Recent Blog Posts

Employers beware...sloppily drafted severance agreements may not release all claims by the former employee

Alex Rosenthal — Mon, 23 Jan 2012 15:33:00 GMT

The economy does not have to be bad a company to incorporate severance agreements into its employment policies. Severance agreements are important for a variety of reasons regardless of the business climate. Certainly there are the goodwill aspects of offering severance payments to former employees who have provided years of valuable and loyal service to an employer. However, the single most valuable aspects of severance agreements are (a) the inclusion of broad, full and final releases covering any legal claims the former employee otherwise may have considered bringing against the former employer for unlawful discrimination, harassment, and other claims, and (b) non-compete covenants or, in cases where a non-compete agreement is already in place, provisions can be included in the severance agreement that expands the coverage of the existing restrictions.

When drafting the release language, careful attention needs to be taken to broadly include all claims that the employer desires to be released. Certain employment related claims are governed by statutory waiting period requirements, and the failure to follow the statutory procedures will render the agreement invalid. In addition, limiting language such "the released claims consist of and are limited to any and all Claims that in any way relate to: (i) employment of the Employee with Company, or the termination thereof, or claims for compensation, bonuses, commissions, lost wages, or unused accrued vacation or sick pay," would not serve to release the Employer from tort claims and other claims that may not specifically relate to the employment relationship. In fact, a recent Florida appellate case held that this specific language did not constitute a release of a claim for tortious interference brought by the former employee against the former employer.

The time to avoid costly mistakes is when the employment relationship is being terminated and severance is being offered. There is not going back to correct mistakes so careful attention should be taken to adequately address all issues in a severance agreement.

Alex P. Rosenthal, Esq.

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, FL 33326

(954) 384-9200

alex@rrcounsel.com

Commercial Landlords Beware of Breaching the Ever Expanding Implied Covenant of Quiet Enjoyment

Amanda Jassem Jones — Thu, 13 Oct 2011 19:12:00 GMT

Absent a contractual provision to the contrary, every commercial lease agreement entered into in the state of Florida carries an implied covenant of peaceable and quiet enjoyment. The covenant of quiet enjoyment is equivalent to a representation by the landlord that the tenant will not be evicted or estopped by good title in possession of the leased premises or any part thereof. While it is commonplace for commercial landlords to engage in maintenance, construction and/or other activities in the common areas of a shopping center, tenants that are attempting to be relieved of their obligations under the lease will inevitably contend that a landlord's foregoing actions constitute a breach of the implied covenant of quiet enjoyment. Commercial landlords have routinely defended such claims and/or rebutted such defenses by contending that their actions did not rise to the level of constructive eviction and/or that their actions occurred solely within the common areas – not the leased premises. However, these arguments may carry less weight after a recent ruling in the case of Coral Wood Page, Inc. v. GRE Coral Wood, LP. In this case, the Second District Court of Appeal held that tenants can assert a claim for breach of the implied covenant of quiet enjoyment and/or maintain such a defense even when the landlord and/or their authorized agent's actions did not rise to the level of eviction and that the covenant of quiet enjoyment encompasses a landlord and/or their authorized agent's actions occurring not only in the leased premises, but also the common areas. Accordingly, commercial landlords should take caution and confer with counsel prior to engaging in any actions in the common areas of the commercial property (including common areas and other tenant spaces) that could potentially interfere with a tenant's use of its leased premises.

Amanda Jassem Jones

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, FL 33326

954-384-9200

amanda@reimer-rosenthal.com

A Victory for Business Owners against Slip and Fall Plaintiffs

Amanda Jassem — Mon, 18 Jul 2011 16:33:00 GMT

Before 2001, Florida courts required that plaintiffs in slip and fall cases involving transitory objects or substances prove that the business owner had actual or constructive knowledge of the "dangerous condition." However, the Florida Supreme Court, in the case of Owens v. Publix Supermarkets (2001), altered the burden of proof, reasoning that once the Plaintiff establishes that he or she fell as a result of transitory foreign substance, the burden shifts to the business owner to show that it exercised reasonable care. However, the Legislature in 2002, enacted Fla. Stat. §768.0710, which shifted the burden back to the plaintiff to prove that the business owner "acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises." Although the enactment of this statute was a victory for business owners, this statute was faced with criticism for being shrouded in ambiguity since it did not expressly require plaintiffs to prove that the business owner had actual or constructive notice of the "dangerous condition." The Florida legislature responded by repealing Fla. Stat. §768.0710 and replacing it with Fla. Stat. §768.0755 (2010), which expressly requires slip and fall plaintiffs to prove, among other things, that the business owner had actual or constructive knowledge of the "dangerous condition."

There has been much debate over whether the provisions of Fla. Stat. §768.0755 (2010) would apply retroactively to accidents occurring prior to the enactment of Fla. Stat. §768.0755 (2010) and what impact, if any, this statute would have on the plaintiffs' burden of proof. Until last month, no appellate court has discussed Fla. Stat. §768.0755 (2010). Finally, in Delgado v. Laundromax, Inc., the Third District Court of Appeals, without explanation, held that Fla. Stat. §768.0710 – and not Fla. Stat. §768.0755 (2010) – was the substantive law governing the Plaintiff's August 21, 2003 slip and fall accident. However, the Court held that while §768.0755 (2010) now defines how a breach of duty is proven by requiring actual or constructive notice, the Court (applying Fla. Stat. §768.0710) held that the Plaintiff was still nevertheless required to affirmatively present evidence that the Business Owner had actual and constructive notice of the dangerous substance, in this case – water, to survive summary judgment, which the Plaintiff failed to do.

Thus, based on the Third District Court's recent ruling, regardless of whether the slip and fall accident occurred prior to enactment the Fla. Stat. §768.0755 (2010), plaintiffs must still present evidence that the business owner had actual or constructive notice of the "dangerous condition" to survive summary judgment. This is a major victory for business owners since, similar to the Plaintiff in the Delgado case, many slip and fall plaintiffs are unable to present evident as to the amount of time a transitory object or substance has been on the floor or that fact that the condition occurred with such frequency that the owner should have known of its existence. As to the future of slip and fall plaintiffs' burden of proof against business owners, it will be interesting to see the effect, if any, that Fla. Stat. §768.0755 (2010) has on post 2010 slip and fall accidents.

Florida has Very Long Arm(s) When it Comes to Personal Jurisdiction

Alex Rosenthal — Wed, 11 May 2011 20:18:00 GMT

Generally, in order to bring a non-resident to Florida to defend a case for breach of contract, there must be more than an obligation to pay in the state to support constitutional due process requirements. Florida courts have consistently held that an obligation to pay in Florida alone is not enough, even if the parties agree in their contract to jurisdiction in Florida.

In the context of business transactions, this outcome renders so many transactions meaningless since creditors find themselves with guarantors (for example) who reside elsewhere and enforcement could be tricky and expensive; creditors find themselves having to pursue individual guarantors in different jurisdictions.

Welcome Florida Statute §§ 685.101-102. This Statute is essentially an alternative long-arm provision which enables parties to consent to jurisdiction in Florida if certain conditions exist.

The Contract between the parties must (1) include a choice of law provision designating Florida law as the governing law, (2) include a provision whereby the nonresident agrees to submit to the jurisdiction of the Florida courts, (3) involve consideration of not less than $250,000.00 and (4) either bear a substantial or reasonable relation to Florida or have at least one of the parties to the contract must be a resident of Florida or incorporated under its law.

Alex Rosenthal and Amanda Jassem of Reimer & Rosenthal LLP recently handled a matter seeking to enforce a personal guaranty signed by a New York resident who claimed to have no contacts with the state of Florida other than the execution of a personal guaranty of a commercial property lease signed by a corporate tenant for space in Broward County, Florida. The guarantor moved to dismiss the case for lack of personal jurisdiction arguing that he had no minimum contacts with the state of Florida and, applying the conventional long arm law, that the obligation to pay in Florida alone is insufficient to involve the jurisdiction of Florida.

Reimer & Rosenthal LLP argued on behalf of its landlord client that Fla. Stat.§685.010-102, and not the traditional long-arm analysis, applied. The firm pointed out that all of the conditions of the statue applied in the particular guaranty. The trial court denied the guarantor's motion to dismiss. The guarantor appealed the case to the Fourth District Court of Appeal. In nearly record speed, the Firm prevailed on the appeal when the Appellate court affirmed the trial court's denial of the Motion to Dismiss upholding the application of Florida's alternative long-arm provision in Fla. Stat.§685.101-102 in the context of a personal guaranty meeting the requirements of the statute.

This case illustrates the importance of careful drafting of contracts with out of state debtors in order to enable the contracting party in Florida to be able to invoke the provisions of Florida's alternative long arm statute.

Alex P. Rosenthal, Esq.
Reimer & Rosenthal LLP
2115 North Commerce Parkway
Weston, Florida 33326
954.384.9200
alex@reimer-rosenthal.com

Taking risks in your business and your life; find the right lawyer to help you navigate through it.

Alex Rosenthal — Tue, 26 Apr 2011 18:26:00 GMT

In business there are many situations where taking risks separates successful businesses from unsuccessful ones. This most often arises in the area of legal risks. Taking on liability in a contract, even though your lawyer advises against it. Accepting risky work, even though the potential for liability is high. Terminating employees, even though there is potential for unwarranted employment claims. The risks of these unknown and unchartered waters with worth it if, once taken, the outcome is beneficial to your business. Any lawyer can tell you why not to take certain business risks, but a good lawyer tells you what those risks are and appreciates the upside to your business in taking those risks. Andre Malraux said "[o] ften the difference between a successful person and a failure is not one has better abilities or ideas, but the courage that one has to bet on one's ideas, to take a calculated risk - and to act."

This recently became abundantly clear to me in a personal endeavor. My wife and I recently completed an Adventure Race called the Spartan Race. This was an eight mile, eighteen obstacle course race. Prior to committing to do this race, I knew that I had never run eight straight miles and I had no idea what the obstacles in the race were. I only knew that the race was challenging even to the most experienced athletes.

With little information or experience, I took the risk. I prepared to the best of my ability and trained for the unknown. I refused to listen to my own doubt and the doubts of others. I refused to do what was natural to me - go to the gym and exercise the way everyone else does. The outcome, my wife and I completed the race and have a more intense confidence and drive to challenge ourselves physically. We climbed twenty foot cargo ropes and twelve foot walls, carried boulders, rappelled bridges, swam the ocean in full running gear (sneakers and all), crawled in mud under barbed wire, and ran though a forest with no end in sight. The end result, I feel like I am a much more productive person now than I was before taking the risk.

This risk in life translates to risks in business and vice versa. Don't listen to naysayers, especially your lawyer. Your lawyer should be your coach to encourage and prepare you for your business risks.

Alex P. Rosenthal, Esq.
Reimer & Rosenthal LLP
2115 North Commerce Parkway
Weston, FL 33326
954.384.9200
alex@rrcounsel.com

Why do Florida Employers Still Think They Cannot Enforce Non-Compete Agreements.

David H Reimer — Thu, 21 Apr 2011 16:29:00 GMT

Perhaps it is because of current economic conditions or simply because the topic has not received much public discussion lately, but more and more employers are asking whether covenants not to compete are enforceable in Florida. To my surprise a majority of my business clients believe that non-compete agreements are not enforceable. Even many employers who have their employees sign non-competes suggest “it is just to scare people because they cannot be enforced.” These employers seem extremely surprised when I tell them how wrong they are. Perhaps this would also come as a surprise to employees who likewise might believe that non-compete agreements are unenforceable in Florida.

Despite the apparent wide spread perception to the contrary, non-compete agreements are enforceable in Florida. In fact, Florida has historically been one of their most rigid enforcers. Prior to 1991, non-competes in Florida were enforced in virtually every circumstance, with courts only modifying the time frame and geographic scope when necessary. Then, in 1990 the Florida legislature followed suggestions of the Florida Supreme Court and amended Florida’s statute governing non-competes in an effort to provide more equitable treatment of employees. However, by 1996 the flood of litigation and differing court opinions on to how to enforce the newly amended statute led the Legislature to start from scratch with an entirely new statute.

Today, courts look at several factors in determining whether to enforce a covenant not to compete. However, these factors may not be the ones everyone might think. For example, Florida law specifically states that a court may not consider any “economic or other hardship” which might be placed on the person against whom the covenant is to be enforced. This responds to the biggest comment I hear from employers and employees: “But the court cannot keep someone from working in the only field they know.” Wrong; So long as the covenant meets the statute’s other criteria, then yes, the court can and likely will keep someone from working even if it is the only job they know.

Additionally, if the covenant is well drafted it might even be enforced against someone who is fired or someone who is owed money because the enforcing party breached some other promise. The agreement might even be enforced by someone who was not a party to the original agreement because the agreement was assigned or the third party was properly identified in the original agreement.

In their analysis of whether to enforce a covenant not to compete, the courts will look at whether: 1) the covenant is in writing and signed, 2) reasonable in time, geographic area and line of business, and 3) it is reasonably necessary to protect a legitimate business interest of the enforcing party. For reasonableness of time, the Florida statute provides a range of guidelines depending on whether the covenant relates to an employee, a franchisee or licensee of a trademark, or the seller of a business. Geographic location must be addressed on a case by case basis and will depend on the type of business activity involved.

The trickiest part of the analysis is whether the covenant is reasonably necessary to protect a legitimate business interest. The Florida statute defines legitimate business interests as including: 1) trade secrets; 2) confidential business information; 3) substantial relationships with specific prospective customers, patients or clients; 4) customer, patient or client goodwill associated with an ongoing business by its: use of a particular trade name; specific geographic location; or, specific marketing or trade area; and, 5) extraordinary or specialized training. Although the statute provides more detail than written here, not all businesses are able to establish these legitimate business interests or that enforcement is reasonably necessary to protect them.

Whether you are an employer, franchisor, licensor, investor, or the buyer of a business, it is important to make sure you understand your rights and to ensure your non-compete agreements are well drafted so they are enforceable and take full advantage of all available rights. But for those employees or sellers of a business wondering what to do because they are subject to a non-compete, don’t despair because a large number of scenarios exist where non-competes may not be enforceable. So my answer when asked the question these days is that Florida will absolutely enforce covenants not to compete agreements, but every agreement and every fact scenario are different and those are what will be the deciding factors.

David H. Reimer, Esq.

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, FL 33326

(954) 384-9200

david@rrcounsel.com

Is Florida on a Path Toward Deregulating Professions?

David H Reimer — Tue, 12 Apr 2011 17:35:00 GMT

Few of us probably know that there is a difference between a decorator and an interior designer. However, to those that qualify as interior designers there is a big difference and historically the state of Florida agreed. That may all change if the Florida legislature passes currently pending legislation. This legislation would eliminate the regulation of Interior Designers and thereby undoubtedly further blur the distinction between these two distinct groups.

Florida currently regulates Interior Designers and Decorators through the Florida Board of Architecture and Interior Design. Under Chapter 481 of the Florida Statutes governing architects and interior designers, "Interior Design" means someone who provides "designs, consultations, studies, drawings, specifications, and administration of design contracts relating to nonstructural interior design elements of a building or structure. Florida Statute Section 481.203(8) goes on to say "'Interior Design' includes, but is not limited to, reflected ceiling plans, space planning, furnishings, and the fabrication of nonstructural elements within and surrounding interior spaces of buildings. 'Interior Design' specifically excludes the design of or the responsibility for architectural and engineering work, except for specification of fixtures and their location within interior spaces." On the other hand, subsection (15) of this same statute defines "Interior Decorator Services" to include "the selection or assistance in selection of surface materials, window treatments, wallcoverings, paint, floor coverings, surface-mounted lighting, surface mounted fixtures, and loose furnishings not subject to regulation under applicable building codes." Currently, if someone is providing Interior Design services for anything other than a residential application they must be licensed by the Board of Architecture and Interior Design.

The significance between the type of services provided can be great because the Board has the power and authority to bring disciplinary action against any licensed designer for failing to follow state guidelines, and further has the power to fine any unlicensed person who acts in violation of the regulations. Moreover, under Florida law if an unlicensed individual provides non-residential interior design services they may be precluded from recovering any fees for their services. Where services require a license, Florida law does not allow for the enforcement of contacts without the required license, even if the work is performed without any problems.

Since first regulating Interior Designers, Florida has wavered on how this regulation should be applied. For example, from 1988 through 1994, someone who did not hold a license as an Interior Designer could provide interior design services so long as they did not advertise or hold themselves out as Interior Designers. Then, in 1995 the Legislature allowed unlicensed persons to provide interior design services for residential application, again so long as they did not advertise or hold themselves out as Interior Designers. However, last year a United States District Court found that barring someone who provides residential interior design services from advertising those services is unconstitutional. The court found that since unlicensed designers are allowed to provide residential design services, and because there is no legitimate basis for banning them from advertising, the state cannot preclude such advertisements. It is interesting to note that while the court rejected the notion that the entire regulation of interior designers is unconstitutional, they did point out that only two other states have similar regulations and that the court may not judge state statutes simply because they are "unsound, unnecessary or even silly."

Now the Florida Legislature is considering deregulation of many industries, including interior designers. After reducing the number of industries to be deregulated from almost 30, last week the Florida House of Representatives passed a bill that would deregulate Interior Designers, as well as, Athlete Agents, Auctioneers and Auctioneer Apprentices, Sellers of Business Opportunities, Charitable Organizations, Hair Braiders, Hair Wrappers, and Body Wrappers, Dance Studios, Health Studios, Interior Designers, Intrastate Movers, Motor Vehicle Repair Shops, Sellers of Travel, Talent Agents, Telemarketing, and Yacht and Ship Brokers. However, on April 7^th the Senate rejected the Bill.

It is likely that this attempt to deregulate professions will not end with this most recent Senate vote. However, in the interim anyone intending to provide interior design or decorator services, or hire such a person, should know the difference and the requirements for each.

David H. Reimer, Esq.
Reimer & Rosenthal LLP
2115 North Commerce Parkway
Weston, FL 33326
(954) 384-9200
david@rrcounsel.com

The Door is opened wider for Employees to Sue under the FLSA

Alex Rosenthal — Wed, 30 Mar 2011 19:43:00 GMT

In another blow to employers, the United States Supreme Court recently held that a verbal complaint to an employer is equal to a written complaint if it results in retaliatory employment conduct by the employer. Under the Fair Labor Standards Act ("FLSA"), an employer can be held liable if it retaliates against an employee who complains to the employer about unlawful workplace practices. This decision has widespread implications for employers. First, it potentially creates an easier pathway for more employment related litigation. Employees no longer have to document their complaints and can easily claim they verbally complained to their employer and overcome any defense that a complaint was not asserted. Second, mere grumbling in the background about improper employment practices could be enough to satisfy the "complaint" requirement. Employers need be on high alert to listen for formal or informal complaints and must avoid taking adverse action in retaliation for hearing grumblings. Third, the burden of documenting complaints is now placed squarely on the employer, not the employee. Instead of placing a complaint in the employee's file and documenting any action taken on the complaint, an employer must now be sensitive to the fact that hearing a verbal complaint should now be documented by the employer. Ultimately, the bright line test for whether a complaint was made -- a written complaint - is now a battle over credibility. Did the employee actually complaint about the employer's practices? It now comes down to the employee's word against the employer's word. Establishing procedures to document complaints is a key to minimize the credibility battle.

Alex P. Rosenthal, Esq.
Reimer & Rosenthal LLP
2115 North Commerce Parkway
Weston, Florida 33326
954-384-9200
alex@rrcounsel.com

BEWARE OR REJOICE (depending on who you are): Unlicensed Contractors May Have a Remedy After All

Alex Rosenthal — Thu, 03 Mar 2011 19:31:00 GMT

In a startling new decision by the Florida Third District Court of Appeal on March 2, 1011, the Court in MGM Construction Services Corp. v. Travelers Casualty & Surety Co. of America, et. Al., held that in certain situations, even unlicensed contractors have the right to enforce a construction contract. In this case, the University of Miami hired a contractor who in turn hired a subcontractor for a portion of the contracted work. The subcontractor was performing work that does not require a state contractor's license but does require a local Miami-Dade County specialty contractor's license. A dispute arose between the contractor and the subcontractor and the subcontractor sued for money owed by the contractor and owner. The parties defended claiming that because the subcontractor did not possess a required local specialty contractor's license, the contract with it was unenforceable.

At first, the contractor and owner focused on section 489.128(1), Florida Statutes (2008), which provides that "[a]s a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor." Furthermore, subparagraph (1)(a) provides in part that "[f]or purposes of this section, if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed." (Emphasis added). Accordingly, the original arguments made by the moving parties may be fairly summarized as follows: (1) the Miami Dade County Ordinance (MDCO) requires a local license; (2) the Subcontractor never possessed such a license; (3) section 489.128 provides that such a contractor is unlicensed; and therefore (4) under the express language of section 489.128(1), the subcontract was unenforceable by the Subcontractor.

However, during the case, in 2009, the Florida Legislature amended the last sentence of section 489.128(1)(a) to read: "For purposes of this section,if a state license is not required for the scope of the work to be performed under the contract, the individual performing that work is not considered unlicensed." § 489.128(1)(a), Fla. Stat. (2009) (emphasis added); see Ch. 2009-195, § 33, at 1955, Laws of Fla. (detailing amendments to section 489.128(1)(a)). The Legislature removed the "or local license" language, and that change applied retroactively not only to contracts entered into on or after October 1, 2000, but also to "all actions pending when this act becomes a law," or on October 1, 2009. Ch. 2009-195, §§ 66, 68, at 1972, Laws of Fla. The bottom-line result of these changes was that the Subcontractor's lack of a local license no longer triggered the unenforceability provision of section 489.128(1).

This notwithstanding, the contractor and owner maintained their argument that the contract was unenforceable because of a common law rule in Florida that 'where a statute pronounces a penalty for an act, a contract founded upon such act is void, although the statute does not pronounce it void or expressly prohibit it.' " Town of Boca Raton v. Raulerson, 146 So. 576, 577 (Fla. 1933) (quoting Berka v. Woodward, 57 P. 777, 779 (Cal. 1899)). The trial court agreed and ruled that the subcontractor's contract was unenforceable as a matter of law due to its lack of specialty contractor's license required by local code.

On appeal, the Third District Court of Appeal reversed this ruling. The Court stated that there cannot be an inflexible black and white rule which invalidates all contracts with unlicensed contractors. Instead, despite precedent in Florida to the contrary, the court held that a trier of fact must engage in a multi-party analysis to determine whether, in the absence of a provision in the law or local code which specifically states that contracts by unlicensed contractors are invalid, to invalidate the contract. The court stated that the following framework must be followed:

If a party is prohibited from doing an act because of his failure to comply with a licensing, registration, or similar requirement, a promise in consideration of his doing that act or his promise to do it is unenforceable on grounds of public policy if

(a) the requirement has a regulatory purpose, and

(b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.

If the requirement has a regualtory purpose, the next step for the trial court is to determine whether the public policy behind the licensing requirement clearly outweighs the interest in allowing the Subcontractor to enforce the Contractor's promise. To that end, the court held that there are a number of factors that should be taken into account:

In weighing the interest in the enforcement of a term, account is taken of

(a) the parties' justified expectations,

(b) any forfeiture that would result if enforcement were denied, and

In weighing a public policy against enforcement of a term, account is taken of

(a) the strength of that policy as manifested by legislation or judicial decisions,

(b) the likelihood that a refusal to enforce the term will further that policy,

(d) the directness of the connection between that misconduct and the term.

The Court pointed out examples where it would be unfair to invalidate the contract such as where the contractor's license expired due to a mistake in paying the license fee or an illness that prevented the filing of the paperwork for licensure.

The Court noted further that, under the specific facts of the case, because the unlicensed contractor was a subcontractor hired by the general contractor, the purposes of the licensing statute -to protect owners from shoddy work-are not advanced by invalidating the contract since the owner hired the general contract to whom it looks for quality work product.

This case demonstrates that property owners should always ensure that they hire licensed contractors. But now, even if an unlicensed contractor is hired, an owner may still have responsibility to abide by the contract with that unlicensed contractor unless certain factors are present. This, of course, can only be determined after years of expensive litigation over the enforceability of the underlying contract.

Alex P. Rosenthal, Esq.
Reimer & Rosenthal LLP
2115 North Commerce Parkway
Weston, FL 33326
(954) 384-9200
alex@reimer-rosenthal.com

Employment policies that require candidates to be employed in order to apply may violate Federal discrimination laws.

Alex Rosenthal — Tue, 22 Feb 2011 19:01:00 GMT

A recent trend among employers has become excluding from consideration for employment any candidate who is unemployed. Some experts believe that discrimination against the jobless may violate civil rights laws--a question the commission is now considering.

In itself, such discrimination isn't illegal. But it is illegal to discriminate on the basis of race or age. African-Americans and older workers are disproportionately represented among the long-term unemployed--meaning they may be bearing the brunt of discrimination against the jobless.

Equal Employment Opportunity Commissioners at a hearing February 17, 2011 said they are investigating whether excluding the unemployed may have a greater effect on blacks, Latinos and other ethnic minorities that tend to have higher jobless rates. "The potential for disparate impact is there," said William Spriggs, assistant secretary for policy at the Department of Labor. Overall unemployment is 9 percent, with nearly 14 million people out of work. The jobless rate is 15.7 percent among blacks and 11.9 percent among Hispanics, according the Bureau of Labor Statistics.

The EEOC's interest in this practice demonstrates the complexities of the anti-discrimination laws and how navigating through these laws often requires legal assistance. Employers should be cautioned not to enact rules that are nothing more than form over substance. If a facially neutral employment policy's goal is to discriminate against a protected class of individuals, there is significant risk of liability.

Alex P. Rosenthal, Esq.

BEWARE: A LOAN DISGUISED AS A SALE CAN BE DEEMED UNENFORCEABLE IF YOU’RE NOT CAREFUL

Alex Rosenthal — Tue, 22 Feb 2011 14:03:00 GMT

In a recent case, a Florida court held that a loan disguised as a sale can be considered a usurious loan transaction if the vendor is obligated to repurchase the property at an amount which would generate a "profit" that would equal usurious interest. A usurious transaction is one which charges interest at a rate higher than the legal limit. If a transaction involves an intent to charge usurious interest, the result can be that the party charging the interest can lose all of the interest or, worse, if the interest exceeds 25% per annum (criminal usury), the entire "loan" including principal can be forfeited. While mere receipt of improper interest is not, necessarily improper, an intent to charge an unlawful interest would constitute an illegal transaction.

In the most recent Florida case, a vendor desired to borrow money. The "lender" lent the money through an agreement that essentially sold a parcel of real estate to the lender and required the vendor to repurchase the real estate at different time intervals at extraordinary profits (which would have resulted in usurious rates of interest had it been a loan). The Court confirmed that, if proven true, the entire transaction could be voided and the lender could lose its entire principal and interest.

Business people desiring to enter into unconventional loan transaction should beware of the consequences of these transactions. If it seems too good to be true, it probably is.

Alex P. Rosenthal

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, Florida 33326

954-384-9200

A common mistake that may jeapordize your case.

Alex Rosenthal — Tue, 22 Feb 2011 02:49:00 GMT

One of the biggest mistakes clients make that jeopardize their case is retaining counsel too late. Whenever clients try to resolve their legal matters on their own they typically do not anticipate the consequences of their words or conduct. They do not realize that their adversary has likely consulted with counsel and often times they are being set up for a future litigation that may result from the problem. The costs associated with undoing the client’s self-lawyering are often times much more than the costs of receiving basic strategic and litigation avoidance advice in advance.

Reimer Rosenthal is an elite business law firm representing both local and national clients in a wide spectrum of business issues, topics and disciplines such as;

Litigation

Business Law

General Corporate Counsel

Mergers and Acquisitions

Appeals

Business Corporate and Partnership Disputes

Alex P. Rosenthal, Esq.

Reimer & Rosenthal LLP
2115 N. Commerce Parkway
Weston, FL 33326
954-384-9200

Commercial Tenant Must "Pay to Play" the Game of Litigation

Alex Rosenthal — Tue, 22 Feb 2011 02:46:00 GMT

In yet another affirmation of the strength of the Florida Landlord Tenant Act, the Fourth District Court of Appeal recently held that a commercial tenant's failure to pay accruing rent into the court registry during the pendency of an eviction proceeding provides an automatic non-discretionary basis to immediately evict the tent. In Poal Wk Taft, LLC v. Johnson Medical Center Corp, 2010 WL 3782103 (Fla. 4th DCA 2010), the court order the trial court to enter a judgment of possession against a commercial tenant who failed to timely pay the accruing rent during the case. The Landlord had instituted an eviction action for nonpayment of rent. The trial court entered an order directing the tenant to pay the past due rent into the court registry pursuant to Fla. Stat. 83.232 when due under the terms of the Lease. The tenant made the first payment, but failed to make the second monthly rent payment into the court registry. The tenant argued that it had a grace period under the Lease for rent payments. When the Landlord moved for judgment of possession, the trial court deferred ruling until it could hold an evidentiary hearing. The Landlord appealed. On appeal, the appellate court held that the trial court had no discretion to deny Landlord's request. The court held that the payment into the registry is required to be made "when due" and did not permit the tenant to take advantage of a grace period.

The case is a powerful tool for commercial landlords who seek possession of their premises and find themselves having to litigate with tenants who attempt to avoid paying while the case remains pending.

Utilizing this mechanism and others make obtaining possession of commercial leased premises on an expedited basis possible in Florida.

Alex P. Rosenthal

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, Florida 33326

954.384.9200

alex@reimer-rosenthal.com

www.reimer-rosenthal.com

A TENANT MUST PAY RENT INTO THE REGISTRY OF THE COURT TO ASSERT ANY DEFENSE - EVEN THAT THE DEFAULT NOTICE WAS DEFECTIVE

Alex Rosenthal — Tue, 22 Feb 2011 02:38:00 GMT

Florida law has suddenly become crystal clear that a tenant cannot get out of depositing rent into the Court Registry merely by arguing that the landlord's default notice is someone defective. Commercial and residential tenants alike have attempted to delay their inevitable eviction by claiming that the default notice (which is usually required prior to instituting an eviction case) was defective in form or manner of service.

Unfortunately, several county and circuit judges in the state have adopted this argument and reasoned that the court either lacked jurisdiction to proceed in the absence of a valid default notice or that the condition precedent of a valid default notice needed resolution before the action could be considered valid, thus excusing the deposit of rent into the court registry. Several trial judges have refused to follow this misguided reasoning and, following Bell v. Kornblatt, 705 So.2d 113, 114 (Fla. 4th DCA 1998), have held the notice requirement is unnecessary to establish subject matter jurisdiction and have required the payment of rent into the court registry if the "defective notice" argument was to be maintained by the tenant. Of course, most tenants are unable to deposit the rent into the court registry (since that is the very reason they find themselves in an eviction action) and the failure to do so results in an immediate judgment of possession against them.

The final answer was handed down on December 1, 2010 wherein the Fourth District Court of Appeal in the case of Myron Alphesus Stanley, Inc. v. Quest International Investment, Inc., 2010 WL 4861722 (Fla. 4 ^th DCA Dec. 1, 2010), held that, even if the tenant asserts a defense that the default notice is defective, it must deposit all money alleged to be due and owing into the court registry or else all of its defenses will be deemed waive and the landlord shall be entitled to a default judgment of possession.

This case should finally put to rest the erroneous arguments made in virtually all landlord tenant disputes and streamline the process.

Alex P. Rosenthal

Reimer & Rosenthal LLP

2115 North Commerce Parkway

Weston, Florida 33326

954.384.9200

alex@reimer-rosenthal.com

www.reimer-rosenthal.com

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