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In Florida, since 2012, there has been a statute that prevents discrimination against disabled persons who require the use of a “service animal”.  It can be found at Florida Statute 413.08.  This statute covers discrimination regarding public employment, public accommodations and housing accommodations. This statute was amended in 2020 to include a criminal penalty for persons who fraudulently claim the need for a service animal.  Contact your local Jacksonville criminal attorney to assist you if you have been charged with a misdemeanor for falsely representing you need a service animal.

Under Florida statute 413.08 it defines an individual with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activities such as walking, seeing, hearing, speaking, breathing, learning and working.  A “housing accommodation” would be any real property or portion of the real property that is used or occupied as a home, residence or sleeping place of one or more persons in which the occupants rent or lease the premises. A “public accommodation” would be a common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat or other mode of public transportation; it also includes hotels, timeshares and other places to which the general public is invited.  A “service animal” under this statute is limited to a dog or miniature horse that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.  The work performed by the animal must be directly related to the person’s disability.  It specifically states that a service animal is not a pet.  If you think you are being discriminated against because of your “service animal”, contact your local Jacksonville family law attorney.

This is different from an “emotional support animal” who does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support.  Emotional support animals may also be the disabled person’s pet.  There is a separate statute that prohibits discrimination in housing to persons with a disability or disability-related need for an “emotional support animal”.  That statute is Florida statute 760.27 and it deals with public housing.  Both statutes address the fact that the public accommodation or housing provider cannot impose a deposit or surcharge on the individual with a disability as a precondition to permitting the service animal or emotional support animal to accompany the individual with the disability.  Under both statutes, the individual with the disability is liable for any damages caused by the service animal or emotional support animal.  Under both statutes, the individual with the disability is responsible for the supervision of the animal and most provide for the care and maintenance of the animal.  Both statutes require the service animal or emotional support animal to be in compliance with vaccination requirements.  Contact your local Jacksonville family law attorney if you feel you are being discriminated against because of your “service animal” or “emotional support animal”.

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction.  The following grounds may be used as the reason for filing:

  1. The sentence imposed was illegal or violates the Florida or United States Constitution.

When someone gets arrested it is one of the most stressful things that can happen to you. Especially if you are not familiar with the legal system and process. Many people think that their Miranda Rights must be read to them simply because they have been arrested. That is not what the Miranda rights provide. If the police are not questioning you beyond basic information such as what is your name, address, and phone number, they are not required to read your Miranda rights to you even if you are arrested. Miranda rights do not kick in until you are being interrogated by police and not permitted to leave. A suspect is being “interrogated” when police officers begin asking him or her questions that could implicate him or her in a crime. While Miranda warnings are extremely important, an officer’s failure to read them in and of itself does not result in a dismissal of criminal charges. Simply put, Miranda warnings themselves are not constitutional rights; rather, they are safeguards against the Fifth Amendment privilege against self-incrimination. If you have been arrested, consulting with an experienced Jacksonville criminal attorney is advised.

Miranda rights or Miranda warnings get their name from the 1966 United States Supreme Court case, Miranda v. Arizona. In that case, the Supreme Court held the United States Constitution’s Fifth Amendment prohibition against self-incrimination applies to an individual who is in police custody. In order to safeguard that right, the Court ruled that before questioning suspects in custody, law enforcement officials must inform suspects of the following rights:

1. They have the right to remain silent;

February 14, 2018 is a day that will never be forgotten when a gunman by the name of Nikolas Cruz opened fire devasting Marjory Stoneman Douglas High School in Parkland, Florida killing 17 students and injuring multiple staff members.   Scot Peterson was an armed officer at the school at the time of the shooting.  Peterson found himself caught in the middle when he was criminally charged with the inability to take action in the protection of students and staff members.

Police protectPeterson was admitted into Broward County Jail and was charged with eleven counts of second- and third-degree felony neglect of a child (F.S 827.03) and a second-degree misdemeanor of culpable negligence (F.S. 784.05).  As to neglect of a child, the State must prove failure or omission to provide a child with care, supervision, and services necessary to maintain the child’s physical and mental health as well as the failure of reasonable effort to protect a child from abuse, neglect, or exploitation by another person.  To convict on misdemeanor culpable negligence, the State must prove exposure to personal injury.  During the school shooting, Peterson allegedly retreated to safety instead of taking action against the gunman when shots were fired.  Shortly after the incident, Peterson obtained a bad reputation and was nicknamed “the Coward of Broward,” leaving families in an uproar about his failed negligence.  Mr. Peterson stated that he continuously replays the shooting over in his head and is quoted as saying, “There wasn’t even time to think, it was my job and I couldn’t find him (the gunman).”

The charges that were filed against Mr. Peterson are not typical; it is very unusual for law enforcement to be held criminally liable for not protecting the public.  Constitutional law, as interpreted by the Supreme Court, does not generally provide for the public to have the right to expect the police to protect against harm.  The charges against Peterson in regard to the neglect of a child and culpable negligence is not specifically for law enforcement and is usually applied to parents.  This case brings into question what this may mean for other officers and how school officers may need to re-evaluate how to respond in these situations.  The critical question that still stands is whether Peterson had a constitutional duty to protect the children from the actions of Cruz.

The rules surrounding Restoration of Gun Rights can be confusing.  It is a very detailed process and having the help of an experienced attorney who knows how to navigate the system can help!  Restoration of Gun Rights requires an application to the Florida Clemency Board to begin the process. The application requires certified court documents; specifically, a copy of the charging instrument (indictment, information, or warrant with supporting affidavit) for each felony or misdemeanor conviction (if needed), and a certified copy of the judgment and sentence for each felony or misdemeanor conviction.  Pursuant to Florida Statute, those documents should be provided free of charge for the purpose of a clemency application.  When the Clemency Board receives an application, it is screened for eligibility regarding time frames and all documents are reviewed.  If the Applicant is eligible, the application is forwarded for investigation by the Office of Clemency Investigations.  Cases are assigned on a first-come, first-serve basis and the process can be lengthy.  If the application meets requirements, a report is prepared, and the application is forwarded to the Clemency Board for a decision.

  • The Specific Authority to Own, Possess, or Use Firearms restores to Applicants the right to own, possess, or use firearms, which were lost as a result of a felony conviction.
  • The Clemency Board will not consider requests for firearm authority from individuals convicted in federal, military, or out-of-state courts.

So you went to court and fought a domestic violence injunction, but the Court found grounds to enter the injunction anyway.  What does that mean for you and your rights?  The following is a list of consequences that may be imposed upon you as a result of the injunction:

  • May be ordered to complete a 26-week Batterer’s Intervention Program (BIP)
  • Loss of concealed carry rights

You have been served with a domestic violence injunction in Florida.  Now what?  Though you have been served with an injunction, most people don’t understand what you should and should not do to abide by an injunction.  See below some handy rules of thumb:

  • DO hire an attorney to represent you as soon as possible
  • DON’T contact the petitioner and/or ask the petitioner to drop the injunction

Conceal CarryThe Florida Department of Agriculture and Consumer Services (the Department) issues licenses to carry concealed weapons or concealed firearms in the State of Florida and they are good for 7 years.  Concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but does not include a machine gun. You must carry the license at all times you have possession of the weapon or firearm and must display the license and valid I.D. upon demand by a law enforcement officer or be assessed a $25 fine for a violation.

According to section 790.06, Florida Statutes, the Department shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged.  The Department shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years.

The Department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement (FDLE) and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license until final disposition of the case. The Department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.

Domestic Violence

By Adam Glanzman (Flickr: asg.fbc.vsOSU.11.30.131225 copy) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

The sports world was rocked when journalist Brett McMurphy recently published an article about Ohio State former assistant coach Zach Smith and domestic violence with his wife, Courtney Smith.  Despite indications that Head Coach Urban Meyer knew about the abuse between the Smiths, Meyer denied knowledge of the 2015 incident between them in a Big Ten media days press conference.  Apparently, Zach Smith was arrested in 2009 on suspicion of aggravated battery against his pregnant wife in Florida when Meyer was coaching at the University of Florida.  Meyer knew of the 2009 incident and hired him to be Ohio State’s wide receivers coach anyway. Zach Smith was then charged with criminal trespassing in May 2018 at his now ex-wife’s home and his ex-wife was granted a protective order.  There were nine police reports involving the Smiths between 2012 and 2018.  The story with Urban Meyer has yet to play out—but it is agreed Zach Smith has a serious issue with domestic violence.

If you are accused of domestic violence in Florida, the number one thing you must remember is to REMAIN SILENT.  Ask for an attorney and do not give any statement to police, written or otherwise.  Also remember that you cannot contact the victim! There may be protective orders in place and anything you say or do to the victim can be used against you.  It is difficult when there are children involved but contact your lawyer for advice on how to deal with timesharing. Courts treat domestic violence very seriously and you can find yourself in jail for quite a while if you are not careful to follow orders in place.  As in Zach Smith’s case, you could find yourself with additional charges like trespassing and stalking.

Under Florida law, Domestic Violence Battery is defined as any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person, when the person struck is a family or household member.  Penalties can include up to one year in jail or 12 months probation and up to a $1,000.00 fine.  You may also face completion of a 26 week Batterer’s Intervention Program (BIP), additional community service hours, loss of concealed carry rights, and 5 days required jail if you are adjudicated guilty and there is bodily injury.

Community Control in Florida is a supervision program that is an alternative to incarceration only used in felony cases.  If you are sentenced to Community Control, you are confined to your home unless you are working, attending school, doing public service hours, participating in treatment, or any activity that has been approved by your Community Control officer.  It’s a benefit because you are home with your family and not in prison, but it can be very hard to follow the conditions.  Frequently, probation

House arrestThe Department of Corrections will supervise you and assign you a Community Control officer (think probation officer).  Offenders will be required to report weekly to the Community Control officer and complete a daily activity log each week and a Community Control Offender Schedule to have preapproved regarding your whereabouts for the upcoming week.  You will also be required to provide an hourly accounting of your whereabouts for the prior week to ensure you did not deviate from your preapproved schedule.

One thing to note is while you may be approved for your residence, common areas such as recreational facilities, swimming pool area, business office, laundry facilities, or the mail area are not included in areas you may be during Community Control.

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