Blalock Walters Review â€” Third Quarter 2012

We are pleased to welcome Principals Mark P. Barnebey, Esq. and Scott E. Rudacille, Esq. to the firm. They joined our firm’s Land Use, Local Government, and Real Estate practice areas bringing a wealth of expertise represent-ing clients in all aspects of local government law and the land development approval process.

Mark, who is past Chair of the City, County and Local Government Section of the Florida Bar, will head up the firm’s Local Government Practice Group. He currently serves as City Attorney for the City of Palmetto, special counsel for the Manatee County School Board, and counsel for several special and community development districts. He was the senior land use attorney for Manatee County for over thirteen years.

Scott’s practice areas include land use, local government, and administrative law, repre-

senting both private and public sector clients. He currently serves as counsel to a number of local government entities, including the Lakewood Ranch Inter-District Authority and the Riverwood Community Development District. He has represented the City of Palmetto on various items including work with the Community Redevelopment Agency, Planning and Zoning Board, and the City Clerk.

Mark and Scott have attained the distin-guished AV Preeminent Rating by Martindale-Hubbell® which is a well-established peer review system spanning over a century. Ratings attest to a lawyer’s professional legal ability and ethics, and reflect the confidential opinions of members of the Bar and the Judiciary. Additionally, both attorneys are Board Certified in City, County and Local Government Law by The Florida Bar.

“We are delighted that attorneys of the caliber of Mark and Scott have joined us. Their reputation for integrity and their common sense handling of client matters will deepen our ability to respond to our land use and governmental clients. We at Blalock Walters have always considered them friends; now we are pleased to call them our colleagues.” -- Cliff Walters

W E M A K E A D I F F E R E N C E . THIRD QuARTER 2012 VoLuME VI, EDITIoN 2

BLALOCK WALTERS REviEW

The Supreme Court Has Ruled - What Now?

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Message From The Partners Page 3

Social Media in the Workplace... Labor Board Issues Warning

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Friday Night Bowling with the Blalock Walters Team

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Cliff Walters Elected Chair of Ringling Board

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Your Estate Plan: Try To Avoid Small oversights That Can Turn Into Big Headaches

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Marisa Davies is Quack-tastic! Page 7

Matt Westerman Earns Board Certification In Labor And Employment Law

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Mark Barnebey Receives Prestigious Ralph Marsicano Award

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Mark Barnebey and Scott Rudacille Aid Clients in obtaining Commission Approvals

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Blalock Walters Wins The Most Miles Walked Award

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New Marketing DirectorPage 11

Calendar of EventsPage 11

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inSidE ThiS EdiTiOn

Blalock Walters Welcomes Principals Mark Barnebey and Scott Rudacille, Board Certified in City, County and Local Government Law

Mark P. Barnebey, Esq. Scott E. Rudacille, Esq.

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The Supreme Court’s June 28, 2012 ruling has “put to bed” the constitutionality of the Patient Protection and Affordable Care Act (ACA) or “obamacare” as it has come to be known. The nearly split 5-4 opinion of the court, authored by Chief Justice Roberts,

upheld the constitutionality of the ACA’s central features, i.e. the individual mandate and the expansion of Medicaid. (With the exception, however, that states which refuse to expand Medicaid will no longer forfeit their existing Medicaid funding. These states will only forego the receipt of additional federal monies.)

What does the Court’s holding really mean for Americans moving forward and does it impact the future of health care? Certainly from a constitutional law and insurance regulation perspective, the Court’s holding was historic. Beyond that, however, the Court’s final determination was to some degree irrelevant to the changes that are already occurring within the fabric of health care in the united States. Many changes have already been occurring within health care while the nation has been focused on the political fight surrounding obamacare. During the research and writing of my new book, The New Health Age: The Future of Healthcare in America, several “eye opening” trends and transformations became abundantly clear, regardless of the ACA. The dynamic flow changes outlined in the book will continue to drive dramatic changes to America’s state of health and our health care system as a whole. The changes ahead may in fact accelerate subsequent to the Court’s holding, but the trends are irreversible nonetheless.

First, America’s per-capita spending on health care when compared to other industrialized nations in the world is the highest (nearly 18 percent of GDP). In the 1970s, the average American consumed approximately $400 a year on health care. Today, it is approximately $8,000. These costs are crippling the public and private sectors and significant changes are occurring to bring down health care spending.

Second, when analyzing America’s population as a whole, the return on the nation’s investment for such high spending is far from impressive. Let’s examine just one example. Increase to the chronic disease rates in the u.S. is startling. For instance, the rate of new cases of type 2 diabetes has nearly doubled in the u.S. in the last decade. These new cases mirror the increase in America’s obesity rates (nearly two-thirds of Americans are overweight), and obesity is a leading cause of the blood sugar disease. Even more alarming is that childhood obesity has risen to such a level that some health officials predict that the current generation of kids may enjoy shorter lifespans than their parents. This fact is eye-opening and counters any claim that our disease rates are tied to an aging population. The issue goes much deeper.

Third, there are less economic drivers in the health care system to foster superior efficiencies and higher payments to the top performers when compared to other marketplaces. Throughout the 20th century, few payers of health care services paid physicians or other health care providers for keeping Americans well or for preventing disease – the best ways to ultimately drive down costs. The old model was to pay physicians for the treatment of disease and for sickness versus paying doctors for prevention and wellness. The models of the future will focus on health management and prevention, regardless of the ACA.

the Supreme Court Has Ruled – WHat noW?

Jonathan D. Fleece, Esq.

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To ensure compliance with Treasury Department regulations, we advise you that, unless otherwise expressly indicated, any tax ad-vice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii)

promoting, marketing or recommending to another party any tax-related matters addressed herein. This publication is not intended as legal advice, which may often turn on specific facts. Readers should seek legal advice before acting with regard to the subjects mentioned herein. Citations omitted due to space limitations but available upon request.

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MeSSaGe FRoM tHe PaRtneRS

Everyone talks about “Wellness”, but how many are

walking the walk? Well I am proud of the folks in the

Blalock Walters family who joined the Tampa Bay

“Walk to the Moon” initiative earlier this year. Many

are continuing to improve their health by walking and

working out on a sustained basis. others have ceased

smoking, are losing weight, and are watching their health

numbers. our summer fun activity involved testing our

bowling expertise at the local bowling alley, where it became

clear many had room to improve but all had a good time.

our traditional Friday morning donuts have evolved to fruit

smoothies, yogurt, and fresh fruit. We can make a difference

when we are healthier, alert, and focused on serving clients.

So as we come out of this great recession we are leaner,

faster, and ready to up the ante in serving our clients. We

live in a great community and we so appreciate our many

clients who support us. We owe it to you to be the best

we can be and that starts with good health!

Clifford L. Walters, Esq.

Today, for the most part, the top performing health care professionals get paid the same as the low performing professionals. Name one other free market business sector where top producers earn the same as low producers. Imagine a baseball player batting .100 getting paid the same as a .333 hitter. Do you think the players union would tolerate that? Physicians should not either and will not have to down the road. Those who produce higher quality results in health care will earn more in the years ahead, regardless of the ACA.

on the efficiency side of things, when Americans want access to their financial information, nearly every banking location in the country can pull up personal data for their customers. Is this the same for health care records? No. Medical records can hardly be shared electronically within a local community, much less across the country. The increased connectivity and availability of health care information will transform health care in countless ways in the future.

So while the Supreme Court’s ruling is profound by constitutional law and by insurance regulatory standards, it is far less relevant to the future of health care because so many changes are and will continue to occur despite the ACA or obamacare.

Jonathan Fleece is a board certified Health Law attorney at Blalock Walters. He is also co-author of The New Health Age: The Future of Health Care in America. Follow Jonathan on Twitter @JonathanFleece.





on May 30, 2012, the Acting General Counsel of the National Labor Relations Board (the Board) issued his third report on social media. In this most recent report, the General Counsel analyzed several cases where the Board found that employer social media and

computer use policies ran afoul of the National Labor Relations Act (NLRA).

In short, the NLRA grants employees (both union and non-union) the right to engage in “protected concerted activity.” These protected activities include the right of employees to freely and openly discuss issues related to their wages, hours and other terms and conditions of employment. The Board takes the position that the protections of the NLRA extend to employees’ use of social media networks.

The General Counsel provided numerous examples of policy provisions that infringe on employees’ NLRA rights, including provisions for: • Generally condemning the posting of “offensive, demeaning, abusive or inappropriate remarks on-line.” Rationale: The provision is overly broad and potentially could restrict an employee’s protected right to criticize its employer’s treatment of employees. • Requiring that information shared about the company is completely accurate, not misleading, and non-public. Rationale: The provision would be reasonably interpreted to apply to discussions about a criticism of the employer’s treatment of its employees. • Preventing an employee from commenting on company legal matters, including pending litigation or disputes. Rationale: The provision restricts employees from discussing the protected subject of employee claims or grievances against the employer.

• Instructing employees not to share confidential information with co-workers, including rates of pay, schedules, bonuses, etc. Rationale: Such a provision prohibits employees from discussing information regarding the terms and conditions of their employment. • Cautioning employees not to post information about which they are uncertain and to resolve any doubts as to whether they should post that information by checking the designated personnel. Rationale: Any rule that requires employees to secure permission from an employer as a prerequisite to engaging in protected activity violates the NLRA. • Cautioning employees to treat everyone with respect by refraining from posting offensive, demeaning, abusive, or inappropriate remarks on-line and reminding them that they are expected to abide by the same standards of behavior in the workplace as well as in their social media communications. Rationale: The provision restricts communications that would include protected criticism of the employer’s labor policies and treatment of employees.

In light of the Board’s position, we recommend that our clients review their existing policies and procedures to ensure compliance with the NLRA. It is important to avoid the use of broad or vague terms and to specifically limit the scope of any restrictions. It is also necessary that policies are drafted in such a manner that reasonable employees will understand the policies prohibit only unprotected activities (e.g. racial slurs, sexual remarks, disclosure of trade secrets, etc.).

Blalock Walters can effectively assist you with your employee handbook and policy audits. Please contact Matt with any questions you may have.

Social Media in the Workplace... Labor Board Issues Warning

Matthew D. Westerman, Esq.

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Cliff Walters has been elected as the 2012 Chair of the Board of Directors of The John and Mable Ringling Museum of Art Foundation, Inc. The John and Mable Ringling Museum of Art is one of the largest museum complexes in the nation. It preserves the legacy of John and Mable Ringling, educating and enabling a large and diverse audience to experience and take delight in a world-renowned

collection of fine art; Ca’ d’Zan; the historic mansion; the Circus Museums; the original Asolo Theater; and historic architecture, courtyard, gardens and grounds overlooking Sarasota Bay. We are privileged to have the world-renowned Ringling Museum of Art in our community. To lead this organization in the coming year is an incredible honor and responsibility.

Cliff Walters elected 2012 Chair of Ringling Board

Employees enjoyed a great Friday night bowling party as part of our fun and active summer company events. There were prizes and awards for low score/high score winners! A good time was had by all.

FRIday nIGHt BoWLInG WItH tHe BLaLoCk WaLteRS teaM





Part of what we do at Blalock Walters is assist surviving family members with administrative matters after the death of a loved one. It’s at that point in time when the effectiveness of the decedent’s estate plan is tested. So, to help our clients develop estate plans that will

actually operate as efficiently as they intend, we try to raise our clients’ awareness that sometimes small oversights can cause big headaches later, for example …

1. Be sure that beneficiary designations on life insurance policies, IRAs, annuity contracts and “payable on death” accounts are complete. Regrettably, we often find that many clients fail to include the name of a “contingent” beneficiary. The designation of a contingent beneficiary can help avoid probate and can often provide tax benefits as well.

2. Don’t forget to account for small real estate holdings, such as undeveloped lots, oil and gas leaseholds and timeshares. It is generally not difficult to plan for these interests to pass outside of probate. Also, many clients find that the sale or other disposition of these assets while living makes the most sense. Either way, what’s most important is that these items not be overlooked during the planning process.

3. Be careful of “joint accounts”. In many cases, the surviving joint owner of a decedent’s bank account will have legal rights to 100% of the account balance. This result may not have been the deceased owner’s intention. There are several planning alternatives that can avoid this result and at the same time accomplish the objective of allowing administrative access to the account during the decedent’s lifetime.

4. Be sure to make your wishes known regarding your tangible personal property. Many clients have Wills that refer to a “separate writing” which (ideally) lists certain items the person intends to pass to named individuals. However, very few people actually take advantage of the conveniences offered by a “separate writing”. If you have certain personal items (jewelry, photos, artwork, etc.) that you wish to pass to certain named persons, you will be doing a great service to your designated personal representative if you use the “separate writing” format to state your preferences. Much creativity is evolving in this area, as we see some clients utilizing digital video technologies to express their wishes regarding their personal effects.

There are other examples of small oversights that can add cost and inconvenience to the administration of a loved one’s final affairs. As counselors, please don’t hesitate to call upon us for assistance... we can guide you to attend to the details of your estate plan, and help you make a difference as well.

Tony’s law practice is in the areas of Estate Planning, Charitable Giving and Estate and Trust Administration, with an emphasis on Estate, Gift and General Skipping Transfer Taxation. His services incorporate the post-document counseling and attention to detail required for clients’ estate plans to achieve intended results. Tony’s background affords him the opportunity to thoroughly counsel clients in matters relating to the preservation of wealth for their benefit as well as for the benefit of their loved ones and intended charities. Please call or email Tony with any questions on your estate planning needs now or in the future. [email protected]

your estate Plan: try to avoid Small oversights that Can turn Into Big Headaches

Anthony D. Bartirome, Esq.

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We are pleased to welcome our law clerks John Bernhardt and Austin Marshall Eason.

John Bernhardt attends Washington and Lee University School of Law and is expected to graduate with his Juris Doctor in May 2013.

Austin Marshall Eason attends University of Florida Levin College of Law and is expected to graduate with his Juris Doctor in May 2013.

WeLCoMe to ouR SuMMeR aSSoCIateS

Adopt a Duck. Help a Girl!

The 3rd Annual Lucky Ducky Race benefitting PACE Center for Girls was held last month. The ducks raced down the river on July 14th at Tarpon Pointe. As a Pace board member, Blalock Walters’ litigation attorney Marisa Davies personally pledged to help PACE adopt 100 ducks this year and exceeded her goal. The race was a family event with many free activities. The grand prize was a $5,000 gift card to Publix!

PACE Center for Girls of Manatee County is located on 26th Street West in Bradenton and has served over 1,200 girls since opening its doors in 1989. PACE Manatee strives to partner with community leaders to not only increase awareness of the needs of girls, but to provide our girls with new opportunities. Visit www.pacecenter.org

Marisa davies is Quack-tastic!





Principal Matthew D. Westerman has earned board certification in labor and employment law by The Florida Bar Board of Legal Special-ization and Education. Matt is the first board certified labor and employment attorney based in Manatee County, Florida.

Board certification recognizes special knowledge, skills and proficiency in a particular area of law as well as professionalism and ethics in practice. Just seven percent of eligible Florida Bar members are board certified in one or more of 24 areas of law. Board certified

attorneys are the only Florida lawyers permitted to identify or advertise as “Board Certified”, “Specialist” or “Expert”.

Minimum requirements for certification include at least five years in law practice; a satisfactory showing of substantial involvement in the field for which certification is sought; a passing grade on the examination; a satisfactory peer review; and satisfaction of attorney continuing legal education requirements.

Matt counsels businesses in virtually every aspect of the employer-employee relationship. He defends corporations in harass-ment, discrimination, retaliation and wage-hour litigation matters and represents clients before federal, state and local administrative agencies. He also provides guidance on labor and employment law compliance matters and assists companies with their day-to-day employee relations issues.

Matt received his Juris Doctor from Stetson university College of Law and a B.A. in Psychology from the university of Central Florida. He is a member of the Manatee County and St. Petersburg Bar Associations and the Labor and Employment Law Section of The Florida Bar.

All of us at Blalock Walters are proud of Matt’s accomplishment which demonstrates the expert level of skill and experience he brings to our clients. Certification is the highest level of evaluation by The Florida Bar.

Matthew Westerman earns Board Certification In Labor and employment Law

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Congratulations to Mark Barnebey as the 2012 recipient of the prestigious “Ralph A. Marsicano Award”. Mark was presented with the Award at the City, County, and Local Government Law Section

Meeting in St. Augustine, Florida.

The Ralph A. Marsicano Award honors Marsicano who served Tampa for more than 30 years as an assistant city attorney, and often as acting city attorney. This is the highest honor given by the City, County and Local Government Law Section of The Florida Bar to a local government law attorney.

During his career, Mark has received the George W. Simons, Jr. Award by the Florida Planning and Zoning Association, which is the highest honor granted by that statewide organization, for contributions to

planning and land use for the State of Florida. He was also awarded The Florida Bar’s Paul S. Buchman Award for outstanding contributions to local government law.

Mark Barnebey Receives Prestigious Ralph a. Marsicano award

We are pleased to welcome RACHEL W. LAYTON, AICP to the firm who has joined at-torneys Mark Barnebey and Scott Rudacille in our Land Use and Local Government Practice Areas. Rachel is a certified plan-ner with the American Institute of Certified Planners and holds a Master’s Degree in Urban and Regional Planning from Florida State University. She is a past

President of the Florida Planning & Zoning Association and currently serves on the Executive Board. She is also a member of the American Planning Association and the Florida Trust for Historic Preservation. Previously, she was a planner with Design Team West, and Mike Carter Construction. Rachel brings industry experience, certification, and specialized skills to the firm having been in the field in various capacities, strengthening our firm’s expertise in these practice areas.

BLaLoCk WaLteRS WeLCoMeS CeRtIFIed PLanneR

RaCHeL Layton





on June 7, 2012 the Manatee County Commission approved site plans for two significant projects in northern and eastern Manatee County presented by attorney principals Mark Barnebey and Scott Rudacille in Blalock Walters’ Land Use Group.

Mark, who was formerly the senior land use attorney for the County, was involved in the 102-home Rye Road Subdivision which was approved at a density of nearly three units per acre east of Rye Road. The project was challenged at public hearing by those who wanted to see a lower density development and threatened litigation against the County.

Scott was involved in the redesign of the struggling Cross Creek project. This development was unanimously approved for 1282 units of residential development. This was the first project to include multi-family residential development on Fort Hamer Road.

Blalock Walters’ Land Use Group - Mark Barnebey, Scott Rudacille and Will Robinson, who are all Manatee County natives, are available to assist you with your project development needs related to a Development of Regional Impact, rezoning, a special approval, a variance, or other permitting issues in Southwest and Central Florida.

Mark Barnebey and Scott Rudacille aid Clients in obtaining Commission approvals

Blalock Walters won the Most Miles Walked Award in the Tampa Bay WALK to the MooN Challenge. The Walking Challenge kicked off a new bold and inspirational national initia-tive called THE RACE to a HEALTHY AMERICA (www.theracetoahealthyamerica.org) with “The Goal to make America the healthiest country in the world by 2025.”

The event ignited enthusiasm for a healthier lifestyle leading to a prolonged quality of life. A health-ier Tampa Bay, and a healthier America, is good for us all!

Blalock Walters Wins the Most Miles Walked award

Jonathan Fleece (right) presenting the award to Challenge Chair Stephen Perry (left).

Blalock Walters Tampa Bay WALK to the MOON Challenge Committee.

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Blalock Walters is pleased to welcome Marketing Director Mary Monzingo to the firm. Mary will lead the firm’s marketing and public relations initia-tives for the Bradenton and Sarasota offices. She was previously marketing manager for an Am Law 200 full- service law firm based in Southwest Texas, and has held prior marketing and senior level management positions for law firms for over 20 years.

Mary’s extensive background in the legal industry brings a high level of experience and professional service, and we are pleased with her addition to the Blalock Walters team. Her position will enhance our ongoing efforts to reach out to our valued clients and to the community. Mary is a member of the Legal Marketing Association, the American Marketing Association, and the Association of Legal Administrators. She is also on the Green Business Initiative Committee of the Manatee Chamber of Commerce and the Communications Council of The Greater Sarasota Chamber of Commerce.

new Marketing director



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Blalock Walters Wins the Most Miles Walked award CaLendaR oF eventS

June 20Mark Barnebey, Scott Rudacille and Rachel Layton presented

Planning in a Nutshell to the Florida Planning & Zoning Association

July 20Jonathan Fleece presented The New Health Age:

The Future of Health Care in America at The Greater Sarasota Chamber of Commerce Trustee Forum

July 28

Jonathan Fleece was keynote speaker on The New Health Age: The Future of Health Care in America at the

Florida Medical Association 2012 Annual Conference

august 14Jonathan Fleece was keynote speaker at the Association of Staff

Physician Recruiters annual conference in Los Angeles, CA

august 15Jenifer Schembri was a featured panelist at the August

Executive Briefing of Lakewood Ranch Business Alliance on “What Is the Best Use of Your Organization’s

Professional Dollars?”

august 19Michael Magidson is presenting Selecting a Business Entity:

An Overview at The Florida Physical Therapists in Private Practice Annual Conference

august 21

Michael Magidson is presenting Selecting a Business Entity: An Overview

at Anna Maria Island Chamber of Commerce 2012 Small Business Development Expo

october 10-13Blalock Walters is sponsoring the Ringling International Arts Festival

Documents

Blalock Walters Review â€” Third Quarter 2012