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31. THE JUDGE RULES: Domestic Violence

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

All too often we read the horrible headlines that a rejected lover has killed an innocent child to hurt the party who did the rejecting.  We read of people beating up ex-lovers or killing themselves in front of ex-lovers.  I have had each of the above happen in domestic violence cases which were on my docket.  It should be no surprise to anyone that we have domestic violence in Lake County.  We have it every day.  We have it in poor families, in rich families, in middle class families, with seniors and with dating couples.

It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter.  In Lake County, if a person is arrested for domestic violence, he or she is taken to jail with no bond.  The Defendant will see a Judge within 24 hours for the setting of bond.  The Judge will take into consideration the Defendant’s prior history, the severity of the alleged incident, the risk to the victim and community and any flight risk.  The Judge will order the Defendant to remain in custody until 5 P.M. as a cooling off period.  The Judge will often order the Defendant to watch a video on domestic violence and to answer the worksheet that goes along with it.  The Judge will order that the Defendant have absolutely no contact with the victim while the criminal case is pending.

A person found guilty of a misdemeanor domestic violence battery could be sentenced up to a year in jail.  The minimum mandatory costs total $477.  A common sentence would be a year of probation.  While on probation the Defendant would have to pay all the money due, complete a 29 week batterer’s intervention class, and have no violent contact with the victim.

A person who is fearful of another could get an Injunction For Protection Against Domestic Violence or an Injunction Against Repeat Violence or Dating Violence.  There is no longer a fee for requesting this Order.  The Petitioner must explain in writing all the reasons why a Judge should grant the Temporary Injunction.  The written document is then taken to a Judge for review.  The alleged victim is not present at the review.  The Judge decides only on the paperwork.  The Judge can deny the Injunction.  The Judge can grant part of it and deny part of it.  The Judge can ask that it be set for a hearing with the other side present before a decision is made.  The Judge can grant the Temporary Injunction and set it for a Permanent Injunction hearing.

At the hearing for the Permanent Injunction, the injunction could be dissolved or modified or put in place for an indefinite period of time with absolutely “no contact.”

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

The Judge signs a Permanent Injunction which says that John is to have no contact with Sue.  Sue calls John and asks him to come to her house for their child’s birthday party.  At the party they get into an argument and police are called.  John is arrested for violating the Injunction.  His defense is that Sue invited him.

Judge Miller Rules: Sue does not have the power to override a Judge’s Order.  No contact means “NO CONTACT.”

32. THE JUDGE RULES: Teen Laws

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Some laws are directed at teens and/or their adult supervisors.

Although a 16 year old may have a valid driver’s license, he or she may not drive between 11 p.m. and 6 a.m. unless there is a licensed driver at least 21 years old in the front passenger seat or he or she is going to or coming home from work.  A violator will be charged with a moving infraction.  The driver’s license will be suspended if the fine of $83 is not paid within 30 days.

If the driver is 17, the driver cannot drive after 1 a.m. and before 5 a.m. without a properly licensed driver over 21 in the front passenger seat unless the driver is going to or coming home from work.  If the $83 fine is not paid within 30 days the license of the driver will be suspended.

A parent could be charged with allowing an unauthorized person to drive if the parent allows a child to drive in violation of the law.

No person under 21 can legally drink in Florida.  A blood or breath alcohol over .08 may result in a DUI charge for any age driver.  Any driver under 21 who drives with a blood or breath alcohol level of .02 or above will have his or her driver’s license suspended immediately for 6 months for the first offense.  A second offense will result in a 1 year suspension.

Any person less than 18 years old must wear a seatbelt while driving or riding in a motor vehicle.

A bicycle rider, an electric personal assistive mobility device rider or an ATV rider who is under 16 must correctly wear an approved helmet.

The ATV cannot be driven on a street or public roadway.  A golf cart may not be operated on public roadways or streets by any person under the age of 14.  Many other rules apply to unlicensed children over 14.

A person must be at least 14 years old to operate a personal watercraft in Florida.  It is unlawful for a person to knowingly allow a person under 14 years old to operate a personal watercraft.  Allowing the child to operate the watercraft is a law violation.  The parent could be charged with a second degree misdemeanor.  The punishment can be up to 60 days in jail, up to 6 months probation and up to a $500 fine.

No person under 16 shall use a bb gun except when supervised by an adult acting with the parent’s consent. 

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

Johnny is 13 years old.  He and his family live on a golf course.  The family has a golf cart.  Johnny drives the golf cart to his friend’s house which is just a few blocks away.  He is stopped by a deputy and given a ticket.  He fights the ticket.

Judge Miller Rules: Johnny was not allowed to drive the golf cart on the public road even in his own neighborhood.  The fine is $48.  The parents are warned not to let it happen again.

[Column No. 101 has information regarding Child Curfew and Time of Day Constraints.]

33. THE JUDGE RULES: Notary Public

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The primary responsibility of a notary public is to assure that signatures are authentic.  The notary can administer oaths or affirmations.  A notary can also perform marriages.

The Governor appoints notaries for a four year term.  Applicants for the office must be able to read, write and understand English.  The applicant must be at least 18 years old.  The applicant must have good character.

A notary public appointed by the Governor of Florida only has the authority to notarize in Florida.

A notary must certify each notarized signature.  The notary must state that the act took place in Florida.  The notary must state that the signer personally appeared before the notary public at the time of the notarization.  The date must be stated.  The type of identification used must be noted.  The notary must sign and the notary’s seal or stamp must be affixed.

A notary must not notarize a signature unless there is satisfactory evidence that the person signing is who he or she claims to be.  A notary who falsely or fraudulently accepts and certifies a signature is guilty of a third degree felony.

A notary who notarizes a signature on a document when the signer is not present is guilty of civil infraction with a fine up to $5,000.

The employer of a notary public shall be liable for damages caused by the notary’s official misconduct.

Law enforcement officers, correctional officers, and probation officers are allowed to administer oaths while on duty.

An affidavit is a document which must be sworn to and notarized. 

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

The Judge orders the parties in a civil action to provide affidavits on a particular issue by Friday at noon.  The Plaintiff files his statement which he signs.  He includes a statement in which he swears the information is true.  The Defendant files her statement.  It has a notary’s signature and seal but was never signed by the Defendant.  Her name was typed in.

Judge Miller Rules: The Plaintiff’s statement is not an “affidavit” because it was not notarized.  I will not accept it.  The Defendant’s statement is not an “affidavit” because there is no signature.  It was improperly signed and sealed by a notary.  The State may choose to fine the notary up to $5000.  I will not accept the document.  Since both parties failed to carry out my instructions, I will give them another opportunity to comply.  The parties have ten working days to provide the proper documents to the court.

34. THE JUDGE RULES: Homeowner’s Association

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

[Webmaster note: the 80th column has updates to this topic]

A homeowner’s association is responsible for the operation of a community or mobile home subdivision.  The association must be incorporated.  The officers and directors have a duty to act in the best interest of all parcel owners.  All parcel owners are required to be members of the association.

The members must be given advanced notice of meetings of the board of directors and general meetings.  At least one general meeting must be held each year.  Directors are elected at the annual general meeting.  A quorum must be present at the meetings.  Unless a lower number is provided in the by-laws, a quorum is 30% of the members.  Members usually have the right to vote by proxy.  Minutes must be taken and maintained.  Any parcel owner has the right to tape record or videotape meetings of the board of directors or general meetings.

Parcel owners must pay an assessment or amenity fee to the association.  Failure to pay can result in a lien against the parcel.  It can result in a lawsuit.  The statute says the prevailing party in such a lawsuit will be awarded attorney fees.  A judgment against the parcel owner could result in the forced sale of the parcel.  Money would be taken from the proceeds to pay off the debt.

All common areas and recreational facilities shall be available to all parcel owners and their guests.

The association can make rules for the good of the community.  The parcel owners retain certain statutory rights.  Florida Statutes Chapter 720 states those rights.  For example parcel owner’s have a right to peaceably assemble and that right shall not be unreasonably restricted.

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

The homeowner’s association has created a rule which does not allow unapproved items to be placed in the yards of member’s homes.  The association has ordered that all signs, statues and flags be removed.  One member refuses to remove his American flag.  The association fines the homeowner.  The homeowner refuses to pay.  The association sues the homeowner for the money and also demands attorney fees.

Judge Miller Rules: While an association can restrict most items in the yard of a member, American flags can be an exception.  Florida Statutes Chapter 720 states that “any homeowner may display one portable, removable United States flag in a respectful manner, regardless of any declaration rules or requirements dealing with flags or decorations.”  The display of the flag in question was in keeping with the statute.  The parcel owner may keep the flag.  He does not have to pay the attorney fees for the association because he is the prevailing party.  If he had been represented by an attorney, the association would have had to pay his attorney fees.

35. THE JUDGE RULES: Special Rules for Judges

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The rules encourage judges to educate the public about the law, but judges cannot give legal advice.  This column comes under the “education” directive, while answering the questions in the letters you have sent to me would be giving legal advice.  A judge can even teach classes and get paid if it does not interfere with his or her judicial duties.

Judges have many special rules.  For instance, incumbents and candidates for judge who use the petition card method to get on the ballot must get their cards in months earlier than other candidates.  The cards are signed by registered voters to get the candidate’s name on the ballot.  The candidate can submit the required number of petition cards or can pay a large filing fee.  While the judge candidate may collect the signature of others, the judge candidate cannot sign the petition card of any other candidates for any office.

The office of judge is nonpartisan.  Judges cannot identify or discuss their political party affiliations.  It is a serious offense to do so.

During a campaign, judge candidates can only attend a political party function if the opposition is also invited.  Even then, the candidates can only attend for the purpose of speaking to the entire group.  Judge candidates cannot attend a political party function for the purpose of meeting and greeting and chatting with voters.  It appears from the current decisions that a judge candidate cannot attend a “hobnob” organized by any group.

Judges cannot fund raise for any other person or group, including charities.  A judge therefore, could not be the keynote speaker at a dinner to raise money for a charity.  A judge cannot be acknowledged for donating an item to a charity auction.

Judges and the judge’s assistant cannot accept gifts given professionally.  The judge’s office should not even accept cookies or fruit offered during the holidays.

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

Mr. Smith has several questions after reading a prior column I wrote on property rights.  In a letter to me, he carefully details a specific fact situation.  He asks if he may be entitled to compensation.

Judge Miller Rules: As a judge, I cannot give legal advice.  I cannot answer Mr. Smith’s question.  In many columns I give the Statute number so that readers can research further when an issue is of special interest.  Copies of Florida Statutes can be found in most public libraries, the law library in Tavares and online.  The law library is open to the public during the day.  If legal advice is still needed, perhaps an attorney should be consulted.

36. THE JUDGE RULES: Attorney Complaints

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

A formal complaint filed against a Florida attorney by a former client is handled by the Supreme Court of Florida.  The Florida Constitution gives the Supreme Court of Florida the exclusive authority to discipline attorneys who have been admitted to practice law in Florida.

All attorneys who are allowed to practice law in Florida have been admitted to the Florida Bar.  The Florida Bar is an official arm of the court.  Attorneys are called “officers of the court.”  All attorneys who practice in Florida must follow the rules which regulate the Florida Bar.

A complaint filed against an attorney is reviewed by a grievance committee made up of attorneys and non-attorneys.  The grievance committee investigates the allegations of misconduct.  The grievance committee does not determine guilt.  The committee only decides if there is probable cause of guilt.

If the committee finds probable cause of guilt, an attorney for the Florida Bar files a Complaint with the Supreme Court of Florida.  A county or circuit judge is appointed as referee.

The trial is to be held in the county in which the alleged offense occurred or in the county where the attorney charged resides or practices law.  Civil rules apply.  Hearsay is admissible.

To find an attorney guilty of misconduct the referee must find the attorney guilty by CLEAR AND CONVINCING evidence.

The referee will review the grievance committee’s report.  The referee will the review the written admissions or denials the attorney charged is required to submit.  The referee is required to conduct a case management conference in person or by phone, no later than 60 days after the appointment.  If the case is not settled, arguments and testimony are presented at a final hearing.

If the alleged conduct is considered minor misconduct, the charged attorney may be referred to a diversion program.  The program is designed to give the attorney the skills needed to prevent further mistakes.

If the referee finds by clear and convincing evidence that the attorney is guilty of misconduct, the attorney could then be disciplined by the Supreme Court of Florida.  The attorney could be put on probation, admonished, publicly reprimanded, suspended, disbarred, ordered to pay fees and/or be ordered to pay restitution.

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