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Nevada Law

Clear Counsel Law Group / Nevada Law
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
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
google alphabet series LLC

Google, Alphabet, & Your Small Business

Having billions of dollars at your disposal must be a lot of fun. For instance, you could use some of your money trying to develop a self-driving car, try to figure out how to use drones to deliver goods and merchandise to your consumers’ doorsteps, build massive barges in the middle of San Francisco Bay for who knows what reason1)Is it inappropriate to make a Fountainhead joke? Hopefully.. The point is: money may not buy happiness, but it will allow you to have some fun you probably could not have otherwise.

Google’s founders are swimming in money, figuratively speaking and maybe even literally2)who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.. A mid-90s research project to build a better online search engine has ballooned into a behemoth technology company with interests as far flung as you can imagine. Google’s growth certainly presents a systemic organizational challenge in trying to develop the myriad of different products, projects, and business interests that Google has taken on.

 

Enter Alphabet, Inc.

On August 10, 2015, Google announced plans to organize a new corporation, Alphabet, Inc., to act as a parent company for not only Google, but also for many of Google’s other business interests. Why would Google need to add another layer of corporate structure to what appears to be an otherwise, well-oiled machine?

For starters, the parent company model will allow Google to remain flexible and diverse in its various business endeavors and still-under-development business projects. Presumably, Alphabet will also spin off countless other subsidiary companies under Alphabet3)A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself. . Each subsidiary will become its own separate business with its own officers, directors, and employees. Thus, it is assumed that the current arm of Google that is working on developing the self-driving car could be spun-off to a separate business entity (for example: Self-Driving Cars, Inc.), while the search engine aspect of the business will continue to operate under Google, Inc..

Google thrives on ingenuity and creativity. Spreading corporate governance more broadly will take advantage of the creative juices of its people who will theoretically take on more responsibility with new job titles of CEO, President, and Director of Let’s-Make-Stuff-Up-That-Would-Be-Totally-Awesome4)tm pending.

 

Even if you are not Google, an Alphabet may be for you

Similarly, separating out business interests creates a powerful asset-protection model that prevents one division of a company from dragging down the rest of the company in the event of a business disaster. For example, if Google’s wide-ranging business projects are currently doing business all under Google, Inc., then a liability that might arise when5)if a self-driving car goes rogue on the streets of San Jose and runs someone over. This could, in turn, affect business operations in the unrelated Google Translate department. Instead, with subsidiaries, Alphabet will isolate liabilities and protect other subsidiary companies from the dangers of liabilities caused by other aspects of the business.

Again, imagine that the self-driving car caused personal injury, and a fine personal injury attorney6)hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs. sued Self-Driving Cars, Inc., and won a court verdict of $5,000,000 in damages. With subsidiary companies, the injured person can look only to Self-Driving Cars, Inc., for payment of the court verdict. The injured person cannot look to Google Translate, Inc., to tap into its resources to pay the verdict because Google Translate, Inc., is treated by the law as a wholly separate legal entity that is not subject to the debts or liabilities of the other subsidiaries. This kind of asset protection allows Google to continue to innovate with speculative projects that may be more dangerous and prone to liability than you might expect from a company like Google Translate.

 

Dr. Canal is kind enough to provide us with an example

Google’s reorganization with Alphabet at its head does raise some interesting tips that even Jane Doe in Nevada could follow to her benefit. Most of us regular Nevadans do not have swimming pools full of $100 bills, nor are we investing our funds in the development of the first working time-machine, Delorean. However, many Nevadans do have varying business interests that could be protected from each other.

For example, consider your local dentist, Dr. Root Canal. Dr. Canal’s dental business actually consists of several different aspects: the practice of dentistry itself, the purchase, leasing, and use of medical equipment, and possibly the purchase and ownership of the building that the dental office is located. Thus, Dr. Canal actually has three separate business interests, all of which could be safely and legally protected from the other.

For example, imagine that Dr. Canal does a poor job on his next tooth extraction and his patient, Ayall B. Suing, sues him and his company, Root-Canals-R-Us, for dental malpractice. Dr. Canal loses the trial and the District Court for Clark County tells Dr. Canal and Root-Canals-R-Us that they must pay Mr. Suing $500,000 for his pain and suffering. Dr. Canal, unfortunately, kept all of his business interests (the dental practice, the dental equipment, and the office building) under just one umbrella: Root-Canals-R-Us. Thus, when Mr. Suing begins poking around for payment on his judgment, Mr. Suing first takes all of the business bank accounts, but he does not stop there. Next, he literally takes all of Dr. Canal’s examination chairs, the x-ray machine, and a box of promotional toothbrushes and even the dental floss to boot! Finally, Mr. Suing puts a lien against the building for the remaining amount of his judgment that was not covered by the other items he collected from Root-Canals-R-Us.

If Dr. Canal had followed Google’s lead, he would be in a much better situation. Dr. Canal could create separate business entities for each of his business interests: Root-Canals-R-Us to operate the actual dental practice; Dental Equipment, Inc., to own the dental equipment (which leases the equipment to Root-Canals-R-Us); and Dental Building, Inc., to own the dental building (which leases office space to Root-Canals-R-Us). Thus, when Mr. Suing looks for payment on his judgment against Root-Canals-R-Us, he will be limited to only that which Root-Canals-R-Us actually owns, which in this case would only be the business bank accounts (in general). Mr. Suing would not be able to swipe the examination chairs or put a lien on the building because those assets are owned by totally separate legal entities, which do not owe Mr. Suing anything.

 

Google, Alphabet, and the Series LLC in Nevada

Unlike with Alphabet, however, most Nevadans in these situations probably would not have a pressing need for a parent corporation to own separate subsidiaries because doing so for the average Nevadan unnecessarily adds another layer of corporate structure with minimal purpose. However, think again. Nevada is one of a handful of states that allows an ingenuous business entity called a Series LLC. In a Series LLC, the owner creates just one business entity with the State of Nevada, but then is allowed to create a “series” under the main LLC. Each series does not have to be registered with the State; only the main LLC. The beauty of this is that each separate series LLC is treated as if it is a totally separate business entity. For example, Dr. Canal can create Root Canal, LLC, as a series LLC, and then he would create Series A: Root-Canals-R-Us, Series B: Dental Equipment Company, and Series C: Dental Building Company. Thus, Dr. Canal accomplishes a parent-subsidiary type relationship (his own little Alphabet) where each series is treated as a separate business with asset protection between the different series.

Though you may not have billions to play with business ideas like Google, by creating and using a Series LLC you too can and should protect your business interests simply and powerfully. And, now that your business assets are sufficiently protected, you can finally create that Series D you always wanted: Build-a-Moonrover Company.

Footnotes

Footnotes
↑1 Is it inappropriate to make a Fountainhead joke? Hopefully.
↑2 who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.
↑3 A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself.
↑4 tm pending
↑5 if
↑6 hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs.
Corporations / General Interest / Nevada Law / News - 08/12/2015
Nevada corporation, LLC

Converting a Nevada Corporation to an LLC

Earlier this year, Nevada’s Republican-controlled Senate, Republican-controlled Assembly, and Republican Governor passed into law the largest tax increase in Nevada history1)Source. Among many other tax increases, the tax package significantly affects Nevada corporations, while largely leaving other Nevada business types (such as LLCs) alone. Because of the significant financial hit on corporations, many, and possibly most, Nevada corporations should now convert their business entity from a corporation to an LLC. First, we will analyze the cost to do business as a corporation and how the new tax package affects your bottom line. Second, I will provide you with the process to convert a Nevada corporation to an LLC.

 

The New Nevada Corporation Taxes and Fees

All Nevada business entities, whether a corporation or an LLC or a partnership, etc., are required to file an Annual List with the Secretary of State that includes the names and addresses of the entity’s management. The Annual List is due every year on the anniversary of the incorporation or organization of the entity. Failure to file the Annual List will eventually lead to the Secretary of State revoking the entity’s Charter to do business in Nevada. Prior to the new tax package, the filing fee for the Annual List was $125 for all business entities that are NOT for-profit corporations (such as LLCs, partnerships, etc.). For corporations, however, the annual filing fee ranged from as low as $125 to a maximum of $11,125 depending on the value of the total authorized stock of the corporation.

The new tax package increases the Annual List filing fee to a minimum of $150 for all entities, including corporations and LLCs. However, the filing fee for corporations continues to increase, as previously, depending on the value of the stock. Thus, the tax package does not cause a huge change from the previous fee schedule; basically, an increase of $25 across the board on the bottom end.

However, the new tax package really smacks corporations with the filing fee for the Nevada State Business License. In addition to paying the filing fee for the Annual List, all Nevada business entities2)I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement. must also pay for the Nevada State Business License on an annual basis at the same time as the filing of the Annual List. Prior to the tax increase, the fee for the Business License was $200 across the board for all entities. Now, thanks to the tax hike, the filing fee for Nevada corporations was increased to $500. Meanwhile, the filing fee for LLCs (and other entities) remained at $200. The effect of the tax increases to the Annual List and the State Business License filing fees is that a corporation now must pay a minimum of $650 every year to the State of Nevada for the privilege of doing business in Nevada3)This amount does not include local business license fees charged by cities and counties.. Meanwhile, LLCs pay only $350 total every year.

Governor Sandoval's new tax plan adds two new reasons4)there are many more to why forming an LLC is preferable to a corporation formation:

(1) the Annual List filing fee for corporations increases depending on the value of the stock of the corporation, while the filing fee for an LLC stays the same regardless of the value of the LLC; and (2) a corporation will pay $300 more for its annual State Business License than will an LLC. Over the course of several years, these differences will add up.

 

How to convert a Nevada Corporation to an LLC

As you can see above, converting your Nevada corporation to an LLC makes great business sense given the new law. In order to do so, a corporation must do the following:

First, the board of directors of the corporation must adopt a resolution adopting a plan of conversion and make a recommendation to the corporation’s shareholders to approve the plan of conversion.

Second, the shareholders of the corporation must vote to approve the plan of conversion.

Third, upon approval by the board and shareholders, the corporation files Articles of Conversion with the Nevada Secretary of State.

And Voila! Your Nevada corporation is now an LLC, and you are saving yourself at least $300 (and maybe more) each year in annual filing fees to the State of Nevada5)There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time..

For nearly all businesses, the Nevada corporation is a dying dinosaur in the world of business entities. An LLC has many advantages over a corporation, while the advantages of a corporation over an LLC are quite few. If you are currently operating your business as corporation, you are not stuck! There is a plan of rescue to convert to an LLC with all of its advantages. Give me a call to talk about adopting a plan of conversion and change your entity to an LLC today.

 

Footnotes

Footnotes
↑1 Source
↑2 I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement.
↑3 This amount does not include local business license fees charged by cities and counties.
↑4 there are many more
↑5 There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time.
Nevada Law / News / Politics - 08/05/2015
crying child, screaming

Screaming at a Crying Child in a Public Place: What is the Right Thing to Do?

As a business owner, what would you do if patrons of yours had a child with them that they would (or could) not stop from crying?

Before you answer, assume that 1) the establishment is full of other customers that are both annoyed with the crying and will see what you are about to do and 2) that we are living in the era of the “hyper gotcha-media”1)tm pending where we all now have electronic devices that can easily take video of what happens around us, and will likely tattle at the first whiff of unreasonable behavior.

Not an easy hypothetical, is it2)I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.?

Hopefully, if this happens to you, the following does not occur:

In Portland, ME, a few weeks ago, a young couple with their toddler daughter arrived at a small, busy, breakfast establishment. After waiting thirty minutes for a table, the couple had to wait an additional forty minutes for their food to be prepared3)those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor.

What happened next is not very clear; it depends upon whom you ask. All I can report with certainty is that the toddler became unruly, and there was a confrontation between the toddler’s family and the restaurant owner. I will allow you to read what each party stated on the facebook, and allow you to do your best Judge Judy4)it is shame we do not have more of her. If are sensitive to belligerent language, you may want to skip the posts from Marcy's Diner.

 

Crying child, portland maine, restaurant owner, tort

Ms. Carson then went on to write an op-ed for the Washington Post regarding the incident5)It is tough for the Post to find hard news to report without an upcoming election..oh wait.

Again, I do not know for sure, the following is not anything more than conjecture, but there seems to be an agreement that the restauranteur addressed the child directly in an unfriendly manner. I know this may shock you, loyal reader, but the internets went into a tizzy over this. Most folks have previously been similarly situated, and therefore, have a strong opinion as to what was right for the parents/restauranteur to do.

The Press Herald of Portland, ME, polled their readers to discover how the public would adjudicate this issue. Out of 5500 votes, 61% of the respondents said that they approved of the way Ms. Neugebauer handled the unruly child.6)Source  I, for one, was a bit shocked by the result. And here I thought America loved children unconditionally. Perhaps it is just when they are seen, but not heard.

I got a lukewarm take of my own, as a matter of fact! It is a bit more nuanced than most of the opinions I have seen, so please bear with me.

 

If this crying child scenario happened in Nevada, is there a potential tort?

Assuming that folks name-calling on the facebook is not the most efficacious means to resolve societal issues, is the court system the right forum? If so, assuming the mother’s account of the events is correct, do the parents have a cause of actions against the restauranteur? Before we begin, know that each state has its own tort law, so what is true in Nevada is not necessarily true anywhere else. Given what we know of the facts, it is possible that a similarly situated plaintiff in Nevada might have a cause of action against the restauranteur through Intentional Infliction of Emotional Distress(IIED) cause of action. The necessary elements of IIED are as follows:

1) the defendants' conduct was extreme and outrageous;

2) defendants' conduct was non-privileged;

3) defendants acted with the intention to cause plaintiffs emotional distress, or with reckless disregard for the probability for causing such distress;

4) plaintiffs actually suffered severe or extreme emotional distress; and

5) defendants' conduct actually or proximately caused the emotional distress.7)Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993

 

If I may guess, you have read through those elements and are still not sure if these facts meet those standards. Fair enough. I am happy to elaborate in the pertinent ones. Elements 2 and 3 are easily met in our hypothetical restaurant scenario. There is no legal privilege to yell at another person’s child, and the restauranteur clearly intended to yell at the child, as expressed in her facebook post. As to the other three elements, things get a bit murky.

Was the conduct “extreme and outrageous?” That is a tough question to answer. “Extreme and outrageous” conduct “go[es] beyond all possible bounds of decency, is atrocious and utterly intolerable.”8)Id. I can hear you muttering under your breathe; more synonyms do not make the issue any more clear. The behavior of the restauranteur is what is called a question of fact that would be decided by a judge or jury.  The finder of fact would query, “is the behavior ‘extreme and outrageous’ in the eyes of the hypothetical reasonable person?” The answer again is unclear. As we saw last year with the hoopla surrounding Adrian Peterson9)the football player that was suspended for punishing his young son with a switch, mores with respect to parenting vary greatly through the country. If these facts were presented to a jury in the affluent part of the Bay Area/Park Slope, Brooklyn/Los Angeles, my guess is that the twelve, randomly selected folks would be more inclined to find yelling at another’s child as “extreme and outrageous.” If the case was tried in rural Texas, the deep south, or middle-west, I think it would be less likely.

As to the fourth element, the Alam court states “the stress must be so severe and of such intensity that no reasonable person could be expected to endure it. Moreover, the less extreme the outrage…the more appropriate it is to require evidence of physical injury or illness from the emotional distress.”10)Id. Citation omitted A similar social mores issue as above exists here. Depending on where you are, folks have different expectations of their children. Some think tough love is good for them, others think nurture is more important than nature. Considering the Las Vegas Valley is in between these two extremes, it is difficult to predict how a 12-person jury would decide.

In order for there to be a valid claim, the child would need to manifest actual harm suffered that was caused by the event. The kid would need to go from being gregarious around adults to needing multiple sessions of psychotherapy a week, for example. Even then, if the child suffered a trauma before the incident, it might be difficult to determine if this restauranteur is the actual or proximate cause of the child’s damages.

That was my long-winded way of telling you that a potential case, like most, will be fact-specific. As to the possibility of a tort, a few years ago in New York, Patti Labelle11)according to news accounts returned to an apartment building where she was staying, saw an unsupervised child, and lost her cool, to say the least12)read more here. The case did not go to trial, but Ms. Labelle decide to settle for six-figures before she was to be deposed. Although there is no telling why she settled, it is not that common for folks to pay out six-figures over frivolous claims.

 

Compassion for the Crying Child

Before we wrap up here, if I may, a few words13)#Synecdoche on sympathy, empathy and compassion. At least from the press accounts I have come across, I have yet to see my writer friends get to the underlying issue of this unfortunate incident. Comment if you disagree, but my feelings are that folks heard the details of the story, then latched onto the perspective that they were most familiar: either empathy for the toddler’s parents after they have suffered through a similar, painful episode with their own uncontrollable children, or empathy for the restauranteur as a person with no kids that who is tired of parents that cannot control their children in public.

Is this what we have become? Only able to understand perspectives we are most familiar with? Over the weekend I finished Ta-Nehisi Coates’ Between the World and Me14)Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react. Toward the end of the letter to his son, Mr. Coates describes an incident in New York City when he was walking with his young son and a woman of another race shoved his son out of the way as if he was not entitled any amount of human decency. Mr. Coates describes becoming agitated (as I am sure we all would) and addressing the woman in a stern manner in reference to what she had done. Other men of the woman’s race saw the conversation and stepped in and threatened to have Mr. Coates arrested for speaking to the woman in such a way. Mr. Coates went on to express his regret to his son on how he had 1) lost his cool and 2) put his son at risk through the confrontation. How many of us would have responded in the same way and been left with similar regrets?

What is most apparent about the restaurant incident is that neither party seems to have any regard for how the other side must be feeling. It is doubtful that the parents of the toddler wanted her to be crying in the restaurant for all that time15)they do not seem like malicious people from what I have seen. To respond the way the restauranteur makes it look as if she thought the parents were trying to drive away her weekend breakfast crowd. Even if she cannot understand why the parents cannot or will not stop the child from crying, would not sympathy and compassion lead to a better outcome? Bring the child a little something to eat to tide her over? How about a crayon and a piece of paper? Upon their arrival, let the parents know that there will be a bit of wait with the breakfast rush so they know what they are getting into? If these options are not functional, and the child is crying in a manner unsuitable to the owner, perhaps pull the parent(s) aside and speak to them respectfully about why the disturbance is unacceptable. To yell at a small child seems to be the worst outcome possible besides violence (as we saw from the facebook post, the restaurateur was not against that option). Not that I am judging folks here, but I cannot fathom why it is necessary to call the small child those horrible names on the facebook. It is not like the family will be returning to the restaurant.

Ah, but what about the parents? Even if it takes a village to raise a child, perhaps the villagers should be permitted to opt in? Just because you are used to the volume of your crying child, it is not fair to assume others are as well. The restaurateur, her employees, and their fellow customers deserve more respect than that. If you do not know what to do, you could always ask for help! Like Mr. Coates spoke of, as parents you are possibly putting your child at unnecessary risk by not addressing the incessant crying. How important could those pancakes possibly be? Worse, instead of trying to understand why the restauranteur would respond in an unconscious manner16)as Eckhart Tolle would put it, you chose to instigate further harm by attacking the restaurant owner on the facebook, which is what triggered the media firestorm. Clearly the parents do not want to behave this way from the comment the mother made to her child after the yelling about not wanting the young girl to grow up to be that way. So is it ok to behave that way online? Now they have turned the incident into a crying shame, for the parents and the child. And for what good? Did shaming the owner bring about the desired result? Or just create a shame cycle?

Is this a product of our friends in the media exploiting conflict for their own profit without regard for the feelings of those involved? Who is to say. No one made the participants publish responses on the facebook and Washington Post, they all made that choice. But we in the media could show more compassion as well. Clear these folks were a bit out of mind during this incident, but by turning the incident into click-bait, we have defined these poor people by their worst behavior of one weekend morning17)it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives. I do not think any of us want to be defined by our worst actions. Just because we can make a snap judgments does not mean we should.

Nor will you be able to persuade me that if each party showed sympathy and compassion for one another that it would not have led to a more desired result. Anger, shame and humiliation resulted in worse outcome for all involved. It does not have to be this way! Let us follow Mr. Coates’ example and use this incident to stay more conscious and have more sympathy for one another, even if it is not clear why in the moment. Good can come of all this hoopla after all.

 

More reading for your perusal:

NY Post on Patti Labelle

The Washington Post

The USA Today

Footnotes

Footnotes
↑1 tm pending
↑2 I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.
↑3 those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor
↑4 it is shame we do not have more of her
↑5 It is tough for the Post to find hard news to report without an upcoming election..oh wait
↑6 Source 
↑7 Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993
↑8 Id.
↑9 the football player that was suspended for punishing his young son with a switch
↑10 Id. Citation omitted
↑11 according to news accounts
↑12 read more here
↑13 #Synecdoche
↑14 Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react.
↑15 they do not seem like malicious people from what I have seen
↑16 as Eckhart Tolle would put it
↑17 it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives
General Interest / Nevada Law / News / Personal Injury - 08/04/2015

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
spending for legal issues

Paying Fees after an Offer of Judgment When Someone Else is Footing the Bill

Generally, Nevada law encourages settlement through the offer of judgment rules. These rules dictate that if someone makes an offer to settle a case that is rejected, and that rejecting party is awarded less at trial, the rejecting party has to pay the offering party’s attorneys’ fees incurred after the offer. But, whether this rule applies when a third party pays someone’s attorneys’ fees had not been decided by the Nevada Supreme Court until the recent case of Logan v. Abe, et al.((131 Nev. Adv. Op. 31))

In Logan, the Plaintiff sued the Defendants after he was shot at a hotel owned by Defendants. Prior to trial, Defendants offered Plaintiff $55,000.00 to settle the case, which the Plaintiff rejected. At trial, the Plaintiff was awarded less than $55,000.00 by the jury. As such, the Defendant was entitled to an award of attorneys’ fees and costs incurred since pursuant to NRS 17.115 and NRCP 68. When the Defendant moved for their attorneys’ fees to be paid, the Plaintiff refused to do so, arguing that the Defendant did not incur any attorneys’ fees since his insurance company paid for the defense. Essentially, the Plaintiffs argued that the insurance company, and not the Defendants, was the rightful party to pursue repayment of attorneys’ fees.

 

Did the Logan Court say the Plaintiff has to pay the fees?

The Court entertained the Plaintiff’s argument because technically the Defendants had not “incurred” any attorneys’ fees and costs since they were not obligated to pay the attorneys’ fees incurred by their insurance company. However, the Court ultimately rejected Plaintiff’s argument by finding that an expense is still incurred even if someone else is paying for it. The Court cited to other states who have analyzed the issue and found that the arrangement between a party and its defending insurance company is irrelevant to the issue of repayment of attorneys’ fees. The Court noted that it would extend the offer of judgment principles to fees paid by a third party because in actuality the Defendants would have had to pay their attorneys’ fees and costs had the insurance company not paid it. In other words, the Plaintiff cannot avoid payment of fees for failing to improve upon the offer of judgment simply because someone is paying for the Defendants’ defense. Someone has to pay the expenses, so the analysis is the same regardless of who foots the bill.

This finding seems to fit well within the already existing laws of Nevada. Since so many lawsuits are defended by insurance companies, offers of judgment and settlement would be greatly stifled if the rules did not apply to parties defended by insurers. Further, even if someone pays legal fees on your behalf, you are still the one with the attorney-client relationship. The attorney owes you all of the special duties that come with the relationship, such as confidentiality, and this does not change just because someone pays your legal expenses.

If you are involved in a lawsuit and receive an offer of judgment, you should always consider whether rejection is the best thing in light of the potential for paying the other side’s attorneys’ fees and costs down the road if you do not obtain a better settlement at trial.

For advice on offers of judgment and other litigation related matters, schedule a free consultation today.

 

Nevada Law - 07/29/2015
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
gay marriage, nevada, will, estate planning

Gay Marriage and the Need to Update Your Will

Prior to recent court decisions, including the most recent United States Supreme Court decision in Obergefell v. Hodges, in which the federal courts have legalized gay marriage across the United States, one prominent challenge facing gay couples was the problem of inheritance when one person passed away. Due to laws that prevented unmarried, gay partners from inheriting property from each other, the gay community was particularly conscious of the need to have valid wills and/or trusts in effect prior to death. Now that gay couples may legally marry, it is an important time to review and update any prior estate planning in light of the legal marriage of the couple.

 

How the gay marriage decision could affect your estate planning

However, the more interesting question will arise if a person had previously signed a valid will that does NOT provide for the now-legally married spouse. For instance, let us assume that in 2007, Jane wanted to make sure that whatever property she owned upon her death would be given to her nieces and nephews, and not to certain other family members with whom she had a falling out. Jane drafted a will to ensure that these wishes were known and signed the will in 2007. Later, Jane met Susan and they legally married in 2015. Let us continue our scenario by assuming that Jane completely forgets about the 2007 will and assumes that Susan will simply receive her property when she dies because they are now legally married. When Jane dies and the nieces and nephews come forward with the 2007 will claiming the entirety of Jane’s estate, is Susan left out in the cold to receive nothing from her deceased spouse’s estate?

Luckily for Susan, Nevada law has long provided a remedy for surviving spouses who marry after the deceased spouse had already signed a will. Nevada law provides, “If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse.”1)NRS 133.110. There are 3 exceptions to this general rule that would still prevent the surviving spouse from the benefit of this law, but those exceptions will not be discussed in this blog post.. But, what exactly does that mean? What would Susan receive from Jane’s estate and what would Jane’s nieces and nephews receive?

As to Susan, the law provides that she would receive from Jane’s estate the same thing she would receive had Jane died without a will.2)NRS 133.110(2)[a] If Susan had a community property interest in any property that was titled in Jane’s name only, Susan would automatically receive the first one-half of all such community property as the surviving spouse.3)Click here for more on community property The remaining one-half of the community property “is subject to the testamentary disposition of the decedent,”4)NRS 123.250[1] which means that the remaining one-half of the community property is distributed according to the terms of the will. The nieces and nephews win the remainder, right?

Wrong: Remember that the will is revoked as to the surviving spouse and the surviving spouse would inherit as if there was no will. This becomes crucial as to any community property. If a spouse dies with community property and no will, which is how the deceased spouse is treated when there is a marriage after a will is signed, all of the remaining community property goes to the surviving spouse. 5)NRS 123.250(1)(b)[1]. Thus, Susan would inherit the entirety of all community property and the nieces and nephews get none of the community property.

 

What happens to the nieces and nephews?

So, you ask, are the nieces and nephews completely left out? Not necessarily. If Jane had any separate property (generally any property that was acquired prior to the marriage and that was not transmuted into community property during the marriage), the nieces and nephews are going to receive a portion of the separate property. First, Susan will receive the share of the separate property that she would have received if Jane had died without a will. If Jane died with more than one child, Susan would receive one-third of the separate property6)NRS 134.040[2] and the remaining two-thirds of the separate property would pass to the nieces and nephews according to the terms of the will. If Jane died with only one child or with no children at all, Susan would receive one-half of the separate property7)NRS 134.040(1) and 134.050[1]-[2] and the remaining one-half of the separate property would pass to the nieces and nephews according to the terms of the will. Thus, the nieces and nephews will get either two-thirds or one-half, dependent on how many children Jane did or did not have.8) A very LARGE caveat: children born after their parents sign a will are also included in the distribution in a similar fashion to the surviving spouse. Watch for a subsequent blog post about this issue. In any event, the short answer is that the nieces and nephews may actually receive nothing from Jane’s estate even though the 2007 will is entirely valid.

Phew! If you have made it this far in this blog post and not got lost, or even if you got this far and did get lost in those details, give yourself a gold star for perseverance. Then, realize that the main point of the entire blog post is that if you have gotten married and if you did a will prior to marriage, make sure that you come and talk to me about getting it all updated. Now that Jane and Susan have the benefit of legal marriage, it would be a shame to leave their estates in a mess after death due to their failure to revisit their estate planning after the marriage.

#Lovewins

Footnotes

Footnotes
↑1 NRS 133.110. There are 3 exceptions to this general rule that would still prevent the surviving spouse from the benefit of this law, but those exceptions will not be discussed in this blog post.
↑2 NRS 133.110(2)[a]
↑3 Click here for more on community property
↑4 NRS 123.250[1]
↑5 NRS 123.250(1)(b)[1]
↑6 NRS 134.040[2]
↑7 NRS 134.040(1) and 134.050[1]-[2]
↑8 A very LARGE caveat: children born after their parents sign a will are also included in the distribution in a similar fashion to the surviving spouse. Watch for a subsequent blog post about this issue. In any event, the short answer is that the nieces and nephews may actually receive nothing from Jane’s estate even though the 2007 will is entirely valid.
Estate Planning / Nevada Law / Probate - 07/24/2015
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