Protecting Yourself and Your Business

In the past we have discussed the legal remedies for non-payment of money owed. Debt collection can be tricky and it becomes even more difficult when the client does not have the proper documentation. I have seen too many people lose money because they have no way to prove that the money is owed. In Simple terms, you should always have written and signed proof that you paid or received money.

It is much easier to prevent problems by having clear and written documentation to establish an exchange of money or promises of services or goods. Forms and documents can help greatly reduce the risk involved in conducting business. Below are a few basic things to consider when entering into a business relationship:

  1. Estimates should be as detailed as possible. You should include a description of the job, the specific materials that you plan to use and a break down of the cost in terms of labor, parts, etc. Other possible details include: terms of payment, completion date, a list of certifications and insurance information.
  2. Invoices should be numbered and include a description of the work performed so that multiple invoices can be distinguished.
  3. If you have a contract, anything not mentioned in the contract will likely not be considered. If you wish to amend a written agreement, make sure you have it in writing. The person that you are trying to enforce the contract against must sign the contract. A contract must list the parties, a description of the services and a price.
  4. A receipt should say “paid in full” or final payment” if the entire amount owed is being paid off.  If you cash a check that says “payment in full” you are admitting that the balance is paid off.
  5. If you are building or designing something, it is a good idea to have the client sign the design proof before you begin fabrication.
  6. Employee handbooks are a great way to hold your employees accountable and to set out safety procedures, but be careful not to obligate your company to future unwanted commitments.

These are a few ways in which you can improve your business dealing to help protect yourself. If you wish to discuss these matters in more detail, or you would like help developing forms for your business, our firm offers business consultations to help develop create personal business forms.

Disclaimer: This article was written for informational purposes only. It is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the specific details of your particular situation can provide legal advice. The goal here is to give you a basic roadmap to the legal issues you may confront and should be aware of.

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How Should Bicyclists And Motorist Share The Road?

There seems to be a lot of confusion between motorists and bicyclists alike as to the use of roadways by people on bicycles. In simplest terms, a person riding a bicycle is permitted to ride on the road, regardless of whether there is a separate path adjacent to the road, and motorists have a duty to maintain a safe operating distance between their vehicle and a bicycle. Title 56 of the South Carolina Code of Laws governs motor vehicles and use of bicycles on roadways. In this article I will discuss the laws applicable to sharing the road between these groups in an effort to create safer roads for everyone.

Duties Imposed on Motorists

§56-5-3435 of the SC Code provides that:

“A driver of a motor vehicle must at all times maintain a safeoperating distance between the motor vehicle and a bicycle.”

The specific distance is not defined, but it is clear that the motorist has a legal duty to give sufficient space when passing a cyclist. Many states have a minimum 3-foot passing distance specified by law.  This gives you an idea of the space that should be given when a motorist passes a bicyclist, but ultimately a driver must make a decision about how much space is safe given the circumstances.

My experience is not that people do not know how much room is safe, but rather that some motorist simply do not wish to share the road with bicycles. This leads some motorist to get dangerously close to a person riding a bike, maybe to scare them or to yell at them to get off the road. I even had one motorist block an entire lane of traffic in order to “force me off the road where bikes belong.” This type of action is not only extremely dangerous, but also illegal. §56-5-3445 makes it a misdemeanor to  “harass, taunt, or maliciously throw an object at or in the direction of any person riding a bicycle.” Violating  §56-5-3445 comes with a minimum fine of $250 and/or 30 days in jail.

How Should Cyclist Ride?

A person riding a bicycle on a roadway in South Carolina has all of the rights and is subject to all of the duties imposed on drivers, including obeying all traffic lights and signs. (§56-5-3420). Bicyclist should stay to the right side of the road and not ride more than two abreast. (§56-5-3430) They are not required to ride on the shoulder, but whenever practicable the shoulder is the preferred and safest place to ride. Bicyclist must signal turns, use lights and reflectors when riding at night, and have a bike equipped with brakes (§56-5-3470 §56-5-3480, §56-5-3490).  A bicycle should not be used to carry more persons at one time than the number for which it is designed and it is illegal for a person riding a bicycle to cling or hold on to a moving vehicle (§56-5-3440, §56-5-3450).

Riding On The Road When Paths Are Available

Hilton Head Island and Bluffton both have great path systems for people to move around and stay active. Hilton Head refers to their paths as multi-use or shared-use paths. They are great for running, walking, skating and people riding bikes at speeds below 10 mph. But the reality is that someone who is riding a performance oriented road bike is likely to be traveling at speeds of 17-25 mph, and sometimes in excess of 40 mph. This creates a very unsafe environment on shared use paths.

Picture a family of 4 riding beach cruisers at 5 mph heading west bound on a path. Then, picture a group of cyclist heading eastbound going 20 mph on the same path. Further complicating matters, people using the paths face the constant obstacle of road crossings, which usually require the cyclist to stop. Many of the local bike related incidents occur at these road crossings where paths cross roadways, given that motorists are looking to merge into traffic and are not looking out for people on bicycles.

SC Code §56-5-3425 and §56-5-3430 outline a bike rider’s duty and rights pertaining to the use of paths and bike specific lanes. Under these sections a “bicycle lane” must be used by cyclist, unless it is only an adjacent recreational path not for preferential or exclusive use of bikes. Hilton Head has several examples of dedicated bike lanes and the town of Hilton Head distinguishes between paths and bike lanes. It lists 108 miles of paved shared use paths and only 6 miles of dedicated bike lanes (http://www.hiltonheadisland.org/biking/biking-on-hilton-head-island).  Likewise, the paths along the Bluffton Parkway are not mandatory for bicyclists. A good example of a mandatory bike lane in Bluffton is the marked off lane on Simmonsville Rd. (between 278 and Parkway).

Hopefully this information helps create a safer environment for motorists and bicyclists alike. Sharing the road is not an option it is obligatory. If bicyclist and motorist operate their respective vehicles in a reasonably prudent manner, we can share the road without accidents.

 

 

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SB20

The State of South Carolina passed SB20 in June of 2011 which is a law with portions resembling the law anti immigration law which Arizona originally passed. A federal judge in December of 2011 heard arguments on the legality of this SB20 in federal court in Charleston. After these arguments the judge decided that certain parts of SB20 could not be imposed. The decision postpones the application of certain portions of the law. The reason is that the Supreme Court of the United States should decide the legality of the Arizona law in its next term. That decision will then be applied to the law of South Carolina.

Certain parts of SB20 are being enforced at this time. For example, the section requiring use of e-verify for new employees is in effect. The blocked parts include: the section giving authority to the police check documents simply on reasonable suspicion that a certain this person in the country without papers, also the section creating sanctions for transporting undocumented people.

As of January 1, 2012 people’s rights have not changed. Officers may not stop or arrest someone simply because of the color of their skin or the language that is being spoken.  The portions that are not being enforced are temporarily suspended and we hope to have a more permanent resolution by the end of the year.

 

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NEW DMV REQUIREMENTS SOUTH CAROLINA

January 1, 2012 marked a day that saw several changes in South Carolina law. Among those changes were the SC Department of Motor Vehicles requirements for obtaining a title and registering a vehicle in South Carolina.

Section 56-19-24 of the South Carolina Code of Laws, which can be found at http://www.scstatehouse.gov/code/t56c019.php, regulates the application for a certificate of title for any vehicle registered in South Carolina. As of January 1, 2012, this Code section has been amended to require a South Carolina license or state issued id to obtain a vehicle registration.  A few exceptions are provided for out of state active military, students and temporary or part time residents.  The Code does provide a way in which a business can register a vehicle, but the business must provide a federal id number (FEIN) or social security number. In order to get a clear explanation of the requirements, the best thing to do is to contact the DMV or go to http://www.scdmvonline.com.

Keep in mind that these new requirements only apply to new vehicle registrations. Therefore, if you already have a vehicle registered and you think these new requirements could affect you it is important to keep your registration in good standing. This means you pay your car taxes, keep your car insured, and if you buy a new vehicle, then transfer your tags.

As a side note, some people have complained about increased property taxes. Property taxes for home and vehicles are assessed based on a millage rate based on the monetary needs. Local governments set these rates and use the money to support schools and other local government services. Jasper County for example raised their millage rate, so do not be surprised to see a rise in property taxes if you live in Jasper County.

 

Disclaimer: This article was written for informational purposes only. It is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the specific details of your particular situation can provide legal advice. The goal here is to give you a basic roadmap to the legal issues you may confront and should be aware of.

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Traffic Stop FAQ

First and foremost I must advise anyone who gets pulled over by a police officer to be respectful and mindful of the officer’s duty. We do not advise getting into a heated confrontation with a police officer on the side of the road.  You should be courteous to the officer, and remember that you can always fight the charges in court, but you are not going to win many battles on the side of the road. I have answered some commonly asked question below, but realize that this is general information and simply because you have a right to question something, does not make it the best choice.

·         If I am stopped by the police are they required to tell me why they are stopping me?

Yes, the  police officer should tell you why you are being pulled over. That does not mean that he cannot write you a ticket for a different offense if it is discovered after the stop.

·         If they stop me for a broken tail light or something similar do I have the right to verify that the equipment is not working?

Your best course of action is to go to a reputable mechanic immediately and have the problem reviewed and a statement issued in writing by the mechanic that the equipment is working properly.  The mechanic would have to appear personally at court for his testimony to be allowed.

·         When stopped by law enforcement should I ask if they are recording the stop on video and/or audio?  If so what are my rights and ability to use the video/recording if I want to dispute a stop?

Most police cruisers are now equipped with recording equipment.  The recording equipment is supposed to turn on with the blue lights.  You can certainly ask if the stop is being recorded but this is only likely to escalate the situation.  You can request a copy of the video and/or audio recording by filing the appropriate requests with the Court and the Law Enforcement agency that made the stop and use the recording at the trial of your case.

·         If I receive a traffic ticket under what circumstances is it appropriate to challenge the fine in court?   What should I do to prepare for court?

Fighting a ticket is a matter of weighing the cost/benefit depending on the amount of the fine and pints for the charge. If you appear at your court date you can request the minimum fine or reduction in your fine.  The judge can not reduce the points assessed against your license but can assess the lowest fine allowed by law.  To prepare for court you should have any documentation or witnesses you intend to use in your case available on the appointed court date.  Make sure to dress appropriately. While a coat and tie is not required, we usually recommend church attire.

·         During a traffic stop can police ask for payment when issuing a ticket?  If so how should I protect myself to ensure the payment was documented?

Certain agencies are allowed to require that you post a bond on the side of the road, such as the South Carolina Highway Patrol and the  South Carolina Department of Natural Resources.  In the event the police ask for payment you should make sure you get a receipt indicating the money paid was for the ticket issued.

·         If I am stopped for a false reason such as a broken equipment that is really working, can police charge me with additional charges if the initial reason they stopped me was false?

The police can charge you with anything they find illegal after making a lawful traffic stop.  Assuming you could prove the underlying charge was illegal and you were wrongfully stopped, then you can beat the other charges as well.

·         If I have been stopped before does that give police reason to stop me again?

If you are doing something illegal, then yes.  If the same officer pulled you over yesterday for not having a driver’s license or driving under suspension, for example, and sees you driving today, he can pull you over again.

·         What is probable cause?

Sufficient reason based upon known facts to believe a crime has been committed.

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Federal Government to Review 300,000 Deportation Cases

The new plan, which some are calling the Amnesty Plan, is meant to identify low priority offenders which do not fall within the goal of deporting those individuals who pose a threat to public safety. Section 287(g) of the INA allows the Department of Homeland Security to enter into agreements with local police, like the Beaufort County Sherriff’s Office, in order to assist in the deportation of violent criminals. Beaufort County has one of these agreements in place and we should see a shift in how the officers enforce immigration laws in the future.

The Department of Homeland Security announced the establishment of a joint committee with the Department of Justice that will review roughly 300,000 cases of illegal aliens in removal proceedings in order to determine which cases are low priority cases.

While we are still waiting to see the real world application of this strategy, we can presume that the initiation of deportation for an illegal alien who was arrested for a minor traffic violation should no longer be prosecuted in immigration court. Other cases that should be categorized as low priority include cases with minors, individuals who entered the country at a young age, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services and individuals with serious disabilities or health problems.

Furthermore, guidance will be issued to ICE officers to ensure that they appropriately exercise discretion when determining whether a low priority case should be followed in immigration court. This new strategy is meant to free up resources in order to prosecute and deport those individuals who are a public threat and are in the country illegally. Anyone with a felony conviction or record of violent crimes will be considered a high priority case.

This effort will lead to a better apportionment of criminal justice resources. Money that was being spent deporting aliens who are not a safety threat will be used to ensure the deportation of violent felons. While this is not the answer to the Country’s immigration troubles, it should alleviate the Immigration Court’s dockets and increase the effectiveness of 287(g).

If you have a question regarding how this may affect you or a family member’s deportation proceeding, please call Jenkins & Esquivel, PA at 843-815-3500

Disclaimer: This article was written for informational purposes only. It is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the specific details of your particular situation can provide legal advice. The goal here is to give you a basic roadmap to the legal issues you may confront and should be aware of.

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Landlord/Tenant and Owner/Association Relationships

In this article I will outline both landlord/tenant and homeowner/association relationship. Lack of knowledge about the relationship can lead to problems. In order to avoid this you must read and understand the rental agreement, covenants, by-laws, and/or state laws governing the relationship. Make sure any additional terms discussed make their way into the written agreement before signing it, and always keep a copy for your records. If you are unsure about any terms governing the relationship, it is best to seek the advice of a licensed attorney in order to understand the restrictions and rights that you will have upon entering into said relationship.

The relationship between landlords and tenants is one of mutual responsibility. This relationship is controlled by the Residential Landlord-Tenant Act that serves as a blueprint, along with the agreement executed by the parties. The landlord can be the owner of the property or a property manager hired by the owner, either way, the terms of the agreement and the state laws apply to anyone enforcing the terms of a landlord tenant relationship.

Landlords may add terms to leases and rental agreements that are not included in the Residential Landlord and Tenant Act provided they are not forbidden by law. There are no limits on the amount of a security deposits, but deposit must be returned to the tenant within 30 days of the termination of tenancy (make sure to leave a forwarding address). Landlords have the right to enter the home of a tenant only if the landlord gives the tenant 24 hours notice, there is an emergency, the tenant has abandoned the property, or the landlord is making needed repairs and informed the tenant of these before entering her apartment. The landlord must keep the property in compliance with all building codes affecting health and safety. The landlord must also make any repairs necessary to keep the property habitable. Furthermore, all common areas must be kept reasonably safe and clean.

Tenants are responsible for keeping their units clean. They must not cause any damage to the unit, other than normal wear and tear. They must abide by the laws, meaning not use the property for illegal purposes or be disruptive to the neighbors.

If the rental agreement does not explicitly address the terms of tenancy, the rental agreement runs month to month. Otherwise, the rental agreements can state whatever terms and conditions the landlord and tenant agree to as long as they are not prohibited by law.

If you are having an issue with your landlord you should first review the terms of your rental agreement, to see if your issue is covered. A discussion, followed by a letter detailing your complaints, is a good way to start trying to negotiate and resolve your issues.

If you are a homeowner you typically belong to the homeowners’ association (HOA) for that development. Membership is automatic with the purchase of a home in the development. As a homeowner and a member of an HOA, you have certain rights and responsibilities. An HOA is necessary to keep property values and the quality of life in your condo building or subdivision as high as possible. Most HOAs are organized like corporations and have a bylaws, board of directors (elected by the members), meetings, minutes, strict record-keeping and annual budgets.

Homeowners have the right to elect a board of directors to lead the HOA. Board members serve for the length of time indicated in the HOA’s bylaws and can usually be removed by the homeowners in certain circumstances.

A homeowner has the right to: use common property, such as a common clubhouse and recreational facilities; access any disciplinary process set up by the HOA; enforce any covenants or agreements that affect your property directly; challenge any rule changes made by the HOA.

As a homeowner, you have a responsibility to comply with the provisions of the declaration of covenants, conditions and restrictions (CC&Rs), which is a document that you signed when you purchased the property. The CC&Rs set out restrictions on what you can do with your property, such as what colors you can paint your house and how high your fence can be.

If you want to do something you’re not sure is acceptable under the CC&Rs, or you want to stop your neighbor from doing something you’ll want to start by reading the CC&Rs in detail.

If the association board is not following the rules, you should talk to an individual board member or property manager on the property and then follow the conversation up with a letter detailing the exact issue. Maybe the board members don’t know that they are doing something wrong.

To do something outside of the rules, you will probably have to ask the board for a “variance” and go through a formal hearing process. Getting other homeowners to support your position can be very helpful in doing this.

If all else fails, you’ve always got the option of trying to vote in new board members at the next HOA election. If you’ve exhausted all your other options, look for a lawyer who has experience dealing with homeowners’ associations, and who encourages you to keep negotiating rather than jump right into court.

Disclaimer: This article was written for informational purposes only. It is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the specific details of your particular situation can provide legal advice. The goal here is to give you a basic roadmap to the legal issues you may confront and should be aware of.

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