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December 2004 Vol. XIV No. 12 Memorandum to Clients UNEMPLOYMENT COMPENSATION : ERROR WHICH COST BANK $6,000 ISPOOR JUDGMENT, NOT MISCONDUCT Can you fire a non-contractual employee who causes your Florida business to lose a significant amount of money? Of course! Will that employee still be able to claim Florida unemployment benefits? Yes! Despite making a huge mistake costing thousands of dollars, a fired employee may still be entitled to unemployment benefits. A recent Florida appellate decision emphasizes that more than an isolated incident of poor judgment is required to deny an employee unemployment benefits. In Riveras v. Unemployment Appeals Commission, 29 Fl. L. Weekly D2385 (Fla. 2nd DCA, October 27, 2004), Sarita Riveras was discharged after she allowed a customer to withdraw funds from checking and savings accounts the day after the accounts were opened with a counter check. Ms. Riveras was employed as a bank teller supervisor for almost three years before being discharged. Despite federal regulations and bank policy requiring a ten day hold on counter checks, which are checks provided by a bank for the use of customers making a withdrawal, Ms. Riveras relied on an associate who thought it appropriate to override the regulations in this situation. The error cost the bank $6,000. The bank discharged Ms. Riveras for this isolated incident. The Unemployment Appeals Commission denied Ms. Riveras unemployment benefits. The appellate court disagreed with the Unemployment Appeals Commission and ordered that unemployment benefits be reinstated. The court pointed out that the bank was clearly justified in firing Ms. Riveras for the isolated incident which cost the bank a significant amount of money. However, the court determined that the isolated lapse of judgment did not amount to misconduct. Even though Ms. Riveras violated her employer =s stated policies, the court explained misconduct generally involves repeated violations of policies after several warnings. AIn line with the many cases involving isolated acts of negligence or misjudgment, we hold that the Unemployment Compensation Commission=s determination that Ms. Riveras was discharged for misconduct connected with work is not supported by competent, substantial evidence in the record,@ the court stated.The Riveras decision points out that an isolated incident of poor judgment, even if it costs an employer a significant amount of money, does not amount to misconduct. The court =s function is to interpret the intent of the Florida legislature in enacting unemployment legislation: If someone loses his or her job, he or she should have funds to live on until he or she gets a new job. It is up to the legislature to change the law if cases result in ridiculous outcomes.RESTRICTIVE COVENANTS:
LACK OF WHEELS DOES NOT EXEMPT PORCH What happens if a mobile home owner adds a porch to her Florida home in violation of the setback requirements of the mobile home park? Even though the porch does not have wheels, it is still part of the Amobile@ home and the owner must comply with setback requirements. In Gem Estates Mobile Home Village Association, Inc. v. Bluhm, 29 Fla. L. Weekly D2332 (Fla. 2nd DCA, October 20, 2004), a Florida appellate court ruled that an owner who added a porch to a mobile home must comply with the setback requirements of a restrictive covenant. Vicki Bluhm added a screened porch to her mobile home. The mobile homeowners= association=s restrictions required each mobile home to be set back fifty feet from the center line of the street which it faced. Ms. Bluhm=s porch was only thirty-seven feet from the center line of the street. Although the Association=s restrictions provided that all additions be approved before being placed on the property, Ms. Bluhm did not seek approval for her porch. The Association sought injunctive relief with respect to the alleged violation of the setback requirement due to Ms. Bluhm=s porch. The trial court denied relief to the Association. The trial court concluded the porch was not a Amobile@ home because it had no wheels or chassis; thus, the trial court ruled that the porch was not subject to the fifty-foot setback requirement in the restrictions. In addition, the trial court determined the porch was not subject to preapproval by the board because it was not a Amobile@ home. The appellate court totally disagreed with the trial court=s reasoning that the porch was not part of the mobile home because the porch had no wheels. AUnder the circuit court=s interpretation, any mobile home owner in Gem Estates could totally subvert and nullify the effect of the front setback requirement and build to the street simply by making an addition to a mobile home,@ the court said. The appellate court reversed the decision and remanded to the trial court for entry of a judgment in favor of the association and an injunction directing removal of the porch. The appellate court ruled when an addition to a home that is originally within a setback requirement of a restrictive covenant causes the structure to violate the setback requirement, the setback requirement can be enforced with respect to the structure which violated the restrictions. The The Bluhm decision points out the importance of not only getting approval prior to making an addition to your home, but making sure that the addition complies with any setback requirements. Fixing the mistake after the fact can be costly to a homeowner. HAPPY HOLIDAYS! In observance of national holidays, the firms=s offices will be closed Friday, December 24, 2004 and Friday, December 31, 2004. The firm=s offices will also be closed the afternoon of Wednesday, December 15, 2004. Please note that as of the end of the year, the Post Office will no longer forward the firm=s mail which has been sent to its old address. Remember to use the firm=s current address: 1555 Palm Beach Lakes Blvd., Suite 1220, West Palm Beach, FL 33401.
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