformity in the court’s inherent authority and section the merits, the Committee Notes decisions.” Counsel must include a confirm that the purpose of the statement designating one or both Continued on page 23

Interested in joining the HCBA Lawyer Referral & Information Service? Call (813) 221-7780 or visit https://hillsbarlrs.com/pages/for-lawyers.

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Continued from page 22

57.105, Florida Statutes, for violating Rule 9.331. In Aquasol Condominium Association, Inc. v. HSBC Bank USA, the Third District faced a potentially Appellate Section Luncheon broader range of ostensibly improper The appellate section held an informative CLE on the topic of “The Dos and Don’ts misconduct but reached a similar result. The court focused in of oral argument” with a panel of judges from the second District Court of appeal on particular on potential violations october 17. Thank you to the three judges who kindly participated: Judge matthew C. of Rule 9.330 based upon a party’s Lucas, Judge samuel J. salario, Jr., and Judge Craig C. villanti. appellate section failure to specify the points of law Co-Chairs Tom seider and Joe Eagleton of Brannock & Humphries moderated the session. or fact that the movant believed the court overlooked.4 Appellate litigants considering these post-opinion motions should be circumspect and frank about compliance with the applicable rules. The rules provide clear guidance to ensure that these avenues for relief remain open in meritorious situations.

1 The authors would be remiss not to mention that the response times stated in these rules will change effective January 1, 2019. See In re Amendments to the Florida Rules of Civil Procedure, SC17-882, 2018 WL 5289342 (Fla. Oct. 25, 2018). 2 See McDonnell v. Sanford Airport Auth., 200 So. 3d 83, 85 (Fla. 5th DCA 2015); Marion v. Orlando Pain & Med. Rehab., 67 So. 3d 264, 265 (Fla. 5th DCA 2011). 3 248 So. 3d 242, 244 (Fla. 5th DCA 2018). 4 43 Fla. L. Weekly D2271 (Fla. 3d DCA Sept. 26, 2018).

The appellate section thanks its luncheon sponsor: Authors: Stacy Blank and Patrick Chidnese – Holland & Knight LLP

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BLI TEaCHEs THE ImporTanCE oF BaTTLE BuDDIEs In THE LEgaL proFEssIon Bar leadership Institute Chairs: Nicole Gehringer – Harris, Hunt & Derr, P.A.; Donald C. Greiwe – de la Parte & Gilbert, P.A.; and Sara R. Lui – Hill Ward Henderson

he Bar Leadership veterans at Institute offers more a time when than just leadership they face lessons. It offers lessons some of their BLI visiting the Veterans Treatment Court. that will help us be more effective most difficult lawyersT and members of our challenges.” community. It is these valuable I am sometimes we do not suffer from lack lessons that encourage us to embarrassed of opportunities, but rather lack of become leaders, so that we may to admit that pass on the knowledge we gain. before the first awareness of such opportunities. It is a task that we no longer just module, all feel the desire to accomplish, but I knew about also the need to accomplish. the Veterans Our first learning module was Treatment Court was the mere We have also had the incredible at the Veterans Treatment Court fact that it existed. When I found opportunity to visit Moffitt Cancer and I found myself in awe of myself excitedly talking about my Center and the Port of Tampa. the program that Judge Michael learning module with colleagues I am so excited to see what the Scionti was running. It offers a immediately after wards, I learned rest of the year has in store for second chance for veterans in that I was not alone in my lack of our BLI Class. But, what I am the criminal justice system by knowledge about the program. most excited about is the newfound providing them with the support But, it is such an important knowledge that I will be able to and guidance they need to cope program that attorneys need to share with my colleagues and with re-assimilating into society, know about, because their clients others in the legal community. while also struggling with issues may have their cases transferred I guess that is why we have such as post-traumatic stress to the Veterans Treatment Court. chosen to go through this program disorder. While court was in session, As such, I now feel compelled to — not only so that we can become Judge Scionti spoke about how discuss the program with every leaders in this profession, but during service, everyone is paired attorney I encounter. Being a so that we can enlighten our with a “battle buddy,” but that the regular volunteer at Project HELP, colleagues about the programs and need for battle buddies transcends a free legal clinic for Tampa’s home- opportunities one’s time in service, which is why less population, I noticed that there that we have his program pairs mentors with was a question on the intake form learned about. participating veterans: “The men regarding whether the client was a After all, we and women of the VTC Mentor veteran, but until now, I never under - all need battle Corps serve as “battle buddies” stood its gravity and importance. buddies. for participating veterans and are Sometimes we do not suffer the heartbeat of the court. Their from lack of opportunities, but Author: Natasha compassion, dedication, and tireless rather lack of awareness of such Khoyi - Booth & efforts help save the lives of countless opportunities. Cook, P.A.

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FILIng a LawsuIT no LongEr rEquIrED To saTIsFY sTaTuTE oF rEposE Construction law Section Chairs: J. Derek Kantaskas – TMD Companies, LLC & Gregg E. Hutt – Trenam Law

recently, the Fourth DCa held that a pre-suit notice of defects under Chapter 558 also qualifies as commencing an action under the statute of repose. here is a ten-year statute of repose for construction defects in Florida. This statute The homeowners appealed the and that construction defect of repose in section 95.11(3)(c), trial court’s ruling to the Fourth claimants should not be penalized FloridaT Statutes, requires a property District. They argued that they for “rightly complying with the owner to commence an “action” satisfied the statute of repose when mandates of the statute.” for construction defects no later they provided pre-suit notice of Gindel raises numerous than ten years after certain events defects to the builder pursuant to questions. Is any attempted occur, typically at or around the Chapter 558. The Fourth DCA Chapter 558 notice sufficient completion of construction. agreed with the homeowners and or must it strictly comply with Historically, courts have interpreted reversed the trial court’s ruling. Chapter 558 to satisfy the statute an “action” to include only a civil The Fourth DCA held that the of repose? Does the date the notice lawsuit or an arbitration proceeding. homeowners timely commenced is sent or received determine The Fourth District Court of an “action” under the statute of timeliness? Is the claim still timely Appeal recently, however, expanded repose when they provided the if the defendant never receives the this definition. In Gindel v. Centex pre-suit notice of construction notice? If the claimant does not Homes, et al., 43 Fla. L. Weekly D defects that Chapter 558 requires. file suit within the repose period, 2112, the Fourth District held To reach this conclusion, the must the recipient of the notice that service of pre-suit notice Fourth DCA reasoned that the still file a lawsuit to ensure that of defects under Chapter 558, statute of repose broadly defines its third-party claims are not time Florida Statutes, also qualifies as an “action” to include any “civil barred? Stay commencing an “action” under action or proceeding.” It found tuned, because the statute of repose. that the pre-suit procedures Florida courts In Gindel, homeowners sued the under Chapter 558 qualify as a inevitably will builder of their homes for alleged “proceeding” under this definition. have to answer construction defects. Before filing The Fourth DCA also equated these and suit, they served a pre-suit notice of the pre-suit procedures in other critical defects on the builder, as Chapter Chapter 558 with the strict questions if 558 requires. They served this pre-suit requirements for medical Gindel remains pre-suit notice within the ten-year malpractice, which the Florida the law in repose period. After the repose Supreme Court previously found Florida. period expired, the homeowners qualified as an “action” under filed a civil lawsuit against the the two-year statute of repose Authors: builder. The trial court held that for medical malpractice claims. Dara L. Dawson the statute of repose barred the The Fourth DCA further and Jeffrey homeowners’ claims because the commented that “Chapter 558 M. Paskert - homeowners did not file their was not intended as a stalling Mills Paskert lawsuit within the repose period. device in order to bar claims,” Divers P.A.

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Construction Law Section CLE/Luncheon The Construction Law section held an interesting CLE/luncheon on november 15 on the subject of “Copyright protection for architectural Designs: a vanishing species?” Frank r. Jakes, Esq. with Johnson pope Bokor ruppel & Burns, LLp presented on the topic, discussing the differences between copyright, trademark, and patent law; the direction that the courts are taking on the issue; examples from the real world; and important architectural work cases from different jurisdictions.

Thank you to Lexisnexis for sponsoring this luncheon.

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DIvErsITY anD FaIrnEss In THE JuDICIaL nomInaTIon proCEss Diversity Committee Chairs: Marsha M. Moses – Law Offices of Kubicki Draper and Abraham Shakfeh – Shakfeh Law, LLC

The 13th Circuit JnC values diversity and strives to ensure a diverse selection of the most qualified candidates are submitted to the governor for consideration.

lorida law governing geographic distribution, of the nominate candidates for judgeship the composition of the population within the territorial to the Governor for appointment. Judicial Nominating jurisdiction of the court for which Fla. Const. Art. V, §11.The Commission (JNC), which nominations will be considered.” Thirteenth Circuit JNC is charged is predominately composed of Fla. Stat. §43.291(4). Thus, the with nominating at least three Fpracticing Florida Bar members Governor is directed to ensure and no more than six candidates directs the Governor to ensure that each JNC reflects the general for each judicial vacancy on the that “to the extent possible, the diversity of its given jurisdiction. Thirteenth Circuit. Although all membership of the commission Florida’s Judicial Nominating nine members of the JNC are reflects the racial, ethnic, and Commissions are constitutionally- gender diversity, as well as the created bodies designed to Continued on page 29 
MEDIATION

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DIvErsITY anD FaIrnEss In THE JuDICIaL nomInaTIon proCEss Diversity Committee Want to advertise your business to Continued from page 28 THOUSANDS appointed by the Governor, four are appointed from among candidates OF ATTORNEYS nominated by The Florida Bar. The role of the JNC is to be the non-political, local vetting process. in the While there is no statutory or constitutional authority governing the Tampa Bay area? precise guidelines the JNC should use when evaluating candidates for nomination, JNC rules of procedure set forth several factors to consider when nominating candidates. Those rules require the JNC to consider various personal attributes including personal integrity, standing in the community, moral conduct, ethics, commitment to equal justice, competency and experience, knowledge of the law, professional reputation, and general intelligence. Finally, candidates are weighed and deliberated on patience, courtesy, civility, temperament, decisiveness, impartiality, and administrative ability. The Thirteenth Circuit JNC values diversity and strives to ensure that diverse, highly qualified candidates are submitted to the Governor for consideration, giving the Governor the ability to select qualified candidates while making diversity on the bench a priority. Members of the JNC are dedicated to an open application process to ensure that questions from all applicants are addressed. The JNC also is committed to outreach with various local bar organizations including the Hillsborough County Bar Association, Hillsborough County Association for Women Lawyers, George Edgecomb Bar Association, Tampa Hispanic Bar Association, and others. With the goal of fairness and impartiality, the JNC has adopted a practice of “standardizing” the interview stage of the application process by asking the same first three questions of each applicant. The Thirteenth Circuit JNC prides itself on its commitment to diversity and its history of nominating highly qualified, diverse candidates. In the past eight years, it has nominated candidates for 21 different openings on the Thirteenth Circuit, resulting in the appointment of 12 men and nine women, of which three self-identify as Hispanic and one who self-identifies as African American. It is the Thirteenth Circuit JNC’s experience and commitment that its nominees reflect not only the most qualified applicants, but also the diverse population of Hillsborough County, which the nominees will be serving. The Thirteenth Circuit JNC will remain committed to a process that continues to stimulate and nominate a diverse pool of highly qualified applicants to the Governor. Call (813) 221-7777

Authors: Gil Singer - Marcadis Singer, P.A., assisted by for information Bob Lindeman - Marcadis Singer, P.A. & Carter Andersen – Bush Ross, P.A. about advertising.

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8th Annual Sensory Friendly Santa Event HCBa was proud to be a sponsor again this year for the 8th annual sensory Friendly santa Event on December 1, put on by the Lawyers autism awareness Foundation and held at the Chester Ferguson Law Center. This free event is open to the public, and supported by local lawyers, law firms and community groups. The local judiciary also participates, with Judges rex Barbas and nick nazaretian acting as jolly old saint nick! Thank you to everyone that participated and helped ensure the spirit of the holidays was enjoyed by all children!

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WELCOME NEW HCBA MEMBERS

OCTOBER & NOVEMBER 2018

Janelle Barriero Benjamin Binder Amanda Biondolino Stephanie Boussias Nicholas A. D’Amico Wendy DePaul Vanessa Ferguson Christy Ferioli Nathaniel Foell Casey Gartland Alessandro Giordano Arda Goker Teresa Hall David M. Herrera Eliza Hope Julia Kapusta Glen F. Kussner Sasha Lohn Mellissa Longo Danielle M. Lutyk Alexzander Scott Lyle Kristen Anne Murphy Jounice Nealy-Brown Crystal Phillips Kathleen M. Premo Clint Rhoton Michael Rosengart Ken S. Siegel Lakeisha R. Simms Karen E. Smeda Ian Paul Stanley Maxwell Harrison Stape Scott Tankel Jonathan Tortorici Christienne Valone

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BIoBanks, BroaD ConsEnTs, anD waIvErs: wHaT THE rEvIsED Common ruLE maY CHangE Health Care law Section Chairs: TJ Ferrante – Foley & Lardner LLP & Kevin Rudolph – Shriners Hospitals for Children

Institutions now will have to confirm that the proper broad consents were obtained from all individuals whose biospecimens may be used in an identifiable manner in a secondary research study.

iobank. For some, the term conjures up an image of a highly somewhere in between for most human subjects. One particular futuristic lab with vaults, biobanks, the revised Common change is to “broad consents” for tubes, and cryogenic chambers Rule issued by the United States human subject samples to be used Bbillowing dry ice smoke everywhere. Department of Health and Human in future research efforts. For others, the word is just a fancy Services (HHS), with its latest Under the earlier version of the way of describing an old freezer in effective implementation date of Common Rule, many institutions the back of a lab containing a bunch January 21, 2019, requires certain used variations of “broad informed of leftover test tubes haphazardly changes to the informed consent organized. Although the reality lies process for obtaining samples from Continued on page 33

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Continued from page 32

consents” to obtain samples, or biospecimens, from individuals that they then “banked” for future unspecified research purposes. (Hence, the term biobank.) The revised Common Rule, however, puts in place a specific regulatory framework for the “broad consent” process, contained at 45 C.F.R. § 46.116(d), which may impact biobanks. The new “broad consent” process essentially allows an alternative to the typical informed consent process (defined in 45 C.F.R. § 46.116(b)-(c)) for these biospecimens to be used in future research, or secondary research, as HHS has labelled it. Without delving into the technical elements of the new “broad consent” process, one change is that when individuals opt-out of consent for secondary research, the relevant institutional review board (IRB) overseeing such secondary research cannot later issue a waiver of consent to permit these individuals’ identifiable banked biospecimens to be used in a future research study. This creates a mechanism whereby those who have opted out via the broad consent process must have their refusals continually tracked to ensure their samples are not used in an identifiable manner in any secondary research. Although many institutions likely already implemented these safeguards, the reality is that they no longer can rely on a waiver of consent from the IRB for all of the samples to be used in a secondary research study. Institutions now, according to the regulation, will have to confirm that the proper “broad consents,” or “opt-ins,” were obtained from all individuals whose biospecimens may be used in an identifiable manner in a secondary research study. HHS has released questions and answers surrounding the “broad consent” process, but has yet to issue compre- hensive guidance on “broad consents” and how they tie into the existing, and future, framework for biobanks. With this new “broad consent” process, institutions will have to ensure that opt-ins and opt-outs are documented for all future secondary research involving banked biospecimens. Although HHS has stated that the use of individuals’ biospecimens in a nonidentifiable manner still is permissible, the advent of genome sequencing raises significant questions about what is nonidentifiable. For institutions, the challenge will be ensuring that the correct pathways are followed for all secondary research involving biospecimens, so that their highly futuristic lab (or old freezer) operates properly as a biobank.

Author: Kevin Rudolph – Shriners Hospital for Children

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Thanks to All our FOX 13 Ask-a-Lawyer Volunteers! The attorneys from the Lawyer referral & Information service were on the job once again in october and november, answering phones as part of Fox 13’s ask-a-Lawyer program. we appreciate all those who volunteered to take calls and help out local residents.

n Dale appell n Lynn Hanshaw n Luby myrthil n Chris arnold n Dane Heptner n kemi oguntebi n David Befeler n Betsey Herd n rinky parwani n alan Borden n Thomas Hyde n Larry samaha n John Brewer n nehemiah Jefferson n marie sartiano schoeb n michael Broadus n suzanna Johnson n william schwarz n Hunter Chamberlain n keith Ligori n shamika askew-storay n Erik De L’Toile n Jamila Little n Betty Thomas n ricardo Duarte n gian Franco-melendez n Chip waller n marc Edelman n kari metzger n robert walton n James Fakhoury n Denny morgenstern n valentina wheeler n Christine Franco n John mulvihill n megan williams n James giardina n stan musial n Jared wrage

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FOX 13 ASk-A-LAwYEr VOLunTEErS

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YLD Golf Tournament The HCBa Young Lawyers Division had a great turnout for their annual golf tournament on november 9. more than 90 golfers came out for the YLD’s signature fundraising event at the Temple Terrace golf & Country Club. Congratulations to the winning team from u.s. Legal support: Dan Bittle, anthony vento, peter Tragos, and Frank miranda. The YLD would like to thank this year’s generous sponsors:

PLATINUM SPONSOR

GOLD SPONSOR zymphony Technology solutions

BEVERAGE CART SPONSOR seacoast Bank

SILVER SPONSORS akerman LLp anthem reporting Banker Lopez gassler, p.a. Dsk Law Esquire Deposition solutions Hill ward Henderson TCs u.s. Legal support wagner mcLaughlin

CLOSEST TO THE PIN (MEN) Tony pastore, morgan stanley

CLOSEST TO THE PIN (WOMEN) printers plus LLC

HOLE IN ONE SPONSOR nelson Law group

LONGEST DRIVE SPONSOR (MEN) kevin Caldwell & Jeff kikoler, raymond James

LONGEST DRIVE SPONSOR (WOMEN) orange Legal

TEE/HOLE SPONSOR Johnson & Cassidy

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CopYrIgHT oFFICE ImpLEmEnTs ExEmpTIons To anTI-CIrCumvEnTIon provIsIons oF THE DmCa Intellectual Property Section Chairs: Cole Carlson – GrayRobinson, P.A. & Ryan M. Corbett – Burr & Forman

The seemingly random nature of the exemptions, and the fact that are being made by a government agency instead of Congress, raises serious constitutional questions.

he Digital Millennium Copyright Act was cellphones and tablets, for the the access is needed for the purpose enacted in 1998 with purpose of switching the device to of “diagnosis, maintenance, or the aim of bringing an alternative wireless network (i.e. repair.” This rule is presumably the nation’s copyright laws into “unlocking”). The current rule has applicable to smartphones, home theT digital age. One of the most been expanded so that it is applicable appliances, or other home systems.4 controversial aspects of the Act was to both new and used devices alike.1 Despite these positive the anti-circumvention provision Jailbreaking Digital developments, many of §1201’s outlined in 17 U.S.C. §1201. Section Assistants: The Copyright Office prohibitions remain in place — 1201 forbids circumventing an also expanded the ability to many inexplicably so. For example, access-control device to gain access jailbreak various electronic devices the exemptions for motorized land to copyrighted material. These such as smartphones and smart vehicles are just that, and strangely “digital locks” are encountered, televisions. Jailbreaking is a process do not apply to boats or planes. for example, when trying to alter whereby a user gains root access to Perhaps most puzzling, §1201’s a computer program or copy a the operating system of the device prohibition against distributing song or video. Users who violate so that software can be added or circumvention tools, such as §1201 can be subject to severe civil removed. A prior ruling of the jailbreaking kits, remains in place. and even criminal penalties. These Copyright Office allowed various The seemingly random nature of the penalties apply even if the purpose classes of devices to be modified in exemptions, and the fact that they of breaking the lock is otherwise this way. The current rule expands are being made by a government lawful. For this reason, many view this ruling so it applies to voice agency instead of Congress, raises §1201 to be unconstitutional. assistant devices, such as the Amazon serious constitutional questions. Every three years, the Copyright Echo® and Apple HomePod®.2 Office examines §1201’s impact Motorized Land Vehicles: 1 Section 1201 Rulemaking: Seventh on the ability of users to engage in §1201 also applies to the computer Triennial Proceeding to Determine lawful, non-infringing uses of copy- software now commonly found Exemptions to the Prohibition on righted materials. The Copyright in cars and trucks. The Copyright Circumvention at 6, available at https:// Office then promulgates certain Office previously extended an www.copyright.gov/1201/2018/2018_ exemptions to §1201. Last October, exemption to allow users to access Section_1201_ActingRegisters_ the Copyright Office finalized its such software for the purpose Recommenda tion. “Seventh Triennial Proceeding to of repairing the vehicle. This pdf Determine Exemptions to the exemption has been expanded 2 See id. at. 7. Prohibition on Circumvention” and and clarified to allow users to also 3 See id. adopted or expanded upon several access the various diagnostic data 4 See id. important exemptions to §1201. generated by such systems.3 The exemptions include: Maintenance and Repair: Author: Unlocking Cellular Devices: The Copyright Office has also issued Michael An earlier rule allowed users to a rule that is broadly applicable to a J. Colitz, III – unlock cellular devices, such as wide range of devices provided that GrayRobinson

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aCCommoDaTIng prEgnanCY-rELaTED LImITaTIons labor & Employment law Section Chairs: Cynthia Sass – Law Offices of Cynthia Sass, P.A. & Jason Pill – Phelps & Dunbar, LLC

although pregnancy is not a “disability” under the aDa, the aDa still impacts pregnancy-related impairments and must be considered when addressing workplace needs ederal and state laws of pregnant employees. protect employees during and after pregnancy. To understand the protections, employers must establish that they have a disability as other persons not so affected but Ffamiliarize themselves with both that falls within the meaning of the similar in their ability or inability the Americans with Disabilities statute. As a result, while pregnancy to work.” 42 U.S.C. § 2000e(k). Act (ADA) and the Pregnancy itself is not a disability within The Eleventh Circuit Court of Discrimination Act (PDA). In the meaning of the ADA, some Appeals has interpreted this recent years, Congress broadened pregnancy-related impairments provision as requiring employers to the ADA’s definition of disability, such as preeclampsia, gestational provide employees with pregnancy- extending protections to certain diabetes, and pregnancy-related related limitations the same pregnancy-related impairments sciatica, that were not previously accommodations that it provides and therefore requiring employers considered disabilities under the employees with other types of to accommodate them. The PDA, ADA now appear to fall within the limitations. See Hicks v. City of too, protects employees during and ADA’s coverage, entitling employees Tuscaloosa, 870 F.3d 1253, 1261 after pregnancy, but its reach is less to a reasonable accommodation (11th Cir. 2017). For instance, clear. The PDA does not explicitly (absent undue hardship). an employer who disciplines an require employers to accommodate But what about those pregnancy- employee because of her lactation employees because of pregnancy related limitations that do not schedule, but allows nonpregnant or pregnancy-related limitations, fall within the ADA’s expanded employees to change their work but it still may be interpreted definition of “disability”? Must schedules for other temporary against employers that fail to employers accommodate those medical conditions, may be found provide certain pregnancy-related limitations under the PDA? The in violation of the PDA. accommodations. answer is far from clear. Adding to the complex world With the passage of the ADA The PDA provides that “women of pregnancy accommodation, Amendments Act of 2008, affected by pregnancy, childbirth, many state laws also prohibit Congress expanded the definition or related medical conditions pregnancy-based discrimination. of “disability” under the ADA, shall be treated the same for all making it easier for individuals to employment-related purposes … Continued on page 43

ARe you ReCeIvIng HCBA’S emAILS? HCBA regularly communicates with members via email. Stay in the know by making sure your email is up-to-date in your member profile at hillsbar.com.

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aCCommoDaTIng prEgnanCY-rELaTED LImITaTIons labor & Employment law Section

Continued from page 42 Legislature amended the FCRA and FCRA to determine whether to explicitly prohibit pregnancy a reasonable accommodation is The Supreme Court of Florida discrimination. See § 760.10, warranted and and the Florida Legislature have Fla. Stat. ensure that recently weighed in. In Delva v. And so, there is no easy answer workplace Continental Group, Inc., 137 So. 3d when it comes to the accommodation policies are being 371 (Fla. 2014), the Florida Supreme of pregnancy-related limitations. applied evenly. Court held that the prohibition To ensure they are on the right side against sex discrimination in the of the law, Florida employers faced Author: Florida Civil Rights Act (FCRA) with requests for pregnancy-related Julie A. includes pregnancy discrimination. accommodations should, at a Girard - Phelps Following Delva, the Florida minimum, review the ADA, PDA, Dunbar LLP

Labor & Employment Law Section CLE Thank you also to seacoast Bank on november 8, the Labor & Employment Law section met to receive an update for sponsoring this informative luncheon. on what is happening at the national Labor relations Board. The featured speaker on the topic for the CLE was David Cohen, who is the regional director of region 12 and subregion 24 for the national Labor relations Board. The section appreciates mr. Cohen taking the time to speak to the group.

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pErmanEnT aLImonY In FLorIDa Marital & Family law Section Chair: Chris Givens - Givens Givens Sparks, PLLC

is optional in all While this situations. For presumption is marriages of rebuttable, the case “long duration,” law consistently permanent reaffirms the alimony “may strength of the be awarded … presumption. Thus, if such an award if there is any is appropriate” possibility that the under the lesser-earning spouse circumstances.1 might be unable espite the legislature’s Despite the to meet his or her frequent attempts to neutral statutory Every district in Florida financial needs in rein it in, permanent language, every the future, Florida alimony remains district in Florida continues to apply a appellate courts alive and well in Florida. This is continues to strong presumption tend to hold that Despecially true in cases involving apply a strong the failure to award in favor of permanent long-term marriages (generally presumption permanent alimony marriages lasting 17 or more in favor of alimony for constitutes an abuse 2 years), even though Florida’s permanent long-term marriages. of discretion. current alimony statute reads alimony for long- as if a permanent alimony award term marriages. Continued on page 47

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pErmanEnT aLImonY In FLorIDa Marital & Family law Section

Continued from page 46 likely be no future need for nominal alimony where there was, alimony, the Florida appellate among other things, a possibility This does not necessary mean courts often require entry of a that wife would be unable to meet that the permanent alimony award nominal award just in case the her future needs). will be substantial. Alimony must needy spouse fails to become 3 See, e.g., Nourse v. Nourse, 948 always be based not only on the self-supporting in the future.4 So. 2d 903, 904 (Fla. 2d DCA 2007) recipient spouse’s need, but also In summation, at present there (explain ing purpose of nominal on the payor spouse’s realistic is a strong likelihood that a court alimony award). ability to pay. But, even in cases will award permanent alimony 4 See, e.g., Liebrecht v. Liebrecht, where the traditionally higher- in any case where the marriage 58 So. 3d 415, 418 (Fla. 2d DCA 2011) earning spouse does not have exceeded 17 years and where (although trial court found that wife the ability to pay alimony, Florida one spouse historically helped to could meet her future needs, it should appellate courts expect that the financially support the other spouse. have awarded trial court will enter a “nominal” If there is any doubt as to whether nominal alimony award — usually $1 per such an award is appropriate, the permanent month for life — so that the needy trial court will err on the side of alimony in case spouse can return to court for an awarding permanent alimony. wife was unable upward modification in the future.3 to do so). The presumption in favor of 1 § 61.08(8), Fla. Stat. (2018) permanent alimony is strong 2 See, e.g., Ayra v. Ayra, 148 So. 3d Author: Mark enough that even in cases where 142, 144 (Fla. 2d DCA 2014) (trial Baseman - Felix the trial court finds that there will court required to award at least Felix Baseman

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The Yerrid Law Firm is pleased that Jeff Murphy is now Of Counsel to our firm.

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mEDIaTIng a propErTY InsuranCE CLaIm Mediation & Arbitration Section Chairs: Kari Metzger - Metzger Law Group P.A. & Jim Matulis - Matulis Law & Mediation

It all comes down to thinking about, and preparing for, the mediation … before the mediation.

t had been a very long day. I had just returned to the Insurance companies want — and means detailed coverage position office after conducting require — pictures, repair and letters. The insured must understand an Examination Under Oath replace ment estimates, and receipts. the carrier’s position on what is on a large hurricane claim. I was Having these documents, and covered, and what is not. And Itired. I was hungry. And I had over having them in the claim file early, more importantly, why. And … 100 e-mails to read. helps the adjuster in getting more in English please. I scanned through my incoming authority to pay the claim. I think it is important for the pleadings. And there it was: an Most insurers will have meetings insured to break down the damages Order of Referral to Mediation. with the adjuster/litigation in detail and under the specific Great. Now I had to prepare representative, and/or the defense coverage provisions in the policy. for that. attorney, in advance of the The insured should set forth what As a younger lawyer (a long time mediation conference. This is when is being claimed for the Structure, ago), I never really appreciated the they discuss the authority to be Contents, Extra Expense and mediation conference. Why can’t given for the mediation. The more Business Interruption, ALE you just go in there and give them the adjuster can answer questions (Additional Living Expenses), and a number, and if they don’t take about the damages, and the more the consequential and “bad faith” it, you walk? Simple. To the point. documentation she is able to show damages as well as fees and costs. No fuss. from the claim file, the more Again, the parties may never agree, As I got older, I realized there authority will be provided. but at least you can break down was so much more to the process. Now, on the insurer side, I would the claims into different elements The nuances of negotiation. The also tell you that you need to read to see what can be done, even if politics in both rooms, and between the documentation. Countless it means resolving some of the each side. And the ability to talk to mediations have ground to a stop claims, but not all. the other side to learn about their so that the claim representative It all comes down to thinking case, and yours. Over time, I began could read through documentation about, and to love the process. So I no longer previously submitted by the insured. preparing for, litigate insurance claims, I mediate the mediation them. Here are some lessons I have Analyze the Coverage Issues … before the learned as a mediator. and the Damages Before mediation. the Mediation Documentation Of course, before we even try Author: Gerald T. I cannot stress how important to calculate the true damages, Albrecht - Albrecht it is for the insured to document the parties must understand the Mediation the claim. Do it early. Do it often. coverage issues. For the carrier, that Services

CHeCk out ouR gReAt SeCtIon LunCHeonS & CLeS! visit www.hillsbar.com.

5 0 JAN - FEB 2019 | HCBA LAWYER HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:21 PM Page 51

Hillsborough County Bar Association 100 Club law firms with 100% membership in the HCBA 12th Judicial Circuit Court Gibbs & Parnell, P.A. Nader Mediation Services 13th Judicial Circuit Court Givens Givens Sparks, PLLC Nancy Jacobs, Esq., LLC 2nd District Court of Appeal Gomez & Touger, P.A. Patsko Law Group PLLC Adams & Reese LLP Gordon J. Schiff, P.A. Petitt Wolfe Craine Worrell LLC Addison & Howard, P.A. Gramling Environmental Law, P.A. Phillip Baumann, P.A. Allen Dell GrayRobinson, P.A. Port Tampa Bay Alley Clark & Greiwe Greenberg Traurig Ramirez Law Firm Ansa Assuncao, LLP Gunn Law Group Rardon & Associates, P.A. Anthony J. LaSpada P.A. Gunster Yoakley & Stewart Richard A. Harrison, P.A. Anton Castro Law Harmon,Woods, Parker & Abrunzo, P.A. Rieth & Ritchie, P.A. Appleton, Reiss & Skorewicz, PLLC Harris and Hunt, P.A. Robert E. Morris, P.A., Attorneys at Law Austin Roe Basquill P.A. Harvey Schonbrun, P.A. Robert G. Kipp, P.A. Baccarella & Baccarella, P.A. Hilary High, P.A. Rocke, McLean, & Sbar, P.A. Baird Law Group Hillsborough County Attorney’s Office Roig, Tutan, Rosenberg, Martin, & Stoller, P.A. Bajo | Cuva | Cohen | Turkel, P.A. Hillsborough County Aviation Authority Rotella Legal Group, P.A. Barbas, Nunez, Sanders, Butler & Hovsepian Legal Affairs Department Rumberger, Kirk & Caldwell, P.A. Barker & Cook, P.A. Hill Ward Henderson Saady & Saxe, P.A. Barnett Bolt Kirkwood Long & Koche Holcomb & Leung, P.L. Saxon, Gilmore & Carraway, P.A. Bay Area Legal Services Plant City Hunter Law, P.A. Scarritt Law Group, P.A. Bay Area Legal Services Wimauma Jackson Lewis P.C. Schropp Law Firm Bivins & Hemenway, P.A. James P. Knox, PLLC Scott A. Haas, P.A. Boss Arrighi Hoag, P.L. Johnson & Cassidy, P.A. Sessions Fishman Nathan & Israel, LLP Bowes Law Group Johnson Jackson LLC Sessums Black Caballero Ficarrotta Brandon Family Law Center, LLC Jorgensen & Ozyjowski, P.A. Sessums Law Group, P.A. Brandon Legal Group, P.A. Joryn Jenkins & Associates, P.A. Seth Nelson, P.A. Brannock & Humphries, PA Joyce & Reyes Law Firm Shawn Harrison Associates, PLLC Brennan, Holden & Kavouklis, P.A., Attorneys at Law Judd Bean Law Silver & Agacinski Brett Hendee, P.A. Jung & Sisco, P.A. Spector Gadon & Rosen Bricklemyer Law Group Keys & Coakley, P.L. Stichter, Riedel, Blain & Postler, P.A. Broad and Cassel Kynes Markman & Felman, P.A. Stolberg & Townsend, P.A. Buell & Elligett, P.A. Langford & Myers, P.A. Stoler Russell Keener Verona P.A. Burr & Forman Larson Johnson, P.L. Stuart & Strickland, P.A. Bush Ross Lauro Law Firm Tampa Bay Elder Law Center Butler Weihmuller Katz Craig LLP Law Offices of Andrew Shein Tampa City Attorney’s Office Caglianone, Miller & Associates Law Office of Christine L. Derr, P.A. Tampa Law Advocates, P.A. Carey, O’Malley, Whitaker, Mueller, Roberts & Smith, P.A. Law Office of Christopher T. Abrunzo, PLLC Terrana Perez & Salgado, P.A. Carlton Fields Jorden Burt, P.A. Law Office of J. Armando Edmiston The Bleakley Bavol Law Firm Carman & Bevington, P.A. Law Offices of Jeanne T. Tate, PA The Fernandez Firm Cheeseman & Phillips, P.A. Law Office of Michael J. Winer, P.A. The Plante Law Group, PLC Clark & Martino, P.A. Law Office of Philip S. Wartenberg The Thorpe Law Firm, P.A. Clerk of the Circuit Court’s Office Law Office of Robert M. Geller The Women’s Law Group, P.L. Cole, Scott & Kissane, P.A. Law Offices of Jonathan C. Koch The Yerrid Law Firm, P.A. Conwell & Kirkpatrick, P.A. Law Offices of Robert R. Renfroe, P.A. Thomas & LoCicero PL Conwell Business Law, P.A. Law Offices of Chris E. Ragano, P.A. Thompson & Brooks Cortes Hodz Family Law and Mediation, P.A. Law Offices of J. Kevin Carey, P.A. Thompson Legal Center LLC Culpepper Kurland Lawrence E. Miccolis, P.A. Thompson, Sizemore, Gonzalez & Hearing, P.A. Danahy & Murray, P.A. Lennox Law, P.A. Thorpe & Thorpe, P.A. Dandar & Dandar Leo D. Gomez, P.A. Timothy G. Anderson, P.A. de la Parte & Gilbert, P.A. Leon & Berg, P.A. Trentalange & Kelley, P.A. Dixon & Associates Leslie Reicin Stein P.L. Trombley & Hanes, P.A. Dogali Law Group, P.A. Lieser Skaff Alexander, PLLC Valkenburg & Velez, P.A. Donica Law Firm, P.A. Lins Law Group, PA Vecchio, Carrier, Feldman & Johannessen, P.A. Felix, Felix & Baseman Mac A. Greco, Jr., P.A. Wagner McLaughlin Fernandez & Hernandez, LLC Maney, Damsker, Jones & Kuhlman, P.A. Walk Law Firm, P.A. Fiol Law Group, P.A. Manson Bolves P.A. Walters Levine & Lozano Fletcher & Fischer P.L. Marlowe McNabb, P.A. Weekley, Schulte & Valdes LLC Florida Law Group, LLC McCalla Raymer, LLC Wenzel Fenton Cabassa, P.A. Fraser Himes, P.A. McIntyre, Panzarella, Thanasides, P.A. Wetherington, Hamilton, P.A. Freeborn & Peters LLP Mechanik Nuccio Hearne & Wester, P.A. Whistleblower Law Firm P.A. Friscia & Ross P.A. Meirose & Friscia, P.A. Wiand Guerra King Fuentes & Kreischer, P.A. Melkus, Fleming & Gutierrez Wicker Smith O’Hara McCoy & Ford P.A. Fulgencio Law Michael D. Fluke, P.A. William A. Knight, P.A. Galloway, Johnson, Tompkins, Burr and Smith Michael P. Maddux, P.A. Willis Law Firm, P.A. Gardner Brewer Martinez-Monfort, P.A. Mickey Keenan, PA Yanger Law Group, P.A. Gaylord Merlin Ludovici & Diaz Mike Murburg, P.A. Young Scanlan, LLC Genders-Alvarez-Diecidue, P.A. Morgenstern & Herd, P.A. George & Titus, P.A. Morris Law Firm

TO BE ADDED TO THIS LIST, PLEASE EMAIL A LIST OF ATTORNEYS IN YOUR FIRM TO [email protected].

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JuDgE JarED smITH: a mILITarY vETEran on THE BEnCH Military & Veterans Affairs Committee Chairs: David Veenstra – Hunter Law, P.A & Alexandra Srsic – Bay Area Legal Services, Inc.

In 2005, the the Unified Family Smiths were Court and County re-assigned to Civil divisions. Goodfellow He joins a dozen Air Force Base, military veterans Texas, where who ably serve on he served as the bench in and the Chief for Hillsborough of Adverse County. Actions. At both There is much assignments, more to Judge he pain of 9/11 was he also served Smith than his palpable and raw. Jared as a Special accomplished legal Smith watched it all Assistant U.S. He felt a call to serve career, however. from Kansas where Attorney, and remembered He married his law he was then a clerk at the Kansas prosecuting school classmate, SupremeT Court. He felt a call to crimes arising receiving a recruiting Suzette, who it serve and remembered receiving a on the exclusive brochure from the air should be noted recruiting brochure from the Air federal actually graduated Force’s Judge advocate Force’s Judge Advocate General’s jurisdiction and tied with Judge (JAG) Corps. He went through the prosecuting general’s (Jag) Corps. Smith in his law competitive application process courts-martial. school class (which and was selected to join the Air Captain Smith was no easy task Force JAG Corps. He and his wife completed his considering he was Suzette embarked on their next military service in 2006. third in the class). They are blessed chapter — life of military service. The Smiths had fallen in love with four wonderful children. It did not take them long to with the Tampa Bay area during They are also active in their faith realize that they were not in Judge Smith’s assignment to community, where Judge Smith Kansas anymore. Then-Lieutenant MacDill, so they returned after serves as a deacon at Idlewild Smith completed the Air Force’s they left the Air Force. He resumed Baptist church in Lutz. initial officer accession training the civilian practice of law by The Military & Veterans Affairs program at Maxwell Air Force joining the law firm of Rumberger, Committee is pleased and grateful Base, Alabama, and his first duty Kirk & Caldwell, P.A. He began that Judge Smith also makes time to assignment was to MacDill Air his practice initially as a civil routinely participate in the various Force Base. At MacDill, his duties litigator and built a construction activities and events put on by the included serving as the Chief of law practice, developing a strong committee, and we look forward to Legal Assistance, Chief of Adverse reputation in the community and his presence on Actions, and Chief of Claims. He earning his board certification. the bench and also was part of the MacDill Air Judge Smith’s legal career and amongst our Force Base Disaster Control Group focus of service changed in March community and served on the MacDill’s multi- 2017, when Florida’s Governor of attorneys. functional team planning and Rick Scott appointed him to serve implementing the massive AirFest as a Hillsborough County Court Author: 2004 event. During his time at Judge. He subsequently won a Steve Berlin – MacDill, he was selected by the contested election in August 2018. Rumberger Kirk Air Force for promotion to captain. Judge Smith proudly sits as part of & Caldwell

Plan to Attend mvAC’s CLe on February 21. Register now at hillsbar.com.

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Adopt-A-Veteran Initiative The Community services Committee once again collected donations from HCBa members for its annual adopt-a-veteran initiative with the James Haley veterans Hospital in october, in honor of veteran’s Day. Thank you to everyone that donated items!

HCBA member Chris Arnold with Metzger Law Group helped coordinate the pick-up of some of the donations at the Chester Ferguson Law Center by two representatives from the Veterans Hospital.

Are you short on CLE credits?

Go to hillsbar.com to order CLEs on CD, or sign up for one of our many CLE luncheons.

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aBsoLuTE powEr no LongEr nECEssarY Real Property Probate & Trust Section Chairs: Kristin Morris – Shutts & Bowen & Elaine McGinnis – Law Office of Elaine McGinnis, P.A.

Effective march 2018, an absolute power to invade principal is no longer a requirement to decant a trust that is administered in the state of Florida.

ecanting a trust, generally, involves a principal of the first trust subject to providing the trustee with the trustee “pouring” trust such power into one or more second absolute power to invade the assets from one trust trusts. In exercising such power: principal of the second trust during to another under the trustee’s (1) The second trust, in the such extended term. The second Ddiscretionary authority to make aggregate, must grant each trust may also create a power of distributions to or for the benefit beneficiary of the first trust appointment (if the power holder of one or more beneficiaries. beneficial interests in the second is a current beneficiary of the A recent amendment to Section trust that are substantially similar first trust) or expand the class of 736.04117, Florida Statutes, has to the beneficial interests they had permissible appointees in favor expanded the ability of trustees under the first trust. of which a power of appointment to decant trust principal. Prior to (2) If the first trust grants a may be exercised. the amendment, a trust could only power of appointment to a A trustee who intends to decant be decanted by a trustee who had beneficiary of the first trust, the a trust must give written notice at an “absolute power” to invade the second trust must grant such power least 60 days prior to the exercise of principal of the trust. A power to of appointment in the second trust the power to invade trust principal invade principal that is limited to to such beneficiary, and the class to all qualified beneficiaries of the specific or ascertainable purposes of permissible appointees must first trust, all trustees of the first is not an absolute power to invade. be the same as in the first trust. trust, and any person who has the As a result, the standard power (3) If the first trust does not power to remove or replace the to invade trust principal for the grant a power of appointment trustee of the first trust. The notice “health, education, maintenance, to a beneficiary of the first trust, requirement is satisfied when all and support” of a beneficiary the second trust may not grant of these persons are provided had previously barred trustees a power of appointment in the copies of the proposed instrument from decanting trusts. second trust to such beneficiary. exercising the power to decant, the Effective March 2018, an (4) The term of the second existing trust absolute power to invade principal trust may extend beyond the term agreement, and is no longer a requirement to of the first trust, and, for any the proposed decant a trust that is administered period after the first trust would second trust in the state of Florida. have otherwise terminated, in agreement. Unless the trust instrument whole or in part, under the expressly provides otherwise, a provisions of the first trust, the Author: trustee who has a non-absolute second trust may, with respect Matthew power to invade trust principal to the property subject to such Schnitzlein - may now decant all or part of the extended term, include language Allen Dell

get InvoLved In A SeCtIon oR CommIttee! JoIn todAy In youR memBeR PRoFILe At HILLSBAR.Com.

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Ferman Automotive has partnered with HCBA to offer their members Trial Consulting Services: 10% Discount on Trial Research participation in the Ferman Corporate Sales Partnership Program. HCBA members have access to special incentives for the purchase of From exhibit boards to trial graphics and other professional a company-owned vehicle or a personal use vehicle from Ferman presentations, this expert team provides a wide range of services. Automotive. In addition to special savings, Corporate Sales Partners HCBA members receive a 10% discount enjoy premium offerings like the Ferman Preferred Concierge. on all trial research including mock trials. To learn more about the Corporate Sales program, please contact Visit www.trialcs.com for a list of services. Allen Craig at [email protected] or 813-802-8015.

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JAN - FEB 2019 | HCBA LAWYER 6 1 HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:22 PM Page 62

mY! How TImEs HavE CHangED! Senior Counsel Section Chair: Thomas Newcomb Hyde – Attorney at Law

The rules of evidence are followed now in the Family Law divisions as strictly as they are in the general Civil division, and the skills of Family Law trial work are much more closely aligned with those of general Civil litigation. opefully, younger This has been the single biggest lawyers not in the Senior Counsel local improvement to the court Section will read system during my career. this and learn a little bit of the Hhistory of practicing law here. After beginning my career as a prosecutor, I have now specialized in divorce for decades. Times Partially because of some death improvement to the court system have changed during my career. threats against local lawyers by pro during my career. Let’s start with this: When my se divorce parties on the opposite After the creation of the Family career started, women lawyers sides of cases, but mainly because Law division, Judge Ralph Steinberg made up less than 10 percent of of court-related shootings in other later initiated setting up the the profession. Now that number parts of the state, Judge Ralph courthouse mediation system. is approaching 40 percent. George Steinberg recommended that we The legislature wised up and Edgecomb was the only black pursue obtaining metal detectors followed the example of Arizona lawyer in the State Attorney’s and security staff to screen people by creating child support guidelines. Office, and there were only a entering the courthouse. Now, each lawyer uses the same handful of black lawyers in the Back then, the general civil software that the judges have and area. There had never been any judges were handling divorce merely inputs the incomes and black judges nor women judges matters along with everything other data required. Everyone in the Thirteenth Circuit. else. Based on the initiation by comes up with the same number There were no security devices Chief Judge Arden Merckle for child support and we don’t in our courthouse. There were (who, unfortunately, later ended waste lots of court time (and client no separate Family Law divisions. up serving a prison term for money) arguing about it. There was no mediation. In most bribery), on February 1, 1982, the When I started, all the documents family law cases, the rules of court started Family Law divisions created by the office were done evidence were only followed where the judges could devote by IBM Selectric 2 typewriters. loosely. The judges and the all of their time to staying current Documents filed with the court lawyers looked at this court of on changes in family law statutes contained lots of “white out” places. equity as more of a “Let’s let and rules of procedure. The rules When a letter was typed, there were everything into evidence and then of evidence are followed now two carbons made. One went to we can make a fair ruling based in the Family Law divisions as the file and one went to the client. on everything.” We spent a full strictly as they are in the General The Florida Bar did not allow four hours arguing about the Civil division, and the skills of advertising of any kind. It was amount of child support that family law trial work are much thought that lawyers were above should be ordered. There were more closely aligned with those that. Now we are somewhat no law firm websites, computers, of general civil litigation. This or cell phones. has been the single biggest local Continued on page 63

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mY! How TImEs HavE CHangED! Senior Counsel Section

Continued from page 62 in the community by other lawyers, My, how times have changed! mental health professionals or Just think of what it is going to restricted in what we can say in (mostly) by satisfied former family be like when you are old enough advertisement, but, in general, law clients. In family law offices to be in the are allowed to compete with now, marketers tell us that we Senior Counsel each other like people in other can’t exist without website Section. professions do. We all can see how marketing. As for that and other Enjoy that has helped marketing genius, IT issues, my grandsons not only your career! John Morgan, build his personal know more about electronic injury practice empire. technology, they have helped me Author: Without websites, the way many times with how to use the Stann Givens – a divorce practice grew was various types of communication Givens Givens recommendations made to people on my cell phone. Sparks

Senior Counsel Section Luncheon The senior Counsel section and other members and guests received an update at its luncheon on november 19 on the exciting developments taking place downtown with the water street Tampa project. The speaker for the luncheon was David Bevirt, who serves as the executive vice president of corporate leasing and strategy for strategic property partners and the lead for leasing efforts on the office portion of the nine million square feet, 50-acre development.

JAN - FEB 2019 | HCBA LAWYER 6 3 HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:22 PM Page 64

THIngs To BE on aLErT For as a smaLL FIrm praCTITIonEr Solo & Small Firm Section Chairs: Matthew Crist – Crist Legal | PA & Gian-Franco Melendez – Law Office of Gian-Franco Melendez, LLC

peer-to-peer online networking is rapidly replacing traditional phone-in searches, and may be the difference to your firm’s success. © Cancsp0577151 Stock /Photo johnsfon/ ou’ve taken the leap and opened your own firm. After the congratulations and insurance is one of the single most with an existing family law firm; accolades from your peers, now maddening monthly expenses a that firm may have resources to comesY the hard part: running an small firm has, but it is essential expend, and guidance on how to actual functioning business. Here to insulate yourself and your navigate a new area of law for you. are a series of simple suggestions firm from significant liability. and things to watch out for as No matter what, there is always Cultivating your Image you engage in this endeavor: a risk that your client will not be Networking and client engage - happy with the outcome of the ment are essential to a small firm’s Hiring and Retaining Staff case and be tempted to file a growth. Reach out beyond just It may at first seem impractical complaint with the Florida Bar. legal networking mixers to local financially to take on staff when These things happen. Protect professional association circles. The starting a small firm. No money is yourself against that possibility and connections and potential clients at initially coming in, and payroll has invest in malpractice insurance. these events are sophisticated, and to be made each month regardless. much more likely to have fruitful If your practice has a significant Biting Off More Than ends. To wit, your image on social caseload and can handle bringing You Can Chew media will also be crucial. Invest on support personnel, invest in a Piggybacking off of the brief your time in your web presence PEO, or Professional Employer mention of client retention, always by creating a firm Facebook page, a Organization. This entity runs be careful straying outside of a firm Twitter, and even an interactive payroll for you and ensures you comfortable practice area. Legal element to your firm’s webpage. are compliant with the IRS when malpractice attorneys will advise Peer-to-peer online networking it comes to payroll deductions. But, you that you are held to the is rapidly replacing traditional restrain the impulse to offer creative standard of a reasonable practicing phone-in compensation to say a veteran para - attorney in that field of law. If searches, and legal in lieu of traditional salary and you miss a deadline because you may be the benefits; Florida Bar Rule 4-5.4(a) incorrectly analyzed a statute you difference to clearly prohibits sharing attorney’s weren’t familiar with, that will fall your firm’s fees earned with non-lawyers. on deaf ears with your malpractice success. insurance carrier. If you are a Protecting your Firm’s Assets personal injury attorney but Author: Trescot As you no longer have the safety looking to dip your toe into family Gear – Gear net of a larger firm, malpractice law, a suggestion is co-counseling Law, LLC

Follow the HCBA on Facebook, twitter, LinkedIn and Instagram.

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FLorIDa suprEmE CourT Favors FrYE Trial & litigation Section Chair: Katherine Yanes – Kynes, Markman & Felman, P.A.

about reliability access to the courts.8 in rejecting the Justice Pariente’s Supreme Court’s concurring opinion Daubert standard. expanded on this The Legislature concern, with Justice attempted to Labarga concurring.9 embrace Daubert Justice Labarga in section 90.702, wrote a separate Florida Statutes concurrence (2013).3 Under addressing the Daubert, relevant For now, Frye propriety of n its recent opinion clarifying scientific evidence remains the law of jurisdiction, with Florida’s standard regarding is admissible if which Justice Pariente the admissibility of expert it is derived from the land when it also concurred,10 evidence, the Florida Supreme scientific method - comes to evaluating while Chief Justice Court essentially told the Florida ology, even if not Canady dissented ILegislature to stand down. generally accepted; new or novel on jurisdictional The 4-3 decision in DeLisle v. judges are assigned scientific evidence. grounds with Justices Crane Co., No. SC16-2182, 2018 gatekeeping roles Polston and Lawson WL 5075302 (Fla. Oct. 15, 2018) to ensure the concurring.11 (which remained subject to revision reliability and or withdrawal pending release for relevance of expert testimony.4 1 Crane Co. v. DeLisle, 206 So. 3d 94, permanent publication as of this Returning to the separation 100–103 (Fla. 4th DCA 2016) (citing article’s submission), reviewed the of powers doctrine, the Court Daubert v. Merrell Dow Pharmaceuticals, Fourth District Court of Appeal’s determined that the revision to Inc., 509 U.S. 579 (1993)). reversal and remand in a personal § 90.702 does not create, define, or 2 DeLisle, 2018 WL 5075302, at *3 injury action based on asbestos regulate a right, thereby rendering it (citations omitted). exposure. The Fourth DCA found procedural rather than substantive.5 3 Id. at *4–6. that the trial court “failed to properly Since the statute conflicts with 4 Daubert, 509 U.S. at 587–595. exercise its gatekeeping function” the Court’s previous decisions 5 The Court declined to adopt as to several testifying experts.1 pronouncing the Frye test a chapter 2013-107, section 1, Laws of Before quashing the Fourth DCA’s procedural rule, the Court deemed Florida, to the extent it was procedural, decision, the Court provided a it unconstitutional.6 And so for now, in 2017. See DeLisle, 2018 WL lengthy discourse on the interaction Frye remains the law of the land in 5075302, at *2. between it and the Legislature in determining the admissibility of 6 DeLisle, 2018 WL 5075302, at *6 –7. implementing evidentiary rules, new or novel scientific evidence. 7 Id. at *8. maintaining that, where rules The DeLisle opinion issued a 8 Id. at *8, n. 3. constitute substantive law, they are reminder that Frye applies only to 9 Id. at *9–13 (Pariente, J., the responsibility of the Legislature, testimony based on “new or novel concurring). but clarifying that procedural rules scientific techniques,” and trial 10 Id. at *13–14 (Labarga, J., remain within the judiciary judges retain broad discretion to concurring). branch’s domain.2 determine the subjects on which 11 Id. at The Court then reaffirmed experts may testify. In the underlying *14 –15 (Canady, longstanding precedent adopting the trial for example, the Court stated J., dissenting). standard articulated in Frye v. United that the disputed medical causation States, 293 F. 1013 (D.C. Cir. 1923), testimony was not new or novel and Author: which requires general acceptance thus not subject to Frye analysis.7 Bridget in the scientific community for Of note, the Court cited concerns McNamee - the admission of expert scientific about the length and expense of Johnson evidence. DeLisle cited concerns Daubert proceedings inhibiting Jackson, LLC

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upDaTE on JuDgEs oF CompEnsaTIon CLaIms anD CasELaw Workers’ Compensation Section Chair: Anthony Cortese – Attorney at Law

causation covered only by between her state workers injury and her compensation. loss of wages. The Benefits Review In a more Board affirmed detailed order on the finding of the remand, Brockman Administrative v. Sarasota County, Law Judge that the OJCC Case terminal and the No. 16-013511 employment as a (August 24, 2018), whole was shipping. ur CLE luncheon with it was found that Join us at our CLE Therefore, it was the Tampa Judges of the claimant’s luncheon with the covered under the Compensation Claims assertions were Tampa Judges of Longshore Act, will start at Noon on credible, that even though certain February 25, with the Honorable she faced a Compensation Claims activities, like OMark Massey moderating the choice between manufacturing, might on February 25. topics and introducing the new retirement or not be covered if replacements for our two local termination due they occurred away retiring Judges of Compensation to work-injury from the waterfront. Claims. We hope you can join us related absences, The employer at this important luncheon. and that her head custodian also denied temporary indemnity Regarding recent caselaw, did not comply with her work benefits on the basis that, although temporary partial indemnity restrictions, which affected her job the injury precluded the claimant benefits were at issue in two state performance. After the injury but from returning to work for the workers compensation and federal before retirement, her employer employer, their vocational longshore appellate decisions. had taken her to a hearing over evaluator found suitable alternative In Sarasota County School Board v. her absences and job performance employment with other entities, Brockman, 248 So. 3d 270 (Fla 1st under NLRB v. J. Weingarten, Inc. which the claimant could perform DCA 2018), the First District Court 420 U.S. 251 (1975), and she despite his injuries. The of Appeals reversed an award of contended she would have worked Administrative Law Judge did temporary partial disability benefits until age 62 if she hadn’t face agree that suitable alternative to a claimant, where the order termination. Temporary partial employment had been located, below did not make specific factual benefits were awarded based on but because the claimant exercised findings on the nexus between the this nexus. due diligence in applying for every injury and lost wages. The claimant In another recent case regarding position located by the vocational was a school custodian with almost a longshore claim, an employer evaluator and performed his own 30 years of employment, and a few denied jurisdiction as well as unsuccessful job search, he was compensable injuries, who was entitlement to temporary indemnity entitled to ongoing temporary six months from the date of full benefits. Dwayne Victorian v. total indemnity benefits. The retirement when she had another International-Matex Tank Terminal, Benefits Review Board affirmed work injury. She returned to BRB 17-0584 (July 24, 2018). The this decision. restricted duty at full pay with her claimant worked at a waterfront We look forward to an employer and retired when her terminal engaged in receiving and interesting year with the Workers pension vested. When she filed shipping certain materials, as Compensation Section and hope a claim for temporary partial well as storage and manufacturing to see everyone at the February 25 disability, her employer/carrier using some of those materials. luncheon. denied the benefits on the basis that The claimant was injured during her retirement was an intervening a manufacturing activity that the Author: Anthony V. Cortese - Attorney cause that broke the chain of employer contended should be at Law

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Trial & Litigation Section Holds Candidate Forum The Trial & Litigation section thanks the luncheon attendees on october 10, the Trial & Litigation section held a candidate forum for and speakers and its sponsor: synovus Bank. various local races to allow its members an opportunity to meet and learn more about candidates running in the general election. In addition, will spicola from the general Counsel of the Constitution revision Commission held a q&a on the proposed constitutional amendments on the ballot.

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JAN - FEB 2019 | HCBA LAWYER 6 9 HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:22 PM Page 70

arounD THE assoCIaTIon

Willard A. Blair – Shumaker, Practice Section’s Family Law children safe and help them succeed Loop & Kendrick, LLP Appeals webinar. in school and life. congratulates Tampa partner Willard A. Blair, who has been Hill Ward Henderson – Hill Mindi M. Richter – elected to the advisory board of the Ward Henderson is pleased to Shumaker, Loop & Kendrick, Alliance of Merger & Acquisition announce the addition of associates LLP’s Tampa partner Mindi M. Advisors (AM&AA). The AM&AA Dalton Allen and Travis Foels to Richter moderated the Tampa Bay is an international organization the firm’s Litigation Group. Chapter Federal Bar Association serving the educational and (TBCFBA) Brown Bag Lunch, resource needs of the middle Connolly McArthur – Hill focused on Injunctive Relief in market M&A profession. Ward Henderson congratulates Intellectual Property Cases. Senior Counsel Connolly McArthur, She was joined by judges and Mandi Ballard Clay – who has been elected to the Religious practitioners from the Middle Shumaker, Loop & Kendrick, Community Services, Inc. (RCS) District of Florida. LLP’s Tampa associate Mandi Pinellas Board of Directors. Ballard Clay presented to the Robert A. Stines – Freeborn Carrollwood Bar Association on Jounice Nealy-Brown – & Peters LLP is pleased to October 11, 2018, on the topic of Gunster welcomes Jounice Nealy- announce that Robert A. Stines, a “Lawyers, Interrupted,” regarding Brown, who has joined the business partner in the firm’s Tampa office the mental health and wellness of litigation practice as an associate in and a member of its Emerging attorneys and the steps being taken the firm’s Tampa office. Technologies Industry Team, has to improve and raise awareness earned the Certified Information about mental health issues among Andy Peluso – Hill Ward Privacy Professional (CIPP/US) attorneys. Henderson is pleased to announce credential through the that associate Andrew E. “Andy” International Association of Samantha Culp – Carlton Pelsuo has been selected to join Privacy Professionals (IAPP). Fields welcomes Samantha M. AMIkids Tampa’s Board of Trustees. Culp, who has joined the firm as Susan Tillotson Bunch – an associate in its Tampa office. Cara L. Powell – Open Palm Thomas & LoCicero PL in She is a member of the firm’s Law welcomes the addition of new Tampa congratulates Susan Real Property Litigation section. Associate Cara L. Powell, Esq., a Tillotson Bunch, who has earned family law attorney, to their firm. the designation of Privacy Law Wiline Justilien Davis – Specialist from the American Bar Shumaker, Loop & Kendrick, Sam Queirolo – Shumaker, Association (ABA) and administered LLP’s Tampa associate Wiline Loop & Kendrick, LLP is by the International Association Justilien Davis spoke about her pleased to announce the expansion of Privacy Professionals (IAPP). military experience and the need of its firm-wide real estate and Part of the inaugural ABA/IAPP for the services that Bay Area land use practice with the addition class of 27 practitioners, Bunch Legal Services provides to the of attorney Samuel P. Queirolo. is the first Florida Bar member Tampa Bay community at The to be so designated. Collective’s “Maritime Happy Lauren Raines – Quarles & Hour” networking event on Brady LLP congratulates Lauren Douglas A. Wallace – Doug October 11, 2018. Raines, a partner in the firm’s Wallace of Brannock & Litigation and Dispute Resolution Humphries recently joined the Joseph T. Eagleton – Joe Practice Group, who has been Financial Industry Regulatory Eagleton of Brannock & elected to the board of directors for Authority’s roster of arbitrators. Humphries recently presented the After-School All-Stars Tampa Wallace is pleased to now be avail- “Finality in Family Law: Appealing Bay. The After-School All-Stars able to serve as a public arbitrator. Orders in Cases That Never End” Tampa Bay provides comprehensive for The Florida Bar Appellate after-school programs that keep

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JurY TrIaLs ADVERTISING INDEX

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JAN - FEB 2019 | HCBA LAWYER 7 1 HCBA lawyer (JAN-FEB) 2019 Inside2_layout 1 12/14/18 10:22 PM Page 72

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