What to do in a Cruise Ship Injury

WHAT TO DO IF YOU ARE INJURED IN AN ACCIDENT
LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com

In Florida, there are numerous opportunities to take a cruise for a vacation. If you are injured on a cruise ship there are a number of things you should immediately do:
1. Obtain medical help on the ship and if necessary, after leaving the ship.
2. Report the incident to ship security, and retain a copy of your report.
3. Obtain an experienced Cruise Ship Accident attorney to assist you in reserving and filing your claims.
4. Obtain the names of any witnesses and crew and demand all documents generated in connection with the cruise ship injury. Obtain witness statements concerning the events leading up to and concluding with the injury. Also, obtain statement of witnesses concerning actions taken by the cruise ship staff.
5. Obtain photographic evidence of the scene of the injury. Later obtain photographic evidence of any subsequent remedial measures taken to clean up the scene of the injury.
6. Have your lawyer send in your written claim of notice of intent to file suit within the applicable statute of limitations.
7. Obtain any necessary expert witnesses concerning the injury.

Factors to Consider in Employee versus Independent Contractor in Florida

Factors Considered in Determining Independent Contractor v. Employee
LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com

In Florida, there are a number of factors which must be considered by employers in determining whether to treat a worker as an independent contractor or an employee for payment and tax purposes.
For employees, the employer is generally responsible for withholding income taxes, social security and Medicare taxes, and unemployment taxes on wages paid to employees. An independent contractor, on the other hand, does not require the same withholding and responsibilities for the employer.
Generally, an employee is hired by an employer to perform the work required by the employer, and the employer determines the method of how this work is achieved. The employer will train the employee on how to perform the job, will dictate the hours to be worked, and the methods of work. The employer will generally provide the tools necessary for performing the work. The employee will generally only work for this one employer.
An independent contractor, on the other hand, generally controls their own method of work. They are hired for individual jobs. The independent contractor has his or her own company, has his or her own tools, bills the employer for work performed, and is generally not controlled by the employer.
Employers should be very careful in determining how they label a worker. Failing to treat a worker as an employee when they should have been classified as such can result in violations under the Fair Labor Standards Act. Standards to be taken into account under the FSLA include:
1) The extent the services rendered are an integral part of the employers’ business,
2) the permanency of the relationship between employer and worker,
3) the amount of the alleged contractor’s investment in facilities and equipment,
4) the nature and degree of control by the employer,
5) the alleged contractors opportunities for profit and loss,
6) the amount of initiative, judgment or foresight in open market competition with others required for the success of the independent contractor,
7) the degree of independence in the operation of its business of the independent contractor.
Additionally, according to the Florida Workers’ Compensation Act, the test for independent contractor versus employee is as follows:
A worker is an independent contractor if he or she meets four of the following factors:
1. Maintains a separate business with his or her own work facility, truck, equipment, materials or similar accommodations,

2. Holds or has applied for a federal employer identification number (unless the independent contractor is a sole proprietor who isn’t required to have a federal employer ID number),

3. Compensation for services rendered or work performed is paid to a business rather than an individual,

4. Holds one or more bank accounts in the name of the business entity
for purposes of paying business expenses,

5. Performs work for customers other than the employer in question, and does so without completing an employment application or process,

6. Receives compensation for work or services rendered on a competitive-bid basis, or does the work based on a contractual agreement (unless the contract expressly states that an employment relationship exists).
When in doubt, “the controlling factor is the controlling factor.” Debell v. Piermatteo (Case Nos. 4D07-1748, 4D07-1918, and 4D07-2910, Fla. 5th DCA, 2008).

Further, the IRS has its own 20 party test which looks at:
1. Is required to comply with the employer’s instructions about the work.

2. Receives training from the employer.

3. Provides services that are integrated into the business.

4. Provides services that must be rendered personally.

5. Hires, supervises and pays assistants for the employer.

6. Has a continuing relationship with the employer.

7. Follows set hours of work.

8. Works full-time for the employer.

9. Works on the employer’s premises.

10. Does the work in a sequence set by the employer.

11. Submits regular reports to the employer.

12. Receives payments of regular amounts at set intervals.

13. Receives payments for business or traveling expenses.

14. Relies on the employer to furnish tools and materials.

15. Lacks a major investment in facilities used to perform the service.

16. Cannot make a profit or suffer a loss from the services.

17. Works for one employer at a time.

18. Does not offer services to the general public.

19. Can be fired.

20. Can quit at any time without liability.

Top 10 DUI Mistakes

 1.       Not taking the matter seriously.

This is a charge that will be on your record for the rest of your life if you are convicted.  A subsequent DUI offense can land you in even more trouble as penalties increase on subsequent DUI arrests.  Your auto insurance will go up.  You risk losing your driver’s license.

2.       Not hiring an attorney.

DUI law in Florida is complex, and thus you need competent representation.  You must raise the right defenses at the right time or you will lose them.  Evidence can disappear over time, memories of officers and witnesses can fade over time, and witnesses move or disappear.  A case that is winnable can quickly turn into a loser if you do not hire counsel immediately after being arrested to defend your case.

3.       Hiring an attorney based on the amount of the fee.

The State has almost unlimited resources when it comes to prosecuting you.  You need to hire an attorney and pay a fee based on a flat fee or hourly rate to defend your interests.  Budget lawyers sometimes will not put the time and effort into your case as an attorney that may only cost a little more.   Look for a reasonable fee; not the lowest.

4.       Administrative Hearing Request

Not requesting an administrative hearing within 10 days after a DUI arrest can result in losing your right to drive and license.  If you do not timely request an administrative hearing, you will not be able to drive for 180 days to 1 year for a first offense. You will not be able to drive during this period for any reason- work or personal.

5.       Driving after your license has been suspended.

You have no right to drive while under suspension and an arrest for driving while your license is suspended carries the same penalty range as a first offense DWI. If arrested for driving during this time, you may be arrested and have to post a bond just to get out of jail. If convicted, you face a minimum one year suspension of your driving privileges in addition to any suspension you are still serving, plus you would get a fine and could get up to 6 months in jail.

6.       Not subpoenaing the officer to be present at your administrative hearing.

If you do not subpoena the officer to be present at the hearing, then only evidence at this hearing will be the officer’s report, and you will not hear how the officer will testify.  Your attorney can learn many things at this hearing, including how the officer will testify in your criminal case, if the officer testifies at the administrative hearing.  If the officer fails to appear or justify his/her conduct, then you should get your license back.

7.       Taking the State Attorney’s first offer.

The first offer is not a bargain, it’s just to get rid of your case with the least amount of work. Few cases are dismissed (“nolle pros”) or reduced to a non-alcohol related charge at this early stage.   And even so, doing so gives up your right to raise Constitutional and other issues, and make the State prove its case.

8.       Failure to appear in Court.

The Court will issue a bench warrant for your arrest and revoke any bond that was given to you when you bailed out of jail.  The next time you are stopped by the police for any reason, even if not arrested again, you will be put in jail and likely not given another bond to leave jail until your trial.  It is in the judge’s discretion to give you another (and likely higher) bond.

9.       Discussing the case with anyone but your attorney.

Don’t talk to anyone but an attorney about your case. Anything you say to them can be used against you in Court (or calls from jail recorded if you have not bailed out).

10.   Shopping Around for Attorneys.

Don’t think that trying to get bits of free advice from consultations with attorneys will allow you to handle your case on your own.  You need to have an attorney go to Court with you. You need to hire an attorney that you’re comfortable with and that you feel represents your best interest, such as the lawyer at The Law Offices of Michael D. Stewart.

 

Service of Process in Florida Litigation

SERVICE OF PROCESS IN FLORIDA LITIGATION
LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com

Once a lawsuit is filed with the Clerk of Court, the Clerk will sign, seal and issue a Summons to a sheriff or private service of process agent. The agent for service of process must then serve the Summons and the Complaint on the person or company being sued. Once service of process has been completed, the server notes the date and time of the service on the complaint and summons. The person serving the summons makes proof of service by affidavit.
In Florida, service of process is effected by:
1) delivering a copy of it with the Complaint to the person to be served or to his or her attorney (if the attorney is known).
2) leaving copies of the summons and complaint at the persons usual place of residence with any resident over the age of 15 years old.
3) Service on a minor must be accomplished by serving the parent or the guardian of the parent.
4) Service on other incompetents must be made by serving two copies on the person who has custody and control of the incompetent.
5) Service on a state prisoner is accomplished by serving the prisoner.
6) Service on Partnerships and Limited Partnerships is accomplished by service on any partner. Serving one partner serves as service on all partners. Alternatively, service may be made on the partnerships’ designated agent for service of process. A final method is service upon the Secretary of State of Florida.
7) Service on Corporations can be affected by service on:
a) the president, vice president, or other head of the corporation,
b) in the absence of the above officers, on the cashier, treasurer, secretary, or general manager,
c) in the absence of the above, on any director,
d) in the absence of the above, on any officer or business agent residing in Florida
e) on the agent designated as registered agent for service of process.
8) Service of Process by Publication. This is referred to constructive service and may be made in certain cases where service may not otherwise be effected (see Florida Statute Chapter 49).
Service must be made upon the defendant within 120 days or else the attorney will need to file a motion requesting that the time period be extended or requesting the court to drop the defendant from the lawsuit.
In Florida, personal service must be available in English, French and Spanish.
A defendant can choose to accept service of process by mail. If the defendant returns a waiver of the necessity of personal service, the defendant will not be required to respond to the complaint until 60 days after the date the defendant received the request for waiver of service.
CIVIL PRACTICE AND PROCEDURE Chapter 48
PROCESS AND SERVICE OF PROCESS View Entire Chapter

CHAPTER 48
PROCESS AND SERVICE OF PROCESS
48.011
Process; how directed.
48.021
Process; by whom served.
48.031
Service of process generally; service of witness subpoenas.
48.041
Service on minor.
48.042
Service on incompetent.
48.051
Service on state prisoners.
48.061
Service on partnerships and limited partnerships.
48.071
Service on agents of nonresidents doing business in the state.
48.081
Service on corporation.
48.091
Corporations; designation of registered agent and registered office.
48.101
Service on dissolved corporations.
48.111
Service on public agencies and officers.
48.121
Service on the state.
48.131
Service on alien property custodian.
48.141
Service on labor unions.
48.151
Service on statutory agents for certain persons.
48.161
Method of substituted service on nonresident.
48.171
Service on nonresident motor vehicle owners, etc.
48.181
Service on nonresident engaging in business in state.
48.183
Service of process in action for possession of premises.
48.19
Service on nonresidents operating aircraft or watercraft in the state.
48.193
Acts subjecting person to jurisdiction of courts of state.
48.194
Personal service outside state.
48.195
Service of foreign process.
48.196
Service of process in connection with actions under the Florida International Commercial Arbitration Act.
48.20
Service of process on Sunday.
48.21
Return of execution of process.
48.22
Cumulative to other laws.
48.23
Lis pendens.
48.25
Short title.
48.27
Certified process servers.
48.29
Certification of process servers.
48.31
Removal of certified process servers; false return of service.

Termination of Tenancy Without Specific Term (FS Section 83.57)

Termination of Tenancy Without Specific Term (FS Section 83.57)

LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com
When created a landlord tenant relationship it is very important to have a written contract laying out the relevant details of the tenancy. An important term to include in the contract is when and how the tenancy will terminate. Termination of a Tenancy that does not have a specific termination date can occur by either party giving written notice as follows:
1) If the tenancy is from year to year, either party can give not less than 60 days notice prior to the end of any annual period;
2) If the tenancy is from quarter to quarter, either party may give notice of not less than 30 days prior to the end of any quarterly period;
3) If the tenancy is from month to month, either party may give notice of not less than 15 days prior to the end of the monthly period;
4) If the tenancy is from week to week, by giving not less than 7 days notice prior to the end of the weekly period.
5) If the tenancy is with a member of the Armed Forces and the service member has a permanent change of station order requiring him or her to move and live 35 miles from the location of the rental premises, or who is prematurely or involuntarily discharged from active duty, may terminate his or her rental agreement. To do so he or she must provide the landlord with written notice at least 30 days after the landlord’s receipt of the notice. The notice must be accompanied by a copy of the official military orders.
6) If a service member dies during active duty, a member of his or her family may terminate the rental agreement with written notice for at least 30 days after the landlord’s receipt of the notice.
7) Some leases for a specific time period may require notice of termination by either the landlord or tenant within a specified period of time. If the tenant fails to provide such notice he or she could be liable for damages to the landlord. A residential lease cannot contain a provision requiring more than 60 days notice of intent to terminate.
83.575 Termination of tenancy with specific duration.—
(1) A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days’ notice before vacating the premises.
(2) A rental agreement with a specific duration may provide that if a tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant’s obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this subsection.
(3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57(3), the tenant is liable to the landlord for an additional 1 month’s rent.
History.—s. 3, ch. 2003-30; s. 1, ch. 2004-375.