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How to Play with Fireworks in Nevada and Avoid the Slammer

Welcome to Part III of our combustible¹⁾sorry, the puns end here series on fireworks. In Part I we learned that, contrary to popular sentiment, the fireworks stand are regulated fairly well as Clark County enforces a good amount of code to ensure the public is safe²⁾a lot of effort especially given that sales go on only seven days a year.

In Part II we untangled the mess that is our Home Rule local law, discovering that our local municipalities regulate fireworks³⁾with permission of the state legislature and that the fireworks regulations are not uniform across the Las Vegas Valley⁴⁾silly Vegas.

To wrap up our series on fireworks, and hopefully not throwing a damp cloth on everyone’s 4 July fun, we will discuss the possible consequences for “when the fun stops.”⁵⁾insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]

For teenagers and parents alike, it is good to know that keeping things a bit too real⁶⁾the most unartful Chappelle Show reference ever (a la play with fireworks) can go seriously wrong.

How About We Play with Fireworks but Avoid that Serious Felony Charge

In short, be careful and mindful of others⁷⁾I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it.. As I am sure you can intuit, purposely using fireworks to harm other people or property is a serious crime.

Considering fireworks are just low-grade explosives, the law makes sense in this regard. The controlling law for this scenario is NRS 202.830:

NRS 202.830 Use of explosives to damage or destroy property prohibited; penalties.

      1. Unless a greater penalty is provided pursuant to subsection 2, a person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State:

      (a) If no substantial bodily harm results, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not less than $2,000 nor more than $10,000, or by both fine and imprisonment.

      (b) If substantial bodily harm results, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years, or by a fine of not less than $2,000 nor more than $20,000, or by both fine and imprisonment.

      2. A person who maliciously damages or destroys, attempts to damage or destroy, or conspires with another person to damage or destroy, by means of an explosive, any building, vehicle or real property in the State, knowing or having reason to believe that a human being is therein at the time, is guilty of a category A felony⁸⁾unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life without the possibility of parole;

      (b) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (c) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served, in the discretion of the jury, or of the court upon a plea of guilty or guilty but mentally ill.

      (Added to NRS by 1971, 1282; A 1973, 1807; 1995, 1210; 2009, 21)

Yikes. You went out to play with some friends on what seemed to be a normal Saturday night, then bam! 25 years to life. Remember kids, the line between a bomb and fireworks is only a matter of degree. I want to call your attention to the clause from subsection 2 that states that the accused committed the crime “knowing or having reason to believe that a human being is therein at the time.”

You can be charged with murder even if you did not know for certain there was a person there. I am not going to propose hypothetical, depraved heart crimes for your 4 July celebration. All that is necessary is a “reason to believe” that a person would be hurt through the property destruction.

Purposely destroying property is bad, doing so in an area likely to be occupied by innocent bystanders could turn out to be much, much worse.

But It Was an Accident, I Swear!

No matter my brother; you are still in serious trouble. The statute discussed above covers crimes that the perpetrator committed intentionally. Now we turn to scenarios that, although accidental, will still incur a criminal penalty. NRS 202.595 provides the relevant law:

NRS 202.595 Performance of act or neglect of duty in willful or wanton disregard of safety of persons or property; penalty. Unless a greater penalty is otherwise provided by statute and except under the circumstances described in NRS 484B.653, a person who performs any act or neglects any duty imposed by law in willful or wanton disregard of the safety of persons or property shall be punished:

      1. If the act or neglect does not result in the substantial bodily harm or death of a person, for a gross misdemeanor.

      2. If the act or neglect results in the substantial bodily harm or death of a person, for a category C felony as provided in NRS 193.130.

      (Added to NRS by 1995, 466; A 1995, 1332)

Given that it is illegal to play with fireworks in the street, it is safe to assume that this statute will take effect if you happen to (accidently or not) destroy property or injure another⁹⁾not to mention to possible civil liability. You can go ahead and take the prohibition against playing with fireworks in the street as duty made expressly by municipal codes.

I think it would be difficult to contend that to play with fireworks in a neighborhood surrounded by homes, cars, and children is not a “willful or wanton disregard of the safety of persons or property.”¹⁰⁾willful or wanton can be understood to mean very negligent

It is not like we are not surrounded with acres of empty desert where it is much safer to play with fireworks. I advocate being cautious as you play with fireworks this 4 July not only because you are legally required to, but because morally, it is the right thing to do. We might be more transient than other communities, but that does not mean we cannot love each other just as much.

Happy 4 July!

God Save the United States of America.

Footnotes[+]

Footnotes
↑1	sorry, the puns end here
↑2	a lot of effort especially given that sales go on only seven days a year
↑3	with permission of the state legislature
↑4	silly Vegas
↑5	insert the fading sunset, though it is unlikely that over-gaming will get you a serious violent felony charge[key word there is “violent,” we will save that discussion for another time]
↑6	the most unartful Chappelle Show reference ever
↑7	I can hear you out there yelling “square” at me. You want square? How about spending the holiday weekend in prison? On second thought, just go ahead and do it.
↑8	unlike school, if you get drawn into the world of felony charges, the lower the letter grade, the better off you are. Things are really not going well if you get hit with a category A felony
↑9	not to mention to possible civil liability
↑10	willful or wanton can be understood to mean very negligent

General Interest / Las Vegas / Nevada Law - 06/30/2015

Medicaid Liens on Personal Injury Settlements and Awards

Anyone who practices in personal injury for very long faces issues with Medicaid liens. As a basic framework, Medicaid is a state health insurance program that receives federal funding and is subject to federal law. In Nevada, Medicaid is administered through the Nevada Department of Health and Human Services. The DHHS allows third party HMOs to manage the healthcare for some Medicaid recipients. These third-party organizations are known as Medicaid Managed-Care Organizations (MCOs). Nevada currently contracts with two national for-profit MCOs: Amerigroup Community Care and Health Plan of Nevada, owned by UnitedHealthcare.

Medicaid, and by extensions, MCOs, have a statutory lien on personal injury settlements. Pursuant to NRS 422.293, Medicaid has a lien against “the right of the recipient [injured victim] to the extent of all such medical costs [paid by Medicaid].” Under NRS 422.293(4), Medicaid may reduce its lien in consideration of an attorney’s services. This is a statutory acknowledgment of the Common Fund Doctrine, though it couches the doctrine with the term “may”. As a practical matter, attorneys would not collect funds if subrogating third parties would routinely ignore the Common Fund Doctrine’s principles.

On its face, NRS 422.293 seems to be a lien against the entirety of the settlement, up to the amount paid by Medicaid. However, in 2006 and again in 2013, the United States Supreme Court held that a state’s Medicaid lien must be limited in proportion to the ratio of medical bills to the total value of the claim if unlimited funds were available.

Ahlborn and Medicaid Liens

In 2006, the United States Supreme Court decided the case of Arkansas Dep't of Health & Human Servs. v. Ahlborn¹⁾547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 [2006]. Ahlborn had been in a car accident and sustained injuries for which Medicaid paid providers $215,645.30. Ahlborn sued in state court and later settled all claims for $550,000.00, presumably, for all insurance limits available. The settlement did not apportion the settlement between categories of damages, such as past medical payments, future medical payments, pain and suffering, lost income, and so forth. Medicaid did not participate in the litigation. Medicaid attempted to exert a lien against $215,645.30 of the settlement, but acknowledged that the pro-rata value of the medical expenses to the unreduced value of the claim would have been 1/6^th, or $35,581.47. Medicaid and Ahlborn fought over whether Medicaid’s lien should be for the full amount paid or for medical specials proportion of the settlement

The Supreme Court held that, pursuant to Medicaid’s anti-lien provision of 42 U.S.C. § 1396p(a)(1), Medicaid’s lien is limited to the portion of the settlement designated for medical payments. Thus, if the parties designate that the value of the medical expenses are 1/6^th of the settlement, then Medicaid’s lien is limited to 1/6^th of the settlement.

The Supreme Court recognized that there was some danger of manipulation of settlement apportionment, but did not view it as an overriding concern. Naturally, parties should not abuse apportionment.

Wos and Medicaid Liens

In 2013, the United States Supreme Court reaffirmed Ahlborn in Wos v. E.M.A. ex rel. Johnson²⁾133 S. Ct. 1391, 1393, 185 L. Ed. 2d 471 [2013]. In Wos, the Court addressed what happens when the parties to a settlement do not apportion the settlement. Presumably in response to Ahlborn, North Carolina had implemented a presumption that, unless otherwise specified, a settlement consisted of 1/3^rd medical expenses and 2/3^rd other categories of injuries. Thus, Medicaid would exert its lien against 1/3^rd of the settlement. The Wos court held that such a presumption was not definitive, and that a Medicaid recipient must have an ability to challenge the presumption.

**Application of Ahlborn and Wos in Nevada to Medicaid Liens**

Under Ahlborn and Wos, it is clear that a Medicaid lien is limited to the medical portion of the settlement. Interestingly, there have been no reported cases in the Nevada Supreme Court, the Federal District Court of Nevada or the Ninth Circuit Court addressing either Ahlborn or Wos. Naturally, the courts would have to accept controlling law, but it is unclear whether any of these courts would interpret these cases in an unexpected way.

The next question is how Ahlborn and Wos interplay with the collateral source doctrine³⁾the collateral source doctrine, as defined by Black''s Law Dictionary, is known as the principle in which "compensation paid by some source to an injured plaintiff cannot be deducted from the damages a defendant has to pay. The source, such as an insurance firm, cannot be a party to the litigation". Is a Medicaid lien exerted against the entire medical specials portion of the settlement/judgment, or is the lien limited to the ratio of the actual Medicaid payments to the unreduced value of the case? At least one federal district court has held that the lien is limited.

The Fairness of Ahlborn and Wos

Ahlborn and Wos make sense from a basic fairness principle. Case valuations involve many different factors, and always involve pain and suffering. In significant cases, pain and suffering is the largest part of a settlement. Why should Medicaid, which has an obligation to pay for medical expenses anyway, be able to collect against an injury victim’s settlement for lost income, for property damage, or for pain and suffering? Ahlborn and Wos provide an equitable result.

The Bipartisan Budget Act of 2013 and Protecting Access to Medicare Act of 2014

In 2013, President Obama signed into law an amendment to the Medicaid anti-lien provision that would allow Medicaid to exert a lien against the entire settlement through the Bipartisan Budget Act of 2013. Needless to say, this amendment is grossly unfair. As stated above, why should Medicaid be reimbursed out of an injury victim’s recovery of lost income? It makes no equitable sense. Nevertheless, the amendment passed and the law changed. The amendment was originally slated to go into effect October 1, 2014. In April 2014, Congress passed the Protecting Access to Medicare Act of 2014, which postponed the implementation of the new Medicaid super lien until October 1, 2016. I have not yet done an analysis on whether the new super lien will apply retroactively to injuries that occurred prior to October 1, 2016. I sincerely hope that Congress reevaluates the Medicaid super lien and returns to the more equitable and fair application of Ahlborn and Woz. In the meantime, Ahlborn and Wos apply until October 1, 2016.

Footnotes[+]

Footnotes
↑1	547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 [2006]
↑2	133 S. Ct. 1391, 1393, 185 L. Ed. 2d 471 [2013]
↑3	the collateral source doctrine, as defined by Black''s Law Dictionary, is known as the principle in which "compensation paid by some source to an injured plaintiff cannot be deducted from the damages a defendant has to pay. The source, such as an insurance firm, cannot be a party to the litigation"

General Interest / Nevada Law / Personal Injury - 06/24/2015

Drones, government spying, aerial surveillance

Senator Heller's Legislation Fights Government Drones

Does the Government need a warrant to spy on you with drones or aerial surveillance?

Apparently not.

I commend the AP¹⁾associated press for their work! Allow me to quote a little from their reporting to provide some context for our discussion²⁾the whole article is worth reading, once you have finished here, of course:

The FBI says the planes are not equipped or used for bulk collection activities or mass surveillance. The surveillance equipment is used for ongoing investigations, the FBI says, generally without a judge's approval. The FBI confirmed for the first time the wide-scale use of the aircraft, which the AP traced to at least 13 fake companies, such as FVX Research, KQM Aviation, NBR Aviation and PXW Services. "The FBI's aviation program is not secret," spokesman Christopher Allen said in a statement. "Specific aircraft and their capabilities are protected for operational security purposes."

That has got to be the best use of the adverb “generally” I have seen in years. If the FBI has not asked for a single warrant for aerial surveillance, I supposed that would also be “generally without a judge’s approval.”

A little more from the AP report:

Evolving technology can record higher-quality video from long distances, even at night, and can capture certain identifying information from cellphones using a device known as a "cell-site simulator" — or Stingray, to use one of the product's brand names. These can trick pinpointed cellphones into revealing identification numbers of subscribers, including those not suspected of a crime.

Well then. I guess if you do not want people to know where you are, it is best to leave the cell phone at home³⁾and probably take the battery out when it is not in use.

Are we heading toward some horrid science-fiction nightmare of state aerial surveillance by drones?

Our own Senator Dean Heller to the rescue⁴⁾with co-sponsor Sen. Ron Wyden of the great state of Oregon! They announced 17 June that they introduced the “Protecting Individuals From Mass Aerial Surveillance Act of 2015.” But does the bill do what it says? Let us get under the hood and take a look.

We start with Section 3 that states an overview of the bill:

SEC. 3. PROHIBITED USE OF MAVDS⁵⁾aka drone or "mobile aerial-view device." Apparently some folks find the word “drone” offensive, mostly those who sell drones. If they want us to stop using the term “drone,” they are going to need a much catchier acronym.

A Federal entity shall not use a MAVD to surveil property, persons or their effects, or gather evidence or other information pertaining to known or suspected criminal conduct, or conduct that is in violation of a statute or regulation.

For those of you reading carefully⁶⁾this is obviously all of our Clear Counsel law blog readers, it seems this statement declares that drones may not be used to break the law, which, as far as I know, does not need to be stated explicitly. We are going to have to go deeper into the labyrinth to find out how protective this bill really is.

Sections 5 and 6 clearly state what federal law enforcement is not permitted to do with drones:

SEC. 5. BAN ON IDENTIFYING INDIVIDUALS.

(a) No Federal entity actor may make any intentional effort to identify an individual from, or associate an individual with, the information collected by operations authorized by paragraphs (1) through (3) of subsection (a), nor shall the collected information be disclosed to any entity except another Federal entity or State, tribal, or local government agency or department, or political subdivision thereof, that agrees to be bound by the restrictions in this Act.

SEC. 6. PROHIBITION ON USE OF EVIDENCE.

No evidence obtained or collected in violation of this Act may be received as evidence against an individual in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof.

Alright! Hope is on the way. Government actors may not “identify,” “associate,” or “collect information” about an individual with the use of drones. Nor may the federal government use illegally obtained evidence by drone in the prosecution of an individual⁷⁾The old "fruit of the poisonous tree" doctrine is alive!. Well I am glad we settled all that, now I can go back to writing snarky things about Kim Kardashian on the internets…wait, there's a catch? We best take a look at the Section 4 exceptions, in particular subsection 2, exigent circumstances:

(A) The use of a MAVD by a Federal entity when exigent circumstances exist. For the purposes of this paragraph, exigent circumstances exist when the Federal entity possesses reasonable suspicion that under particular circumstances, swift action is necessary

(i) to prevent imminent danger of death or serious bodily harm to a specific individual; or

(ii) to counter an imminent risk of a terrorist attack by a specific individual or organization;

(iii) to prevent imminent destruction of evidence; or

(iv) to counter an imminent or actual escape of a criminal or terrorist suspect.

Well hope seems to have turned around and headed back from whence she came. For those of you not familiar with the slow unraveling of 4^th Amendment protections through the courts, the term of art “exigent circumstances” may not mean much. For law enforcement, “exigent circumstances” are everything, and unfortunately, have been the basis of the undoing of the warrant requirement of the 4^th Amendment. For instance, law enforcement does not need a warrant to search a car suspected of containing contraband because of said “exigent circumstances”⁸⁾See Wikipedia’s motor vehicle exception for a summary . The “exigent circumstances” justification has also been applied by law enforcement to enter/search a home when they reasonably suspect that evidence is going to be destroyed ⁹⁾See United States v. Reed, 935 F. 2d 641 [4th Cir.], cert. denied, 502 U.S. 960 [1991].

Before we get too upset, it is not reasonable for us to expect our senators to ameliorate a near century’s worth of case law that has diluted the meaning of the 4^th Amendment through a bill regulating drones. Though, it would be nice if the subject came up sometime soon.

In addition to the exigent circumstances in the above quoted sections, exceptions to the prohibitions of Section 5 and 6 include permitting drones for:

Assisting Border control

Fighting forest fires

Researching nature and wildlife

Surveying public lands

Hard to argue with these exceptions. I congratulate Sen. Heller for taking on a tough political issue that contains some risk¹⁰⁾the worse kind of risk at that, a Rumsfeldian “unknown unknown”. We will keep an eye on the bill and see how it is altered as it passes through the legislative process. In part II of our discussion, we will examine case law to determine how necessary this legislation is.

Read Senator Heller's bill here

Footnotes[+]

Footnotes
↑1	associated press
↑2	the whole article is worth reading, once you have finished here, of course
↑3	and probably take the battery out when it is not in use
↑4	with co-sponsor Sen. Ron Wyden of the great state of Oregon
↑5	aka drone or "mobile aerial-view device." Apparently some folks find the word “drone” offensive, mostly those who sell drones. If they want us to stop using the term “drone,” they are going to need a much catchier acronym
↑6	this is obviously all of our Clear Counsel law blog readers
↑7	The old "fruit of the poisonous tree" doctrine is alive!
↑8	See Wikipedia’s motor vehicle exception for a summary
↑9	See United States v. Reed, 935 F. 2d 641 [4th Cir.], cert. denied, 502 U.S. 960 [1991]
↑10	the worse kind of risk at that, a Rumsfeldian “unknown unknown”

General Interest / News - 06/19/2015

Bullying and Nevada Law

Although unclear if bullying is a recent phenomenon, or if it has just become more talked about in the public in recent years, is a real problem for kids across Nevada and the country.

The harrowing tragedy of a White Middle School student led to outrage in the Las Vegas Valley over the policies in place to protect kids from bullying by the Clark County School District.

The legislature and the governor, to their credit, stepped up and passed significant legislation in hope of curtailing the widespread bullying across the state.

What is Significant in the New Bullying Law?

Governor Sandoval signed Nevada Senate Bill (SB) 504 on 20 May 2015, with the new law going into effect 1 July 2015.

Allow me to quote the Legislative Counsel’s Digest that describes the two most significant elements of the new law:

Section 4 of this bill creates the Office for a Safe and Respectful Learning Environment within the Department of Education. The Office must maintain a 24- 14 hour, toll-free hotline and an Internet website by which a person may report an incident of bullying or cyber-bullying or receive information regarding anti-bullying efforts and organizations. The Office must also provide outreach and anti-bullying education and training

Section 12 of this bill changes requirements regarding the reporting and investigation of an incidence of bullying or cyber-bullying. Under section 12, a principal, or his or her designee, who receives a report of bullying or cyber-bullying must immediately take any necessary action to stop the bullying or cyber-bullying and ensure the safety and well-being of any reported victims. Before the end of that or the next school day, the principal or designee must notify the parents or guardians of every pupil reported to be involved in the bullying or cyber-bullying, as applicable. The principal or designee must interview all of the pupils reported to be involved and the parents or guardians of those pupils, and the investigation must be completed within 48 hours after receiving the report of the bullying or cyber-bullying. After completing the investigation, the principal or designee must complete a written report of the investigation. Subject to applicable federal privacy laws, the report must be made available to the parents or guardians of all the pupils who were reported to be involved in the bullying or cyber-bullying, as applicable.

As stated in the Section 12 summary, the principal of a Nevada school “must immediately take any necessary action to stop bullying” and has 48 hours¹⁾under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened to complete an investigation of the incident and to inform the parents of the complaint.

Section 12 also requires the principal to keep written documentation of these incidents.

In addition to the two sections highlighted above, NRS 388.121²⁾the state statute that declares bullying to be illegal has been amended to disallow bullying based on gender or sexual orientation.

This makes Nevada the 20^th state³⁾the District of Columbia also to include protections against bullying for LBGTQ students.

It is pretty clear from the new law that the state legislature has codified a duty for school district employees to do what is necessary, within reason, to prevent bullying.

If the school district employees do not abide by their duty to protect the kids under their care, civil liability may certainly arise.

But is it possible that the bully’s parent could also be liable for the harm caused?

May You Sue the Bully’s Parents?

The answer to this question, like so many issues in law, is unresolved and unclear. Nevada does have a statute that assigns liability of a minor to his or her parent for willful misconduct:

NRS 41.470 Imposition of liability for minor’s willful misconduct.

      1. Except as otherwise provided in NRS 424.085, any act of willful misconduct of a minor which results in any injury or death to another person or injury to the private property of another or to public property is imputed to the parents or guardian having custody and control of the minor for all purposes of civil damages, and the parents or guardian having custody or control are jointly and severally liable with the minor for all damages resulting from the willful misconduct.

      2. The joint and several liability of one or both parents or guardian having custody or control of a minor under this section must not exceed $10,000 for any such act of willful misconduct of the minor.

      3. The liability imposed by this section is in addition to any other liability imposed by law.

      (Added to NRS by 1957, 8; A 1967, 419; 1975, 652; 1979, 461; 1999, 897)

So the question is: will bullying by a school-age child be considered willful misconduct under NRS 41.470? The answer is possibly.

Like so many other tort issues, an answer will likely only be determined based on the specific facts of a bullying case.

Relevant inquiries might be: How old is the bully/victim? What is the character of the bullying? Did the bully’s parents know about the behavior in question, and if they were aware of the behavior, did the parents take actions to prevent the bully from committing further harm? What type of harm did the victim suffer? Etc.

States with similar statutes assigning liability to the parents for a minor’s willful misconduct have construed bullying to be willful misconduct.⁴⁾See these articles describing bullying law in Texas and New Jersey for more information

In closing, one should not discount the possibility that the bully’s parents may be included in a bullying lawsuit.

Footnotes[+]

Footnotes
↑1	under NRS 388.1351, before SB 504 was signed into law, the principal had ten days to complete the investigation. As you can see, this time period has been significantly shortened
↑2	the state statute that declares bullying to be illegal
↑3	the District of Columbia also
↑4	See these articles describing bullying law in Texas and New Jersey for more information

General Interest / Las Vegas / Nevada Law / Personal Injury / Wrongful Death - 06/17/2015

Air Travel and Service Animals: What You Need to Know Before You Travel

Welcome to Part IV of our series on service animals. In the first three installments, we discussed what service animals are, the rules governing service animals in public accommodations, and how the Fair Housing Act determines if service animals must be accommodated in housing.

Today, we will examine the rules for service animals and airline travel.

The pertinent law we will be looking at is the Air Carrier Access Act (ACAA) of 1986¹⁾the act dictates that the Department of Transportation [DOT] must promulgate rules for the airlines to following regarding disabled customers. The DOT published these regulations in 1990.

The Rules for Service Animals as Determined by the Department of Transportation

Subsection 382.55 of Title 14 of the Code of Federal Regulations (CFR) dictate the rules for service animals during air travel. Unlike the Americans with Disabilities Act (ADA), the ACAA permits both service animals and emotional support animals to fly with their owners; yet, the airlines are permitted to require documentation for emotional support animals.

Also, as opposed to the ADA that requires service animals to be dogs in most cases, many different types of animals may qualify as emotional support or service animals²⁾the DOT explicitly cites cats and monkeys as permissible, and snakes, spiders and ferrets as non-permissible.

The law states in pertinent part:

(a) Carriers shall permit dogs and other service animals used by persons with a disability to accompany the persons on a flight.

(1) Carriers shall accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses or markings on harnesses, tags, or the credible verbal assurances of the qualified individual with a disability using the animal.

(2) Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation.

Note in subpart 1 the conjunction “or”; as in, the airline’s employees shall accept written documentation or credible verbal assurances.

The DOT provides guidance on what the rule means by “or”³⁾as written by Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings, 15 July 2005.

Here are the relevant paragraphs:

Request documentation for service animals other than emotional support animals: The law allows airline personnel to ask for documentation as a means of verifying that the animal is a service animal, but DOT urges carriers not to require documentation as a condition for permitting an individual to travel with his or her service animal in the cabin unless a passenger’s verbal assurance is not credible. In that case, the airline may require documentation as a condition for allowing the animal to travel in the cabin. The purpose of documentation is to substantiate the passenger’s disability-related need for the animal’s accompaniment, which the airline may require as a condition to permit the animal to travel in the cabin. Examples of documentation include a letter from a licensed professional treating the passenger’s condition (e.g., physician, mental health professional, vocational case manager, etc.)

Require documentation for emotional support animals: With respect to an animal used for emotional support (which need not have specific training for that function), airline personnel may require current documentation (i.e., not more than one year old) on letterhead from a mental health professional stating

(1) that the passenger has a mental health-related disability;

(2) that having the animal accompany the passenger is necessary to the passenger’s mental health or treatment or to assist the passenger (with his or her disability); and

(3) that the individual providing the assessment of the passenger is a licensed mental health professional and the passenger is under his or her professional care.

Airline personnel may require this documentation as a condition of permitting the animal to accompany the passenger in the cabin. The purpose of this provision is to prevent abuse by passengers that do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their service animals on the aircraft. Airlines are not permitted to require the documentation to specify the type of mental health disability, e.g., panic attacks.

For service animals, the DOT “urges” airline employees not to require documentation, but they still “may require” documentation if the verbal assurances from the passenger are not credible.⁴⁾Additionally, the DOT requires that the evaluation of the verbal assurances be done in “good faith”.

For emotional support animals the DOT requires written documentation from a mental health provider to “prevent abuse.” For either type of animal companion, having written documentation with you will likely make the trip smoother for all of the parties involved.

When an Airplane is Permitted to Reject Service Animals

Similar to the ADA and the Fair Housing Act, airlines are not required to make accommodations that would create an “undue burden” or “fundamentally alter” the character of their business. The DOT provides examples of what an “undue burden” might be:

Asking another passenger to give up the space in front of his or her seat to accommodate a service animal;
Denying transportation to any individual on a flight in order to provide an accommodation to a passenger with a service animal;
Furnishing more than one seat per ticket; and
Providing a seat in a class of service other than the one the passenger has purchased.

But what happens if an airline denies the right of a disabled person to bring along a service or emotional support animal?

Each airline is required to have a Complaint Resolution Official (CRO) available to assist during all business hours.

If there is a dispute about a service animal, request to speak to the CRO⁵⁾either in person or over the phone. The CRO should have the authority to make the final determination regarding a service animal⁶⁾or any other complaint regarding discrimination based on a disability.

If the request is rejected, the CRO has ten days to provide a written explanation why this is so.

For folks traveling with service animals, the DOT recommends requesting a preferred seat 24 hours in advance takeoff and checking-in at least an hour before scheduled departure.

Even if this is not done, the airlines are required to accommodate the request to the best of their ability.

Providing advance notice may reduce the hassle and stress.

Footnotes[+]

Footnotes
↑1	the act dictates that the Department of Transportation [DOT] must promulgate rules for the airlines to following regarding disabled customers. The DOT published these regulations in 1990
↑2	the DOT explicitly cites cats and monkeys as permissible, and snakes, spiders and ferrets as non-permissible
↑3	as written by Samuel Podberesky, Assistant General Counsel for Aviation Enforcement and Proceedings, 15 July 2005
↑4	Additionally, the DOT requires that the evaluation of the verbal assurances be done in “good faith”
↑5	either in person or over the phone
↑6	or any other complaint regarding discrimination based on a disability

General Interest / Personal Injury - 06/08/2015

service animal, service dog, special needs, ADA, emotional support animal,

The Fair Housing Act and a Service Animal

In Part I and Part II of our series talking about a service animal, we discussed the rights and regulations dictated in the Americans with Disabilities Act (ADA). Our previous posts established what a service animal is under federal law, and what the responsibilities and duties owners of public accommodations owe to disabled folks under the ADA.

Beyond public accommodations, there is additional federal law that regulates landlords’ acceptance of service animals and emotional support animals in public and private housing. The two federal laws to know in addition to the ADA are the Fair Housing Amendments Act (FHAct) of 1988¹⁾This act amends Title VIII of the 1968 Civil Rights Act and Section 504 of the Rehabilitation Act of 1973 (Section 504).

Content of the Fair Housing Amendments Act and Section 504 of the Rehabilitation Act with respect to a service animal

The pertinent parts of each of these federal laws contain similar measures. Section 504 is applicable to any program that accepts government funds to help pay for subsidized or public housing ²⁾this does not include landlords that only accept money for Section 8 rental assistance. The FHAct applies to almost all other types of housing. The only landlords exempt from the FHAct are:

Buildings with four or less units in which the landlord occupies one of the units
Single-family dwellings sold or rented without the assistance of a real estate broker
Hotel and motels³⁾though each of these are still subject to the ADA
Private clubs

Under the FHAct and Section 504, the landlord shall permit a service animal or an emotional support animal if:

The tenant has a disability
The landlord is aware of the disability
Reasonable accommodation is necessary for the tenant in question to have an equal opportunity to use and enjoy the dwelling like anyone else
Accommodating the animal request would not constitute an undue burden on the landlord or fundamentally alter the premises

We will discuss each of these elements in turn.

What is a disability with respect to housing?

If (unfortunately) a tenant must pursue legal action in order for a landlord to accommodate his or her reasonable request, the court is going to demand proof of the disability. Simply being disabled is not sufficient. Unlike the ADA’s rules governing public accommodations, mental disabilities that require emotional support from an animal are covered by the FHAct and Section 504⁴⁾recall the difference under the ADA for emotional support animals [not covered] and psychiatric service dogs [used by folks with PTSD, for example, that are covered]. The FHAct and Section 504 are broader in scope, which is reasonable.

An important distinction between an ADA service animal, and the emotional support animal under FHAct and Section 504, is that an ADA service animal usually has to be a dog, where many other species can qualify as emotional support animals.

Landlord Awareness

A tenant may not unilaterally violate the terms of his or her lease because a disability exists. S/he must request the reasonable accommodation in writing, along with a note from his or her doctor or mental health provider. The U.S. Department of Housing and Urban Development (HUD) advises that landlords consider the follow inquiry once receiving a reasonable accommodation request:

Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?

Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?⁵⁾See HUD Rules for more information

Note that the tenant does not need to provide proof that the animal is properly trained or certified⁶⁾in fact it is illegal for a landlord to make such a request.

Reasonable Accommodation

This factor of the test considers if it is reasonable for a tenant to need an emotional support animal to have the equal opportunity to live and enjoy accommodations as much as someone could who does not have the disability in question. Case law has established that permitting an emotional support animal is a reasonable accommodation under the FHAct and Section 504 ⁷⁾see the oft cited Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981) for an example.

Undue Burden

This is a difficult element to prove for a landlord that desires to deny an emotional support or service animal to a requesting tenant. It is not an undue burden under law for a landlord to have to spend a little more money to accommodate the tenant⁸⁾This is considered part of the cost of doing business by Congress. The most common undue burden is when the service or emotional support animal harasses or disturbs other tenants; in these scenarios, it is possible that a landlord could validly evict the tenant with the disruptive animal.

Additionally, a landlord may not charge a higher deposit than normal for a service or emotional support animal, as they are not considered pets by federal law. Yet if the animal causes damage to the property, the tenant may be held liable.

Stay tuned for part IV of our series on airplane travel and service animals.

Footnotes[+]

Footnotes
↑1	This act amends Title VIII of the 1968 Civil Rights Act
↑2	this does not include landlords that only accept money for Section 8 rental assistance
↑3	though each of these are still subject to the ADA
↑4	recall the difference under the ADA for emotional support animals [not covered] and psychiatric service dogs [used by folks with PTSD, for example, that are covered]
↑5	See HUD Rules for more information
↑6	in fact it is illegal for a landlord to make such a request
↑7	see the oft cited Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981) for an example
↑8	This is considered part of the cost of doing business by Congress

General Interest - 06/05/2015

service animal, ada, service dogs, veterans, pug, cute

A Service Animal and Public Places

In a previous episode (Part I), we discussed what exactly a service animal is, and the difference between an emotional support animal and a psychiatric service animal. Today I hope to provide even more clarity into service animal law, particularly with respect to service dogs.

Last week¹⁾true story I was at a restaurant in Henderson with a nice couple that brought along their cute, small pug. After placing an order at the counter, the couple²⁾neither of the people had a visible disability, not to imply that all disabilities are visible sat down at a table with the little dog in tow. A restaurant employee came over saying “Is that a service animal?” After an affirmative response, the employee said, “I need to see the papers for your dog.” Each of the customers got a guilty look on their faces, then claimed to have forgotten the papers at home. The employee than asked them to sit outside, or leave altogether.

It is possible³⁾assuming the young couple was lying that everyone involved broke the law. Do not let this happen to you! Let us now go over how public businesses are required to treat service animals⁴⁾and their owners, and the law regulating this type of fraudulent behavior in Nevada.

Do I really have to let this creature in my store?

Oh you better believe it. The Americans with Disability Act (ADA) supersedes local and state law, meaning you, as a business owner, have to abide by the ADA. The ADA applies to businesses, local government entities, and non-profits⁵⁾this is not an exclusive list that serve the public. I will describe the most important elements of the law to help clear up a lot of the confusion out there.

What am I allowed to ask?

This is the most import part of this discussion! Please, please be careful. The Justice Department permits two questions to be asked of a person that arrives at your place of business with a service animal:

Is the dog a service animal required because of a disability?
What task has the dog been trained to perform?

That is it! No other questions are permitted. Questions like “do you have a disability?” or “do you have proof that your dog is a service animal?” are both inconsiderate and illegal⁶⁾Ask FIFA, it is not worth messing around with the Justice Department.

Other good facts to know

Not all service animals have papers evidencing their training. Not all service animals wear the special vests commonly seen on television. In turn, you cannot eyeball a dog coming into your store and know for sure if the animal is one of service.

Additionally, there seem to be a few internet enterprises out there offering to send official-looking certificates/dog vests⁷⁾A quick internet search will confirm this for a service animal. These have no legal relevance, and do not make a dog any more or less a service animal.

There are a few legally permissible reasons for disallowing a service animal:

If dog is behaving in a way that threatens other customers⁸⁾barking, growling and so on
If the area in question is one that needs to be kept sterile, like a kitchen or operating room⁹⁾the seating area of a restaurant does not count
If the dog fundamentally alters the nature of a business. The Justice Department cites a dog barking during a movie as an example.

What about people pretending their pet is a service animal?

Nevada has a statute governing this scenario:

NRS 426.805 Fraudulent misrepresentation of animal as service animal or service animal in training unlawful; penalty.

      1. It is unlawful for a person to fraudulently misrepresent an animal as a service animal or service animal in training.

      2. A person convicted of fraudulently misrepresenting an animal as a service animal or service animal in training is guilty of a misdemeanor and shall be punished by a fine of not more than $500.

      (Added to NRS by 2005, 626)

Pretending your dog is a service animal is a misdemeanor. In addition¹⁰⁾although not legally relevant, pretending your dog is a service animal really upsets folks that need service animals. Look at the comments of this article written by a woman confessing that she lies to merchants about her dog being a service animal. Service dog confession

I know as much as I want to take my dog everywhere with me, I have no desire to hurt peoples' feelings to that extent.

Footnotes[+]

Footnotes
↑1	true story
↑2	neither of the people had a visible disability, not to imply that all disabilities are visible
↑3	assuming the young couple was lying
↑4	and their owners
↑5	this is not an exclusive list
↑6	Ask FIFA, it is not worth messing around with the Justice Department
↑7	A quick internet search will confirm this
↑8	barking, growling and so on
↑9	the seating area of a restaurant does not count
↑10	although not legally relevant

General Interest / Nevada Law - 06/04/2015

service animals, mini horse, ADA, service dogs

What are Service Animals Anyway?

There is a lot of misinformation out there about what service animals are. Ask ten different people about the rules regarding a service animals, and you will get eleven different responses¹⁾I am assuming there is an economist in the mix speaking out of each side of his mouth. I kid my economist brothers!

This post will help you understand what exactly a service animal is; stay tuned for later posts that will discuss service animals and different types of public accommodations.

What are Service Animals?

By service animals, the Congress means to say service dogs²⁾there is a very cute exception we will get to shortly. It does not matter if your cute service monkey or cat has a neat little vest and can do any number of functions, these other creatures are not considered service animals under the Americans with Disabilities Act (ADA)³⁾the law that dictates what a service animal is.

The Justice Department defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities.” Assisting folks who are blind or deaf are obvious examples. Bring trained to do specific tasks is what distinguishes a service dog from just a smart dog.

However, not all disabilities are physical. Our brothers and sisters suffering from PTSD, for example, may travel with a service dog that is trained to assist them if they happen to suffer an emotional episode⁴⁾the dog may be trained to notice when his or her owner is suffering an emotional episode and will jump into the owner’s lap and start licking the owner’s face as a means to pull the person out of the episode; pretty neat stuff.

Emotional Support Animals vs. Psychiatric Service Dogs

Only the latter is protected by the ADA, so it is important to understand the difference. The easiest way to understand the distinction is to remember that psychiatric service animals are trained to perform a specific function, like in the example above, the dog knew how to recognize a PTSD episode and react accordingly.

Emotional support animals, on the other hand, primarily comfort folks that are feeling bad. Being cute and/or friendly is not sufficient training for the animal to be considered a psychiatric service animal⁵⁾Do not blame the messenger here; if it was up to me, we would all live with Portland-esq tolerance, where dogs were allowed to come and go as they please.

Miniature Horses!

Lastly, we cannot conclude a discussion of service animals without covering the newest service animals in the game, as of 2010, miniature horses⁶⁾The Justice Department defines miniature horses as those that range in height from 24 to 34 inches, weighing 70 to 100 pounds.

Public business must reasonably accommodate a disabled person and his or her miniature horse so long as the four assessment factors are met:

The horse is housebroken
The horse is controlled by the owner
The facility in question can accommodate the horse’s type, size, and weight
The horse’s presence does not “compromise legitimate safety requirements necessary for safe operation of the facility”

To conclude, the ADA does not cap the number of service animals permitted to accompany a person. Therefore, you will not have to choose if you want to take along your service dog or service miniature horse.

Footnotes[+]

Footnotes
↑1	I am assuming there is an economist in the mix speaking out of each side of his mouth. I kid my economist brothers!
↑2	there is a very cute exception we will get to shortly
↑3	the law that dictates what a service animal is
↑4	the dog may be trained to notice when his or her owner is suffering an emotional episode and will jump into the owner’s lap and start licking the owner’s face as a means to pull the person out of the episode; pretty neat stuff
↑5	Do not blame the messenger here; if it was up to me, we would all live with Portland-esq tolerance, where dogs were allowed to come and go as they please
↑6	The Justice Department defines miniature horses as those that range in height from 24 to 34 inches, weighing 70 to 100 pounds

General Interest - 06/03/2015

The Growth of Crossbow Use (and Injuries)

The use of crossbows for target practice and hunting has grown significantly in the past ten years. This could be due to a number of factors.

First, as more and more predators have been eliminated from the North American continent, the deer population has been significantly enlarged. In turn, state governments, as a matter of public policy, have been trying to encourage more folks to hunt. One may surmise, however, that permitting the use of crossbows would not only reduce, but destroy the deer population. This does not seem to be the case (although the data is limited). In Ohio, where crossbow hunting has been legal since 1976, there has been concurrent growth in both the number of hunters, and the deer population.

The Most Comprehensive Crossbow Data Available

Image by Capri23auto from Pixabay

The state of Michigan has the most comprehensive statistics on crossbow use. Michigan first legalized crossbow hunting in 2008, then commissioned a study to see the effect on hunters preferences through 2011. The report, authored by Brian Frawley and Brent Rudolph¹⁾You can read the report here: Michigan Crossbow Report, provides some interesting takeaways, especially given that they had a survey population of nearly 1,500:

Between 2009 and 2011, the proportion of archers using a crossbow increased from 19% to 37%.
Between 2009 and 2001, the number of folks hunting during archery season (this is when hunting with firearms is not permitted, but using a bow [and now crossbow] is permitted) increased by 13%.
Between 2009 and 2011, 25% of the hunters surveyed said that they had not hunted during previous archery seasons.
For the same period, 19% of the people surveyed stated that they had never hunted with anything other than a firearm before crossbow use was permitted during archery season.
Of the hunters surveyed, 88% said that the use of crossbows during hunting “met all or most of their expectations.”
Of the hunters surveyed, 96% of those surveyed said they would use a crossbow again in the future.

There is no reason to believe that the statistics from Michigan would not be applicable to hunters in the other states of the union, as Michigan hunters do not have traits that differentiate themselves from other hunters. Correspondingly, it is reasonable to posit that if crossbow hunting continues to expand across the country, folks in other states would adopt the trends shown in Michigan.

The National Growth in Crossbow Hunting

Twenty-three states now permit crossbow hunting during all parts of archery season. An additional eleven states, including Nevada, permit crossbow hunting during firearm season (the part of hunting season where guns are allowed). An additional four states permit crossbows for at least part of the archery season. All in all, only one state (Oregon), has a complete prohibition against crossbows. It certainly seems the national trend is toward permitting more crossbow hunting and crossbow use.

But at What Cost?

The rise of crossbow use has come with a correlated rise in crossbow injuries. After a quick internet search, one will see that these product liability cases against crossbow manufacturers are popping up in venues throughout the country: From multiple reported injuries in Texas, to Florida, to Wisconsin, crossbow hunters have suffered severe injuries to fingers and thumbs from the (alleged) manufacturing defects of the crossbows in question. Even Clear Counsel Law Group's own personal injury attorneys have represented people hurt by crossbows. One wonders if the crossbow manufacturers have accounted for the high percentage of firearm converts to crossbows without recognizing the difference in operation. ²⁾Note the 19% of people surveyed in the Michigan study that converted to crossbows once they were permitted to use them in archery season.

It is hard to say that the manufactures are not aware of the high conversion rate, as modern crossbows look more and more like rifles. Hopefully, more will be done in the design stage to prevent the rash of these injuries, especially as crossbow use continues to trend upward.

Footnotes[+]

Footnotes
↑1	You can read the report here: Michigan Crossbow Report
↑2	Note the 19% of people surveyed in the Michigan study that converted to crossbows once they were permitted to use them in archery season

General Interest / News - 05/29/2015

Online Comments and Defamation, Are You At Risk?

How safe is it to share your opinions online? Just because you see lots of other folks online stating things that look defamatory, does that mean you cannot be sued? First we will discuss what defamation is, how best to understand it in our online comment era, and finally, how Nevada law protects the rights of her citizens to express their opinions online.

What is Defamation?

Defamation is a false statement of fact that causes damage to another, usually financial or reputational damage. There are two types of defamation:

Slander: verbal defamation

Libel: written defamation

Written defamation, libel, includes what is written in print and online. Because we are concerned with online comments, this will be a discussion of libel.

Because libel must be a false statement of fact, if you can prove you were telling the truth, the libel case will not stand. This is an easy defense to a libel accusation. There is a second common defense to a libel suit, that the alleged statement was one of opinion, not fact. This is where things get tricky..

The Statement of Opinion Defense to Defamation

On its face, it seems that it would be easy to determine if a statement is one of fact or opinion.

For example, “Steven (not based on any real person!) is not nice to the people around him” is an opinion and therefore, not defamation.

“Steven stole $100 from a little old lady” is a factual statement, and if it were to cause damage to Steven’s life (like if you uttered this statement to Steven’s boss and he lost his job), then the statement could very well be libel.

Ok simple enough, right? But what if the statement is factual, but couched in the form of an opinion? “I think Steven stole $100 from a little old lady.” The law will not permit you to defame someone just by adding the “I think” qualifier; specific defamatory statements (expressed as an opinion) that caused harm for the subject of the statement could indeed be defamatory. It all depends on the circumstances (a la, you may need an attorney’s assistance at this juncture).

Now I ask you to consider our current age, where folks use many different internet forums (Facebook, Yelp, Twitter, just to name a few), to express their opinions not only about other people, but about the products and services of corporations. How do you think very wealthy corporations respond online comments they feel are defamatory?

Nevada’s anti-SLAPP Legislation

The Nevada legislature has passed a law to protect its citizens from Strategic Lawsuits to Prevent Public Participation (called SLAPP lawsuits). Nevada’s anti-SLAPP law is one of the most stringent anti-SLAPP laws in the country. A few highlights from the updated 2013 law:

The protected speech has been expanded to include “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum.” It still needs to be truthful, though.
The court must now respond to a motion claiming an individual is a victim of a SLAPP within seven business days (reduced from thirty).
The court has the discretion to award up to $10,000 (in addition to the cost of hiring an attorney) to a victim of a SLAPP.

A Potential Revision to the Anti-SLAPP law?

Before you close out this window and give a corporation a piece of your mind, know that there may be yet another change on the horizon. In late April of 2015, the Nevada Senate held hearing discussing Senate Bill 444, which would revise the current statute and possibly scale back the protections of the current law. The bill made it out of the Nevada Senate with an unanimous vote, and is currently being debated in the Assembly.

In the same way you do not evaluate the quality of a sausage until it has a casing, we will have to wait and see what becomes of Senate bill 444 before drawing any conclusions. Regardless, use prudence as you make your online comments; once submitted, you will not be able to prevent the consequences.

General Interest / Nevada Law - 05/18/2015

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