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Clear Counsel Law Group / Las Vegas
Late rent Payment, nevada, landlord tenant

The Few Options That Exist for a Tenant Who Owes a Late Rent Payment

Nevada is considered by many to be a “landlord friendly” state with less protections for tenants than nearby states, such as California. Therefore, it is always best for tenants to stay on good terms with their landlords, follow all  the lease terms, and pay rent in a timely manner.

 

Sometimes you will have a late rent payment even with the best of intentions

But, it is not uncommon for a tenant to face financial difficulties at one time or another and have a late rent payment due at the beginning of any given month. If that happens, a tenant is somewhat at the mercy of their landlord, unfortunately.

If you can persude your landlord to agree to an extension, that will be the best option. That way, the landlord and the tenant can agree for the late rent to be paid at a time when the tenant will have the money available. A tenant may request that any late fees be waived, and the landlord is free to oblige as a courtesy. It is always best to get the extension and waiver in writing so both parties are bound.

Given that it is so hard, time consuming, and expensive for a landlord to find a reliable and trustworthy tenant, a landlord will likely be sympathetic to the situation and grant an extension. If you are a troublesome tenant who is often late, the landlord does not have to grant any extensions. Also, any late fees required by the lease become part of the rent owed.

A tenant should never write a check that s/he knows will bounce. Not only is that possibly a violation of the lease, but it will cause additional fees to be incurred. Importantly, a person can even be charged with a crime for writing a bad check1)This is a serious crime in Nevada, please do not do this. The law presumes a person who writes a check with non-sufficient funds in their accounts knows that the check will bounce, and this is considered a crime. Certainly not a hassle that anyone needs!

If a landlord does not grant an extension for you to pay the late rent, s/he must give you a five day notice after which an eviction proceeding may be commenced. If you receive this five day notice, you will need to pay the rent within those five days or vacate the property. If the landlord has not waived the late payment, the entire rent plus the late payment must be paid within the five day period to bring the amount owed current.

If you have a legal defense to the eviction, then you can file papers with the Justice Court to request a hearing on your eviction. You will not be asked to leave the property pending the outcome of the hearing, but if you do not have a valid legal defense you will just be delaying the inevitable eviction. Not only that, but if you file a petition for a hearing with the intent to delay knowing that you have no valid legal defense to the eviction, you might end up paying your landlord’s attorneys’ fees and costs.

Importantly, there are certain legal defenses to your possible eviction. For instance, if you can make a partial payment of the late rent, you should do so. If you do, and the landlord accepts it, this may be a defense to eviction based on the landlord’s acceptance of this payment knowing it was not the full amount. But, the landlord does not have to accept the partial payment and may choose to refuse it and proceed with an eviction.

There are various legal reasons to withhold rent, including if there are major issues with the property that have gone unfixed after notification that make the property uninhabitable2)called constructive eviction.  But, if you owe late rent and claim to the court that your property is uninhabitable, the court will not be sympathetic if you have never given the landlord a chance to fix the problem.

So, unless the landlord has failed to fix major problems that they knew about in advance, you are at his or her mercy if you are unable to make the late rent payment. It is always best to be on good terms with your landlord so in the event that you need an extension of time to pay the rent, your landlord is likely to have faith in you and give you a little extra time.

Footnotes

Footnotes
↑1 This is a serious crime in Nevada, please do not do this
↑2 called constructive eviction
Las Vegas / Nevada Law - 08/27/2015
clean energy, President Obama, Dean Heller, Harry Reid, Green energy, sustainable energy

Nevada Loves Clean Energy!

"And now the time of tide has come; the ship casts off her cables; and from the deserted wharf the uncheered ship for Tarshish, all careening, glides to sea. That ship, my friends, was the first of recorded smugglers! the contraband was Jonah. But the sea rebels; he will not bare the wicked burden. A dreadful storm comes on, the ship is like to break. But now when the boatswain calls all hands to lighten her; when boxes, bales, and jars are clattering overboard; when the wind is shrieking, and the men are yelling, and every plank thunders with trampling feet right over Jonah's head; in all this raging tumult, Jonah sleeps his hideous sleep. He sees no black sky and raging sea, feels not the reeling timbers, and little hears he or heeds he the far rush of the mighty whale, which even now with open mouth is cleaving the seas after him. Aye, shipmates, Jonah was gone down into the sides of the ship- a berth in the cabin as I have taken it, and was fast asleep. But the frightened master comes to him, and shrieks in his dead ear, 'What meanest thou, O, sleeper! arise!'"

-Herman Melville, Moby Dick

 

 

Perhaps it would be nice to open with a song; take it away Mr. Flowers!

 

 

Come on! If that does not make you smile, then you don't know how to say "Nevada."1)about 5 min in to the President's speech, he passes the "Nevada" test. Also, no, that is not me playing guitar there on the right, though I do like the cut of his jib.

 

President Obama touts clean energy

If you happened to, you know, be driving at some point on 24 August in the Las Vegas Valley, you may have noticed that traffic was not moving in any direction. That can only mean one thing; President Obama came to see us2)I want to congratulate us residents of the Las Vegas Valley for not throwing a collective temper tantrum over the traffic jams unlike some other, more touchy cities *cough* New York *cough*!

At the risk of offending most everyone3)We have become so polarized that saying something kind about our President is controversial, I must compliment the President on his commitment in his 2nd term to conservation. With little political upside, the President has made reducing the nation's carbon footprint a priority4)compared to the 2nd term priorities of the previous two Presidents, it should impress you even more. Although there is much valid debate on either side of the argument over how we should institute a conservation initiative, you will have a difficult time persuading me, given that we have only one earth, that we should not do our best to protect it. There are many different opinions of the best way conserve, and we should carefully deliberate before setting a course of action5)the opposite of how we handled the education savings accounts in Nevada. President Obama's speech is best seen as a contribution to our national conservation conversation. I will provide a few excerpts of the speech in case you missed it.

As well as we're doing in wind, we're making even more progress on solar.  (Applause.)  I notice you got a lot of sun around here.  (Laughter.)  America generates 20 times as much solar power as we did in 2008 -- 20 times.  Last year was solar’s biggest year ever.  Prices fell by 10 percent; installations climbed by 30 percent.  Every three minutes, another home or business in America goes solar.  Every three weeks, we install as much solar capacity as we did in all of 2008.  And the world’s largest solar installation came online last year, with 9 million solar panels generating enough electricity to power more than 100,000 homes with clean, renewable energy -- not in Germany, not in China, not in Saudi Arabia -- right here in the United States of America...And one of the reasons we’ve done this is not just because it’s good for the environment and good for the overall economy -- it takes workers to install all this new capacity.  And that’s why, last year, the solar industry added jobs 10 times faster than the rest of the economy.  Solar has helped a lot of construction workers find work while Congress was dragging its feet on funding infrastructure projects.  In fact, the solar industry now employs twice as many Americans as mining coal.  (Applause.)  We’re helping more veterans find work with our Solar Ready Vets Program, with a goal of training 75,000 solar workers who have been veterans by 2020.  That is a goal we can achieve. (emphasis added)

 

It seems that we are right on the brink of serious technological breakthrough here. Like where we were with the internet in 1995. A little more from President Obama:

Now, what’s interesting is that their actions have conjured up some pretty strange bedfellows.  In some states, we got Green Party and Tea Party teaming up to protect our freedom to choose clean energy.  It is rare that the Tea Party leaders and I are on the same side of an issue.  (Laughter.)  I agree with them here. (Applause.)  And just because I agree with them, I don't want them to change their minds now.  (Laughter.)  I promise there are all kinds of other things you can whoop me.  (Laughter.)  

But this is important, and they are absolutely right on this fight.  This is not, and should not be, a Republican-versus-Democratic issue.  (Applause.)  This should be an issue that can bring everybody together.  (Applause.)  If you're a progressive, you should care about this.  If you're a libertarian, you should care about this.  If you just want to save some money, you should care about it.  And if you care about the future of our children and grandchildren, you should care about it.  (Applause.)

So here, and across the country, this is about whether big polluters control the system, or whether consumers have freedom to choose cleaner, cheaper, more efficient energy; whether we protect old ways of doing business even when they’re not efficient, or we dream up new business models that bring new technologies into our homes and businesses, and new jobs into our communities.  This is about the past versus the future.  And America believes in the future.    

And to make that future a reality, we got to have everybody -- utilities, entrepreneurs, workers, businesses, consumers, energy regulators, tree huggers, Tea Partiers -- everybody has got to seize the opportunities before us.  

 

Mr. President, let us not forget your favorite constituency: the tea partying, tree-huggers. By the way, I did not go back and check the speech transcript against the actual laughs/applause; is it fair to assume the "official scorer" of the speech probably interprets6)like one of those official scorers in baseball that adjudicate the 50/50, hit/error plays in favor of the home team the terms "speech" and "laughter" more broadly than usual? How could s/he not? Would you want to argue with the President as to if he got a sufficient number of chuckles to justify the transcript saying "(Laugher.)"?

More seriously7)ok, fine, for a couple sentences I will make a semi-serious point but then return back to the usual sophomoric antics, anytime I hear a politician say something in the vain of "this issue is of such importance that it rises above the usual partisan politics" my politi-speak antennae begin to a flutter. I compare this language to when a good friend of yours begins a sentence "with all do respect..". A qualifier is usually a good indication that the opposite is about to occur in the subsequent language.

All do respect to the President8)I kid, there are very few, if any, political issues that are non-partisan. If you do not agree with the President that conservation should be a national priority, then this point is obvious. For the rest of us, even if cannot fathom why we should not love and protect the earth, we at least can concede that opinion is not uniform on the issue. Pretending otherwise is not constructive, and frankly, greatly upsets those whom do not share your views.

Here are a few pictures from the event:

 

 

 

"But Brian, don't you have a way to consume the speech through a medium that I will not have to read at all and can just fiddle around on the facebook while its playing so that it is more like I am facebooking to the docile tones of President Obama than consuming political thought?"

As as matter of fact, yes, I do. Enjoy:

 

 

The crowd just eats of of his hand, right? With a little practice and hard work, President Obama could match verbal eloquence of Mr. Trump. I just wish the President would bring his "anger translator" with him to more speaking engagements.

 

Las Vegas was not the only city talking clean energy

Up north9)contrary to popular belief in the Valley, the state boundary does not end at the Clark County line, state leaders of Nevada and California demonstrated how teamwork and good faith can lead to positive change. Senators Heller and Feinstein10)of California hosted the Lake Tahoe Summit.

In particular, the speakers of the summit focused on the depressed levels of Lake Tahoe, how to reduce greenhouse gases in the Tahoe, and how to reduce the risk of wildfire in the Tahoe basin. Although all three areas of concern are important, I will focus on the last.

Wildfires are a significant issue for us Westerners. From Southern California to Washington and the greater Northwest, fires are causing irreparable harm. The fire in Washington is so bad that they have brought in dozens of firefighters from Australia and New Zealand because they do not have enough qualified professionals to assist in containing the blaze. Some estimates have the Washington fire burning until November. Hopefully the rainy season comes early this year.

Our beautiful landscape of Northern Nevada is reportedly dry and at serious risk of wildfire as well. You can tell the risk is serious given how well California and Nevada politicians are working together to address the issue11)reading a couple of the summaries of the Tahoe Summit [see below] will make you smile. Even if the media only covers Donald Trump's abrasiveness from a day-to-day basis does not mean that there are not politicians out here doing right by their constituents, both in terms of actions and carriage. Perhaps what I see is not all there is . Unfortunately12)from my limited perspective, the wildfires are in the class of natural disasters that we just are not technologically advanced enough to prevent13)With the sudden influx of 'smart' technology, this concept is not as apparent as it once was. If I can turn off the lights in my home with my ithing, is there anything we cannot do?.

At the beginning of the century, the federal government provided funding to help protect the Tahoe habitat. Now that funding has dried up, so Sens. Heller and Feinstein teamed up in co-sponsoring a bill to increase funding to protect Northern Nevada/Eastern California:

The event occurred as two bills are being considered to provide the federal government’s share of funds for future restoration projects. One, introduced by Nevada’s and California’s senators, would authorize up to $415 million over 10 years to fund a broad array of projects. The other, introduced in the House by McClintock and Republican Rep. Mark Amodei of Nevada, would authorize up to $60 million over a decade, with the money focused on wildfire danger and invading plants and animals that threaten the lake.14)Source

 

I, for one, am surprised that Rep. Amodei is willing to sponsor a bill for any funding. There is only a difference of $350 million between the senate/house bills; (assuming they pass) should be a fun time in conference committee15)[not-so]Small civics footnote: when the house and senate pass bills that are not exactly alike, members of each chamber meet to find a compromise between the two bills in what is called the "conference committee." After the committee members agree to common terms, each chamber must vote again on the bill. If it passes, then it is sent to the President's desk for a signature or veto (or the dreaded pocket veto). If you want to learn more about how powerful the conference committee is, see Ron Suskind's Confidence Men. If an Obama Administration official asks, you did not hear about that book from me.

A couple pictures from the event:

#besties

 

Governor Sandoval skipped the Tahoe Summit to discuss...the greater sage grouse?

We will start with Governor Sandoval's statement regarding his meeting with President Obama:16)I look around the country at some of the silliness of other governors, and it makes me appreciate Mr. Sandoval even more

 

 

You can put your hands down, I already know your questions: "Isn't the greater sage grouse a kind of chicken? Moreover, why would the Governor and President need to discuss fowl?"

To your first inquiry, yes, the greater sage grouse is a large, wild, chicken-esq bird17)Cute too. As to why the greater sage grouse is subject of a testy political issue, well, that is a much, much more complicated question than you would ever think. For brevity's sake, I will not provide you will a full history of the issue18)leave a comment for us on the facebook if you demand a more in-depth discussion of the greater sage grouse, and we will bring it to you. Anything for our readers..

Governor Sandoval's press office exhibited politi-speak quite well there; I do not care how many times you read that statement, you will not find the crux of the issue. This may shock you, but the controversy comes down to the all mighty dollar. I will provide an outline of events so far this year. In early Spring, the federal government announced that, although the population of the greater sage grouse has decreased from the millions to a few hundred-thousand, that working with the state governments, it had a plan to protect the habitat of our bird friends without adding the greater sage grouse to the endangered species list. However, a few environmental lobbyists sued the federal government saying that in accordance with the Endangered Species Act, the government has no choice but to declare the greater sage grouse endangered under the act. Now the feds are saying that they are evaluating the concerns and will issue a ruling before the 30 September date set in the judgment of the lawsuit.

Why would folks care if the federal government declares the greater sage grouse endangered? Because under federal law, exploration and extraction of natural resources19)oil, gas, coal, etc. is severely limited in the habitats of endangered animals. That's right folks, always comes back to money. And in this case, a significant amount. Do the resource extractors20)#great moments in euphemisms need to worry? Perhaps:

According to CBD, the Obama administration has listed an average of 41 species per year. While that's more than five times the rate of the previous administration, it falls short of the administrations of Presidents Clinton (65) and George H.W. Bush (58), according to CBD. The Carter administration listed 38 species per year, and the Reagan administration listed 32 per year. The Obama administration is also slated to remove more species from the threatened and endangered lists than every other administration combined (Greenwire, May 29).21)Source

 

Is there some sort of middle ground where the fowl can form their habitat on a pretty oil derrick? No? I am curious how President Obama will form a grand compromise for this problem.

 

A little, tangentially, clean energy fun

Mr. Greenspun, publisher of The Las Vegas Sun, hosted a fundraiser for former attorney general Catherine Cortez Masto as she prepares to run for Harry Reid's senate seat22)By the way she is Sen. Reid's anointed successor. President Obama and Senator Reid spoke at the fundraiser23)Anyone else notice the conspicuous timing of Sen. Reid endorsing the Iran deal the day before President Obama arrived to speak at Sen. Reid's clean energy summit?, which you may have heard about in the news because the President referred to some of his political opponents as "crazies." As to whom are the "crazies", media accounts are inconsistent. When you carry yourself with the grace of President Obama, even one word out of the ordinary gives the politi-media a conniption24)I can hear Gov. Romney saying, "haven't you learned how risky it is to speak frankly at fundraisers??".

Ever wonder what folks eat at a fancy-pants fundraiser like this? Sen. Ford was nice enough to post the menu on the facebook:

 

 

I am not completely sure what free-range Jidori chicken breast is, but I trust Sen. Ford's review.

 

Before we go, did Senator Reid leak his retirement plans on twitter? Super group anyone?

 

More reading, in particular I liked the op-ed penned by Senators Heller and Feinstein:

News Times

Yahoo

Let's talk Nevada

Free Beacon

Las Vegas Sun

The White House

More Free Beacon

Kolo TV on the Tahoe Summit

Carson Now

Senator Heller's op-ed

The National Journal on the Greater Sage Grouse

The Denver Post

The Elko Daily

The Military Times

 

 

Footnotes

Footnotes
↑1 about 5 min in to the President's speech, he passes the "Nevada" test. Also, no, that is not me playing guitar there on the right, though I do like the cut of his jib.
↑2 I want to congratulate us residents of the Las Vegas Valley for not throwing a collective temper tantrum over the traffic jams unlike some other, more touchy cities *cough* New York *cough*
↑3 We have become so polarized that saying something kind about our President is controversial
↑4 compared to the 2nd term priorities of the previous two Presidents, it should impress you even more
↑5 the opposite of how we handled the education savings accounts in Nevada
↑6 like one of those official scorers in baseball that adjudicate the 50/50, hit/error plays in favor of the home team
↑7 ok, fine, for a couple sentences I will make a semi-serious point but then return back to the usual sophomoric antics
↑8 I kid
↑9 contrary to popular belief in the Valley, the state boundary does not end at the Clark County line
↑10 of California
↑11 reading a couple of the summaries of the Tahoe Summit [see below] will make you smile. Even if the media only covers Donald Trump's abrasiveness from a day-to-day basis does not mean that there are not politicians out here doing right by their constituents, both in terms of actions and carriage. Perhaps what I see is not all there is 
↑12 from my limited perspective
↑13 With the sudden influx of 'smart' technology, this concept is not as apparent as it once was. If I can turn off the lights in my home with my ithing, is there anything we cannot do?
↑14 Source
↑15 [not-so]Small civics footnote: when the house and senate pass bills that are not exactly alike, members of each chamber meet to find a compromise between the two bills in what is called the "conference committee." After the committee members agree to common terms, each chamber must vote again on the bill. If it passes, then it is sent to the President's desk for a signature or veto (or the dreaded pocket veto). If you want to learn more about how powerful the conference committee is, see Ron Suskind's Confidence Men. If an Obama Administration official asks, you did not hear about that book from me.
↑16 I look around the country at some of the silliness of other governors, and it makes me appreciate Mr. Sandoval even more
↑17 Cute too
↑18 leave a comment for us on the facebook if you demand a more in-depth discussion of the greater sage grouse, and we will bring it to you. Anything for our readers.
↑19 oil, gas, coal, etc.
↑20 #great moments in euphemisms
↑21 Source
↑22 By the way she is Sen. Reid's anointed successor
↑23 Anyone else notice the conspicuous timing of Sen. Reid endorsing the Iran deal the day before President Obama arrived to speak at Sen. Reid's clean energy summit?
↑24 I can hear Gov. Romney saying, "haven't you learned how risky it is to speak frankly at fundraisers??"
General Interest / Las Vegas / News / Politics - 08/26/2015
back to school, ccsd, nevada, esa, children, teacher

Everything You Need to Know Before the Kids Go Back to School

In this episode, we will update you on how the Education Savings Accounts are coming along1)could be better, and then provide a one stop directory for everything you need before the kidlets go back to school. If you would like to read more about the updated Nevada Bullying law, we have you covered.

 

Back to School and the New Education Savings Accounts

21 August, the state treasurer held a meeting to discuss the radical new education law passed by the legislature in the 2015 session. Check out the link to get our full analysis of the law. In particular, the questions proposed at the end of the piece have still not been answered. What happens to the rest of the students attending struggling schools in Nevada when more kids (and the subsequent funding) are taken out? Will the struggling schools have to make due with even less resources? Why not take the money/effort/resources being used to help kids leave the public schools and hire more teachers? If you have not tried to teach a class of more than 40 kids2)I sure have, it is quite difficult, even with public speaking experience. Without lowering classroom size, almost nothing else will matter3)in my humble opinion.

I digress. Let us see how the ESA meeting went. Neal Morton did a real nice job covering the event for "the newspaper"4)as Mr. Ralston puts it, as did the Nevada Succeeds twitter account. I will post tweets from the meeting of 21 August so you can get a feel for how it went:

https://twitter.com/StudentsFirstNV/status/634772569963560960

 

Breaking: Attempting to drastically reform the school system in 3 months may not be possible5)my Drudge siren is broken, or it would be adjacent to this headline. Allow me to clarify, it is possible to do, but probably not possible to do well.

I keep seeing the proponents of the bill cite how many people signed up for it so far, 2200 from the last citation. How many students does the Clark County School District have6)#RonDarlingesqRhetoricalQuestion? Try more than 318,000. For those scoring at home, .69% of the students have signed up.

Let us say that the program is a big hit, and doubles the participation so far. Was all this time/effort/money to implement this program worth it? Before you answer, consider also that money spent on public schools will be taken away to pay tuition7)and other costs for these students. Consider also that the money spent on public education cannot be proportionally deducted from the students that remain. For example, if there is not a sufficient amount to pay for a teacher, computer, text book, we cannot buy 3/4s of a teacher, 1/2 a text book, etc. We have to be able to pay for the entire expenditure, or it will not be paid for.

Again, we are talking about harming 99% of the school district's children so that 1% will be better off. Fair? Best use of the legislature/governor's time?

The school district has put the application for the ESAs online, which you may see here. Remember, the bill does not go into effect until 2016, so you will not be getting any money until then.

 

More good, back to school information

With our economy still in recovery, we all know how tough it can be to get the work schedule to line up with when the kids get out of school. Safekey is a free program that will supervise your kids until you get off of work.

http://cityoflasvegas.tumblr.com/post/126341349263/not-too-late-to-register-for-safekey

 

The Clark County School District Superintendent penned an article for the Las Vegas Sun that he discusses many of the new, exciting programs coming to the school district this year. An interesting/pretty great concept he included:

Ready by third grade

Third grade is a critical point in our students’ education. Our students must be proficient in reading and writing by the end of third grade. Beginning in fourth grade a child makes the transition from learning to read to reading to learn. Dedicated funds from the Legislature will allow us to implement additional programs that focus on literacy and ensure our students don’t fall behind.

 

If you need information on school vaccinations, you can get it here. Note that usually vaccinations are done Monday to Friday, but an exception has been made for Saturday, 22 August.

On Saturday, Aug. 22, a special back-to-school immunization clinic is scheduled at the health district’s main facility, 330 S. Valley View from 9 a.m. – 1 p.m.

 

PBS produced a special with even more back to school information that you can watch here.

Clark County School District has a website with almost any other additional information you may need for all the back to school drama.

 

Back to school is not just for the kids!

Look at this neat program offered by Clark County! We love civics, and so will you!

The kids will have a tough time complaining about homework if you are doing it as well.

 

A little humor before you go...

No one covers back to school quite like The Onion.

 

Have a great school year everyone!

 

Footnotes

Footnotes
↑1 could be better
↑2 I sure have
↑3 in my humble opinion
↑4 as Mr. Ralston puts it
↑5 my Drudge siren is broken, or it would be adjacent to this headline
↑6 #RonDarlingesqRhetoricalQuestion
↑7 and other costs
Las Vegas / Nevada Law / News - 08/21/2015
Donald Trump, Clinton, Walker, Bush, election 2016

Donald Trump and Everything You Missed in the Weekend of Politics

Family, work, friends, fantasy football..I mean, who has the time to keep up with all the political happenings? Who would blame you for prioritizing your family with the election more than 400 days away? Lucky for you, dear reader, I quit fantasy football years ago, so I was able to allocate the time usually applied in mock drafts to keep tabs on the presidential, political goings-on. Did something happen over the weekend that you will forever regret not witnessing in real time??

Of course not. The election is more than a year away. But a few noteworthy1)by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation events took place. And because we love our readers, we aggregated all the info you need (and perhaps a little extra).

 

Donald Trump shows Charlie Sheen what “Winning” really means

The2)The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1 candidates attended the Iowa State Fair this past weekend; a fun event where technocrats pretend they understand regular folks by trying to eat fried food without grimacing3)The fair seriously is a whole lot of fun, highly recommended, especially in campaign season. With a quick perusal of the news from the weekend, you will find photos of Gov. Bush, Sec. Clinton, and Donald Trump eating a pork chop on a stick. In a normal election cycle, the story would be about Gov. Walker being interrupted by union protesters as he attempted to answer questions from his soapbox, as opposed to this peculiar explanation of his hair line:

 

Per usual, Mr. Trump has no interest in ceding any free media to his fellow candiddates, so he brought his helicopter and offered free rides from the state fair parking lot to interested children.

 

To ensure that no other candidate would pick up any media coverage this weekend, Mr. Trump joined his press equivalent4)please draw what conclusions you like on Meet the Press, and it was as fabulous5)if you write politics for a living/horrible6)if you care for America’s image at home and abroad as you are assuming it was.  Luckily, Chris Cillizza7)Read the piece here, it is pretty great. (of The Fix. Follow him on Twitter at @thefix) annotated the Donald Trump/Chuck Todd conversation from Meet the Press. The written transcript is as great as the video footage. Please allow me excerpt two of my favorite exchanges. Don’t worry, the context is irrelevant.

 

CHUCK TODD:
We do have a running theme here. You believe the U.S. should-- you're okay with the U.S. being the world's police--

DONALD TRUMP:
We should at least--

(OVERTALK)

DONALD TRUMP:
--be reimbursed--

CHUCK TODD:
--if we get paid--

DONALD TRUMP:
--by these extremely wealthy countries, yes--

CHUCK TODD:
So essentially you want--

DONALD TRUMP:
Chuck, we--

(OVERTALK)

CHUCK TODD:
It turns our--

DONALD TRUMP:
We have--

CHUCK TODD:
--military into a mercenary force.

 

Oh yes, it happened again.

 

CHUCK TODD:
I understand that. But--

DONALD TRUMP:
They moved to--

CHUCK TODD:
--Mexico--

DONALD TRUMP:
--Mexico--

CHUCK TODD:
They're not doing--

DONALD TRUMP:
I don't care how they're--

CHUCK TODD:
--better.

DONALD TRUMP:
I don't care how they're doing as a country--

CHUCK TODD:
They're doing worse.

DONALD TRUMP:
I'm just saying they're killing us. Because everybody's moving into Mexico.

CHUCK TODD:
There are people that argue NAFTA was terrible for them.

DONALD TRUMP:
Mexico is doing an unbelievable job. Mexico is taking our business. Mexico is the new China, okay? Look at the--

CHUCK TODD:
Where is the evidence of this?

DONALD TRUMP:
It's all over the place. Chuck--

CHUCK TODD:
Their GDP is smaller--

DONALD TRUMP:
Chuck.

CHUCK TODD:
This is--

DONALD TRUMP:
They're moving companies--

CHUCK TODD:
The peso, it is--

DONALD TRUMP:
That is true--

CHUCK TODD:
--worth less today. I mean--

DONALD TRUMP:
And you know what?

CHUCK TODD:
That's not the sign of--

DONALD TRUMP:
And, Chuck--

CHUCK TODD:
--a strong economy.

 

So8)there is not anything I can add to the above exchanges. They are perfect, as is. you probably heard that Megyn Kelly took a previously unannounced, 2 week respite from her nightly show, upon a secret conversation between Mr. Trump and Mr. Ailes9)who runs the Fox News. Given all this negative media attention, particularly since the debate, you would think Mr. Trump’s poll numbers would be deflated?

Guess again.

Mr. Trump is blowing out the competition. At some point, we will need to try to figure out how/why this is happening. Fellow billionaire/egomaniac10)I say that with peace and love Mark Cuban stated why he feels, not only why Mr. Trump is doing so well, but why Mr. Trump is “probably the best thing to happen in politics in a long long time.”

"I don't care what his actual positions are," Cuban wrote. "I don't care if he says the wrong thing. He says what's on his mind. He gives honest answers rather than prepared answers. This is more important than anything any candidate has done in years."

Indeed, the outspoken investor said Trump "changed the game."

"Up until Trump announced his candidacy the conventional wisdom was that you had to be a professional politician in order to run," Cuban continued. "You had to have a background that was politically scrubbed. In other words, smart people who didn't live perfect lives could never run. Smart people who didn't want their families put under the media spotlight wouldn't run. The Donald is changing all of that. He has changed the game and for that he deserves a lot of credit."11)source.

 

Please read that first sentence again. Has this always been true of voters? Or has something happened in our politics where a strong plurality of voters care less for political positions than supposed authenticity? We will need to put a pin in that inquiry for now.

Of course, New York City summoned Mr. Trump for jury duty today. He, obviously, did not want to take attention away from the judicial process, so he arrived early, entering quietly through a side entrance. Oh wait, that would be absurd.

https://twitter.com/ABCPolitics/status/633305371520724993/photo/1

 

Wait, are you saying we have two political parties??

As much as the lamestream media would like to pretend, the winner of the Republican nomination will not be automatically anointed President. S/he will have to run a general election campaign against the Democratic nominee12)from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views..

In the backdrop of Gov. Jeb13)Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates! Bush’s visit to North Las Vegas last week in which “Black Lives Matter” protesters interrupted the end of his presentation, Secretary Clinton will be in North Las Vegas tomorrow (around noon). Will she be interrupted as well? Sen. Booker was in Las Vegas yesterday as a surrogate speaker for Secretary Clinton. At the event, he addressed the concerns of a few questioners regarding institutional racism, but will that be sufficient? The event opened with an one-act play, so clearly, we all missed out. Read more about it here.

The AFL-CIO hosts their convention from the Luxor/Excalibur Tuesday and Wednesday. Secretary Clinton, Gov. O’Malley, and Sen. Sanders are scheduled to speak tomorrow, Tuesday. The event is less likely to be interrupted by protesters, as not even media members are permitted to attend14)Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear.

For some reason, the only lamestream press Sen. Sanders receives regards the couple of instances his events have been interrupted by “Black Lives Matter” protesters15)asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else. Charles Blow wrote a nice analysis of awkwardness between Bernie supporters and the “Black Lives Matter” folks, if you desire some well-thought-out concepts on the issues, as opposed to the usual name-calling on the twitter. Also, in case you were worried, Sen. Sanders knows all about #BernieSoBlack

 

Before we go, a little political humor from Dana Gould16)Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!

Footnotes

Footnotes
↑1 by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation
↑2 The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1
↑3 The fair seriously is a whole lot of fun, highly recommended, especially in campaign season
↑4 please draw what conclusions you like
↑5 if you write politics for a living
↑6 if you care for America’s image at home and abroad
↑7 Read the piece here, it is pretty great.
↑8 there is not anything I can add to the above exchanges. They are perfect, as is.
↑9 who runs the Fox News
↑10 I say that with peace and love
↑11 source
↑12 from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views.
↑13 Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates!
↑14 Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear
↑15 asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else.
↑16 Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!
General Interest / Las Vegas / News / Politics - 08/17/2015

The Importance of Alleging All Possible Causes of Action in the Beginning of a Complaint

Although parties are not sure of exactly what happened during an incident that they were injured, it is important to speculate and make all reasonable guesses as to what may have occurred at the time you file your lawsuit. If not, and if only some theories are alleged, you may not be able to add additional theories later on.

 

The Curious Case of Mr. Nutton's complaint

This happened in the recent case of Nutton v. Sunset Station, Inc.1)131 Nev. Adv. Op. 34.. Mr. Nutton fell while bowling at the casino and broke his knee. When he sued for under a personal injury theory of liability, he alleged in his complaint only that the casino had applied to much oil to the bowling lanes which made the lanes unsafely slippery, causing his injury. Mr. Nutton, who was not wearing bowling shoes at the time, steadfastly defended his shoe choice throughout the whole litigation process. He testified under oath that his choice to wear street shoes had nothing to do with his fall, because it was the oil and not the shoes that caused him to slip. As the case went on, it became rather obvious that Mr. Nutton was wrong about the oil in the lane. No other witnesses noticed oil, security footage showed no one else slipping, and Nutton could not even find an expert witness to state that there was too much oil on the lane. So, in order to save his case, a few months before trial, Mr. Nutton moved to amend his Complaint to allege that it was the negligence of the casino employees in not making him wear the bowling shoes that caused his fall.

Because Nutton had not originally alleged this theory, he needed permission from the Court to amend his complaint. Problem was, that at such a late time, it is difficult to meet standard for amending a pleading. First, if the time for amending pleadings has passed, (which it had), Nutton needed to show “good cause” for the court to allow him to amend. To determine whether good cause for amendment exists, the court looks at whether the complaint could not have been reasonably filed within the deadline despite best efforts of the party. Here, it was clear that this theory could have been alleged earlier since Nutton knew from day one that he was not wearing his bowling shoes. He could have easily added this theory at an earlier time. Next, the court had to decide whether to allow the amendment at all. Under Rule 15, leave to amend is generally given, unless it is clear that allowing a party to amend his complaint would be futile. Here, it was clear from discovery that alleging this new theory would be futile because he had maintained all along that his shoes were not the cause of the fall. So further pursuit of this claim would have just involved dismissal through a motion for summary judgment based on Mr. Nutton’s own testimony. However, the court was hesitant to disallow Mr. Nutton’s amendment based on his contradictions because his contrary statements were an issue for a jury to decide. But, ultimately, the amendment was not allowed because good cause for the delay was not shown.

So, what did we learn?

The court prefers to permit amendments to a complaint to give parties the chance to fully litigate cases on their merits. But, the court wants parties to do so in a timely manner, and if the parties do not, they risk losing the right to make their claims.

Footnotes

Las Vegas / Nevada Law / Personal Injury - 08/03/2015
Street performers, Las Vegas, regulations

The Proposed Regulations of Las Vegas Street Performers

It is confirmed loyal Clear Counsel Legal Blog reader; the City of Las Vegas is as much of a fan of our humble blog as you are. Only a couple days after we published our expose on obscene street performers in Las Vegas, the city announced  that it will be introducing ordinances to regulate street performers on the Fremont Street Experience.

Following the recent pattern, the city worked with the ACLU of Nevada to ensure that the regulations were not overbearing or violate the 1st Amendment rights of the performers1)Source. In turn, the ACLU has endorsed the ordinances, which one has to imagine, lowers the odds of a §1983 action2)the parlance used by attorneys to describe civil rights lawsuits tried in federal court, 1983 refers to the Section of the U.S. Code where the right of citizens to sue over civil rights violations is located against the city.3)I love when folks work together!

 

But what do these ordinances for street performers say?

A hat tip to Sergio Avila4)of Channel 3 for tweeting out a picture of the ordinances soon after the announcement. You can see the picture below.

https://twitter.com/SergioNews3LV/status/626424016350281729/photo/1

 

The city published a summary of the new ordinances on its tumblr page5)What an age we are living in.  Here are some of the highlights:

  • The city will designate 38 performance zones for performers to use between 3p.m. and 2a.m.. The little material that is available is silent as to how performance spaces are regulated between 2a.m. and 3p.m.. I am happy to speculate, if that tickles your fancy. It will either be that no performances are allowed6)that seems like a like quite a bit of pressure on Metro to keep a fairly large area clear of performers, or during the off-hours, Fremont will revert back to the wild-west of street performances, as it is currently. The performance spaces are 6 feet each in diameter, 40 feet apart from one another.
  • The performers must register with the City of Las Vegas or with the Fremont Street Experience. They do not plan on charging a fee and the registration will be good for 180 days. The city should consider charging a fee, even if nominal7)it does not have to be $37 like Santa Monica, even $5 or $10 will do as a means to keep the most disreputable folks away.
  • There is a prohibition against open flames, flying projectiles, and sitting/laying on the ground.

If you take a quick glance at the pictured tweeted out by Mr. Avila, you will see that the city plans on adopting the noise regulations used by the Santa Monica Promenade, yet they do not make explicit which regulations they are referring to.  Not to fret loyal reader! I dug them up for you to see:

 

6.116.030 Allowable noise levels on Promenade and Transit Mall.

Individuals and businesses shall comply with all of the following noise levels and standards of this Section:

(a) The following maximum noise level (Lmax) shall apply on the Third Street Promenade and the Transit Mall during the times indicated:

Time Maximum Noise Level (Lmax)

Mon-Fri 9 a.m.-7:00 p.m. 75 dBA*/97 dBA**

Mon-Thurs 7 p.m.-10:30 p.m. 85 dBA*/107 dBA**

Friday 7 p.m.-midnight 85 dBA*/107 dBA**

Saturday 9 a.m.-midnight 85 dBA*/107 dBA**

Sunday 9 a.m.-10:30 p.m. 85 dBA*/107 dBA**

Sat/Sun 12:01 a.m.-1:30 a.m. 65 BA*/87 dBA**

* When measured at a minimum distance of twenty-five feet from the source of the noise.

** When measured at a minimum distance of one foot from the source of the noise.

At all other times, the City-wide noise standards as reflected in Chapter 4 of this Code shall apply except the Lmax standard shall provide the basis for measuring the dBA level.

(b) No person or group shall create any noise, or allow the creation of any noise on the Third Street Promenade or Transit Mall which causes the noise level to exceed the Lmax standard established in this Section.

(c) No business on the Third Street Promenade shall utilize any speaker or sound reproduction system at a volume that can be heard inside the premises of another building or structure while the doors and windows to the premises are closed.

(d) No person shall interfere with or resist the taking of any noise measurement authorized by this Section.

(e) No person shall use a speaker on a public sidewalk, street, or right-of-way unless it is placed on the ground and is no more than three feet in height.

(f) Amplified sound shall not be unreasonably loud, raucous, jarring or disturbing to persons of normal sensitiveness within the area of audibility. (Added by Ord. No. 1888CCS § 6, adopted 10/28/97; amended by Ord. No. 2009CCS § 3, adopted 5/22/01; Ord. No. 2047CCS § 8, adopted 7/9/02; Ord. No. 2075CCS § 6, adopted 5-13-03; Ord. No. 2145CCS § 5, adopted 11/23/04; Ord. No. 2337CCS § 5, adopted 12/14/10)

 

What’s that? You cannot eyeball8)earball? 75 dBA? Multiple sources state that a passenger car passing you from 25 feet away will do so at a volume of 77 dBA9)Source. Decibel levels are measured using logarithms10)do not click away! I promise there will be no more math!, so from a starting point of 70 dBA, a noise measured at 80 dBA is twice is loud, relatively, and a noise measured at 60 dBA is half as loud as 70 dBA.

When the statement reads “to match Promenade rules,” one must presume all of the rules or they would have used a different verb. Will no noise be permitted afrer 10:30p.m. Monday-Thursday? What about after 1:30a.m. on the weekends? Our city stays up a bit later than most, I would be surprised if they used these time limits.

 

What about the obscenity issue in reference to street performers?

Last time, we talked extensively about the difficulties in regulating the obscene acts of street performers in Las Vegas. Nothing I have found regarding these new ordinances addresses this pressing issue.  Just because the issue is difficult does not mean it should be ignored. It sounds11)from afar like the city of Las Vegas and the ACLU have a nice working relationship; now would be the time to try to address these problems. Granted, the noise issue on Fremont Street needed to be addressed, however, it is the lewdness of a few of the Fremont street performers that would be far more likely to perturb a new tourist into not returning. I am not saying that we need the same social norms applied when folks visit a European church or anything12)covered shoulders, no hats, etc., but there has to be a way to enforce a modicum of decency in the areas where the public is free to roam.

As the Downtown Las Vegas project continues to try to attract new business to the district, this type of obscenity hurts the cause. Why would a company want to relocate to an area where its more conservative employees are uncomfortable to walk the neighborhood? As I have said previously, the lewd street performers also bring a bad name to the rest of the folks working hard down there. There is no reason the city should not continue to provide adult entertainment, but there is a proper time and space for such activity.

I commend the city of Las Vegas for taking on this tough issue of regulating street performers; let us hope it is only the first step. I look forward to hearing what the City Counsel has to say at the 2 September meeting.

 

Watch the press conference here.

Footnotes

Footnotes
↑1 Source
↑2 the parlance used by attorneys to describe civil rights lawsuits tried in federal court, 1983 refers to the Section of the U.S. Code where the right of citizens to sue over civil rights violations is located
↑3 I love when folks work together!
↑4 of Channel 3
↑5 What an age we are living in
↑6 that seems like a like quite a bit of pressure on Metro to keep a fairly large area clear of performers
↑7 it does not have to be $37 like Santa Monica, even $5 or $10 will do
↑8 earball?
↑9 Source
↑10 do not click away! I promise there will be no more math!
↑11 from afar
↑12 covered shoulders, no hats, etc.
Las Vegas / Nevada Law / News - 07/31/2015
Las Vegas street performers

Obscene Las Vegas Street Performers, Downtown and on the Strip

A relative of mine went to a show at the Smith Center last weekend, and made the unfortunate decision to walk down Fremont Street after a meal1)This is about 4 p.m. mind you. To say she was horrified by what she saw would be an understatement.  It was not even the folks out there panhandling in, what I will call, less-than-clean, costumes of popular children entertainment characters. Her concern was with the Las Vegas street performers (of each gender) panhandling on the street, nearly in the nude. She, reasonably, asked me, “how is this possible?”

Do we have laws forbidding lewd and obscene behavior from Las Vegas street performers? Why would they not apply in our most populated areas of the Valley? Won’t somebody please think of the children?!

 

A few (not so) obscene definitions

Oxford defines obscene as "(of the portrayal or description of sexual matters) offensive or disgusting by accepted standards of morality and decency."

Oxford defines lewd as “crude and offensive in a sexual way”

As our loyal Clear Counsel Legal Blog readers know, the law definitions differ distinctly from dictionary ones.  Let us take a look at how the Nevada Revised Statutes (NRS) define obscene:

 NRS 201.235  Definitions.

4.  “Obscene” means any item, material or performance which:

(a) An average person applying contemporary community standards would find, taken as a whole, appeals to prurient interest;

(b) Taken as a whole lacks serious literary, artistic, political or scientific value; and

(c) Does one of the following:

(1) Depicts or describes in a patently offensive way ultimate sexual acts, normal or perverted, actual or simulated.

(2) Depicts or describes in a patently offensive way masturbation, excretory functions, sadism or masochism.

(3) Lewdly exhibits the genitals.

 

The Clark County Code defines obscene using the same language, as does the Las Vegas Municipal Code.

And now, on with the show!

 

State regulation of the obscene

As I am sure you recall from our previous discussions on Home Rule, the state government of Nevada must expressly delegate legislative authority to the counties/municipalities before the localities are permitted to regulate an area of the law.

The state legislature did just that in NRS 201.239:

NRS 201.239  Power of county, city or town to regulate obscenity.

The provisions of NRS 201.235 to 201.254, inclusive, do not preclude any county, city or town from adopting an ordinance further regulating obscenity if its provisions do not conflict with these statutes. (Added to NRS by 1979, 364)

 

The state also criminalizes obscene behavior, though as you will see, demarcating the margin between obscene and free expression is quite difficult:

NRS 201.253  Obscene, indecent or immoral shows, acts or performances; penalty.

Except under the circumstances described in NRS 200.710, every person who knowingly causes to be performed or exhibited, or engages in the performance or exhibition of, any obscene, indecent or immoral show, act or performance is guilty of a misdemeanor.

(Added to NRS by 1967, 482; A 1995, 952)

 

How the County handles the obscene

In case you have not brushed up on your municipal boundaries recently, recall that the Las Vegas Strip is not in Las Vegas but in the unincorporated Clark County 2)really Paradise Township, which is governed by the County. Let us take a look to see how the County regulates the obscene:

Clark County Code 12.20.020 Materials and acts unlawful.

It is unlawful for any person to knowingly:

(a) Print, copy, manufacture, prepare, produce or reproduce any obscene item for purposes of sale or commercial distribution;

(b) Publish, sell, rent, transport in intrastate commerce, or commercially distribute or exhibit any obscene item, or hold any obscene exhibition or performance, or offer to do any such things;

(c) Have in his possession with intent to sell, rent, transport or commercially distribute any obscene item;

(d) Write or create advertising or solicit anyone to publish such advertising or otherwise promote the sale or distribution or exhibition of matter represented or held out by him to be obscene;

(e) Place, mark, post, draw or cause to be placed, posted, marked or drawn upon any fence, billboard, building, door, wall, pavement or other surface exposed to public view, any obscene, indecent, or profane word, picture representation or drawing. (emphasis added)

 

If being almost (or completely) nude is considered obscene, then subsection (b) would likely apply and Metro would have the statutory authority to invite the nudists to leave.  As we will see here in a little bit, Metro has become a bit trigger-shy3)talk about a pun in poor taste in arresting people at the behest of the Strip hotels4)at least for trespassing outside the hotels proper.  They have developed5)smartly a policy of checking with the district attorney before arresting anyone for trespassing outside of the Strip hotels.  Given that the code ordinance is ambiguous, Metro is unlikely to remove so-called trespassers until given the legal go-ahead from the DA.

Let us see if the rules for Fremont Street in Las Vegas are any different.

 

How obscene is the Las Vegas municipal code?

Beyond copying the state definition of obscene, Las Vegas defines and criminalizes lewd behavior:

10.40.050 - Lewd exposure.

Every person who wilfully(sic)6)Providence willing, this is a typo in the municipal code website and the actual code spells willfully correctly and lewdly either exposes his person or the private parts thereof in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or procures, counsels or assists any person to expose himself, or to take part in or make any exhibition of himself to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, is guilty of a misdemeanor.(emphasis added)

(Ord. 178 § 5, 1931: prior code § 6-1-20)

 

Note that this ordinance has been in effect, unchanged since 1931. Also note the underlined portions above, a la when gendered writing goes wrong.  By not writing the code with gender neutral language7)who knows, perhaps women were not even allowed in Las Vegas in 1931..I kid our ancestors!, the city only outlaws lewdness by men! Thanks sexism!

How much of a sexual organ needs to be exposed until the act is lewd? A quick walk down Fremont between 3rd and 6th and you will see folks wearing about as little clothing as possible8)I will let your imagination fill in the details.  The Las Vegas Municipal Code, like the one for Clark County, suffers from an ambiguity that is almost impossible for Metro to enforce.   For giggles, take a look at what the city can enforce clearly:

10.40.030 - Profane, vile or obscene language.

The use of profane, vile or obscene language or words upon the public streets, alleys, or highway of the City is prohibited.

(Ord. 6 § 1, 1911: prior code § 6-1-28)

11.68.100 - Prohibited—Special conditions.

(A) The following are prohibited within the Pedestrian Mall:

(1) Parades;

(2) Sleeping or camping;

(3) Littering;

(4) Sexually oriented businesses as described in Section 19.04.040;9)Title 19 of the Las Vegas Municipal Code is no longer in effect, once someone from the city responds to my inquiry as to the definition of “sexually oriented business,” I will pass it along

(5) Feeding birds; and

(6) Solicitation by coercion, as defined in Section 10.44.010.

(B) The following are prohibited within the Pedestrian Mall, except under the conditions stated:

(1) Animals, unless used in connection with a mall activity authorized by The Fremont Street Experience Limited Liability Company or used for the purpose of assisting the visually or aurally impaired;

(2) Mall vending, special events or other commercial activities, unless such activities are conducted by or on behalf of The Fremont Street Experience Limited Liability Company;

(3) The use of unicycles, bicycles and other types of cycles, skateboards, roller skates, in-line skates, hula hoops larger than four feet in diameter, and shopping carts, except as authorized by The Fremont Street Experience Limited Liability Company in connection with special events and mall entertainment;

 

That is quite the list of prohibited activities; in subsection (B)(3) of the ordinance above note how the city council even regulates the maximum size of a hula-hoop.  If the city can regulate the plethora of activities listed above, how are the nearly nude street performers exempt? Oh, what a loaded question.

 

Las Vegas street performers, sidewalks, and the 1st Amendment

And here you thought we were going to talk about costumed folks and local ordinances. The city/county’s hotels have quite the history of preventing folks from performing/demonstrating on their sidewalks, only to be sued (or sue) and find out that the federal courts with jurisdiction over Nevada will not permit an all-out ban of folks that the properties do not desire outside of their establishments.

The 9th Circuit Court of Appeals held in 2001 that the sidewalks outside of the hotels in Las Vegas are public forums, and therefore, subject to the protections of the Bill of Rights of the U.S. Constitution10)The Venetian Hotel sued the Clark County government in an effort to get Metro to arrest the [more than 1,000] Culinary Union representatives protesting outside of the hotel. The Court was not persuaded by the Venetian’s arguments. Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 948 [9th Cir. 2001] Read the case here.  In 2011, the Venetian was back in federal court, this time being sued by Zorro11)obviously not the fictional character, but by a street performer that would dress up as Zorro and play-swordfight with tourists for tips.  The Venetian claimed that Zorro did not have right to perform on the sidewalk outside of the hotel. The Court disagreed. “This Court and the Ninth Circuit already have ruled that the sidewalk in front of the Venetian is a public sidewalk and Venetian Defendants have no right to exclude members of the public from the public sidewalk.”12)Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al No. 2:2010cv00899 - Document 119 [D. Nev. 2011] Read the case here.

Now that we know that the sidewalks outside the casinos are public forums, the analysis really start to get exciting.  We will now attempt to resolve if the city or county is permitted to pass an ordinance forbidding certain types of obscene or lewd street performances.

 

When is the government permitted to regulate speech?

In United States v. O’Brien13)391 U.S. 367 [1968] Read the case here , Mr. O’Brien was arrested for burning his Selective Service registration during a public war protest. He contended that the law applied to arrest him violated his First Amendment rights to free speech and expression. The Warren Court held that the law passed Constitutional muster, and provided the four part test to evaluate if a regulation preventing speech was constitutional:

[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.14)Id. at 377.

 

I want to call attention to the last clause of the Warren opinion. In essence, any regulation of content-neutral speech15)if the government attempts to censor specific types of speech, the analysis is much tougher, called strict scrutiny.  The analysis above for content-neutral speech is considered to be intermediate scrutiny. If all these terms seem a bit arbitrary to you, do not feel alone. must be narrowly tailored to meet the government interest cited as the first factor. What does that mean with respect to our street performers? The city/county may not outright ban all street performers as a means to prevent the publicly obscene.  So we can strike that idea.

In Barnes v. Glen Theatre, Inc.16)501 U.S. 560 [1991] Read the case here , The Rehnquist Court held that an Indiana statute requiring adult entertainers to “don pasties and g-strings” did not violate the 1st Amendment’s right to free expression:

Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity…The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose.17)Id. at 571-572(emphasis added)

 

So at least we know that governments may regulate public nudity without it being prima facie18)Latin for 'at first appearance' unconstitutional. Or at least we thought so until the court granted certiorari19)meaning when I higher court requests the records of a lower court case to adjudicate an appeal to similarly situated plaintiffs/defendants from Pennsylvania.

 

Erie v. Pap's A. M.

Erie, PA read the Barnes case above and modeled their own prohibition against public nudity after the law approved of by the Court in that case. Kandyland20)yes, the real name of the club contended that the law violated their First Amendment rights. The Court disagreed:21)though by no means unanimously; the justices were able to form a plurality holding up the Erie statute, but could not agree as to why it was constitutional

Being "in a state of nudity" is not an inherently expressive condition. As we explained in Barnes , however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection…The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, [t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. (internal quotations omitted) 22)529 U.S. 277; 120 S. Ct. 1382 [2000] Read the case here

 

So although the court has affirmed twice now that municipalities may prohibit public nudity, it is only when the nudity is for profit and not political.  You are probably thinking now that this is clear, the city and county should pass ordinances that prohibit lewd dress in public and all will be ok. I am not done with the caveats just yet.

What if, instead of dressing in a provocative manner for tips, the street performers were nude, or nearly nude in the name of political protest.23)Celebrities such as Chelsea Handler, Miley Cyrus, and Chrissy Teigen have all been posted topless photos of themselves in protest of the double standards for men and women..sorry, no links This would certainly qualify as nudity as an expressive condition, and it would be much more difficult for the city or county to codify ordinances against it.

 

So is there no solution?

Well, if you were patient enough to get through that discussion, and then we got to the end and I told you, “sorry, better luck next time,” I cannot imagine that you would come back and see me again.

Why is this important? First, there are children downtown and on the strip and parents have enough to worry about with the plethora smut cards being handed out.  Second, in response to folks that say “yeah, well, that is what happens downtown, if you do not like it, stay away,” I say that lots of folks visit Las Vegas for the first time, from all over the world24)with different levels of comfort with respect to modesty and as good hosts we should at least attempt to make as many of them as comfortable as possible.  But at the same time, the free expression cases are important and need to be respected.

Can we balance the countervailing interests?

Perhaps. A few of ideas:

  1. Require Las Vegas street performers to obtain a license from the county25)hopefully not for a large fee. Las Vegas requires all adult club employees to obtain a work card26)Las Vegas Municipal Code 6.35.080; it does not seem reasonable that the folks working on the street should not be held to the same standard.  Whatever health or safety presupposition that motivated the work card law should also apply to the street performers.  Additionally, lots of the costumed folks deal with kids; we certainly have sufficient justification to have them register with the city.  God forbid something horrific happen like in Times Square. A drop in the number of tourists will directly impact our casino workers, particularly those on the extra board.
  2. If there happens to be folks that perform in the nude as a political statement, we can allocate public areas as “free speech zones” like many college campuses currently have. It allows the opportunity for free expression while the city can protect the public morals.
  3. Prohibit children downtown on Fremont Street. That allows folks that want to perform in an adult manner a safe space to do so, while it makes clear the first-time tourists and families that they should use caution when going downtown.27)I cannot imagine the downtown Las Vegas project will like this idea very much. However, the strip brings in too much revenue for it to go child-free.
  4. Allow adult-oriented street performances only after a certain time of night. Perhaps it could align with the city and county curfew?

I am not contending that any of these ideas are perfect regarding Las Vegas street performers, but one (or more) might be preferable to the status-quo.  Leave a comment with your thoughts! Thanks for reading.

More resources for your perusal:

Vegas Inc.

Las Vegas Sun

LVRJ

Footnotes

Footnotes
↑1 This is about 4 p.m. mind you
↑2 really Paradise Township, which is governed by the County
↑3 talk about a pun in poor taste
↑4 at least for trespassing outside the hotels proper
↑5 smartly
↑6 Providence willing, this is a typo in the municipal code website and the actual code spells willfully correctly
↑7 who knows, perhaps women were not even allowed in Las Vegas in 1931..I kid our ancestors!
↑8 I will let your imagination fill in the details
↑9 Title 19 of the Las Vegas Municipal Code is no longer in effect, once someone from the city responds to my inquiry as to the definition of “sexually oriented business,” I will pass it along
↑10 The Venetian Hotel sued the Clark County government in an effort to get Metro to arrest the [more than 1,000] Culinary Union representatives protesting outside of the hotel. The Court was not persuaded by the Venetian’s arguments. Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 948 [9th Cir. 2001] Read the case here
↑11 obviously not the fictional character, but by a street performer that would dress up as Zorro and play-swordfight with tourists for tips
↑12 Perez-Morciglio et al v. Las Vegas Metropolitan Police Department et al No. 2:2010cv00899 - Document 119 [D. Nev. 2011] Read the case here
↑13 391 U.S. 367 [1968] Read the case here
↑14 Id. at 377
↑15 if the government attempts to censor specific types of speech, the analysis is much tougher, called strict scrutiny.  The analysis above for content-neutral speech is considered to be intermediate scrutiny. If all these terms seem a bit arbitrary to you, do not feel alone.
↑16 501 U.S. 560 [1991] Read the case here
↑17 Id. at 571-572
↑18 Latin for 'at first appearance'
↑19 meaning when I higher court requests the records of a lower court case to adjudicate an appeal
↑20 yes, the real name of the club
↑21 though by no means unanimously; the justices were able to form a plurality holding up the Erie statute, but could not agree as to why it was constitutional
↑22 529 U.S. 277; 120 S. Ct. 1382 [2000] Read the case here
↑23 Celebrities such as Chelsea Handler, Miley Cyrus, and Chrissy Teigen have all been posted topless photos of themselves in protest of the double standards for men and women..sorry, no links
↑24 with different levels of comfort with respect to modesty
↑25 hopefully not for a large fee
↑26 Las Vegas Municipal Code 6.35.080
↑27 I cannot imagine the downtown Las Vegas project will like this idea very much. However, the strip brings in too much revenue for it to go child-free.
General Interest / Las Vegas / Nevada Law - 07/27/2015

ESAs, School Choice, and the Nevada Education Revolution

**2016 Update** Neal Morton of the RJ1)One of the few who survived the purge, not that I want to jinx it reports that oral arguments for Nevada's school choice bill will be on Friday.

There are 2 lawsuits, both against the state. One was filed by a group of Carson City parents (Schwartz v. Lopez), the other by the ACLU (Duncan v. State of Nevada). Both will be argued on Friday.

I reread the essay below, and I do want to tell you all that I have moderated my stance a bit when it comes to school choice. As you'll see, last year I found the idea absurd on its face. Between now and then, I've talked with Nevada parents that support this law, and they persuaded me to moderate my views a bit. I can come back to you one year later and admit that at least now I can understand why a parent of a child in a fail school would want this bill2)The fact this wasn't readily obvious to me is a failure of the school choice campaign which seems to only discuss this problem on a child-to-child basis, rarely addressing the aggregate.

For those (likely childless like me) that are looking at education from an abstract, aggregate view3)To those parents out there who just want us to but out, we care too. I promise I am not just giving you a hard time, this bill looks as suspicious now as it ever has.

I'm sure there are a number of good-intentioned parents that just want their kids to go to the best school possible, and in the short term, supporting this bill seems like the best way to reach that goal. I'm not too concerned with these good folks.

I am worried though that there are people using our education policy debate to graft public money4)The attorney general is paying more than $500,000 dollars to outside (the state) counsel to argue the case (with your tax money). Also, as you will see, private firms get to take a transaction fee on your ESA, which of course is not defined in the law. I wish more people at the state level shared this concern.

I stand by everything I wrote last July, and we should insist that the state answer at least some of my questions below before radically upending our education system.

 

Is This What They Meant By School Choice?

The Nevada legislature had quite the busy 2015 session. Besides the new law reforming gun control, the most famous/notorious bill passed was Senate Bill (SB) 302, which creates education savings accounts (ESA) for those parents that want to take their kids out of public school.

From a perusal of the press writings on SB 302, there seems to be much more speculation than fact regarding the new program.

Today, I will take you through the text of SB 302 and discuss its advantages/disadvantages without (hopefully) degenerating into partisan name-calling.

 

How SB 302 Changes Education in Nevada

Well the change could be quite profound; it will all depend upon how the state implements SB 302, and how many folks decide to take advantage of the new program. But before all that, let us avoid getting the cart before the horse and take a glance at the text of SB 302.

The bill is quite a bit longer than others we have discussed on the Clear Counsel Legal Blog, so with the hopes of keeping you engaged, I have excerpted the most pertinent parts for you and your children5)read the entire bill here.

The fun begins in Section 7, which authorized the education savings accounts. Here is subsection 1:

 

Section 7.

1. Except as otherwise provided in subsection 10, the parent of any child required by NRS 392.040 to attend a public school who has been enrolled in a public school in this State during the period immediately preceding the establishment of an education savings account pursuant to this section for not less than 100 school days without interruption may establish an education savings account for the child by entering into a written agreement with the State Treasurer, in a manner and on a form provided by the State Treasurer. The agreement must provide that:

(a) The child will receive instruction in this State from a participating entity for the school year for which the agreement applies;

(b) The child will receive a grant, in the form of money deposited pursuant to section 8 of this act in the education savings account established for the child pursuant to subsection 2;

(c) The money in the education savings account established for the child must be expended only as authorized by section 9 of this act; and

(d) The State Treasurer will freeze money in the education savings account during any break in the school year, including any break between school years.

 

According the media accounts, the Nevada treasury plans on issuing debit cards to parents who opt-in to the program, and these cards will have the funds loaded onto them at an interval determined by the treasury.

The most controversial issue of Section 7 is the 100 days minimum attendance at a public school before a student will have access to the funds.  As I am sure you can guess, no one is happy about this term of the bill.

Smaller private schools are worried that hordes of students will unroll from their current private schools to meet the 100 day requirement, then come back in the spring term6)read more here  The smaller private schools claim that their finances will not be able to survive a mass exodus, and staff layoffs would ensue.

There is some talk of the state permitting kids to enroll in one public school class for the 100 days requirement, but the practicalities of that have not been worked out7)Would the kid go to public school from 8am to 9am, then head off to private school? Who will drive him? May the student just take a single, online, public-school course during the fall semester; is that sufficient? We are all waiting for clarification.

Folks that have been paying private school tuition are irritated as well; they claim they have been contributing toward public education all this time with no (direct) benefit to their own families.

Why should they have to jump through hoops to get what is rightfully theirs8)your property taxes do not just go toward educating your own children, but in educating the communities children. If that does not move the dial for you, think about how less likely an educated person will turn to a life of crime and debauchery. We all benefit from a safer community.?

The answer may be that the state is protecting against fraud.  Just imagine how fast this program would go belly-up if folks did not need to establish long term residency in the school districts.

What if a child is only partly educated in the public schools? Subsection 3 of Section 8 provides guidance:

 

Section 8:

3. If a child receives a portion of his or her instruction from a participating entity and a portion of his or her instruction from a public school, for the school year for which the grant is made, the grant required by subsection 1 must be in a pro rata based on amount the percentage of the total instruction provided to the child by the participating entity in proportion to the total instruction provided to the child.

Is “total instruction” this based on time or coursework? Who makes the determination of the pro-rata share? This has not been clarified 9)Rarely are laws put into effect too quickly, but this might be an example.  I see the potential for trouble.

 

How May You Utilize These Education Funds?

Those suspicious of the program are concerned that folks will open an education savings account and not properly allocate the funds towards their child’s education10)this would be fraud.  Luckily, SB 302 specifies how the funds may be spent:

 

Section 9

1. Money deposited in an education savings account must be used only to pay for:

(a) Tuition and fees at a school that is a participating entity in which the child is enrolled;

(b) Textbooks required for a child who enrolls in a school that is a participating entity;

(c) Tutoring or other teaching services provided by a tutor or tutoring facility that is a participating entity;

(d) Tuition and fees for a program of distance education that is a participating entity;

(e) Fees for any national norm-referenced achievement examination, advanced placement or similar examination or standardized examination required for admission to a college or university;

(f) If the child is a pupil with a disability, as that term is defined in NRS 388.440, fees for any special instruction or special services provided to the child;

(g) Tuition and fees at an eligible institution that is a participating entity;

(h) Textbooks required for the child at an eligible institution that is a participating entity or to receive instruction from any other participating entity;

(i) Fees for the management of the education savings account, as described in section 10 of this act;

(j) Transportation required for the child to travel to and from a participating entity or any combination of participating entities up to but not to exceed $750 per school year; or

(k) Purchasing a curriculum or any supplemental materials required to administer the curriculum.

 

A good start! In particular, I like the cap on transportation costs in subsection (j)11)the last thing we need is folks spending all their kids’ education money on new wheels.  The majority of the list seem like good areas to invest in for a child’s education, but how is a parent, who is not a professional educator or accountant, to know how much of the funds should be allocated to what area? Hopefully, the state plans on offering some guidance.

Additionally, subsection (k)’s reference to “supplemental materials” raises a few red flags.  Could not most items, if construed by a creative enough person, be considered “supplemental” to a child’s education? This type of catch-all may be taken advantage of unless the state clarifies.

How will the state enforce the terms of section 9? See Section 10:

 

Section 10.

1. The State Treasurer shall qualify one or more private financial management firms to manage education savings accounts and shall establish reasonable fees, based on market rates, for the management of education savings accounts.

2. An education savings account must be audited randomly each year by a certified or licensed public accountant. The State Treasurer may provide for additional audits of an education savings account as it determines necessary.

3. If the State Treasurer determines that there has been substantial misuse of the money in an education savings account, the State Treasurer may:

(a) Freeze or dissolve the account, subject to any regulations adopted by the State Treasurer providing for notice of such action and opportunity to respond to the notice; and (b) Give notice of his or her determination to the Attorney General or the district attorney of the county in which the parent resides.

 

I can hear my friends on the left getting upset already. The bill is supposed to provide more school choice for at-risk kids, but now “private financial management firms” are permitted to take “reasonable fees” to administer these accounts.  I caution my tree-loving friends; do not just assume this is just another scheme for private companies to get into the coffers of public education monies.  Give it at least until January to see what they mean by “reasonable fees,” but by all means, keep tabs on the going-ons.

Also, it is important to note that if you sign up for an education savings account, it is possible that your spending of the funds will be randomly audited at some point in the year. If I was using an education savings account during this first run, I would keep all my receipts given that there is no telling how strict an audit this may be.  The national press has been making hay out of this new program,12)apparently it is the most extreme voucher program in the country now so folks will be just itching to catch fraudulent behavior. Be careful!

 

A Few Questions About Nevada Education That Are More Important Than School Choice

Since the state has until January to implement the new program, there is not more information available into the mechanics of how the education savings accounts will be implemented.  We know that students with education savings accounts will have to take a math and English test each year to demonstrate progress, but it has not been clarified which test, and if all the students have to take the same test.

I think folks from all sides can agree that we need to improve our education system in Nevada. No matter the metric used13)Kids Count released a report at the beginning of the week ranking Nevada 47 out of 50 states, Nevada schools continue to be near the bottom of the rankings. From this starting point, each political side immediately begins talking dollar and cents.

My liberal friends want to spend unlimited amounts on education, while my conservative friends are irritated on how the money is being spent, and want to apply market dynamics to help improve the system.

I want to take a step back and ask the question that should come before all the money inquiries: what are our collective goals to be reached by our education spending? What do we want of our kids to be able to do by the time they graduate? Really try to be specific in your answer. Throwing money at unspecified problems will result in unspecified results.

Let me put it this way: what is the bare minimum we should expect of a graduating high school student? Is it imperative that kids be able to fluently understand all the different topics offered in the high schools, or are there necessary topics we need them to know, and anything additional would be gravy?

But an even more fundamental question: what do we want our kids to take away from more than 12 years of education? Civic engagement? A love of learning? The school curriculum is designed as if this will be the last chance for child to ever learn anything ever again; so instead of going into depth in a few topic areas,14)and thus exposing kids the highest level of joy that Plato spoke of, the joy of understanding we teach very little of a lot of topics.

Is this the best approach? Ask a random graduate of the Clark County school system a random science/social science/humanities question that was covered in high school. How much did s/he retain?

We may need to come to terms that we cannot teach kids everything they need to know about life in the 13 years we have to educate them. And if that is the case, I ask again, what should our goals be?

I applaud the Assembly and Governor for not being satisfied with the status quo and perhaps their bill will lead to a large growth in specialize charters (like Washington D.C. has) that can better meet the needs of a diverse student population.

But I worry that only students with very engaged parents to get the real benefits of the program.  For those kids with parents that are less engaged 15)for whatever reason, they will remain in public schools with even less funds16)I assume that the state will withdraw the funds from the schools with less students, without the fellow students who are most engaged in the curriculum.

The last thing we need are those kids already behind the others to fall even further back.

If the goal of our public education system is to help those who have manifested a desire to help themselves, then this might be the best course of action.

However, before I would radically alter our education framework, these are some of the questions I would ask. Then I would see if my proposed reforms were the most efficacious means to achieve my goals.

At least in Clark County, we have too many unengaged students in overcrowded classrooms taught by overextended/underpaid teachers.  A desire for change is not unreasonable.  Instituting change without knowing how or why, might be.

All the links you need for further reading:

The RGJ on parents demanding payments

The RGJ on the legislature passing the education reforms

EdWeek on the public policy implications

The Education Writers Association has 10 questions about the new law

The Washington Post on the political implications

The Washington Post has the statistics on education spending by state

US News thinks the new reform will increase inequality

The Las Vegas Sun on a potential Constitutional challenge

The National Review celebrates the new reforms (without calling anyone a Nazi)

The Text of SB 302

Footnotes

Footnotes
↑1 One of the few who survived the purge, not that I want to jinx it
↑2 The fact this wasn't readily obvious to me is a failure of the school choice campaign which seems to only discuss this problem on a child-to-child basis, rarely addressing the aggregate
↑3 To those parents out there who just want us to but out, we care too. I promise I am not just giving you a hard time
↑4 The attorney general is paying more than $500,000 dollars to outside (the state) counsel to argue the case (with your tax money). Also, as you will see, private firms get to take a transaction fee on your ESA, which of course is not defined in the law
↑5 read the entire bill here
↑6 read more here
↑7 Would the kid go to public school from 8am to 9am, then head off to private school? Who will drive him? May the student just take a single, online, public-school course during the fall semester; is that sufficient? We are all waiting for clarification
↑8 your property taxes do not just go toward educating your own children, but in educating the communities children. If that does not move the dial for you, think about how less likely an educated person will turn to a life of crime and debauchery. We all benefit from a safer community.
↑9 Rarely are laws put into effect too quickly, but this might be an example
↑10 this would be fraud
↑11 the last thing we need is folks spending all their kids’ education money on new wheels
↑12 apparently it is the most extreme voucher program in the country now
↑13 Kids Count released a report at the beginning of the week ranking Nevada 47 out of 50 states
↑14 and thus exposing kids the highest level of joy that Plato spoke of, the joy of understanding
↑15 for whatever reason
↑16 I assume that the state will withdraw the funds from the schools with less students
Las Vegas / Nevada Law / News - 07/23/2015
nevada national monument

How the President Applied the Antiquities Act to Create the New Nevada National Monument

“The new Basin and Range National Monument is an area where the Mojave Desert meets the Great Basin and Joshua trees and cactus give way to a sea of sagebrush. It is home to desert bighorn sheep, mule deer, elk and pronghorn antelope. The land provided food and shelter for ancient people and we can still see the history of those people today in the incredible rock art panels. This area is a time capsule of our pioneering western history, from early explorers to mining to the ranching that still exists today. In its center is City, a grand modern art sculpture by world renowned artist Michael Heizer. It is a peaceful place. To me, it feels like home.” -Senator Harry Reid1)Elko Daily

 

“The immensity of man’s power to destroy imposes a responsibility to preserve.” -Congressman John F. Lacey, (R-IA), 1901

****Late December 2016 Update****

Image

28 December: President Obama, applying the very powers discussed below, named Gold Butte a national monument.

See below to learn about the political craftswork done by President Teddy Roosevelt to get this law put into effect.

(You must be wondering why the Congress would ever assent to assign such unchecked power to the executive..)

[End note]

Last week, President Obama, with the authority granted to his office by the Antiquities Act of 1906, declared 704,000 acres of land2)approximately the size of Rhode Island north of the Las Vegas Valley the Basin and Range National Monument.  Although much of the national press accords the credit3)or blame depending what you read to Sen. Reid for the creation of the monument; however, only President Obama has the authority to create the monument, and he alone decided if and when to act.

There are not many areas that the President has authority to act unilaterally; creating national monuments is one of the few.  Why was the office of the President granted this authority? And how has the power been applied in the 100 years since the act was signed into law by President Theodore Roosevelt?

Let’s get to it.

The Text and History of the Antiquities Act

The Act for the Preservation of American Antiquities (the Antiquities Act) was a product of the progressive political movement4)which consisted of members of both parties that began in the 1890s and culminated in 1916 with the creation of the National Park Service. Congress received multiple reports from the American Southwest that significant historical sites were being vandalized and pillaged by folks that want to steal artifacts and natural resources. Rep. John Lacy5)of the great state of Iowa attempted for more than ten years to pass this legislation to protect these areas, and finally, with the political assistance of the immensely popular President Roosevelt6)for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex, he was finally able to pass the bill in June of 1906.7)In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate. Section 2 of the bill states:

The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.8)16 U.S.C. [United States Code] 431, 1906(emphasis added) 9)Source

 

Richard Sellers10)a historian for the National Park Service wrote a great piece on the history of Federal preservation of land.  In it, he provides some context for how and why the Antiquities Act was passed:

In the realm of historic and natural preservation on the nation’s public lands, no law had ever approached the scope of the 1906 Antiquities Act. Much more broadly than with individual national park enabling legislation, the Act made explicit that preservation of historic, archeological, and other scientific sites on lands controlled by the federal government was indeed a federal responsibility. Somewhat analogous to the government’s concern for protecting private interests on private property, the national government accepted its obligation to protect the broad public interest on public lands, in this instance at places containing important remnants of the American past and significant scientific areas. The Act also made it clear that, unlike the forest reserves, the primary value of such special places lay not in their commercial value—in economics, sustainable harvesting, and profits—but in their contribution to education and knowledge for the general public good through research conducted and information disseminated by scientific and educational institutions.11)pg 293 Read the article here

 

The reasoning behind the law is fairly intuitive.  The language used is less so.  How is 700,000 acres of land a monument12)Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster? Does the term “scientific interest” really mean(in application)) any non-commercial interest? More from Mr. Sellers:

In what was from the first its most prominent section, the Act authorized the President to reserve special places located on lands controlled by the federal government: to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” These places were to be designated “national monuments,” a term Hewett13)Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time. devised, which distinguished them from national parks. While it employed the same proclamation procedure that had been used to establish the Casa Grande Ruin Reservation, it gave the President far greater authority, moving from the one-site authority for Casa Grande to placing no limits on the number of sites presidents could set aside. It thus significantly advanced the preservation authority of the Executive Branch, from not only managing preserved places such as archeological sites, battlefields, and national parks, but also establishing areas to be preserved. The Act’s inclusion of the phrase “scientific interest” opened the way for presidential proclamations that ultimately would set aside a huge array of scenic national monuments having important scientific values. (In 1978, the “scientific interest” wording of the Antiquities Act would help provide statutory authority for President Jimmy Carter to proclaim national monuments in Alaska that added more than 40 million acres to the national park system.) 14)Id. pg 294

 

Very sneaky, indeed. President Roosevelt went on to declare Devils Tower15)of Wyoming the first national monument under the new law in September of that year.  Like most power granted to the executive branch16)see the War Powers, generally, the reach of the authority expanded as the years passed.

This type unilateral executive power of the Antiquities Act was not unopposed

Our friends in the Congress have not17)and are not huge fans of the President's unfettered authority18)at least when it comes at no political risk to themselves to declare lands sole property of the federal government. The first spat between the President and Congress occurred in the 1940s when FDR wanted to expand Grand Teton National Park to include the area surrounding Jackson Hole, Wyoming. Congress refused, “because, in the words of Sen. Henry Ashurst of Arizona, ‘the other States are not going to put over on Wyoming something that her two senators do not want.’”19) Source

Congress, irritated that the natural wealth and beauty of Wyoming could no longer be sold for profit to the highest bidder20)I kid, I am sure this was only about state sovereignty, passed the first exception to the Antiquities Act which prohibits the creation of any national monuments in Wyoming unless there is express authorization from Congress21)16 U.S.C. 431a, by express I mean written, passed legislation.

President Carter was the next chief executive to take the power granted by the Antiquities Act beyond what Congress found palatable. In the late 1970s, Congress could22)or would depending your perspective not pass legislation to protect wilderness of Alaska.  President Carter took on the political risk and declared 56 million acres as a national monument using the Antiquities Act. “Like FDR, [President Carter] sidestepped Congress, which up to that point had failed to pass an Alaskan lands protection bill because Alaskans opposed it. Alaskans in the area were incensed, and citizens in Fairbanks even burned President Carter in effigy.”23)see the NPR story cited above.

Note though, that no matter what folks said (or burned), the national monument designation remained.

Some politicians are unhappy with the new Nevada national monument

This discord between the President and the Congress/state governments continues.  Governor Sandoval, Senator Heller, Rep. Heck, and Rep. Hardy all have made public statements condemning the President’s use of the Antiquities Act to create the new Nevada National Monument.  All are displeased with not being more involved in the process, with Rep. Hardy expressing additional concerns about the national monument hurting economic growth in his congressional district.  When asked by KNPR about the Republican objections, Sen. Reid responded “I told them all what I was going to do,” he said. “Maybe they should have said something then.” 24)Source.

As an added externality, could this be Yucca Mountain’s last stand? There is speculation now that it will be all but impossible to build the railroad necessary to connect a potential Yucca Mountain repository.  To quote Robert Halstead, director of the Nevada Agency for Nuclear Projects, "This is the final nail in the coffin.”25)Source

 

Read more about the Basin and Ridge national monument here

Footnotes

Footnotes
↑1 Elko Daily
↑2 approximately the size of Rhode Island
↑3 or blame depending what you read
↑4 which consisted of members of both parties
↑5 of the great state of Iowa
↑6 for more on President Roosevelt’s political aptitude, see Edmund Morris’ wonderful Theodore Rex
↑7 In fact, the bill originally was known as the “Lacy Act” at first, until it confused folks because Rep. Lacy’s bill to protect national wildlife was also referred to by the same name. People began to refer to this bill as the Antiquities Act as a means to differentiate.
↑8 16 U.S.C. [United States Code] 431, 1906
↑9 Source
↑10 a historian for the National Park Service
↑11 pg 293 Read the article here
↑12 Merriam-Webster defines “monument” as “a building, statue, etc. that honors a person or event” and “a building or place that is important because of when it was built or because of something in history that happened there” ((Merriam-webster
↑13 Edgar Lee Hewett was an influential, New Mexico-based archeologist who worked in Las Vegas for some time.
↑14 Id. pg 294
↑15 of Wyoming
↑16 see the War Powers, generally
↑17 and are not
↑18 at least when it comes at no political risk to themselves
↑19 Source
↑20 I kid, I am sure this was only about state sovereignty
↑21 16 U.S.C. 431a, by express I mean written, passed legislation
↑22 or would depending your perspective
↑23 see the NPR story cited above
↑24 Source
↑25 Source
General Interest / History / Las Vegas / News - 07/16/2015
Young Couple Riding Motor Scooter Along Country Road

The Rights of a Scooter to Drive on the Shoulder

A client recently received a traffic citation for driving his motorized scooter on the shoulder of a city street in Las Vegas, Nevada, after an accident with another vehicle. The citation listed 0610 “restricted access” as the violation. I have seen many scooters drive on the shoulder of a road in the Las Vegas area; thus, I wondered whether the officer was correct in asserting that it is illegal for scooters to drive on the shoulder.1)For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.

The short answer is “most likely.” There is ambiguity in the law, but for the reasons stated below, an officer is most likely supported in citing a scooter driver for violating the law if driving to the right of a solid white line on a shoulder. However, if the scooter driver is involved in an accident while driving the scooter that was not his fault, he may not be precluded from recovering damages from the accident.

 

The rights of motorized scooters are not fully defined in the NRS

The Nevada Revised Statutes (NRS) that pertain to traffic laws and are found in NRS 484A-484E, and they do not contain a provision or law that appears to match the violation of “restricted access” cited by the police officer in my client’s case. A statute that refers restricted areas that may be the closest to the relevant situation is found in NRS 484B.510, which is titled “Stopping, standing or parking in restricted parking zone.” The NRS does not specifically define restricted parking zone, but the text of this statute makes such a zone sound like an area that has signs marking it—such as a 10 minute loading zone or similar. This is not the typical roadway shoulder found in the Las Vegas valley.

The violation of crossing a white line on the freeway is governed by NRS 484B.587, but there is no reference to non-freeways. Thus, while an officer may be supported in believing there was a violation for the driving of a scooter on the shoulder of a non-freeway, the “restricted access” violation likely does not match with the alleged improper actions.

 

Applying statutory definitions of moped, vehicle, roadway, and shoulder to better understand the rights of  a motorized scooter

My conclusions that scooters are nonetheless not permitted to drive on the shoulder are almost exclusively based upon the definitions found in the NRS with some corroboration with the Nevada Administrative Code (NAC) and the Nevada Department of Motor Vehicles (DMV). Case law on the topic in Nevada is silent. The main definitions upon which I rely are “moped,” “vehicle,” “roadway,” and “shoulder,” the last of which is only provided in the NAC.

Under Nevada law, a motorized scooter is identified as a “moped,” which is defined under NRS 484A.125:

a motor-driven scooter, motor-driven cycle or similar vehicle that is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters or produces not more than 1500 watts final output, and

1. Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

2. Is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged.

 

NRS 484A.125 specifically states that “moped” does not include an electric bicycle. On the other hand, a moped is a “vehicle” under NRS 484A.320 because it is a transportation device that may be used on a highway and is not moved by human power: NRS 484A.320 defines a “vehicle” as follows:

“Vehicle” means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except:

1. Devices moved by human power or used exclusively upon stationary rails; and

2. Electric personal assistive mobility devices as defined in NRS 482.029.

 

Since a moped is a transportation device not moved by human power nor is it an electric personal assistive mobility device, it is a vehicle under Nevada law. There is some circularity in the definitions here because the definition of highway under NRS 484A.095 states that it designed for vehicles, and the definition of vehicle states it is a device allowed on a highway. However, to say that a moped is not a permitted on a highway would lead to an absurd result of not allowing a moped on the road at all; therefore, my conclusion assumes that mopeds are permitted on the highway and are thus vehicles. This means that any law that applies to vehicles also applies to mopeds unless there is an exception.

It is important to recognize that a highway in Nevada is defined very broadly as follows:

“Highway” means the entire width between the boundary lines of every way dedicated to a public authority when any part of the way is open to the use of the public for purposes of vehicular traffic, whether or not the public authority is maintaining the way.2)NRS 484A.095

 

Many people may think of a highway as a major street or road that is not a freeway, often due to famous highways such as Highway 69 or 101. As shown by the above statute, when dealing with the Nevada laws on traffic, the word “highway” is specifically defined and is simply the entire publicly open surface available for “vehicular traffic.” Under NRS 484A.215, a “road” is basically the same as a highway except that it is “outside the territorial limits of a city.”

On the other hand, a “roadway” is narrower in scope than “highway” because it includes just the improved portion of the surface that excludes the shoulder. NRS 484A.220 defines “roadway” as “that portion of a highway which is improved and ordinarily used for vehicular traffic, exclusive of the shoulder.” (emphasis added). The definition of roadway thus shows that the shoulder is not a part and it is for vehicles, which includes mopeds. It does not state that vehicles are not permitted to travel in the shoulder. The term “shoulder” is not defined in NRS 484A-484E.

It is a false inference to think that because the roadway is for vehicles, the shoulder is not. The fact that the roadway excludes the shoulder just differentiates the roadway from the shoulder, but there is nothing that states that the roadway is the only area for vehicular traffic or that the shoulder is not for vehicular traffic; the roadway is ordinarily used for vehicular traffic as opposed to the traffic of horses, pedestrians, bicyclists, sheep, or other possible roadway users, all of which may be permitted but are not the ordinary users. Just because the roadway’s ordinary use is for vehicular traffic does not mean that the shoulder is not also for a similar use.

The same logic may be applied to NRS 484A.300, which is titled “Traveled portion of highway” and is defined as that portion of a highway improved, designed or ordinarily used for vehicular traffic, exclusive of the berm or shoulder.” Just because the traveled portion of the highway is designed for or used by vehicles does not mean that the shoulder is not. The exclusion of the shoulder as part of the roadway or traveled portion of the highway is a physical characteristic of the respective public thoroughfares, and the use by vehicular traffic is a characteristic of its intended use.

There is no statute that specifically states that vehicles, including mopeds, are not allowed on the shoulder; however, there would be an absurd result if vehicles were permitted to travel on the shoulder. The shoulder is separate because it has a different function; it is also usually marked with a solid white line. If the shoulder were permitted for vehicular travel, then why paint the solid white line at all or even refer to it as a shoulder? Frequently, the shoulder is not large enough to safely drive a vehicle while remaining entirely on pavement and not encroaching on a neighboring lane.

Thus, logically, the shoulder is different from a regular vehicle travel lane, and since it has no specifically stated purpose, it is likely not a lane designated for ordinary vehicular traffic. It is a commonly accepted rule that cars and trucks are not permitted to drive on the shoulder. The law establishes that mopeds are vehicles. If you put the two together, mopeds are not allowed to drive on the shoulder.

 

The Nevada Administrative Code is instructive

The Nevada Administrative Code3)NRS 408.215 [4] grants authority to the Director of the Department of Transportation to "adopt such regulations as may be necessary to carry out and enforce" the intent of the NRS with regards to transportation regulation, while not a direct authority, provides more specific guidance. It defines “roadway” and “traveled way” similar to the NRS but also includes a definition of “shoulder.”4)NAC 408.245, 408.260 NAC 408.250, it states that “Shoulder” means the portion of the roadway contiguous with the traveled way for the accommodation of stopped vehicles, emergency use and the lateral support of the base and surface.

Thus, when read with the NRS definition of vehicle to include mopeds, NAC 408.250 shows that shoulders are not available for moped travel and may only be used for stops and emergencies.

The DMV Driver’s handbook contains a more thorough statement regarding the purpose and function of solid white lines. It states that “a solid white line is also used to mark the edge of the highway as well as the boundary between a travel lane and a highway shoulder.”5)DMV Driver’s handbook, page 30, July, 2014 While the DMV handbook is not an authority, it would be persuasive in its interpretation of the law.6)particularly because the term "boundary" is not defined in the NRS

While it is likely that a traffic citation issued to a driver of a scooter or moped for driving on the right side of a solid white line is likely proper. The law is not clear that mopeds are not allowed to drive on the shoulder, but the law identifies mopeds as vehicles, and vehicles should not drive on shoulders.

Even if a person violates that law by driving on the shoulder on a scooter, other drivers have a duty to drive safely and watch for other users of the highway. Just because the scooter driver was driving on the shoulder at the time of the accident does not mean that they will be found at fault for the accident. In 2005, the Nevada Supreme Court ruled that a violation of a traffic statute by a victim of a vehicle accident will not preclude the victim from recovery.  You can read Langon v. Matamoros here.

The outcome of every case is fact sensitive. Please contact an attorney if you have questions about this or any related matter as this is not legal advice.

Footnotes

Footnotes
↑1 For purposes of this blog post, “shoulder” means the area of the road to the right of the right-most lane, on the opposite side of the white, solid line.
↑2 NRS 484A.095
↑3 NRS 408.215 [4] grants authority to the Director of the Department of Transportation to "adopt such regulations as may be necessary to carry out and enforce" the intent of the NRS with regards to transportation regulation
↑4 NAC 408.245, 408.260
↑5 DMV Driver’s handbook, page 30, July, 2014
↑6 particularly because the term "boundary" is not defined in the NRS
General Interest / Las Vegas / Nevada Law / Personal Injury - 07/07/2015
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