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Cypen & Cypen
NEWSLETTER
for
NOVEMBER 23, 2005

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. ANOTHER FLORIDA CORRECTIONAL OFFICER SQUEEZES THROUGH PRESUMPTION LOOPHOLE:

Another Florida correctional officer has received the benefit of the statutory presumption in Section 112.18(1), Florida Statutes. A Judge of Compensation Claims had concluded that claimant was not entitled to the statutory presumption of compensability provided to law enforcement officers for disabling heart disease, because claimant’s pre-employment physical revealed evidence of heart disease. In reversing, the appellate court made reference to its recent decision holding that a correctional officer’s entitlement to the statutory presumption is not conditioned upon proof that he successfully passed a pre-employment physical which failed to reveal evidence of the ultimately disabling or fatal heart condition (see C&C Newsletter for October 20, 2005, Item 4). This case may be more troublesome than the previous one, in which it was not stated if the correctional officer there had a pre-employment physical that revealed evidence of heart disease or just did not have a physical at all. Here, the opinion makes clear that the claimant in question had a pre-employment physical, which did reveal evidence of heart disease. For what it is worth, the court did not reverse outright, but remanded the case for further proceedings on the question of whether the employer could defeat presumed compensability. (It would seem to us that evidence in the pre-employment physical of prior heart disease might be sufficient for that purpose.) Gray v. Department of Corrections, 30 Fla. L. Weekly D2553 (Fla. 1st DCA, November 7, 2005).

2. THE TOP TEN POLITICALLY INCORRECT WORDS FOR 2005:

Here, from languagemonitor.com, we have the top ten politically incorrect words for 2005, with a brief explanation of each:

1. “Misguided criminals” - the BBC attempted to strip away all emotion by using what it considers neutral descriptions when describing those who carried out bombings in the London Tube.

2. “Intrinsic aptitude” (or lack thereof) - Harvard President Lawrence Summers suggested why women might be under represented in engineering and science.

3. “Thought shower” or “word shower” - used as a substitute for brainstorm, so as not to offend those with brain disorders such as epilepsy.

4. “Scum” or “la racaille” - used to describe French citizens of Moslem and North African descent inhabiting the projects ringing French cities.

5. “Out of the mainstream” (when used to describe ideology of any political opponent) - at one time slavery was in the mainstream, thinking the sun orbited the earth was in the mainstream and having your blood sucked out by leaches was in the mainstream.

6. “Deferred success” - a euphemism for the word “fail.”

7. “Womyn” - to distance the word from “man.”

8. “C.E.” for “A.D.” - there’s a movement to strip A.D. (Latin for year of our lord) from the year designation used in the West since the 5th Century, and replace it with the supposedly more neutral Common Era.

9. “God Rest Ye Merry Persons” - for “God Rest Ye Merry Gentlemen.”

10. Banning the word “mate” - the Department of Parliamentary Services in Canberra, Australia, issued a general warning to its security staff banning use of the word “mate” in any dealings they might have with both members of the Parliament and the public.

Well, at least we were glad to see last year’s “non-same sex marriage,” used for “marriage,” fall off the list.

3. FLORIDA CONTRABAND FORFEITURE FUNDS MAY BE USED FOR HIGH SCHOOL PROGRAM:

The Florida Attorney General was recently asked the following question: “May contraband forfeiture trust funds be used to fund a local public high school program emphasizing law enforcement and legal studies, and if so, does such a donation apply to the 15 percent required donation of contraband funds pursuant to Section 932.7055(5)(c)3., Florida Statutes?” The Attorney General concluded that a local public high school program emphasizing law enforcement and legal studies that has the primary purpose of crime and drug prevention may be supported with contraband forfeiture funds, if the governing body of the municipality determines that such a program serves an appropriate law enforcement purpose. Such a donation would apply to the 15 percent required donation of contraband forfeiture funds pursuant to Section 932.7055(5)(c)3., Florida Statutes. (That section provides that any local law enforcement agency that acquires at least $15,000.00 pursuant to the Florida Contraband Forfeiture Act within a fiscal year must expend or donate no less than 15 percent of such proceeds for support or operation of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood or school resource officer program.) AGO 2005-62 (November 21, 2005).

4. PURELY ADVISORY COMMITTEE NOT “OFFICE” FOR DUAL OFFICEHOLDING PURPOSES:

Section 5(a), Article II, of the Florida Constitution, prohibits dual officeholding. Although the Constitution does not define the terms “office” or “officer,” the Supreme Court of Florida has said that the term “office” implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office. Therefore, the nature of the powers and duties of a particular position determines whether it is an “office.” Thus, the Florida Attorney General determined that a member of the town commission may serve on a town committee that has purely advisory duties or ministerial duties to carry out decisions previously made by the commission, since exercising ministerial duties would not rise to the level of exercising a sovereign power or independent authority of a governmental nature. On the other hand, town committees that are given authority to make factual determinations, review permit applications, issue permits, grant variances or impose fines exercise sovereign powers that would make them officers for purposes of the dual officeholding prohibition. Finally, it is not a violation of the Government-in-the-Sunshine law for town commissioners to attend public meetings of other city boards or committees and comment on agenda items that may come before the town commission for official action. However, the town commissioners in attendance at such meetings may not engage in a discussion or debate about these issues among themselves. (In fact, it may be advisable for such boards or committees to include in the notice of their public meetings that members of the town commission will be in attendance.) AGO 2005-59 (November 21, 2005).

5. WINGING IT:

A 35 year old woman had her eye on a vintage 1964 Volkswagen Karmann Ghia automobile. Lacking funds to pursue her dream, she opted to steal from her employer, Baby Exotic Birds. So, she snuck out a rare bird in her bra -- no, not a titmouse, a Greenwing parrot. But, she couldn’t resist telling the car’s owner how she came into possession of the bird. It turns out, however, the car’s owner is a friend of the man who owns the $2,000 bird. Now the lady has been charged with grand theft - parrot! Another gem from plansponsor.com. Who said this item wouldn’t fly?

 

FROM OUR FAMILY TO YOURS...WE WISH YOU A SAFE AND HAPPY THANKSGIVING.


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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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