In its 35-page ruling, the court overturned its landmark 1984 decision in Chevron v. Natural Resources Defense Council, which had given rise to the “Chevron doctrine.” That doctrine had required courts to uphold an agency’s reasonable interpretation of an ambiguous statute. But in the new ruling, the court, led by Chief Justice John Roberts, rejected the Chevron doctrine as “fundamentally misguided.”

Justice Elena Kagan dissented, warning that the court’s decision would cause a “massive shock to the legal system.” She was joined in her dissent by Justices Sonia Sotomayor and Ketanji Brown Jackson.

When the Chevron decision was first issued over 40 years ago, it was not seen as particularly consequential. But it eventually became one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times. While the decision was initially welcomed by conservatives, it later became a target for those seeking to limit the power of the administrative state.

The Chevron decision, which upheld the Reagan-era EPA’s interpretation of the Clean Air Act that eased emissions regulations, was initially praised by conservatives. However, the ruling later became a target for those seeking to limit the administrative state’s power. These critics argued that courts, not federal agencies, should determine the meaning of the law.

In his opinion, Chief Justice Roberts rejected the idea that agencies are better suited than courts to resolve ambiguities in federal laws. He emphasized that Congress expects courts to handle technical statutory questions, with the benefit of briefing from the parties and “friends of the court.”

Moreover, Roberts noted that even if courts should not defer to an agency’s interpretation of an ambiguous statute, they can still consider that interpretation under the Skidmore deference doctrine.

Finally, Roberts characterized the Chevron doctrine as “unworkable” and not worthy of being upheld under the principle of stare decisis. He argued that it is too difficult to determine whether a statute is truly ambiguous, a key criterion for applying the Chevron framework.

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In Florida, the lease, rental, or licensing of commercial real property is subject to state sales tax. This tax encompasses any payment made for the privilege to occupy or utilize the property, including base rent, additional rental fees, and other mandatory payments specified in the lease agreement. Any lessor of real estate must register with the Florida Department of Revenue before engaging in business or entering into a commercial lease.

Over the years, the sales tax rate on commercial rentals in Florida has gradually decreased. Currently set at 4.5%, the state tax on commercial property rentals will be further reduced to 2% effective June 1, 2024. Initially slated for July 1, 2024, this reduction aims to benefit businesses operating in Florida.
Despite the reduction in the state tax rate, counties that impose a surtax will continue to apply it. In 2024, surtax rates vary from 0.5% to 1.5%, with the exception of Collier County, which eliminated the surtax by the end of 2023.

It’s essential to note that each commercial rental property location is considered a distinct entity and necessitates its own tax certificate. While Landlords or their representatives are usually responsible for registering, collecting, and remitting the tax, tenants may become liable for the tax if the landlord fails to meet these obligations. This scenario, known as use tax, may become a concern during a sales tax audit. Lessors and lessees of commercial rentals should carefully review lease agreements for clauses relating to sales taxes, including the tax base calculation and applicable tax rates.

The business rental tax, encompassing rentals of commercial office or retail spaces, warehouses, self-storage units, and mini-warehouses, does not cover sales and use taxes on parking lots, boat docks, and aircraft hangars, as separate regulations govern these categories.

The post Florida’s Reduced Commercial Rental Sales Tax first appeared on Brent Levison.

1. Definition of Hazardous Materials/Hazardous Substances

It’s important to have a clear definition of hazardous materials in the lease agreement. The definition should align with the applicable laws and regulations governing the use, storage, and disposal of hazardous materials. This will ensure the tenant’s compliance with environmental laws, minimize the risk of liability, and protect the property’s value.

2. Compliance with Environmental Laws

Commercial landlords need to ensure that their tenants are compliant with all applicable federal, state, and local environmental laws and regulations related to hazardous materials. The lease agreement should require tenants to obtain all necessary permits and licenses, regularly submit compliance reports, and maintain proper records. By doing so, landlords can protect themselves from potential fines, legal penalties, and reputation damage.

3. Allocation of Responsibilities

It’s essential to clearly allocate responsibilities between the landlord and tenant regarding hazardous materials present on the property. The lease agreement should outline which party is responsible for handling, storing, and disposing of hazardous materials, as well as any required cleaning and remediation. This will help avoid confusion and disputes regarding liability when it comes to hazardous materials on the property.

4. Indemnification and Insurance

Commercial landlords should protect their investments by requiring tenants to indemnify and hold them harmless from any liability resulting from hazardous materials on the property. Tenants should also be required to maintain adequate insurance coverage to cover any potential risks associated with hazardous materials. The insurance should include general liability and environmental impairment liability insurance.

5. Inspection and Remediation

Commercial landlords should have the right to inspect the property for potential hazardous materials and require remediation if necessary. The lease agreement should outline the process for inspections, remediation, and any associated costs. This will ensure that the property is properly maintained, comply with environmental laws, and preserve its value.

In conclusion, negotiating environmental matters such as hazardous materials provisions in retail and office leases requires careful consideration of the legal and environmental risks involved. Commercial landlords should be proactive in protecting their interests by carefully drafting lease agreements that allocate responsibilities, mitigate potential liabilities, and protect the value of their investments.

The post Top 5 Considerations for Commercial Landlords When Negotiating Hazardous Materials Provisions in a Retail or Office Lease first appeared on Brent Levison.

AI is the simulation of human intelligence by machines, especially computer systems. AI chatbots such as ChatGPT are a new technology that is rapidly transforming the internet industry and many job functions across all industries. Chatbots are computer programs designed to simulate conversations with human users and are already replacing human workers in the workplace.

Most of us have been using AI without knowing it. When drafting an email or text message and there are spelling/autocomplete suggestions for sentences, that is AI at work.

Members of the corporate world and Congress have recently expressed concerns about the dangers of AI. They are concerned about AI technologies causing harm, such as facial recognition, that can be used to violate privacy rights. Yet, as of today, no bill has yet been proposed in Congress to protect individuals from the potential harm caused by AI. The aged old problem remains with technology that most lawmakers are just now learning what AI is.

The Federal Trade Commission (FTC) has issued consent orders against companies that have used AI in deceptive ways. In one case, the FTC issued a consent order against a company that deceived consumers about its use of facial recognition technology and its retention of the photos and videos of users who deactivated their accounts.  The FTC has also proposed commercial surveillance rules to restrict the collection of data used in AI technology. 

The FTC has recently issued guidance warning advertisers not to make false or unsubstantiated claims about AI products. The FTC highlighted four major considerations: (1) do not exaggerate what your AI product can do; (2) do not promise that your AI product does something better than a non-AI product without adequate proof; (3) know about the reasonably foreseeable risks and impact of your AI product before putting it on the market (“If something goes wrong – maybe it fails or yields biased results – you can’t just blame a third-party developer of the technology. And you can’t say you’re not responsible because that technology is a ‘black box’ you can’t understand or didn’t know how to test”); and (4) consider whether a product actually uses AI. If a product is not actually AI-enabled, then do not claim that it is an AI product. Merely using an AI tool in the development process is not the same as the product having AI in it. The guidance concludes: “You don’t need a machine to predict what the FTC might do when those claims are unsupported.”

AI is currently being used in the legal industry in many ways, such as assisting with document processing and classification for a wide range of legal matters, including due diligence, contract and document review, contract management, and deal analysis.

This raises the optimistic question: Can AI replace attorneys?

Unfortunately, my answer is no. To the best of my knowledge, AI cannot (at least not yet) do the following, which are done and billed by attorneys:

• Confer with clients to determine their objectives and concerns
• Discern best strategies and avenues to be explored
• Determine what claims are being made in the advertising which require substantiation or confusion to consumers
• Review & Edit an agreement to advance the client’s interests
• Identify potential copyright, trademark and right of publicity issues and provide risk mitigation strategies 
• Provide a risk assessment to a client, such as the risk of a challenge by regulators, competitors or consumers
• Take into account a client’s risk tolerance when providing legal advice

Moreover, an AI chatbot cannot provide legal advice under the rules of professional conduct, meaning no protection of attorney-client privilege for any conversations that a client may engage with an AI chatbot.

Unfortunately for some, despite the advances being made by AI, including in the legal profession, currently, it is unlikely that AI will be able to replace the legal profession. There are differences between providing general legal information and delivering legal advice specific to a client’s needs. AI is adept at building on what has been done before but lacks the creativity and abstract thinking that are required for many legal needs. And some would argue that AI lacks the human touch (more than a lawyer) that embodies or at least creates the important attorney-client relationship and privileges.

The post AI Replace Attorneys first appeared on Brent Levison.

The Use Clause and Exclusive Clause

Landlords typically want to limit how you’ll operate from the rented space. The limitations can be as broad as what type of business you’ll conduct there, as narrow as what specific services or products you’ll offer, or as subjective as the quality level of your operation. A use clause can be either drafted as a restriction on how you do business—stating what you can’t do—or drafted as prescription, describing what you must do.  In general, a tenant wants to avoid strict limitations on the use of the leased premises and keep flexibility and optionality available for growth and business changes, etc.

An exclusive clause in your favor is a commitment by the landlord that only you and no one else in the shopping center or the building may engage in a particular type of business or carry a certain type of merchandise or at least the clause limits the square footage area and gross sales of other tenants on the sale or offering of certain “exclusive” items in order to protect your use and operations.

Restrictive Use Clause

A restrictive use clause states what the tenant is prohibited from doing, such as selling food (or using the space for office purposes). You’re free to do anything that’s not on the list usually subject to any existing exclusive uses at the Shopping Center.

You may be subject to other restrictive use clauses e.g. if the landlord has granted other tenant(s) an “exclusive” clause—a promise that the landlord won’t rent any space to another tenant whose use would compete with the tenant.

Permissive Use Clause

The Permissive use clause states in the Lease what you can do and, by implication, makes any other operations not permitted. It puts the burden on the tenant to carve out every conceivable use at the time you sign the lease. This type of use clause can be very problematic to a tenant, since it can restrict you to a narrow line of operations.

Use Clauses That Help Your Business

Use limitations and provisions are important to negotiate carefully and draft in a very concerted way. Most tenants want protection from competitors or incompatible businesses. For example, an ice cream parlor business could be negatively affected by an ice cream store that opens for operations next door or if you’re a doctor leasing space in a professional building, you want to protect your professional image by having the landlord agree to rent only to compatible tenants such as other professionals or pharmacy or home care equipment rental services.

Obtaining Your Own Exclusive Clause

There’s no reason not to negotiate for an exclusive use clause for yourself. Please keep in mind any existing tenants operating at the Shopping Center will not be subject to your exclusive use since your lease is signed post the other existing tenant leases.

An exclusive use clause is only strong as its remedies, you’ll want to ensure that the landlord agrees to promptly enforce it should another tenant breach its restrictive use clause (and thereby violate your exclusive). Your lease should spell out remedies against the landlord for this type of situation—for example, reduced rent, an option to reduce the lease term or terminate the lease.   Please note the landlord will want a cure period and you should insist on a very limited “cure” period. Most importantly, you’ll want an established amount of monetary damages that you don’t have to prove—the last thing you want is to go to court to prove how much business you lost because another tenant moved into your exclusive.   Please note that most landlords will want to carve out “rogue” tenants from these exclusive use remedies and tenant should do it best to keep the time frame to cure limited and damages strong as it is very likely a competing business will have a negative financial impact to your operations.

The post Types of Use Provisions – Commercial Lease Agreement first appeared on Brent Levison.

This year Ethical Governance Day will be held on October 18th, 2022, in Miami, Florida, and after two years of only virtual presentations because of the pandemic, I was invited as a distinguished speaker to participate in the event with the Miami-Dade County Public Schools. You can go to their website if you are interested in participating in upcoming events.

I will be making my way into high-school classrooms to address students on the importance of civic participation and engagement to ensure ethical governance and support our democracy.

Civic participation is vital to the health of a democracy. It is essential for citizens to be informed and engaged in the decisions that affect their lives. When people are involved in their communities and in the political process, they are more likely to be satisfied with the direction of their country and trust their government.

Civic participation also helps to ensure that government policies and programs are effective and responsive to the needs of the people. When citizens are involved in the policymaking process, they can provide valuable input on the issues that matter most to them.

Finally, civic participation can help to build social cohesion and community spirit. When people come together to work for the common good, they can develop a sense of pride and ownership in their community. This can lead to increased cooperation and collaboration, and a stronger sense of community.

The post This year Ethical Governance Day at Miami-Dade County Public Schools first appeared on Brent Levison.

LGBTQ advocates sued Yeshiva to compel it to recognize the YU Pride Alliance as a university club with funding and listing in school publications. Yeshiva refused, explaining that its mission “is to instill Torah values in its students.” Yeshiva welcomes LGBTQ students, but it will not put the university’s imprimatur on clubs or activities — such as gambling, video games, or sex outside traditional marriage — that violate timeless Torah values.

Yeshiva University’s position wasn’t adopted by the majority of the justices and the decision was clear for now that Yeshiva University cannot bar an LGBT student club from ordering the Jewish school in New York City to officially recognize the group.

The decision appeared to direct the case back to the state court system. “The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief,” the decision said.

Conservative Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett dissented. Liberal Justice Sonia Sotomayor had temporarily blocked the lower court’s order last Friday while the justices considered the university’s request.

Supreme Court Justice Samuel Alito did something justices almost never do. He hinted at how the court would rule in a future case. 

Alito made the uncharacteristic statements that if Yeshiva University loses to the YU Pride Alliance in New York state courts, the Supreme Court will “likely” take the case, and “Yeshiva would likely win.”

I write as a graduate of both Cardozo School of Law which has a  long history and ongoing support for LGBTQ+ rights and also as a graduate of Yeshiva University which had successfully petitioned the Supreme Court for a temporary stay of a state trial court’s preliminary injunction requiring it to allow a Pride Alliance student organization at its undergraduate religious school. Unlike Yeshiva University’s undergraduate division, which has a religious educational program, the law school has a secular curriculum and a diverse population, and the University’s policy has no bearing on the law school or on the vibrant student OUTLaw or LGBTQ+ alumni organizations.

It is difficult as a person who connects with all types of people and craves being around and associated with diverse individuals to reconcile my steadfast commitment to diversity, equity, and inclusion with Yeshiva University’s position. I recognize that LGTBQ+ students and alumni play a critical role in our community and believe that inclusion and equality are cornerstones of all education, including, undergraduate and legal education, and am hopeful that Alito’s stunning prediction doesn’t come to fruition.

The post US Supreme Court requires Yeshiva University to allow LGBT student club first appeared on Brent Levison.

The Doctors and researchers at Nationwide Children’s Hospital are an elite group of individuals who are extremely skilled knowledgeable and passionate, and the donation amounts go into research that is conducted daily in the laboratory to find a cure for this disease.

What is Amyotrophic Lateral Sclerosis (ALS), or the Lou Gehrig’s Disease?

Amyotrophic lateral sclerosis (ALS), additionally called motor neuron disease (MND) or Lou Gehrig’s disease, is a neurodegenerative disease that results in the progressive loss of motor neurons that manage voluntary muscular tissues.

ALS is the most common type of MND. Early signs and symptoms of ALS include stiff muscular tissues, muscle twitches, muscle wasting, and gradually increasing weakness. Limb-onset ALS starts with weakness in the arms or legs, while bulbar-onset ALS starts with difficulty talking or swallowing.

50% of the people diagnosed with ALS develop difficulties with thinking and behavior, and approximately 15% develop frontotemporal dementia. The affected muscular tissues are responsible for chewing food, talking, and walking. Motor neuron loss goes on until the ability to eat, speak, move, and finally the ability to breathe is lost. ALS in the end causes paralysis and early death, typically from breathing failure.

My father who was diagnosed with this disease passed away in 2009 after battling ALS for 20 years. He believed that he was diagnosed with this disease for a purpose and that purpose was to find a cure.

We started the event in 2002 with my father and this event has been the catalyst to raise awareness and money.   This event is known as the 5k Run/Walk for Lou Gehrig’s Disease fundraiser and in the years since its inception has raised over $250, 000 for research at Nationwide Children’s Hospital.

If you are interested in helping, click on this link to find a Walk/Run event near you.

The post Donation – Nationwide Children’s Hospital first appeared on Brent Levison.

The term “artificial intelligence” was coined in 1955 by John McCarthy and Marvin Minsky, and they defined it as “the science and engineering of making intelligent machines.”

The goal of AI is to create intelligent machines that can do things that would require intelligence if done by humans.

Document Review

AI is already being used in the legal field. AI helps lawyers with document review by scanning millions of documents and flagging the ones that need a lawyer’s attention.

Legal Research

Lawyers are using AI to help them with legal research and to make the process faster and more efficient. They use AI for predictive coding, which means that it helps them find relevant documents faster.

Process Cases

The use of AI writing and machine learning content is becoming more prevalent in the legal field. Lawyers are using these technologies to help them process cases faster and more accurately. They can also use these technologies to take care of the mundane tasks that they don’t have time for

Draft Documents

AI writing is being used to generate legal documents. This eliminates the need for lawyers to do research manually and instead focus on what they are best at – creativity and emotions.

Robots will change the future of law and how they are already being used today. They will not replace lawyers but instead help them to do their jobs better.

Robots are already being used in many different ways in the legal field. They can help with research, discovery, and other tasks that make a lawyer’s work easier.

The legal profession is one of the most impacted by AI and automation. The idea of a future where machines replace lawyers has been discussed for decades, but now it’s becoming a reality.

The post The Role of Artificial Intelligence & Robots in the Legal Field first appeared on Brent Levison.

“Operating Expenses” mean all costs and expenses of every kind and nature owning, operating, managing, repairing, insuring, securing and maintaining the Center, the Common Areas and other portions of the Center include, but not limited to the following:

• REA
• Lighting/signing
• Cleaning/janitorial/trash removal
• Painting, striping, parking lot cleaning
• liability insurance/ personal/ property/ workers comp etc.
• payments as required by Governmental Authorities;
• maintenance, repair and replacement of utility systems serving the Center, including water, sanitary sewer and storm water lines and other utility lines,
• maintenance, repair or replacement of awnings, paving, curbs, walkways, landscaping, roofs, walls, drainage, pipes, ducts, conduits
• administrative costs attributable to the Common Areas for on-site personnel and an overhead cost equal to fifteen percent (15%) of the total costs and expenses of operating, managing, maintaining and insuring the Center.

CAP ON TENANT’s PERCENTAGE SHARE OF CONTROLLABLE OPERATING EXPENSES

In no event will Tenant’s payment of Tenant’s Percentage Share of Operating Expenses increase by more than the Operating Expense Cap. The Operating Expense Cap will only apply to controllable Operating Expenses and will in no event apply to any cost or expense related to insurance, utilities, waste collection, security, weather related maintenance, compliance with changes in Governmental Requirements or any other cost or expense not controllable by Landlord. In addition, the Operating Expense Cap will not apply to Real Estate Taxes.

CUMULATIVE V. NON-CUMULATIVE

Cumulative Caps

Landlords prefer cumulative caps, as it provides maximum flexibility in deciding what costs will benefit the shopping center. A cumulative cap sets a ceiling on the annual increases in CAM expenses that can be passed on to a tenant.

Most importantly – the “cumulative” nature of this cap allows the landlord to recover any unused increases from prior years.

Example, let’s say that the landlord and tenant agree to a 5% cumulative cap. If CAM expenses increase by 3% in year 1, then the tenant would pay the 3% increase. If CAM expenses increase by 10% in year 2, then the tenant would pay a 7% increase. This is because, in addition to the 5% cap, the landlord can recover the 2% increase that went unused in year 1.

Non-Cumulative Caps

Tenants prefer non-cumulative caps, as they want to budget and avoid unexpected increases in CAM expenses.

A non-cumulative cap sets a ceiling on annual increases in CAM expenses and does not allow the landlord to recover any unused increases from prior years.

Example, if the landlord and tenant agree to a 5% non-cumulative cap in the example above, the tenant would pay the 3% increase in year one and just a 5% increase in year 2.

CONCLUSION

During lease drafting & negotiations, pay close attention to whether the tenant is proposing a non-cumulative cap. Also be careful to understand the other factors that go into negotiating a CAM cap, such as determining what costs will be included and excluded from the cap. The failure to do so can make a big economic difference over a lease term.

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