2016 Fall Newsletter

Table of Contents:


Michelle Diffenderfer Receives 2016 Florida Achievement Award from the Florida Commission on the Status of Women


Lewis, Longman & Walker President Michelle Diffenderfer was recently selected by the Florida Commission on the Status of Women (FCSW) to receive the FCSW Florida Achievement Award.

Diffenderfer will be presented with the award at a reception on November 17th and also recognized at a Board of County Commissioners meeting next month. She received a congratulatory letter from Florida’s Governor Rick Scott and will be given a key to the City by West Palm Beach’s Mayor Jeri Muoio.

Every year, the Commission awards individuals who have improved the lives of Florida women and/or have served as positive role models for women and girls in their communities. The Commission’s mandate is to study and make recommendations to the Governor, Cabinet and Legislature on issues affecting women.

Michelle is a volunteer for a number of nonprofit organizations in her community that help women and children. Most notably, she was a co-founder and past President of Girls II Women, a nonprofit organization that provides mentoring to girls aged 11-18, who attend schools in underserved communities within Palm Beach County. She can be reached at (561) 640-0820 or at mdiffenderfer@llw-law.com. For more information on FCSW, visit http://fcsw.net/.


Amy Taylor Petrick Joins LLW

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Lewis, Longman & Walker, P.A. is pleased to announce that attorney Amy Taylor Petrick recently joined the firm’s West Palm Beach office as an associate.  Ms. Petrick’s practice focuses on litigation. She has experience with both bench and jury trial work in federal and state courts, and before the Florida Division of Administrative Hearings as well as in handling state and federal appeals. She also provides pre-suit legal advice on a broad range of matters, including zoning and comprehensive planning issues and environmental and utility matters. She represents clients on a wide variety of land use, administrative, regulatory, construction and contractual matters in state and federal courts and administrative forums.

For the past 15 years, Ms. Petrick served as the Senior Assistant County Attorney for the Palm Beach County Attorney’s Office, and also for the Martin County Attorney’s Office. She was the senior litigator on cases involving land use, civil rights, regulatory, administrative, contract, construction, general government, employment and personal injury cases in both state and federal courts and in the Florida Division of Administrative Hearings. She also previously served as Adjunct Graduate Professor, teaching administrative law as part of Florida Atlantic University’s Master of Public Administration program.

Ms. Petrick graduated in the Top 5% of her class at the University of Florida Levin School of Law. She can be reached at (561) 640-0820 or at apetrick@llw-law.com.


LLW Attorney Jennifer Cowan Selected for Leadership Pinellas

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Jennifer Cowan was recently selected to join the 2017 Class of Leadership Pinellas.  Leadership Pinellas is an issues-oriented learning program that promotes personal growth, leadership opportunities, interchange of ideas about Pinellas County and enthusiasm for services to the local community.  The mission of Leadership Pinellas is to develop and enhance community leadership by providing a diverse group of emerging and existing leaders with the opportunity to increase their community knowledge and perpetuate their service to the community.  For more information about the program, visit http://leadershippinellas.com/

Ms. Cowan’s practice focuses on local government, public pension, land use, and litigation. She represents local governments, special districts, a major deep-water seaport, and Community Development Districts (CDDs) in matters concerning annexations, interlocal agreements, procurement, contract management, construction contracting, collective bargaining, employment law, ethics, public records, Sunshine Law, and real property issues.  She can be reached at (941) 708-4040 or at jcowan@llw-law.com.


Tara Duhy Elected Chair of Healthy Mothers Healthy Babies Coalition of Palm Beach County


Lewis Longman & Walker Shareholder Tara W. Duhy was recently elected Chair of the Healthy Mothers Healthy Babies Coalition of Palm Beach County. She will serve a two-year term.

Healthy Mothers, Healthy Babies Coalition of Palm Beach County (HMHB) is a nonprofit organization that seeks to improve birth outcomes by providing access to prenatal care to uninsured or underinsured pregnant women and teens in Palm Beach County. HMHB recently celebrated its 30th Anniversary of service in the community, honoring the organization’s founder, longtime funders, Board members and staff who have been instrumental in the agency’s ongoing success. For more information visit www.hmhbpbc.org.

Ms. Duhy maintains a state-wide land use, natural resource and water law practice, counseling clients through all aspects of development and advising clients through every stage of permitting and government coordination and enforcement. She was listed as a Rising Star by Florida Super Lawyers in 2015, 2013 and 2009, a peer designation awarded to only 2.5% of Florida lawyers. In 2013, she was selected as a Rising Star by the Daily Business Review, a program recognizing the region’s 40 most promising lawyers under the age of 40. She can be reached at tduhy@llw-law.com or at (561) 640-0820.


Emergency Rulemaking Regarding Public Notification of Pollution Incidents

In the wake of two pollution incidents, a raw sewage spill into Tampa Bay in Pinellas County and the sinkhole at Mosaic Fertilizer’s New Wales facility in Polk County, Florida, Governor Rick Scott released a statement on Monday, September 26, 2016, directing the Department of Environmental Protection (DEP) to issue an emergency rule amending requirements for public notification of pollution incidents. Later that day, the DEP released a Specific Finding of Immediate Danger to the Public Health, Safety or Welfare, which is a requisite step to promulgating an emergency rule under Chapter 120 of the Florida Statutes, and the DEP posted notice of the proposed emergency rule, which contains the full text of the rule. Under Chapter 120.54, Florida Statutes, an emergency rule may be effective for a maximum of 90 days, but the Governor instructed DEP to concurrently conduct formal rulemaking to make the changes permanent, and stated that he intends to propose legislation during the next legislative session to amend the current notification law, which requires public notification only if pollution moves off-site in most circumstances.

As proposed, the emergency rule requires “any owner or operator of any installation who has knowledge of any pollution at such installation” to provide notice to the public and various public officials within 24 hours of “the occurrence of any incident at an installation resulting in pollution, or the discovery of pollution.” The emergency rule requires the owner or operator to provide written notice to the DEP, “the mayor, the chair of the county commission, or the comparable senior elected official representing the affected area,” the “city manager, the county administrator, or the comparable senior official representing the affected area,” and “the general public by providing notice to local broadcast television affiliates and a newspaper of general circulation in the area of the contamination.” In addition, within 48 hours of a pollution incident or the discovery of pollution, an owner or operator must notify, in writing, the same above parties “of any potentially affected areas beyond the property boundaries of the installation, and the potential risk to the public health, safety, or welfare.” If the pollution has “affected areas beyond the property boundaries of the installation,” the owner or operator of the facility must notify, in writing, the same people and entities listed above and the property owner of “any affected area.” Finally, failure to follow this rule’s requirements will subject the violator to penalties under § 403.161, Florida Statutes, which authorizes penalties in the form of damages to the state, misdemeanor or felony criminal charges, and fines up to $50,000 for each offense.

The emergency rule does not provide definitions for any of the terms it uses including “pollution” or “installation.” These terms can have broad interpretation, which could make the rule’s reach very problematic.  Section 403.031(7), Florida Statutes defines “pollution” as “the presence in the outdoor atmosphere or waters of the state of any one or more substances or pollutants in quantities which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation,” which is broad. This definition encompasses both a wide array of substances and small quantities of those substances that could potentially trigger the reporting requirements. The rule does not address retroactive application to situations where pollution was previously discovered and notification may have been made to DEP.

It is important that affected clients and industries be involved in this rulemaking. We want to hear your concerns and how this rule could potentially affect your business or industry. We will continue to monitor this rulemaking as it develops. Please do not hesitate to contact us with questions, concerns, or for further information.

Governor Scott’s full statement can be read here: http://www.flgov.com/2016/09/26/gov-scott-i-am-directing-immediate-change-to-public-notification-laws-following-pollution-incidents/

The full text of the DEP’s Specific Finding of Immediate Danger to the Public Health, Safety or Welfare can be read here: http://www.dep.state.fl.us/pollutionnotice/Specific-Finding-of-Immediate-Danger.pdf

The full text of the proposed emergency rule can be read here: https://www.flrules.org/gateway/ruleNo.asp?id=62ER16-1

The DEP has created a site to facilitate providing notice to the appropriate parties under this rule, it can be viewed here: http://www.dep.state.fl.us/pollutionnotice/

Rule No.: 62-4.161 https://www.flrules.org/gateway/RuleNo.asp?id=62-4.161


Florida Statutes Governing Police and Firefighter Pension Plans: A Historical Perspective

By: Jim Linn and Glenn E. Thomas

Overview:  Chapters 175 and 185 establish a revenue sharing program whereby participating local governments can receive a portion of the state excise tax on property and casualty insurance premiums collected in their jurisdiction to fund pension benefits for firefighters and police officers. Chapter 175 was originally enacted in 1939 to provide an incentive – access to premium tax revenues – to Florida cities to encourage them to establish retirement plans for firefighters. Fourteen years later, in 1953, Chapter 185 was enacted to provide a similar funding mechanism for municipal police officers. Special fire control districts became eligible to participate under Chapter 175 in 1993. Both chapters provide for the establishment of defined benefit retirement plans for firefighters and police officers, and set standards for operation and funding of those plans. Currently more than 350 police and firefighter pension plans in Florida receive premium tax revenues pursuant to Chapters 175 and 185, Florida Statutes. These plans had nearly $12 billion in combined assets as of September 30, 2014. In 2015, more than $147 million in premium tax revenues was distributed to local firefighter and police pension plans pursuant to Chapters 175 and 185. Funding for police and firefighter pension plans established pursuant to Chapters 175 and 185 comes from four main sources:

  1. Earnings on pension fund investments. Investment earnings are the largest source of funding for police and firefighter pension plans.
  2. Premium tax – the net proceeds from the state excise tax on premiums paid for property insurance (for firefighter pensions) and casualty insurance (primarily automobile insurance, for police pensions), based on the taxes collected in each participating city and district.
  3. Employee contributions – typically set in the plan as a fixed percentage of pay, generally ranging between 1% and 11% of employee compensation. Many plans provide for employer “pick-up” of employee contributions, which allows for contributions to be made in pre-tax dollars.
  4. Employer contributions – by law, the local government plan sponsor is ultimately responsible for all pension plan assets and liabilities, and is required to fund employee pension plans on a sound actuarial basis. Art. X, Section 14, Fla. Constitution; Sec. 112.66(8), F.S. This means the local government must annually pay the difference between total required contributions as determined by an actuary, and the sum of all the other contributions. Employer contributions can vary widely from year to year based on investment performance, payroll changes, unanticipated retirements, inflation and changes in actuarial assumptions.

To qualify for premium tax revenues, local pension plans must meet the applicable requirements of Chapters 175 and 185. Responsibility for overseeing and monitoring these plans lies with the Division of Retirement, but day-to-day operational control rests with local boards of trustees. There are two types of pension plans described in Chapters 175 and 185: “chapter plans” and “local law plans.” Chapter plans adopt or incorporate by reference the specific provisions of the chapters. Local law plans, on the other hand, meet certain minimum requirements in the law, but may vary significantly from the chapter plan requirements in numerous respects. Many local law plans provide benefits that, in the aggregate, substantially exceed the chapter minimums, but may not meet each and every minimum benefit or standard applicable to chapter plans. The overwhelming majority of police and fire pension plans in Florida are local law plans (there are currently more than 350 local law plans, compared to fewer than 17 chapter plans).  Click here to read the full article.


Chris Johns was Featured in the Florida Fruit and Vegetable Association Newsletter

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Questions and answers with Chris Johns of the law firm of Lewis, Longman & Walker, P.A.

– Chris Johns comes from a long line of Florida farmers. His father, Frank Johns, was a former chairman of FFVA. Chris uses his background in agriculture to advantage when working for his clients. We talked with him about the law firm Lewis, Longman & Walker, and the various ways he and his colleagues serve the Florida agriculture industry.

What areas of your practice most apply to agricultural producers?

Our firm’s practice focuses on environmental, land-use and government law. We can handle virtually any legal issue that involves regulation of the environment, regulation of natural resources, or the use and ownership of land. These areas frequently intersect with issues agricultural producers encounter. We have extensive experience with both federal and state environmental law, including Clean Water Act issues involving Waters of the U.S., dredge-and-fill permitting, and other wetlands issues. In addition, we do extensive work involving special districts, such as drainage districts, and local governments. We regularly handle environmental permitting matters, including consumptive use permits and environmental resource permits. We handle land transactions and issues involving land use, zoning approvals and easements such as drainage or conservation easements.

Under what sort of circumstances would someone in agriculture be looking to use your services?

There are many situations where an agricultural firm might use our services. We handle permitting and compliance issues involving agencies such as the Army Corps of Engineers, the Florida Department of Environmental Protection, the Environmental Protection Agency, and the water management districts. We are well-suited to handle any kind of wetland issue at the state and the federal levels. We can also represent the agricultural community in dealing with pesticide and other types of chemical regulation and cleanup. We can negotiate and draft conservation easements. We can negotiate use agreements or other kinds of agreements or leases with special districts, local governments or regulatory agencies. We can acquire land use or zoning approvals for packing facilities, processing plants or distribution centers, and we have extensive experience in land use and zoning throughout Florida.

LLW positions itself as being different because so many of the attorneys have been government counsel, scientists, and others working in fields where having insider knowledge is important. Can you comment on this and maybe give us some examples as to how that has worked to a client’s advantage?

Many of our attorneys have experience working for state, regional, and local governments where they gained significant experience in dealing with both the regulators and the regulated community, including the agricultural community. Two of our attorneys have served as general counsel for water management districts. Several others have worked for the Department of Environmental Regulation or Department of Environmental Protection, and others have worked for various counties, including Palm Beach County and Martin County. We have an attorney who is also a certified land planner. He is skilled in the use of Geographic Information Systems, which he has used to overlay historic aerials with permit and site plan data to demonstrate the evolution of shoreline and development patterns to protect clients’ property rights. We have environmental attorneys who were scientists and engineers and who used that background in one instance to successfully argue to eliminate the need for over $1 million in remediation of secondary contaminants that posed no risk to human health or the environment.

Anything else you’d like to add as to why someone should come to you with their specific legal needs?

My personal experiences and background growing up on, and eventually helping manage, my family’s potato farm gives me perspective on the unique issues and needs of people within the ag community. I come from a long line of farmers. My brother and I (before I decided to pursue a legal career) represent the fifth generation in our family to farm. My dad was president of the UF Alpha Gamma Rho chapter and a longtime FFVA member. As a result I have strong ties to Florida agriculture and I have an intimate understanding of what it takes to run a successful farming operation in today’s economy. I understand the numerous pressures that ag faces, whether it’s from economic competition, environmental or other regulatory pressures, or changing social trends. I understand the anxiety and stress that come from knowing that the operation you have built and dedicated your life to is only one wrongly attributed foodborne illness news story away from ruin. That experience and understanding are rare outside the ag industry. I bring that to the table for our firm and our clients, and when those things are combined with our firm’s resources, legal knowledge and experience, we can provide value and peace of mind to agricultural clients so they can spend more time out on the land doing what they love.

Learn more about LLW on the firm’s website at http://www.llw-law.com/. Offices are in Jacksonville, Bradenton, Tallahassee and West Palm Beach.


LLW Supports The Education Foundation Of Palm Beach County By Donating School Supplies To Local Students

The West Palm Beach office of Lewis, Longman & Walker is supporting the Education Foundation of Palm Beach County by gathering school supplies and monetary donations to help stock Red Apple Supplies, a new free school supply store for public schools. Red Apple Supplies transfers school supplies from businesses, organizations and individuals to teachers for use in Palm Beach County’s highest-need classrooms. Every year, Red Apple Supplies supplements teachers with nearly $500 additional dollars in school and classroom supplies.

The Education Foundation of Palm Beach County is a nonprofit organization dedicated to advancing excellence in Palm Beach County’s public education by increasing public awareness and inspiring community and business support for programs focused on learning, literacy, and leadership. For more information, visit www.educationfoundationpbc.org.