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The City of Florence has proposed an ordinance which, as currently written, creates far too many unintended consequences. If passed, this ordinance inadvertently makes it a crime for neighbors to interact among neighbors after certain times of the evening.

Specifically, after 8:00 pm when Daylight Saving Time is in effect and 6:00 p.m. when Eastern Standard Time is in effect, no person may go place to place, house to house, or street to street requesting a person’s commitment of time, requesting orders of goods or merchandise, requesting other personal property, or requesting services. Thus, you cannot approach your neighbor to go to a community event (a commitment of time), you cannot ask your neighbor for a cup of flour (other personal property), your child cannot sell school wrapping papers or donuts, children can no longer trick-or-treat, girl scouts can no longer sell their cookies, political candidates can no longer go door to door asking for you to go to the poll to vote…

The ordinance includes an entire section criminalizing charitable solicitations.  Further, despite the heading on each ordinance seemingly prohibiting door to door solicitation, the ordinance is much broader – it prevents you from going “place to place”, “house to house” or “street to street”.  Arguably, you could not do the same activities noted above at Wal-Mart, Freedom Florence, or any other public or private place or on your street or any street in the city.  While Gary does not believe the Council intended for the ordinance to be so overbroad and far reaching, it is as currently written.  If you wish to prevent this legislation from substantially interfering with our freedom and liberty, take action now!  Remember Benjamin Franklin’s words: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” The final reading of this ordinance is scheduled Monday, July 13.

Generally, people understand that they have the right to refuse the breathalyzer test if they are arrested for driving under the influence (DUI). However, a majority of those same people do not understand the consequences of losing their driver’s license if they fail to take the breathalyzer.

If you are arrested and charged with DUI in South Carolina and refuse to submit to the breath test, your driver’s license will be suspended by the Department of Motor Vehicles for a period of six months. This is true even if you receive a favorable outcome in your DUI case, either by way of a dismissal of the DUI, a reduction in the charge, or a verdict of not guilty. However, South Carolina provides for an opportunity to challenge the driver’s license suspension by requesting an administrative hearing. This administrative hearing is separate and independent from the DUI trial. Typically, the attorney you retain will request this administrative hearing for you which must be requested within thirty days from the date of suspension, which is usually the date of arrest.

Upon requesting the administrative hearing, you will be mailed documents that will allow you to obtain a Temporary Alcohol License. Once you receive this paperwork, personally take it to the DMV, pay the fee and a Temporary Alcohol License may be issued to you. This Temporary Alcohol License is an unrestricted license throughout South Carolina. In other words, it operates as a regular license throughout the state and there are no route restrictions once it is issued. This Temporary Alcohol License does not allow you to drive outside the State of South Carolina and typically remains in effect until the administrative hearing. If you have a Commercial Driver’s License, please consult with a DUI attorney as the issues are more complex.

There are a number of factors that play out at an administrative hearing. Some attorneys require their clients to be present, although it is not mandatory. Some officers will not appear, or they will appear and elect to not enter any testimony on the record. Some officers prosecute the issue of a driver’s license suspension and will enter testimony on the record. Regardless of the testimony presented at the administrative hearing, the hearing officer will either uphold the driver’s license suspension or rescind the driver’s license suspension and reinstate the person’s driving privileges. Should the officer rescind the driver’s license suspension, your license is fully reinstated pending a resolution of your DUI case.

If the suspension of driving privileges is upheld, the Temporary Alcohol License will remain in effect only until the hearing officer issues his/her decision and sends notice to the person that the license is suspended. Once the decision is rendered and notice received, the person may apply for a Route Restricted Driver’s License. In order to obtain a Route Restricted Driver’s License, you must be employed and/or enrolled in college. This Route Restricted Driver’s License only permits you to drive to and from work and school and in the course of work and school.

In addition to the consequences of the DUI trial itself and the consequences of the administrative hearing, there are other consequences associated with a DUI arrest, such as having to participate in ADSAP, R-22 insurance requirements, and potential consequences from your employer.

It is our hope that you never have to face any of these issues, but in the event that you or you know someone that has been arrested or charged with DUI, please contact Finklea Law Firm to discuss your case and to avoid the unintended and often avoidable consequences.

Who keeps the engagement ring in the event of a broken engagement, the bride or the groom? The South Carolina Court of Appeals recently had the opportunity to answer this question in Campbell v. Robinson.

In this case, Campbell, the groom-to-be, filed suit against Robinson, the bride-to-be, for the return of an engagement ring that Campbell provided to Robinson in connection with his proposal for marriage. After accepting the proposal, marriage preparations began, but after some time, the wedding was cancelled and a dispute over ownership of the ring began. The Court stated, “fault does not determine ownership of the ring.”

In other words, whether it was the bride or the groom who cancelled the engagement, fault is not basis for deciding who keeps the engagement ring. Instead, the Court adopted the following standard as the rule:

“An engagement ring by its very nature is a symbol of a donor’s continuing devotion to the donee. Once an engagement is cancelled, the ring no longer holds that significance…Thus, if a party presents evidence a ring was given in contemplation of marriage, the ring is an engagement ring. As an engagement ring, the gift is in impliedly conditioned upon the marriage taking place. Until the condition underlying the gift is fulfilled, the attempted gift is unenforceable and must be returned to the donor upon the donor’s request.”

In this case, the bride alleged that the ring was an engagement ring at first but then was converted into an absolute gift when the engagement was cancelled and the groom allegedly advised the bride she could keep the ring, but although the Court did not ultimately affirm or reverse who should keep the ring, it was remanded for a re-trial in light of clarification of the law.

In conclusion, fault is not a basis for determining who is allowed to keep the engagement ring but rather if the engagement ring was given impliedly conditioned upon the marriage taking place or alternatively as an absolute gift.

~ Gary I. Finklea

Our very own Charlie J. Blake Jr., and his wife, Octavia Williams-Blake, received the honor of Power Couple 2014 in The Community Times Magazine’s April Issue!

One of the questions that folks will ask us on a consistent basis is whether or not forming a Limited Liability Company (“LLC”) is a good call for their business and investments. In most cases, the answer is “Yes”.

Wyoming was the first state in 1977 to offer the LLC as an entity for doing business. Since that time, all other states have adopted statutes allowing some form of LLC, and millions now exist. Why is it so popular? Simple – because in contrast to a traditional corporation, the LLC is, well, simple. If you currently operate a business as a sole proprietorship – even if you just own rental property – changing to an LLC is probably a good bet. While not without some drawbacks, the advantages are many.

The primary attraction is that the owner’s individual assets and other business holdings are usually protected from the debts of the LLC. Of course, this is true with the more traditional corporate forms as well. The LLC, however, often offers considerable tax and operating benefits over other forms of entities. If you are the only owner, the LLC can still be taxed as a sole proprietorship. Your accountant will probably explain to you that this is advantageous when it comes to compensating yourself through distribution of profits and avoiding double taxation. Limited Liability Companies with multiple owners (called “members” and not “shareholders”) may be treated as a partnership or can elect to be taxed as a corporate entity. There are several choices to make in this respect, so speak to an accountant if this is of interest to you.

As shocking as it must sound, most lawyers don’t like extra paperwork either. The LLC simplifies the paperwork by allowing businesses to be conducted in a more practical and informal way. Corporations must carefully keep paper records of “meetings” being conducted by the board or other owners, and all major decisions and actions are recorded through minutes or resolutions. As we all know, in a small business, the “meetings” are often conducted over the dinner table or on the hood of a pickup truck. Accordingly, the LLC requirements for paperwork and meetings are far less demanding. Don’t confuse less demanding with nonexistent. If you are forming a multiple-member LLC, it is extremely important to have an attorney prepare an Operating Agreement. The LLC’s Operating Agreement is an agreement among the members – similar to a corporation’s bylaws – that describes operations and governs the relationships among members. As with any other business “marriage”, it is important that these agreements be reached at the beginning, while everyone is getting along and thinking clearly, instead of after a problem develops.

Like anything else, there are drawbacks to go along with the advantages. One drawback that I have seen is that it is more difficult for an LLC to seek outside investment from individual investors or venture capitalists. Also, because there is no stock, the company cannot offer stock options to employees. These issues, however, are not a factor for probably 90% of the business owners that we consult with. If the LLC permanently holds real estate, another consideration is the cost of insurance and financing limitations.

As with any business decision there is rarely a one-size-fits-all solution. If you operate a business as a sole proprietor and would like to consider if a Limited Liability Company or other business entity would be a beneficial move, please do not hesitate to contact the Finklea Law Firm to discuss your specific needs. We work hard to provide our clients with the best service in the industry and look forward to working for you.

One of the greatest concerns I hear from individuals who have suffered a work-related injury is how will they be able to afford their routine and daily living expenses during their period of treatment with physicians. This is often one of the most difficult questions an attorney must answer who practices in the area of workers’ compensation, because employees who are taken out of work completely or are restricted from performing work at full duty will not be fully compensated on a temporary basis as they were before his/her work-related injury.

Assume an employee has been injured and has had his/her injuries evaluated by a physician. This particular physician authorizes the employee to return to work full duty without restriction. For most employees, they will continue to receive treatment from the physician and continue to work earning their normal wage. But what happens when the authorized treating physician removes the employee from work completely or the employee is released to light duty and his/her hours are reduced or their wages are reduced during the treatment period? Below is information on how employees, who suffer a work-related injury, will be temporarily compensated during their case.

Temporary Total Disability Benefits: This particular benefit is reserved for those employees who are completely disabled and an authorized treating physician completely restricts the employee’s work for a specific period of time. The South Carolina Workers’ Compensation Act allows for an employee to be compensated for lost wages at a rate of two-thirds (2/3) of his/her average weekly wage.

To calculate the employee’s average weekly wage, the most common scenario involves looking at the four quarters of earning before the quarter of the employee’s work-related injury. This includes regular compensation, overtime wages, commission and bonuses. Once the employee calculates the total amount he/she has earned over those four quarters he/she will divide that amount by the number of weeks those earnings were paid over. This amount is the Average Weekly Wage (AWW). The amount that will be paid to the injured employee on a weekly basis will be two-thirds (2/3) of the AWW amount. Keep in mind that this benefit is temporary and is designed to only last until the employee’s treating physician determines that he/she is at maximum medical improvement (MMI) and is released from medical care.

Temporary Partial Disability Benefits: This particular benefit is for those employees who suffer a work-related injury and the injury prevents the employee from doing certain work-related duties. Assume an employee suffers a work-related injury and is placed on light duty during the course of their approved medical treatment. And as a result of this light duty, the employee’s employer reduces the amount of the employee’s pay by way of job reassignment or a reduction in the employee’s work hours. The South Carolina Workers’ Compensation Act protects the employee and provides for compensation at a rate of two-thirds (2/3) of the difference between the employee’s current wages while on light duty and the gross average weekly wage before the work-related injury. Assume an employee was making $500.00 per week before the work-related injury and that amount is reduced to $350.00 per week while on light duty. The difference between the two wages is $150.00 and thus South Carolina law entitles an injured employee a weekly payment of two-thirds (2/3) of this amount in addition to the employee’s regular weekly wages.

Please do not hesitate to contact me to discuss your workers’ compensation issues.

~ Joshua A. Bailey (January 2014)

In the late 1990s, two class-action lawsuits were filed on behalf of African-American farmers against the U.S. Department of Agriculture (U.S.D.A.). These actions alleged that the USDA discriminated against African-American farmers on the basis of race. The claimants’ primary allegation detailed systematic denial of African-American farmers of access to certain farm loans and benefits. Through the work of the judicial system and the federal government, the class-action lawsuits were ultimately resolved and a fully funded settlement agreement was reached after over a decade of work. From November 2011 until May 2012, claims were submitted by farmers or their heirs for a portion of the settlement proceeds which exceeded one billion dollars.

Due to the age of some of the claimants and the extended period of the litigation, many of the farmers died before the payment of their claims. This issue has left the heirs of many of the claimants having to deal with the process of probating their parents’ estate in order to have access to the payment of those funds. If a claimant died within the past ten years, the process is very simple. The claimants’ proper heir can go to the appropriate Probate Court and open an estate to get appointed as Personal Representative. The USDA has been willing to pay the proceeds upon receipt of a Certificate of Appointment from the Personal Representative. However, if the claimant died outside of the ten-year time frame, it would be necessary to have a hearing in front of the Probate Court of that jurisdiction. At such hearing, the Probate Court would determine the appropriate heirs to receive a portion of the settlement proceeds and would also appoint the proper party to receive and disburse the settlement proceeds on behalf of the farmer’s estate. This process is called a Petition to Determine Heirs.

It is always advisable to discuss the important probate issues related to receiving settlement proceeds as an heir to a claimant. An attorney can provide advice as to the probate process and potentially file the necessary petition to secure the money in a timely manner.

Please do not hesitate to contact my office to discuss your specific needs in greater detail.

~ Charlie J. Blake, Jr. (November 2013)

A cursory review of the current tax records details a probate issue that is easily resolved. Many people die and leave behind real estate, bank accounts, personal property and other valuable items that are never probated and disbursed in a timely manner.

By way of example, consider the following circumstances:

• Client X appears in my office seeking advice on how to handle some cosmetic repairs on the family home that he grew up in with his mother and sister.
• Client X’s mother has been deceased for six years, but the title to the family home is still in her name.
• Client X has been paying the taxes and expenses on the property out of his own pocket.
• Client X wants to take out a small loan on the property, but the loan is unavailable because he is not the owner of the property.

The problems detailed in my example can be resolved with the appropriate plan. The simple act of acquiring the death certificate, locating any wills, and preparing a list of any heirs of a deceased person will jump start the probate process. Some people consult an attorney to assist with opening the estate in the appropriate manner, but most local probate court offices have staff capable of assisting an unrepresented party in this process. Once the estate is opened with the probate court of jurisdiction, the person appointed to the handle the estate will have to organize and detail the deceased person’s assets, deal with the deceased person’s creditors, and disburse the assets to the appropriate heir or devisee.

The probate process also provides solutions for individuals that have waited for a considerable amount of time to probate a family member or friend’s estate. If you wait until ten years after someone dies to probate the estate, you will have to participate in a more formal hearing. The presiding judge will review the assets in the deceased person’s name and assist in determining the appropriate heirs. While this process sounds challenging, it is a simple petition and a just mechanism to transfer property that has been stagnant and in a deceased person’s name for a long time.

It is never a bad idea to consult an attorney to discuss probate issues. Attorneys can provide advice and assist with more technical issues associated with an estate like deeds of distribution. Please do not hesitate to contact my office to discuss your specific needs in greater detail.

~ Charlie J. Blake, Jr. (October 2013)

Most everyone knows that when you are involved in a motor vehicle accident, you need to wait for the appropriate law enforcement agency to arrive at the scene of the accident before leaving to produce your license, registration and insurance information. However, there are other considerations you should be aware of as well.

The most common issue pertains to whether a vehicle should be moved after an accident. South Carolina Code of Laws Section 56-5-1210 enunciates most of the duties of drivers involved in accidents. Specifically that section states that a person involved in an accident resulting in an injury to a person shall stop at the scene of the accident and remain until providing license, registration and insurance. A person is authorized to temporarily leave the scene to report the accident to the proper authorities. However, this statute has been on the books from as early as the 1940s. Now that we have cell phones and modern technology, I would suggest never leave the scene of the accident with the exception of possibly seeking emergency medical treatment or for security or safety reasons.

Another question that often arises is whether or not you should move your vehicle from the roadway. Section 1210 states that “the stop must be made without obstructing traffic more than is necessary.” However in cases involving accidents resulting in great bodily injury or death, the vehicle shall not be moved until it is authorized by the investigating law enforcement officer. On the other hand, when there is only property damage or minor injuries, reasonable efforts should be made to move vehicles capable of being driven safely off the roadway so as not to obstruct traffic.

There are other responsibilities which may surprise you. The first is found is Section 56-5-1230, which requires the driver of any vehicle involved in an accident resulting in an injury to render reasonable assistance, including the carrying or making arrangements for the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or such care is requested by the injured person. Again, this statute appears to be on the books as early as 1952, and therefore, it does not necessarily conform with the practices we are familiar with, which is limited to retrieving your cell phone and dialing 911. However, this statute does place an affirmative duty on anyone involved in an accident to provide aid, regardless of whether that person was at fault.

A driver involved in an accident resulting in injury to or death of any person is required to immediately report by the quickest means of communication such action to local law enforcement under Section 56-5-1260. Finally, Section 56-5-1280 even places an affirmative duty on passengers to report an accident when the driver is physically incapable of making a report, and in the event an owner of a vehicle finds that the driver did not report an accident, the owner is required to make the report within five days of the accident.

These reporting obligations may surprise many, but they are the law in the State of South Carolina. With modern means of communication and a large body of law enforcement officers in the state, many of these reporting obligations have been forgotten. Nonetheless, they are important. In my personal experience and in handling a multitude of personal injury cases, I rarely see reporting issues come into play. However we have experienced several cases where a driver leaves the scene of an accident. In addition to being a criminal violation, generally when the opposing party leaves the scene that helps our case even if the at fault party subsequently returns.

Another nugget of advice is to not be afraid to get out your cell phone and take photographs of the scene and vehicles. This is particularly true in the event there are no independent witnesses or a liability dispute. The location of the vehicles within an intersection or roadway, the point of impact and skid marks are important in determining liability. If the accident occurred at night and lights were not working on the at-fault vehicle, take a picture.

If you have any questions or concerns regarding a motor vehicle accident, please feel free to contact my office.

~ Gary I. Finklea (September 2013)

Attorney Gary Finklea gives advice on what steps to take immediately following an auto accident.