City of Clay Ordinance Banning Pit Bulls Under Fire

            

            The city of Clay recently passed an ordinance which bans “vicious” or “dangerous” dogs, and specifically includes language banning any and all pit bull breeds, whether a particular pit bull dog is vicious/dangerous or not.  Upon reviewing the ordinance, which you can read here, several issues jump out. 

First and foremost is the outright banning of pit bulls dogs, without regard for the nature of a particular dog.  There are two schools of thought on the safety of pit bulls.  Some believe that pit bulls have an innate, natural tendency to be vicious.  Certainly, news reports would lead one to believe that a high percentage of dog attacks involve pit bulls.  Others believe that any dog can be made to be vicious if treated improperly, and any dog, including pit bulls, can be made to be well-behaved if treated with love and proper training.  There are certainly countless pit bulls that have never exhibited improper, unprovoked aggression.

            Another problem with the ordinance is the manner in which dogs falling under the classification of “violent” or “dangerous” must be kept.  The ordinance incorporates a “grandfather” clause which, to some extent, exempts currently present pit bulls or “dangerous” dogs from the ban.  However, these dogs must be registered with the city, and are subject to strict requirements.  For instance, these dogs must be either kept indoors or must be held in pens or structures outside.  A regular fence will not do.  The ordinance specifically requires the structure to have a roof or other secure top, and either a secure bottom or sides that extend at least two feet into the ground.  The door must lock with either a key or combination lock.  The owner must place a sign on the property stating “Beware of Dog.”  The city must be provided with color photographs of the dog and any puppies born of such a dog must be removed from the city, within six weeks of birth.  Remember, these are not requirements for a dog that has bitten or attacked someone.  These are requirements for any pit bull. 

            Most people would agree that keeping residents of Clay safe from a dangerous dog is extremely important.  It’s an issue that needs to be addressed, and laws aimed at effectively accomplishing this should be enacted.  Most cities have “leash law” ordinances which require dogs to be on leashes when not secured inside a house or fence.  These are generally good laws, wisely aimed at protecting the citizens from wandering dogs.  Opponents of this particular ordinance, as adopted by Clay, argue that it fails to accomplish this same interest as narrowly as it could. 

            Clay city attorney Alan Summers has presented some alternatives, the most important of which is to remove the breed-specific language from the ordinance.  Such a change would effectively limit the ban to “dangerous” or “vicious” dogs only, with some guidance on establishing whether a particular dog fits the bill.  

Do You Really Have a Right to Remain Silent?

            

            Anyone who has watched an episode of Law & Order, NYPD Blue, or Miami Vice has heard those famous words: “You have the right to remain silent; anything you say can and will be used against you in a court of law....”  As you may know, it’s known as “Mirandizing” a suspect, a term coined from the Supreme Court case that ruled that police are required to make these and other disclosures prior to “custodial interrogation.” 

            Most attorneys, if given the chance, would advise their client to do just that – remain silent.  Little good can come from running your mouth in a situation where the police have already decided that you’re their man (or woman, just to be fair).  You’re probably not going to talk your way out of the mess, at least not right then.  So both practically and legally speaking, the prudent thing to do is to remain silent. 

            But what if your silence could be used against you to demonstrate your guilt to the jury later on?  In a case before the Supreme Court, prosecutors in Texas had successfully used a defendant’s silence to help prove him guilty of murder to a jury.  The trial court judge had allowed the prosecution to argue that by remaining silent in response to questions by police, the defendant basically admitted his guilt.  This particular defendant had been freely talking to police until the officer asked him if certain shell casings were going to match a rifle that he had.  It seems that the defendant then realized the possibility of a ballistics match for the first time and also realized he may be in trouble after all.  So he did exactly what he thought he had the right to do – remain silent.  Importantly, he had not yet been arrested, and therefore had not been advised of his rights (Mirandized), nor were the police obligated to Mirandize him at that point. 

But the issue in front of the Supreme Court is whether or not that right to remain silent extends to the time prior to the arrest.  Some of the comments of the individual Justices indicate that there is a possibility that the Court may determine that your pre-arrest silence can be used against you to prove guilt.  Is it good policy (or even Constitutional) for the police to be able to question you prior to arrest, and then be allowed to use either your answers or your silence against you in court?  It seems that such a ruling by the Court would place future suspects in a Catch-22.  Either talk to the police and risk incriminating yourself, or don’t talk to police…and risk incriminating yourself.  

Soft Drink Ban Tossed Out by New York Court

            If you have travel plans to New York City coming up, good news!  It appears that you will still be able to buy a large soft drink while eating out.  Mayor Michael Bloomberg’s administration had famously banned “sugary” drinks larger than 16 ounces from being served in restaurants, street vendors, and other venues within the city.  With 20 oz or larger drinks being the norm for most restaurants, this was setting up to be a major problem for consumers and businesses.  However, the state court declared that such a ban on large drinks was “arbitrary and capricious” and ruled that the city was permanently restrained from implementing or enforcing the regulation on drink sizes. 

            The bottom line is, the judge reasoned that, along with this regulation being difficult to uniformly enforce, the administration’s unelected Board of Health was tasked with issuing regulations to help deal with the imminent threat of disease – and that soft drinks, and the effects they can have on health, didn’t fit the bill.  And as soft drink loving citizens all over the country have been arguing since this foolishness came to light, if such a ridiculous regulation is to be the law, it at least should come from the legislature…so that the will of the people has at least a chance of being considered.  And maybe so that the lawmakers can be voted out in the next election.  

Drunk Driving in Sweden

          Is it possible to use a high tolerance for alcohol as a defense to a drunk driving charge?  A defendant in a Swedish criminal court did just that.  He apparently is in the habit of drinking "six small snapps" of beer and an additional amount of traditional mulled Swedish wine (called glogg) every day before work.  He was eventually pulled over for it and, as you would expect, his blood-alcohol content (BAC) was 5 times the legal limit in Sweden.  He was arrested and charged with a form of aggravated drunk driving.  

          In his trial, he used as his defense the fact that he was such a heavy drinker that he had developed an extremely high tolerance for alcohol and was therefore not inebriated or impaired.  The judge apparently agreed and dismissed the charge against him, setting him free.  I wonder if he drank six more small snapps of beer as celebration that night....

          So could a similar defense work in Alabama?  The short answer is, probably not.  Alabama DUI law sets forth five statutory methods to be charged with DUI, and they are found in Ala. Code section 32-5A-191(a)(1) through (a)(5).  The first two deal with alcohol related impairment, while the last three deal with other substances used alone or in conjunction with alcohol.  We'll focus on the alcohol-related ones here.  (a)(1) prohibits being in physical control of a vehicle with 0.08 percent or more by weight of alcohol in the bloodstream.  (a)(2) generically prohibits being in physical control of a vehicle while "under the influence of alcohol."  In theory, one could argue to a judge that "six small snapps" of beer and an additional amount of traditional mulled Swedish wine does not cause you to be "under the influence of alcohol" however it may be tougher to get past that per se limit of the 0.08 percent limit found in (a)(1).  For the most part, if your BAC is 0.08 or above, it's tough to win your case on the argument of how much you have consumed, and your attorney is better off attacking the procedures the police used leading up to the blood alcohol test.  

Want My Blood? Come Back With a Warrant!

         
           Does the 4^th Amendment protect citizens suspected of driving under the influence from having a blood sample taken without consent and without a warrant?  In case you missed that day in your high school Civics course, the 4^th Amendment generally protects citizens against unlawful searches and seizures.  That means that in order for the police to conduct a search or seize property, the individual must either provide consent, or a judge must issue a warrant based on probable cause.  There are many exceptions to the rule (a search incident to an arrest, plain view searches, emergency – or exigent – circumstances, etc.) but for the most part, without prior consent or a warrant, the police are prohibited from conducting a search or seizure of property. 

In the past, blood has been treated as the property of an individual for 4^th Amendment purposes, and therefore a warrantless sampling (or seizure) of that blood would be unlawful, and therefore inadmissible in court.  However, the Supreme Court is taking a look at a case where a Missouri police officer ordered a hospital lab technician to take a sample of blood from a DUI suspect, even though the suspect had refused to volunteer the sample.  No warrant was ever granted, nor even applied for.   As you may have anticipated, the suspect’s blood-alcohol content (BAC) was well over the legal limit and the prosecution intended to use the BAC result in the trial.  The defense filed a motion to suppress the blood test results, citing an unconstitutional search/seizure.  The government argued that the rate of dissipation of alcohol in the blood stream required a quick sample, and was therefore an emergency situation.  The Supreme Court must now determine whether the results are admissible, given the nature in which they were obtained.

Comments from the oral arguments, which occurred today, suggest that a majority of the Justices are skeptical of the constitutionality of a warrantless blood sample.  Both conservative and liberal Justices grilled the attorney for the state about the intrusiveness of needles, and the ease at which a warrant could have been obtained if the officer had just picked up the phone.  From reading the transcripts of the statements made by the Justices, it appears that most, if not all, are uncomfortable with the 4^th Amendment being trumped by the convenience of law enforcement.  Of course, as demonstrated last year, until the formal opinion is issued, comments and questions by the Justices should be taken with a grain of salt.  

Seeking a Solution to Violence

           What is the appropriate response to tragedies such as the one that occurred in Newtown, Connecticut last Friday?  Certainly, the best immediate response is to pray for those whose loved ones were ripped away in a matter of minutes.  And, of course, to be thankful that your family is safe.  But what can we do as a society about these man-made tragedies, which seem to occur over and over again?  One argument would be to strengthen gun control.  To me, that sounds like taking a pill to treat the symptoms, instead of addressing the disease itself.  Mass killings have happened throughout history, long before handguns and semi-automatic rifles existed, or as President Obama would say, back when men fought with “horses and bayonets.”  To be sure, knives and swords have surely killed far more people than guns have.  So we can’t really blame mass shootings on the weapons themselves.  To draw on a tired cliché, guns don’t kill people, people kill people. 

            So back to my earlier question.  What can we do as a society about these tragedies?  It’s not just the Connecticut shooting.  It was the Aurora theater shooting back in July.  Columbine 13 years before that.  The NFL's Javon Belcher's murder-suicide earlier this month.  Here in Birmingham, a local restaurant owner recently took his mother’s life and then his own.  Just last week in Birmingham, a federal courthouse employee committed suicide in front of his coworkers.  Over the weekend, in separate incidents, several gunmen were killed by police, one at a local hospital in Birmingham.  A quick reading of the newspaper articles on these events suggests that in nearly all of them, the shooter was suffering from some level of mental disease or distress.  That’s not excusing the crimes.  All of the shooters likely knew what they were doing at the time.  But whether you look at Dylan Klebold and Eric Harris from Columbine High School 13 years ago, James Holmes from the Aurora movie theater massacre, Adam Lanza in the Newtown shooting, or any of the murder-suicides or other recent shootings, there is a thread that seems to connect them all.  Extreme mental distress or disease during the period of time leading up to the shooting.  An argument can be made that strong restraints on gun ownership could have prevented one or more of these incidents.  But an equally strong argument can be made that each of these tragedies would have unfolded in the exact same way.  The sad truth is a motivated killer will find a way to accomplish what he wishes.

            In the wake of most of these tragedies, there has been a common theme: those acquainted with the killer either suspected serious mental issues or knew of the fact that the killer was, in fact, a ticking time bomb.  It was the case at Columbine, it was the case in Newtown, and, tragically, it will probably be the case in the next shooting, unless we as a society are willing to take responsibility for those around us.  Mothers and fathers need to be involved with their children and understand what’s going on in their lives and in their heads.  Wives need to be aware of changes in their husband’s behavior, and husband’s their wives.  Coworkers need to be familiar enough with other coworkers so that trouble can be spotted before it erupts.  Actions must be taken by those family and friends.  Warning signs can't be ignored or explained away.  To this lawyer and writer, admittedly untrained in the ways of the mind, this seems to be the only viable way to get to the actual disease that has infected society for so long now.  I know the solution may not be as simple as I just stated, but it can’t be as simple as taking guns away either.  

How Does Marijuana Legalization Affect Businesses and Universities?

            When a state passes a law making recreational use of marijuana legal, what does that mean for schools, businesses, and other entities located within that state?  This very issue is being raised in several states, such as Colorado, that have recently legalized marijuana.  To completely understand the issues at hand, it’s important to realize that marijuana remains illegal under federal law.  Even if Colorado state law allows personal marijuana use, federal law does not.  To take that a step further, some believe that businesses involved with federal contracts or receiving federal grants, as well as educational institutions/universities could lose their federal funding and research funds if marijuana is used by those employees or other personnel.  After Colorado legalized marijuana last month, University of Colorado president Bruce Benson explained that "marijuana threatens to cost the university nearly a billion dollars annually in federal revenue, money we can ill afford to lose.”

            Another issue is whether employers will be able to terminate an employee who tests positive for marijuana in a state where it has been legalized.  In some states, like Alabama, an employer has the ability to terminate an employee for almost any (non-discriminatory) reason.  Some states, however, specifically forbid an employee from being terminated for any private conduct that is legal.  These laws are generally aimed at preventing an employee from being fired for smoking or drinking while away from the office, but with the legalization of marijuana, these employment laws may need to be reexamined, especially given the conflict between an activity that is legal under state law but remains illegal under federal law.  Should an employer to be required to retain an employee who (now legally) smokes marijuana after work?

            With every election bringing another handful of states deciding on whether to keep marijuana use criminalized, it will be interesting to see how states move to protect employers and universities, in particular those relying on federal funding, that wish to prohibit marijuana use.

My Take on the Secession Talk

            

            One of the reactions from last week’s election is the growing buzz over states seceding from the Federal government of the United States.  What started with a handful of residents of individual states has now erupted into hundreds of thousands of people signing petitions calling for their state to secede.  To be clear, these petitions are not supported by the governors or legislators of the individual states, and they have no legal significance whatsoever.  They are aimed at forcing the Obama administration to issue a response to the frustrations of these Americans who believe the country took a wrong turn last week.  And they may actually accomplish that very thing, as the Administration had previously said it would respond to any filed petition that accumulated at least 25,000 signatures.  Alabama and several other states have already reached this mark, and I would expect some type of response from the Obama administration, although it will probably be as meaningless as the petitions themselves. 

            Legally speaking, it is unlikely that it is even possible for a state to secede from the United States.  The Civil War began, of course, in part, when several states actually declared their secession and the United States rejecting the legality of such.  Following the end of the Civil War, the United States Supreme Court, in Texas v. White briefly addressed this very issue, stating that “[w]hen, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States…. Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

            The republican governors and legislators of these states have called the petitions “silly” and “non-productive" and they're probably right.  But similar petitions have been started after previous elections of both democratic and republican presidents and we will see them again in 4 years.

Political Speech, the IRS, and Churches

            Most people are aware of the fact that churches (as not for profit entities) risk forfeiting their non-profit status if a pastor urges his congregation to vote in a particular way.  It’s why your pastor may have urged you to vote, maybe even in a manner reflecting the specific scripture or tenants of your faith, but stopped short of naming the candidate you should vote for.  Here is a link to an interesting read about the Internal Revenue Service’s enforcement (or lack thereof) of these rules prohibiting churches from endorsing specific candidates for political office. 

            The rules prohibiting churches or their leaders from political speech are controversial to many people, for both “religious integrity” and free-speech reasons.  However, according to this AP article, the IRS has avoided enforcement of these rules for a number of years.  Attorneys involved in these types of cases claim that they are unaware of any investigations into partisan statements by churches during this time.  In fact, hundreds of pastors have directly endorsed a candidate from the pulpit and sent a recording to the IRS, in an attempt to force the IRS’s hand (and as protest to the IRS rules).  So far, the IRS has never investigated, or even contacted one of these pastors.  Very interesting, especially given the intense campaign our country is emerging from.

Regulation Nation - Smoking Outlawed in Private Residences

           

            How far should government regulation go in our lives?  Over the course of my lifetime, government regulations on the aspects of our everyday lives have gone from being more or less non-existent to being - arguably – overdone.  Wearing seatbelts is mandatory.  Nutritional data must be placed on all packaged foods.  It seems like construction permits are required by municipalities for anything more complicated than Windexing a window.  Of course, some of these regulations are great.  They protect individuals from being harmed by other people. 

            One of the latest trends in regulations (although it’s actually been going on for decades) is the prohibition against smoking in public places.  Restaurants, hotels, retail stores, etc. are typically places where smoking is prohibited by ordinances.  Recently, the city of San Rafael, CA banned smoking in private residences that have multiple units within them.  My understanding of the law is that free-standing, single-family houses are not subject to the law.  However, apartments, condominiums, duplexes, and any other living arrangement that utilizes “shared walls” are subject to the restriction.  For the record, I am a non-smoker.  Smoking just doesn’t appeal to me, and I generally like the fact that I can go to a restaurant without smelling cigarette smoke.  If I were to be totally honest, philosophically speaking, I do have concerns over a privately owned restaurant not having the say so on whether smoking will be allowed by private citizens within its premises.  However, I am able to rectify that with the fact that the restaurant (or hotel or retail store), while private property, is open to the public, and thus, perhaps, subjects itself to such regulation.  I don’t know that I totally agree with that idea, but I can understand it. 

However, I cannot understand how a private residence can be subject to such restrictions.  Nothing about a condominium or duplex is open to the public, even if there are “shared walls.”  Certainly, there may be instances where the ventilation between two units causes problems with smoke, but isn’t that just the nature of having neighbors?  Should we also ban the cooking of ethnic food in units with “shared walls” and “shared ventilation” systems?  Unless and until the government decides to completely ban the smoking of cigarettes (which is unlikely due to the revenue gained from cigarette taxes, not to mention constitutional issues), it seems unfair and hypocritical to whittle away at the locations that a person can smoke.  After all, a man’s home is his castle, even if the castle walls are shared by another king. 

Supreme Court Decision May Force Us All Into The Black Market

            Hold your breath.  After a flurry of landmark decisions in June of this year, the Supreme Court is back in session…and with plenty more landmark cases in store.  By its very definition, the Supreme Court of the United States only hears “important” cases.  It’s not likely that my dispute with my homeowners association over who should repair my mailbox light would ever be deemed worthy of the Supreme Court.  However, many of the cases decided by the Supreme Court only impact a select few citizens, or maybe only those directly involved in the case.  The unique thing about the June session was that so many of those decisions directly impacted all of us.  The Court issued rulings on healthcare and illegal immigration, just to name a couple.  The October session kicks off with a case on affirmative action (use of racial factors in determining college acceptance), and also is scheduled to address the federal Defense of Marriage Act, which, among other things, allows states to choose not to recognize a gay marriage from another state and federally defines marriage as between a man and a woman for purposes of federal benefits and rights.  If the Defense of Marriage Act is overturned, states could be forced to adjust their treatment towards gay marriages. 

            One important case that won’t get as much attention as some of the others but impacts our lives just as much is our right to resell an item to another person.  We’ve all done it – maybe on eBay, half.com, Amazon, or the old fashioned yard sale.  You don’t use that video game console anymore.  You haven’t worn that shirt in years.  Resell them and make a little money.  A long-standing concept called the “first sale” principle has been recognized to allow citizens to resell this property as they see fit, once it has been purchased.  After all, it is yours.  The U.S. Circuit Court of Appeals ruled that for foreign made items (almost everything in your house, as it turns out), the “first sale” principle does not apply.  So in order to resell the foreign-made item without violating laws, the owner must obtain permission from the manufacturer.  Good luck getting Sony to grant you permission to sell that Playstation 3 on eBay.  And I’m sure getting permission to sell those shirts made in Thailand at your yard sale for $3 will be a breeze. 

            I can’t help but think that the Supreme Court will issue its ruling in a way to preserve our freedom to resell our own stuff, and thus prevent eBay and the like from going out of business.  The last thing our country needs right now is a whole sector of the economy to be deemed “illegal.”  As we’ve seen, regardless of the evidence presented and the letter of the law, our Supreme Court is more than happy to manipulate the law to achieve whatever result it wants, and I think they will do the same here.

Red-Light Cameras Turned Off In Center Point

            Not that you would ever do such a thing, but anybody driving through Center Point can run red lights without the fear of a discreet camera snapping your picture and sending you a ticket.  For the last year or so, these cameras have given hundreds of tickets to drivers, who are not even aware that they have been caught until it arrives in the mail.  Now, the city has “voluntarily” turned off the cameras while the courts are straightening out the procedures for handling the tickets and fines.

            The camera ticketing process begins when a sensor senses a car in the intersection during a red light.  A camera snaps a picture and transmits the offense to the city clerk, who mails a ticket to the car’s registered owner.  Unlike regular tickets, the offense costs no points on the driver’s abstract, but also is not handled in court, in the event the owner disputes the offense.  Instead, an administrator in Center Point would hear the case.  So why have the cameras been turned off?  Judge Lichtenstein of the District Court in Jefferson County, who handles appeals from municipalities, has ruled that in order for the administrator to have authority, an amendment to the state constitution is required.  So the city has turned the cameras off because after Judge Lichtenstein’s order, there would be no ability for a citizen to appeal one of these mailed tickets.

            An issue I would like to see addressed is how these mailed tickets can be issued without any evidence proven in court.  Even a picture is not typically admissible in court without some form of foundation – some showing of how the picture came into being, who took it, etc.  This foundation is a basic principle of the rules of evidence and these rules have apparently been cast aside in the realm of intersection cameras.  Nobody actually takes the photo of the offender, and I doubt whoever is behind the technology of the camera will travel from California to testify in a case.  So it’s the word of the offender against…nobody.  I’m interested in what the result of a case would be if a frustrated and stubborn citizen (like myself) refused to pay the ticket and demanded a hearing on the evidence, based on his due process rights.  How would the prosecutor go about proving a case with no testimony whatsoever regarding the who, what, when, where, and how?

Yanking a Sick Player’s Scholarship Offer?

          

           There was a small news story last week about a high school football player, named Matt Beyer, being recruited by Oklahoma. Beyer was offered a football scholarship by Oklahoma, only to have it yanked away after he was diagnosed with a spinal chord condition.  When you hear of something like this, your first instinct may be to recoil in disgust at the actions of a football coach who would do such a thing.  It’s one thing to renege on a scholarship offer to a player who has been arrested, or had other character issues.  But is it acceptable for a coach to backtrack on a scholarship offer to a player suffering from an injury or illness? 

            Let’s be clear, this is not a question of legality.  An offer is only verbal, and neither the school nor the player is legally obligated until the player signs on the dotted line in February.  But a coach’s decision to take back a scholarship offer because of an injury or illness may not be as evil as it sounds.  A school is only allowed to grant 25 scholarships for each incoming freshman class (and only 85 scholarships for all players on the team).  So it’s hard to blame a coach for not wanting to use one on a player that will be unable to contribute.  After all, this is a team sport, and the other players are trusting that their coach will find the best players to fill those scholarship spots, in order to put a championship team together. 

            However, there may be an even better reason for a coach to pull an offer in this case.  For every Matt Beyer out there, suffering from an injury or illness, there is another high school player waiting in the wings that would give (and maybe has given) everything he has to try to earn a scholarship.  For that player, an offer from Alabama, Auburn, or Oklahoma could change his life or perhaps even his family tree.  While you feel for Beyer who has been hit with the double whammy of his diagnosis and missing out on his dream of collegiate football, you have to be happy for that next kid in line that just got the break of his life – a newly available scholarship offer from Oklahoma. 

Enjoy Your Milo's Tea While It Lasts

          

            Forgive me if the tone of this post sounds depressed, but things may be changing soon and maybe not for the better.  Anybody who knows me can tell you that my favorite fast food restaurant is Milo’s.  Every [original] item they serve is world famous, and rightfully so.  The hamburger, with that brilliant extra piece of meat.  The perfectly seasoned fries, generously overfilling the paper bag. The delicious sauce (or “gravy” as my wife referred to it after her first encounter) that goes so perfectly with both the hamburger and fries.  And, of course, Milo’s Famous Sweet Tea.  So good it’s sold in stores all over the South, there are people who go to Milo’s only for the tea.  I don’t drink tea regularly at home or any other restaurant - only Milo’s. 

            So now that I’ve decided what I will eat for dinner tonight, I must address the problem that may be impacting all of Alabama soon.  Recently, Milo’s (legally known as Milo’s Franchise Co., LLC) filed a lawsuit in Jefferson County against Milo’s Tea Co., Inc.  To better explain this, about 10 years ago, the “restaurant division” split with the “tea division,” forming two distinct entities, so that each could focus on what they do best – either providing the restaurant experience or making excellent sweet tea.  As part of that arrangement, Milo’s Tea Co. would provide tea to Milo’s restaurant franchises.  Now the restaurants want to produce their own in-house tea brew, instead of purchasing the tea from Milo’s Tea Co.  Milo’s Tea Co. has demanded that the restaurants stop serving non Milo’s Tea Co. tea in Milo’s cups.  The restaurants want to be able to serve their own tea brew in Milo’s cups.  

            I don’t know if the new tea is better, worse, or indistinguishable from what we are accustomed to, but in my experience, messing with a good thing usually makes things worse (see New Coke formula from the 1980’s).  In any event, this suit can’t be good for the public image of Milo’s.  My hope is that each company will recognize its need for the other - and I can continue to enjoy my Milo's tea, with my #1 combo, minus the onions, with 4 extra sauces.

Landlords and Pit Bulls

           

            It will come as no surprise to most people that landlords often prohibit their tenants from keeping pets on the rented property.  For the most part, this is to prevent pet damage, stained carpets, etc.  A less familiar, but equally important, reason for such restrictions on pets is the potential for liability, especially with so called “vicious dogs.”  And when it comes to dogs, we all know that pit bulls have a reputation (fair or not) for being an especially vicious breed. 

            There is a recent trend of cities passing laws banning pit bulls altogether.  In Maryland, the state legislature recently passed a law labeling pit bulls as “inherently dangerous” and increasing the legal liability imposed on pit bull owners – and their landlords – for dog bites caused by pit bulls.  As you would expect, the reaction of landlords, in fear of finding themselves on the business end of a dog bite law suit, was to send out letters to tenants, demanding that the pit bulls be removed from the rental property or face eviction.

            I’m not sure where I stand on the idea of pit bulls being inherently dangerous.  Certainly, we hear stories of pit bull attacks all the time.  But do we hear these stories because pit bulls truly are more dangerous, or because an attack by a pit bull grabs headlines better than an attack by a beagle? 

            I don’t believe you can blame the landlords for requiring the removal of the pit bulls.  In a society where a huge money judgment from a dog bite case can cost the landlord everything he/she owns, how do you expect the landlord to respond?  Demanding the removal of the dog is an act of self-preservation, and it’s wise, legally speaking.  The harsh truth is, these pet owners now have to make a choice between giving up their beloved pet – or moving their family out of their home.  It’s the result of a legislature passing a law intended to protect people, but instead, making their lives more difficult.  Sound familiar?

(The picture at the top is of my dog, Max, and yes, I know that he is not a pit bull.)

FAQ for Landlords

A large part of my practice involves assisting landlords throughout the rental process.  I have written before on tips on being a successful landlord.  I also have a portion of my website devoted to this topic.  Here are several questions (and my responses) involving some of the issues that seem to come up time and time again as I represent landlords. 

Prior to Renting

Q: Is there a way I can run a credit check or background check on a prospective tenant?

A: Yes.  There are multiple websites (just search "tenant credit check") where you can purchase a credit report of a prospective tenant.  The cost ranges from $20-$40 depending on how much information you are seeking.  You should require the tenant to pay this upfront as an application fee, and also make sure you have the tenant sign a statement (included on the application itself) authorizing you to have these checks conducted. 

Q: What information do I need to collect from a prospective tenant before renting to them?

A: I recommend having a standard application form filled out.  The most important pieces of information are 1) full name, 2) multiple phone numbers, 3) social security number, 4) date of birth, 5) current employment information, and 6) prior landlords.  All of this information will be useful in screening the person prior to renting or collecting on a money judgment after evicting.  Email me at matthornsbylaw@gmail.com and I can provide you with an application form. 

Q: Where can I get a residential lease agreement?

A: Email me at matthornsbylaw@gmail.com and I will be happy to provide you with a tried and true lease agreement.

Q: How do I know what terms/provisions to use in the lease agreement?

A: Your best bet is to ask an attorney to assist you with filling out the lease agreement.  Most of the common terms are easily understandable, however some rogue leases out there include provisions prohibited by law, so you want to make sure these are not used.

After Renting

Q: How much can I take as a security deposit?

A: Normally, you can take an amount equal to 1 month’s rent as security deposit.  So if the monthly rent is $1000, the security deposit should be $1000, or less. 

Q: If the tenant fails to pay rent one month, do I have to apply the security deposit towards that unpaid month?

A: No, the tenant is required to pay the monthly rent even if a security deposit was paid at the start.  This does not have to be credited to their account during the lease period.

Q: What do I do if the tenant stops paying rent?

A: As soon as the rent is late under the terms of the lease, you should provide a written notice of intent to terminate the lease.  I recommend seeking assistance from an attorney at this step, at least for the first such incident, so that the attorney can ensure that you provide a proper notice.   

Q: What do I do if the tenant has allowed other people to move in?

A: If this is a breach of the lease agreement (and it needs to be) you should provide a written notice of intent to terminate the lease.  Note: this notice is very different from the type of notice used in cases of non-payment of rent, therefore I recommend seeking assistance from an attorney at this step.

Q: What do I do if I think the tenant is destroying my house?

A: Normally, you should provide a 48 hour notice of a particular time that you intend to enter into the property for the purposes of inspecting the property.  If the tenant is indeed destroying the property, you should provide a written notice of intent to terminate the lease.

Q: How do I get rid of this tenant?

A: Only by filing an action in court, called an unlawful detainer.  In Alabama (and most other states) the landlord does not have the right to “self help.”  That means that you must go through the court system and have the sheriff’s department physically remove the tenant and their property. 

Q: Can I shut off power, water, or other utilities to the house? 

A: No, no, and no.  I often have a landlord-client who, prior to retaining me, and acting out of understandable frustration, called the power company or water board and instructed that services be stopped.  The law can severely penalize a landlord for these actions, even if the tenant is not paying rent.  The safe bet is to retain an attorney before things escalate to that point.

Q: How long will it take to evict the tenant?

A: Depending on the circumstances, usually 4-6 weeks. 

Q: Is it possible to recover my money after evicting the tenant?

A: Yes, and this is made easier if the landlord has collected certain important information in the application process.  It is possible to garnish the wages of the tenant if their employment is known, and that is usually the best option for collecting on your judgment.

Alabama Trying to Ban Use of Welfare $$ for Alcohol, Cigarettes, Strip Clubs, and Psychics.

Alabama Bill Introduced Would Prohibit Spending Welfare $ on Alcohol, Cigarettes...and Psychics. (Link!)

          It's sad that we even have to discuss the need for a law prohibiting these sorts of things.  Welfare dollars being spent on booze? On cigarettes?  At strip clubs?  I'm sure it's not a stretch to the imagination for most people.  Corruption exists among the rich and poor alike.  But these problems are certainly no endorsement of the welfare system in general.  Alabama is trying to join states all over the nation which are passing laws banning such use of welfare dollars.  And before someone argues that such laws are just partisan politics at play, consider that this state bill introduced by an Alabama Republican is very similar to a new national bill just signed into law by President Obama.

Gun Control - The Solution or the Scapegoat?

           

           

            The tragic events in Aurora, Colorado last week are still rippling throughout the country.  In the wake of such a heinous crime, it's natural to ask what could have been done to prevent such senseless killing.  The options are many, however I’m not sure any of them would have prevented something like this from happening.  Many point to gun laws, and argue that further restricting the availability of guns is the best solution.  I have even heard some argue that the 2^nd Amendment to the U.S. Constitution (establishing the fundamental right to bear arms) should be repealed, in favor of laws totally restricting the possession of firearms to those serving in law enforcement or military.  Personally, I find this argument unpersuasive and absurd.  It is my understanding that the primary purpose of the 2^nd Amendment was to allow the people (that’s us) to stand against tyrannical governments that no longer functioned for the people.  Another purpose of the 2^nd Amendment is to provide the individual with the ability to protect him or herself from others.  As it’s been argued countless times before, a dangerous criminal is bound to find a gun whether legally or illegally, and whether they are readily available or not. 

            So, short of a repeal of the 2^nd Amendment or some sort of a complete ban on personal use firearms, should we further restrict the acquisition and possession of firearms?  Perhaps to the level of a county such as Norway, which completely bans automatic weapons, limits ownership of handguns to one gun per caliber, and forbids the carrying of loaded guns, among other strict regulations?  While this may sound appealing to many, keep in mind that one of the world’s worst mass murders occurred one year ago yesterday – in Norway, by a Norwegian named Anders Breivik.  Breivik went on an orchestrated killing spree, which lasted around 90 minutes, and left around 70 dead and many more wounded.  While I would never second guess the actions taken by the innocent victims in Norway, I do wonder how things may have been different if looser gun laws would have allowed one of those victims to carry a weapon for self defense.  How many lives could have been spared, if the killer wasn’t the only person there with a gun?  As is the case in Norway, the United States, and every other country on the planet, sick, deranged people walk in our midst everyday.  No matter how strict the gun laws are, every once in a while, these things are going to happen.  I believe rather than tighten gun laws, all we can really do is try to look out for each other and be aware of the mental state of those around us – and never allow the actions of a monster to steal the freedoms granted to us under our Constitution.

Woman Jailed After Warning Motorists of Speed Trap

            A woman in Texas was jailed for 12 hours after she held up a sign warning drivers that police officers were pulling cars over for speeding.  According to the woman, she was standing on the sidewalk at the time. According to the officer she was standing in the road, and thus he arrested her for that, not for holding up the sign.  It seems somewhat unlikely that a person would be arrested and jailed for any period of time for an offense such as standing in the road.  Who knows which person is telling the truth, but let’s assume the woman was lawfully standing on the sidewalk and the officer was irritated by her warnings to other motorist.  Does the First Amendment protect a person’s right to warn other motorists of a speed trap or is that some form of obstruction of justice? 

            Currently, I have a client who has been charged with hindering prosecution because she allegedly provided the authorities with “misinformation” after U.S. Marshals asked her about the whereabouts of a suspected criminal.  While we maintain her innocence in this matter, I will say that if my client did knowingly provide such false information, under the statute, she would be guilty of the crime with which she is charged. 

            So is warning drivers of an approaching speed trap analogous to my client’s situation?  Is it hindering prosecution or some other form of obstruction?  Or is it constitutionally protected free speech?  And what’s the difference between this woman’s actions and the occasional public service announcements we hear informing us of a “take back the highways” blitz where State Troopers are beefing up their highway patrols (such as during this week’s holiday)?  Aren’t this woman’s actions and those public service announcements both aimed at slowing people down before they receive a ticket?

Did the Obamacare vote almost go the other way?

          There's been a lot of speculation over what led to Chief Justice Roberts' vote in upholding Obamacare and whether he changed his mind at some point.  Sometimes the Justices will discuss their general feelings towards the law and their opinions on how the Constitution should be interpreted, but getting commentary on a particular decision may be unlikely.  This article may be as close as we get for some time.  Did Roberts switch his vote?