Michael Moline, Author at Florida Politics - Page 5 of 17

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

Appeals court sets speedy arguments over workers’ comp premium hike

A state appeal court has set up an expedited hearing schedule in a challenge to Florida’s 14.5 percent increase in workers’ compensation insurance premiums.

The 1st District Court of Appeal gave the Florida Office of Insurance Regulation and the National Council on Compensation Insurance, or NCCI, until Jan. 11 to file its arguments on the merits of the case.

James Fee, the Miami workers’ compensation attorney behind the lawsuit, then will have until Jan. 23 to respond in writing.

Each side will have until Feb. 2 to file their final briefs.

“No extensions of time shall be entertained by this court on any matter absent a bona fide showing of emergency circumstances,” the court said.

Also in the order dated Monday, the appeal court formally blocked a trial judge’s holding that NCCI and state regulators calculated the premium increase in violation of Florida’s open-government laws.

The appeal court had already temporarily blocked the lower court order, pending arguments over whether the increase could take effect while the parties argued about the underlying merits.

That allowed the increase to begin taking effect as scheduled on Dec. 1. Businesses will realize the increase as they buy new or renewal policies over the next 12 months.

NCCI calculates rates for workers’ compensation coverage in Florida. Leon County Circuit Judge Karen Geivers ruled on Nov. 23 that the organization should have opened its deliberations and documentation to the public. NCCI and Insurance Commissioner David Altmaier argue the open-government laws did not apply to the council.

NCCI issued a written statement welcoming Monday’s order: “We continue to believe that NCCI, Commissioner Altmaier, and the Office of Insurance Regulation have fully complied with the law. NCCI looks forward to presenting its case to the appellate court.

Austerity budget looms despite Florida’s improved state revenue forecast

The Florida Legislature may have nearly $142 million more to spend next year than previously expected, but that won’t save lawmakers from difficult choices during the spring legislative session.

The revenue forecast for the fiscal year ending in June could run $119.3 million ahead of the previous forecast in September, according to preliminary numbers approved Monday by Florida’s Revenue Estimating Conference.

The conference estimated that revenues would run $22.6 million ahead of earlier forecasts during the 2017-18 fiscal year, beginning July 1.

But within the context of this year’s $82.3 billion state budget for 2016-17, that amounts to a “very minor adjustment,” said Amy Baker, coordinator for the Legislature’s Office of Economic and Demographic Research.

“It helps. It’s positive,” Baker said. But “we’re pretty much on forecast. We’re not really changing the trajectory.”

What new money is available the Legislature likely will spend during fiscal year 2017-18, she said.

The forecasts suggested 4 percent growth for the state economy through June 2018.

In September, estimates showed Florida with a scant $7.5 million left over out of about $32.2 billion in available revenue for 2017-18, and deficits in later years. Within context, again, that meant “we were pretty much breaking even,” Baker said.

As of Monday, the current year estimate exceeded the year before by nearly $1.3 billion, or 4 percent. The estimate for next fiscal year was $1.26 billion, or 4.3 percent, over this year.

The big decisions likely will include the required local effort for county property taxes for schools, she said. Will legislators require county school officials to roll back property tax rates to keep spending level, or allow them to keep any extra money?

Drags on the state’s economy include declining levels of tourism by Canadians and other overseas visitors, reflecting the strong dollar; and increasing school enrollment. On the other hand, Medicare spending appeared to be declining, Baker said.

Additionally, the state saw a $50 million hole in revenues during November; it was not clear to forecasters whether this reflected businesses that closed as Hurricane Matthew raked the Florida coast.

Sales tax receipts grew by $71.7 million this year and were projected to grow by $52.9 million next year — “relatively small” amounts, according to a report issued late Monday.

The conference estimated documentary stamp receipts downward by $38.7 million this year and $72.2 million next year., chiefly because of weaker than expected housing construction and existing home sales.

Personnel note: Developer Sydney Kitson named to universities board

Sydney Kitson, a former professional football player turned developer, has secured a one-month appointment to the Board of Governors of Florida’s State University System.

Gov. Rick Scott announced the appointment Thursday, subject to Senate confirmation.

Kitson will complete what’s left of former governor Morteza “Mori” Hosseini’s term. Hosseini stepped down in March to become a trustee of the University of Florida.

The term ends on Jan. 6. Lauren Schenone, an aide in the governor’s press office, could not say what Scott’s plans are for the seat after that date.

Kitson is chief executive officer of Kitson & Partners in Palm Beach Gardens.

He made headlines in 2006 when his business purchased Babcock, a 91,000-acre cattle ranch in Charlotte and Lee counties. He sold 73,000 acres to the state in the largest land preservation deal to that date.

In June 2015, Kitson was named to a one-year term as Southwest Florida regional board chairman for the Florida Chamber of Commerce.

He holds a bachelor’s degree from Wake Forest University and played as an offensive guard for the Green Bay Packers and the Dallas Cowboys.

Scott “could not have made a better choice,” said Dominic Calabro, president and chief executive officer to Florida TaxWatch.

“Syd was highly effective serving as the innovative chairman of the TaxWatch Center for Health & Aging, helping TaxWatch be a leader in securing legislation on telehealth and expanded scope of practice for nurse and allied health professionals in the 2016 Legislative Session,” Calabro said in a written statement.

Sunshine Law invoked in arguments over workers’ comp rate increase

The public will suffer irreparable harm unless a state appeal court stays Florida’s 14.5 percent increase in workers’ compensation insurance premiums, attorneys challenging the increase said in court papers this week.

The National Council on Compensation Insurance, or NCCI, “cannot possibly demonstrate a likelihood of prevailing on appeal with respect to the trial court’s detailed, well-reasoned 73-page final judgment, which is founded upon fundamental open-government principles of Florida law,” plaintiffs attorney John Shubin argued.

Furthermore, NCCI, which proposes workers’ compensation insurance rates for the Florida Office of Insurance Regulation, “cannot possibly show that any irreparable harm would occur if the stay were not granted,” he continued.

“To the contrary, where (as here) open government violations have been established, the public — whose interest is furthered through the final judgment — is presumed to have suffered irreparable harm and the requested stay would permit such harm to continue,” Shubin wrote.

“The requested stay is entirely at odds with the public interest,” he added.

The attorney filed the pleading Thursday evening with the 1st District Court of Appeal. That court has already granted a stay of Leon County Circuit Judge Karen Geivers’ ruling on Nov. 23 that NCCI and the insurance office had violated Florida’s Sunshine Law in calculating the premium increase.

The question now is whether to lift or extend that stay.

The insurance office approved the rate hike effective on Dec. 1. Businesses would realize the increase as they buy new or renewed policies over the next 12 months.

NCCI and Insurance Commissioner David Altmaier both are defendants in the underlying lawsuit filed by Miami workers’ compensation attorney James Fee.

The arguments turned on a Rules of Appellate Procedure provision allowing automatic stays of any court order overturning an action taken by a public officer acting in his or her official capacity.

The rule allows stays of only 48 hours in public-records or open-meetings cases. Gievers concluded that, as a state-authorized rate-making organization, NCCI should have opened its internal deliberations and documents to the public.

Altmaier, in his own pleading Thursday, cited a presumption “that planning-level decisions are made in the public interest and should be accorded a commensurate degree of deference, and that any adverse consequences realized from proceeding under an erroneous (court) judgment harm the public generally.”

Altmaier’s brief, signed by assistant general counsel Shaw Stiller, argues that the case is not really about the Sunshine Law, but rather about the commissioner’s responsibilities under the Insurance Code. Gievers overreached in concluding otherwise, it says.

In any event, the 48-hour limit is intended only to produce the quick production of official documents, or to compel public officials to meet in the open, Stiller wrote.

“There are no future meetings subject to court direction to be conducted in the sunshine. The 48-hour limitation should not be stretched to apply in these circumstances” he argued.

“NCCI estimates the impact of the order if not stayed to be a $7 million weekly increase of an existing unfunded liability of $1 billion, all flowing from the recent court actions which gave rise to the rate filing,” Stiller wrote.

He added: “NCCI correctly represents in its emergency motion that these funds cannot be recouped in the future with retroactive premiums and that, if collected now and ruled unlawful in the future, current premiums could be refunded.”

Misconduct charges filed against St. Lucie judge in feud with attorney

St. Lucie County Judge Philip Yacucci Jr. faces discipline for failing to recuse himself from litigation handled by an attorney he sent to jail for contempt of court, who ran against him, and with whom he got into a “altercation” at a polling station.

The Florida Judicial Qualifications filed notice Thursday that it found probable cause to bring charges against Yacucci under numerous articles of the judicial canon.

“Your conduct constitutes inappropriate conduct in violation of … the Code of Judicial Conduct,” the commission said.

Yacucci won re-election in August 2014 against the attorney, Stephen Smith.

According to the commission, Yacucci jailed Smith for five days in 2014 after finding him in contempt involving his representation of a client. He also referred the matter to The Florida Bar, which took no action against the attorney.

Later that year, Smith filed to run against Yacucci. The altercation happened after, Yacucci said, Smith made “grossly inappropriate comments” about the judge’s wife.

Smith alleged that Yacucci “physically assaulted him, shouted obscenities, and threatened to kill him,” the commission said. Police were called, but made no arrests.

During a televised interview inside his courtroom, Yacucci said that Smith “should not be a lawyer. He should not be in a courtroom. Mr. Smith is truly a disgrace as a judicial candidate and really as a human being.”

The judge sued for alleged defamation, invasion of privacy, and intentional infliction of emotional distress. Yacucci obtained an injunction against Smith, but it was dissolved on appeal.

Smith filed his own lawsuit, alleging wrongful injunction, assault, and battery, but the antagonists later agreed to withdraw their complaints.

In early 2015, the commission summoned Yacucci to inform him of its concerns “about your inappropriate conduct and interactions” with Smith during the campaign. The judge for a time recused from Smith’s cases.

In September and November of this year, Smith filed motions urging Yacucci to recuse himself from cases in which he represented clients. Yacucci agreed in one case, but refused in two others.

When Smith complained, Yacucci filed written responses detailing his conflicts with Smith. Regarding the first response, the commission concluded that, “to a reasonable person, your pleading appeared to demonstrate that you should have disqualified yourself.”

The commission added: “Indeed, because your pleading in response to the prohibition case appeared to place you in an adversary position to the petitioner, your filing also represents a separate and independent ground for disqualification.”

Yacucci appeared before the commission on Dec. 2 and insisted disqualification was unnecessary because he did not “hold any ill feelings toward Mr. Smith” and believed he “could be impartial to his clients.”

He conceded that, in least one of the cases, Smith had reasonable cause to doubt his objectivity “but nevertheless denied his otherwise legally sufficient motion to disqualify you,” the commission said.

The panel gave Yacucci 20 days to file a written answer to the charges.

Rob Bradley revives bill shifting Stand Your Ground burden to prosecutors

Sen. Rob Bradley reintroduced legislation Thursday clarifying that prosecutors have the burden of proving that shootings are unjustified under Florida’s Stand Your Ground law.

The Republican from Fleming Island said the measure would overturn the Florida Supreme Court ruling in Bretherick v. Florida. In that 2015 opinion, a 5-2 court said people charged in shootings must prove during pretrial proceedings that they are entitled to immunity from prosecution.

“The government has the burden of proof in a criminal case from the beginning of a case until the end,” Bradley said in a written statement. “This fundamental premise is guaranteed in our Constitution and understood intuitively by all Floridians.”

Bradley’s proposed SB 218 provides:

“In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof beyond a reasonable doubt is on the party seeking to overcome the immunity from criminal prosecution.”

Bradley introduced similar legislation last year, and it passed the Senate but died at the House committee level.

“We have an obligation to zealously guard the protections granted us all in the Constitution,” Bradley. “It was uplifting last session to have the support of fellow conservatives around the state on this important issue.”

Janet Cruz highlights diversity in picking Democratic leadership

Florida House Democratic chief Janet Cruz announced her leadership team Wednesday, saying she strove for diversity in their selection.

“In order to build consensus on how to confront the difficult issues facing our state, we must take into account the many varying stakeholders whose futures will be affected by the decisions we make in the Legislature,” Cruz said in a written statement.

Leading on policy will be Evan Jenne and Cynthia Stafford.

Jenne, of Dania Beach, had served in leadership before — he was minority whip during the 2010-12 Legislature and was policy chair during 2014-16.

Stafford, a Miamian who was an aide to former Congresswoman Carrie Meek, is a member of the Florida Legislative Black Caucus. An attorney and adjunct college professor, she was first elected in 2010.

Floor leader is Lori Berman, a Lantana attorney who served as Deputy Democratic Whip during the 2012-14 Legislature.

Serving as whip is Joseph Abruzzo, of Wellington. He served in the House between 2008-12 before moving to the Senate. He won re-election to the House this year and has a reputation for working well with Republicans.

Deputy whips are John Cortes, Katie Edwards, Shevrin Jones, and Richard Stark.

Cortes is a retired corrections officer from Kissimmee first elected in 2014.

Edwards, an attorney from Plantation first elected in 2012, comes from a political family (her father served on the Plantation City Council, and a distant cousin was in the Nixon administration). Her affiliations include the Broward County Farm Bureau and Les Dames d’Escoffier.

Jones, a research specialist in the Broward County Sheriff’s Office, served as deputy whip in the 2014-16 Legislature.

Stark is an insurance broker from Weston. He was first elected in 2012.

House freshman’s workers’ comp bill would render system voluntary

The first blow landed Wednesday in an anticipated legislative battle over workers’ compensation, when state House member Cord Byrd of Neptune Beach filed legislation to make participation in the system optional.

The bill also would take on attorney fees, a major bone of contention for business leaders in the state. It would allow lawyers to accept payment outside the now-mandatory fee schedule in workers’ compensation disputes, permitting them and clients to freely negotiate payment.

Judges of compensation claims would no longer need to review attorney fees. And employers and carriers who failed to pay valid claims within 30 days would have to pay double the original amount.

Byrd, a freshman Republican attorney who represented the business side in workers’ compensation cases before switching to the plaintiffs’ side, said business owners can’t afford double-digit premium increases.

A 14.5 percent increase in those rates began to take effect on Dec. 1 and will roll out as businesses sign new policies or renew old ones during the next 12 months.

“Workers’ compensation in Florida has for too long been a one-size-fits-all proposition and the Florida Supreme Court’s decision to rewrite the statute has added expensive and confusing uncertainty for everyone involved — insurance carriers, employers, and employees,” Byrd said in a written statement.

He referred to a pair of high court rulings this year striking business-friendly reforms enacted in 2003 — chiefly, eliminating restrictions on attorney fees. The court said that language tying fees to benefits won was unconstitutional.

The Office of Insurance Regulation blamed that ruling for about 10 percent of the 14.5 percent premium hike.

The Florida Chamber of Commerce and Associated Industries of Florida formed separate task forces to seek a legislative fix. Those organizations have indicated they will unveil their own proposals later this month.

The chamber issued a written statement Wednesday indicating it would review Byrd’s ideas.

“The Florida Chamber maintains that the Florida Legislature must act to address increased attorney fees and costs in workers’ comp as a result of the Florida Supreme Court’s recent overreaching decisions,” the Chamber said. “We look forward to providing feedback from our members on this and the many other potential legislative solutions during the 2017 legislative session.”

“We appreciate Rep. Byrd’s efforts to fix workers compensation,” said Bill Herrle, Florida director for the National Federation of Independent Business, who is participating in AIF’s task force.

“Indeed, if attorneys fees are not fixed, small businesses will need a way to get out of a broken workers compensation system, so I guess he realized that his bill does not fix attorneys fees, and added an escape hatch for small businesses,” Herrle said.

“It’s truly an option of the very last resort, because it is fraught with greater liability exposure for uninsured small businesses and their customers,” he said.

For his own part, Byrd said that Texas maintains an optional workers’ compensation system and that about one-third of employers opt out.

In Florida, worker’s compensation is a no-fault system intended to provide medical help and lost wages without the time and expense of litigation.

“Choice is good,” Byrd said. “Those that wish to participate may, those who do not wish to participate are not required to.”

His bill would strike language making it a crime for attorneys to accept payment outside Florida’s statutory fee structure, and requiring compensation judges to approve all payments. Attorneys would be bound only by The Florida Bar’s Rules of Professional Conduct.

The penalty for missing the benefits payment deadline would apply both to represented and unrepresented claimants, Byrd said.

Byrd included a clause providing that if the courts strike down any element of Florida’s workers’ compensation code, the entire code would become void.

“The non-severability clause is premised on the belief that public policy must be made by the Legislature and cannot be allowed to be made by the court’s selectively delete provisions of an act that was passed in its entirety,” he said.

Citizens Insurance chief sees ‘absurd’ rise in litigation expenses

“Out of control” litigation costs are slowing efforts by Florida’s property insurer of last resort to shift risk onto private insurers, and may lead to aggressive restrictions on claims for water damage, the organization’s president said Wednesday.

Rising litigation “is driving 80 percent of our attention and time,” Barry Gilway warned during a meeting of the board of governors of Citizens Property Insurance Corp.

He pointed to the trend line. About 12.5 percent of claims went into litigation in 2011. Now, “45 percent of all claims are going into litigation,” Gilway said. “Which, in my opinion, is just absurd. It’s completely out of control situation.”

The trend is slowing depopulation — or transfer of Citizens policies to insurers in the private market, Gilway said. During the first two months of 2016, the Office of Insurance Regulation approved depopulation of 200,000 polices, he said. For the first two months of 2017, the office has approved the switch for 4,2724.

Although Citizens’ policy count dropped by 26.3 percent between January 2015 and November 2016, “depopulation is slowing down dramatically,” Gilway said.

The bottom line is that Citizens faces net operating losses of $100 million in its inland residential policy lines, with losses concentrated in South Florida.

The problem is mostly confined to personal insurance lines bought by homeowners; competition in the private market for business in coastal property and commercial lines is robust, he said.

Personal lines, by contrast, are seeing “significant growth, because of the AOB issue and the deterioration of the market,” as private insurers abandon that sector, Gilway said.

He referred to assignment of benefits agreements, through which policyholders can sign away their rights to a contractor or attorney in exchange for quicker repairs. Citizens blames them for rampant fraud, particularly in South Florida.

These contracts contributed to a 6.4 percent increase in homeowners’ policies approved by state regulators in September.

“We’re looking at a 50,000 policy growth in (personal lines) next year,” he said.

In terms of premiums, Citizens “will exceed $1 billion next year. And the current estimate for 2018 is we’ll be back into that $1.2-$1.3 billion range.”

In terms of cost, at the end of 2014, Citizens faced 55.9 percent of premiums in loss adjustment expenses. In personal lines, “we’re going to be at 83.6 percent” next year,” Gilway said. “In a normal environment, the target would be right around 31-32 percent.”

The difference would be worth about $150 million, he said, and if the trend continues hit $184 million.

“These numbers are, in my opinion, just really profound. How could a book of business deteriorate so quickly from a loss ratio standpoint?”

The good news is that Citizens’ exposure has declined from around $500 billion four years ago to $124 billion now —“a huge reduction,” Gilway said.

“We were close to 26 percent market share in the state. Today, we’re enjoying a market share in the 6 percent level. But our concern is that that’s our low point, and that exposure over time will start to grow.”

Litigation inflates individual claims from about $5,000 on average to $25,000, he said.

New suits are arriving at a rate of 840 per month. In 2011, the average premium in Broward County was around $2,800, of which $367 might entail water-damage losses. Now, they account for $1,543 of that same premium amount.

By the end of 2017, they wcould account to $2,100.

The insurer said that 8,097 new lawsuits were filed against it as of November. That represented a 30 percent increase from the same period in 2015.

“The numbers are truly mind-boggling,” Gilway said.

“Rates will continue to go up dramatically every single year” because of the problem, particularly in Miami-Dade, Broward and Palm Beach counties, he said.

“That is where 98 percent of all the litigation is coming from.”

Gilway said Citizens plans meetings with private insurers and Insurance Commissioner David Altmaier to seek a agreement on an approach to the problem. That could entail substantial limits on water damage coverage or outright exclusions for homes more than 40 years old, he said.

“We’re looking at policy restrictions,” Gilway said.

“Without significant reform, litigation, water claims and AOB pose a serious threat to the financial position of Citizens,” board chairman Chris Gardner said in a written statement following the meeting. “This is not a sustainable situation.

”Overall, “we are very strong financially,” Gilway said.

However, “it’s not going to take too many years at this level of deterioration before we come closer to closer to the fact where we’re a company that could assess policyholders” in case of major storm, he said.

Supreme Court won’t hear David Rivera’s appeal in ethics case

The Florida Supreme Court has declined to hear former Florida House member David Rivera’s appeal of a recommendation he pay nearly $60,000 in penalties for alleged ethical violations.

Chief Justice Jorge Larbarga and justices Barbara Pariente, Peggy Quince and James E.C. Perry signed an order dated Tuesday declining to hear the case. Justice Fred Lewis voted to consider the appeal.

Justices Charles Canady and Ricky Polston did not participate.

Rivera, of Miami, left the Legislature in 2010 and served one term in the U.S. House of Representatives. He lost an attempt to win re-election to the Florida House this year.

Also in 2010, the Florida Commission on Ethics received complaints that Rivera had charged taxpayers for travel expenses already paid by his campaign account and failed to properly disclose his income.

The Florida Department of Law Enforcement conducted a separate investigation, but never filed charges, according to court records.

The commission ultimately recommended that Rivera pay $16,500 in civil penalties and more than $41,000 in restitution. It was up to the House speaker to impose any penalties.

On appeal, Rivera argued that, because he no longer serves in the House, the speaker and the House no longer enjoy jurisdiction over him.

The 1st District Court of Appeal ruled in July that Rivera’s appeal would have to await the imposition of any sanctions. That ruling did not preclude an appeal if, and when, that happens.


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