ClearCast Episode 6: Does Nevada Need a Tough Vaccination Law Like California?

{Editor’s note} Welcome to Today’s ClearCast!

We appreciate you stopping by on your busy day. The feedback from our past episodes has been great; thank you so much for taking the time to write and share your opinions!

We will continue to try to contribute the best we can to the ongoing discussions of Nevada public policy.

Today, we take on the laws pertaining to vaccination of your kids.

A little background..

Last year, Gov. Brown1)Yes, the same one! of California signed into law one of the toughest vaccination requirements in the nation by removing the previous exemption for religious/personal beliefs.2)It seems from afar that the measles outbreak in 2015 freaked out everyone

There are still many parents in Southern California that do not want to comply with the new law, one of the few doctors catering still to these folks is Dr. Sears.

Unfortunately for “Dr. Bob,” he is now at risk of having his medical license revoked. At issue3)not the only issue is his willingness to write doctor’s notes for parents to excuse them from vaccines. (Read the full complaint here).

As Nevadans, we are very concerned about any serious disease outbreak in SoCal, given how many folks travel between destinations.

More important for Nevadans though, we need to consider if Nevada needs to adopt the tough, new California law that does not permit exemptions for vaccines..

Thanks for watching; all the best.

-Brian

{End note}

Should Nevada Adopt California’s Tough Vaccination Law?

Transcript:

Jordan Flake: Welcome to Clearcast. I’m Attorney Jordan Flake, and I’m here with Attorney Taylor Waite, and we today, in our continued effort to steer clear of anything that’s the least bit controversial, we thought we’d talk about vaccinations, so that’s obviously something that people feel very strongly about. Mostly because it brings in a lot of issues of caring about our kids, caring about public. Sometimes it brings in issues of science versus religion, but the reason this is back in the news, and the reason why we wanted to tackle it today somewhat, or I should just say touch on it today, because there’s so much in our Clearcast is because recently a doctor in California, Dr. Bob Sears, has been accused of gross negligence in connection with a child, J. G., was the child’s initials, who he’s been seeing. Just a little background on Dr. Bob. Dr. Bob has a following because he has been very outspoken critic of the California Law, which says, “You must vaccinate your children.” It’s a misdemeanor not to do so, and your children must be vaccinated, even if you have a religious opposition to vaccinations. It doesn’t matter in the State of California.

Dr. Bob met with this kid and his mother, and the mother said, “Well, when he was two and he got some vaccinations, then he couldn’t urinate. He couldn’t pass food. He basically was sick. He was lethargic.” Dr. Bob wrote this medical recommendation saying, “Okay, well, this kid doesn’t need to get medical treatment anymore.” I’m sorry. “This kid doesn’t need any future vaccinations. He’s exempt from these.” He’s tried to give basically a doctor’s exemption, but the Medical Board came down really hard on him and said, “Whoa. You didn’t take any real data. You didn’t collect any type of samples, and you didn’t send this off to other labs to determine why this kid had the reaction that he did.”

The Medical Board in California has basically sued Dr. Bob to potentially revoke his license, and it kind of just brings up a lot of these issues about the extent of which kids can … Parents can protect their kids, and make decisions about their kids’ health. I guess the question for us today, Taylor, and what I want you to weigh in on here, right now, Nevada says that, “You can have a religious exemption to vaccinations?”

Taylor Waite: Right.

Jordan Flake: Should we adopt the California Law? Should we continue with the Law that we have? Should we say some kind of a compromise, where it’s like if you have a kid who has a religious exemption to vaccinations, that’s fine, but you can’t be in our public schools. How would you start to think about some of these issues? Maybe take us back a little, and what are some of the fundamental issues here at play?

Taylor Waite: It really is a hard question, because fundamentally, as parents, we believe that we’re entitled to do the best by our children. They’re our children. We know what’s best for them. They obviously share some traits with us, so things that worked for us, we share our religious beliefs with our children, so those are important considerations. At the same time, and again, those beliefs go way back. The idea that we’re going to allow people to have children at all, suggests that we are willing to let them parent their children, which should include, to some degree, their ability to make health decisions for their children.

Jordan Flake: The people who oppose vaccinations are extremely passionate in saying things like, “Listen. You would not let somebody inject your kid with poison.”

Taylor Waite: Right.

Jordan Flake: The last time that my son got a vaccination, I watched as I wondered if he was going to pass away, because for basically two days, so I’m very, very sympathetic.

Taylor Waite: Yes.

Jordan Flake: To the idea that you should be able to protect your children.

Taylor Waite: Absolutely, but I

Jordan Flake: Share your religious beliefs.

Taylor Waite: Yes.

Jordan Flake: With your children.

Taylor Waite: Fundamentally, even speaking religiously though, I think we do teach as well to our children, that our individual choices still do affect others, and now there is a limit to our ability to choose to do whatever we want to do. What I choose to do in my home, within the walls of my home is one thing, but when that begins to affect my neighbors, begins to affect the people across the street, the neighborhood kids down the street, then it does have to open a broader discussion about what we are willing to do in a society where we’ve decided to come together in public schools, and things like that. It is a difficult question.

Jordan Flake: Yeah, so we have basically, our country acknowledges the right to raise your children however you want, provided it doesn’t hurt anybody else, and the difference between people who are pro-vaccination versus anti-vaccination, is the anti-vaccination crowd maybe doesn’t recognize, or believe in, or subscribe to the idea that whether or not I put these chemicals in my children actually affects the kid down the street.

Taylor Waite: Right.

Jordan Flake: Whereas, the scientific community, by in large, is supportive of the idea that, “Listen. You have to vaccinate your kids, because that will affect the kids down the street.” Look at the outbreak of, I believe it was Measles in Disneyland.

Taylor Waite: Yes, in Disneyland. Obviously the anti-vaccination. We’ve read some of that stuff. They suggest that there wasn’t enough scientific data to determine that that actually was related to non-vaccination, given the number of foreigners that were there, and everything else. I mean, there are other arguments, but absolutely.

Jordan Flake: Right.

Taylor Waite: It does affect others. Like our willingness to vaccinate or not vaccinate.

Jordan Flake: It’s my understanding, vaccines is limited, but it’s kind of my understanding that my one child not getting a Measles vaccination is not going to have an effect, but implementing a policy where everyone can say, “Well, I don’t want to be the one to vaccinate-

Taylor Waite: Right.

Jordan Flake: “My child, because it could in the margins be harmful.” It’s very interesting. It’s kind of we’re trying to all make the deal that, “Listen. We know on the very margins, some vaccinations might interact badly with some people, potentially.” The science on that is hit or miss, but we’re all agreeing, we’re all buying into the system where we say, “Hey, we all vaccinate-

Taylor Waite: Right.

Jordan Flake: “Because we don’t want these many diseases.” Let’s talk specifically about the Nevada Law then. How do we start to think about whether or not to permit the … Continue to permit the religious exemption? That’s tough, right?

Taylor Waite: I think it is tough, but it think it has to be a consideration for parents that are willing. It is problematic, I think, for someone like Dr. Sears, assuming that a doctor could come forward with a legitimate rationale. Medical background, that was one of the concerns when you read through the information we have, is that his recommendations were not necessarily based entirely in actual-

Jordan Flake: It’s almost-

Taylor Waite: Diagnosis.

Jordan Flake: It’s almost like Dr. Sears, he had a big opportunity, “Like, oh, man.”

Taylor Waite: Yes, to prove his point.

Jordan Flake: To prove his point.

Taylor Waite: Yes.

Jordan Flake: I read that as maybe he didn’t want to go and actually run the tests, and get the data, and support. He didn’t want to go through the arduous, but well-recognized process of supporting his concern that the vaccination caused this in the child, because maybe he was worried that it would have been something else. I mean, I don’t know. I mean, that’s I know a cynical view of Dr. Bob here, but I’m concerned that he was just sitting there thinking. I mean, it doesn’t add a ton of credibility that he tried to treat an ear infection with garlic.

Taylor Waite: Right.

Jordan Flake: Color me slightly skeptical. Don’t get me wrong. I’m sympathetic to parents who want to control their children’s lives, but if your doctor … This I will stand by. I will take a slight position here. If your doctor isn’t willing to go through the well-recognized processes for diagnosing, recording all the information properly, going through the testing procedures, that’s a big red flag.

Taylor Waite: Yes.

Jordan Flake: If you’re going to be an anti-vaccination doctor, be my guess. That’s your right to academic inquiry. Go for it.

Taylor Waite: It still has to be based. If we’re going to press the conversation, then both sides have to agree that we’re going to do it in the context of actual medical evidence.

Jordan Flake: Right.

Taylor Waite: If they want to come forward with alternatives, we’ll listen to those, and we need to listen to those. There is progression. Right. The anti-vaccination, we have to be willing to listen to those, but we can’t just come in, and pound our fists, and say, “We’re not going to listen to your science.”

Jordan Flake: It’s funny, because on the one hand, we’re demanding standards, scientific standards, but on the other, when it comes to religion, it’s like, “Hey, I just started the Church of Jordan, and the Church of Jordan actually only has one tenet. Basically, you can be a bad person in all the ways you want, but you just don’t vaccinate your kids.” Do you know what I mean? Sorry, religious exemption, so we have medical standards on the one hand.

Taylor Waite: Right.

Jordan Flake: Then we just kind of throw those out the window, and we say, “Okay, any person for religious exemptions.”

Taylor Waite: Religious exemptions.

Jordan Flake: That makes the medical community here in Nevada kind of pull their hair out, and say, “Well, then why do we have standards at all if we can just say religion?”

Taylor Waite: Correct.

Jordan Flake: Church of Jordan”4)Now accepting applications! people can just be like, “Oh, one tenet of the Church of Jordan is to not vaccinate the kids.” There’s no standards for that.

Taylor Waite: There’s always concern when we build exceptions into the law that they will swallow a law [entirely 00:10:13], when that’s always a concern.

Jordan Flake: Yeah.

Taylor Waite: If we set a rule, then we can live by that, but if we start to add exceptions, then we start to go through who is, so how do we define who is, and is not entitled to that?

Jordan Flake: Like normal, I think, we’re just raising more questions than we have answers for.

Taylor Waite: Right.

Jordan Flake: As always, we invite our listeners, and viewers, and readers out there to give an opinion about, I guess specifically any opinion you have on anything we discuss. Feel free to correct us. We’re not experts on this. We’re happy to hear you out.

Taylor Waite: Absolutely.

Jordan Flake: I think we are very interested to see, should Nevada continue to allow this law, which states, “That if you are religiously opposed to vaccinating your kids, then you’re exempt.” Is that okay to continue that? Second question we didn’t really get to, but we’d love to hear what you have to say on it, is if we do exempt kids from vaccination for religious purposes, would it be okay then to say, “That they can’t attend public schools,” or, “That they can’t go to the same daycares that require vaccination efforts,” et cetera, et cetera? Anyway, thanks for joining us for Clearcast. We barely just scraped the surface of this issue, but we’d be more than happy to hear what you have to say on it. Thanks so much, and please join us next time.

Taylor Waite: See you.

 

Footnotes   [ + ]

1. Yes, the same one!
2. It seems from afar that the measles outbreak in 2015 freaked out everyone
3. not the only issue
4. Now accepting applications!

ClearCast Episode 5: A Federal Court Says Nevadans May Not Buy a Gun If They Possess a Medical Marijuana Card

6 September Update:

[Editor’s note] Thanks for all the responses we received!

I’m going to take a few minutes here and address some of the concerns brought to my attention1)because we care!. The points are not related, but I present my points in list form so it is easiest to read.

First, here is the video for you to enjoy:

 

 

If you scroll down, you will see a transcript from the conversation, along with my original analysis from last week.

1. “She claims she wasn’t using, but I don’t buy that.”

This is the most discussed angle of the case, which I just find a little silly, given that there are many an issue in dispute from this Order. This is not one of them.

Some of you may not be versed in the intricacies of appellate law2)Come on, get it together, but you should know that the 9th Circuit panel accepted Ms. Wilson assertion that she does not consume marijuana as true. And it was not an option. Let’s go to the text:

However, taking Wilson’s allegations as true, as we must
on an appeal from a motion to dismiss, Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987), she is not
actually an unlawful drug user. Instead, she alleges that,
although she obtained a registry card, she chose not to use
medical marijuana for various reasons, such as the difficulties
of acquiring medical marijuana in Nevada, as well as a desire
to make a political statement. Regardless of her motivations,
we agree that Wilson’s claims do not fall under the direct
scope of Dugan.3)p. 12(emphasis added)

Ah, there it is. What’s going on? There is a (good) rule in appellate law, that the reviewing court accepts all of the allegations of the appealing party as true in a motion to dismiss.

This is necessary because none of these three, 9th Circuit judges were not present4)or even in the state of Nevada when the evidence was introduced. Appellate judges just aren’t in a position to evaluate Ms. Wilson’s claim.

Therefore, in order to give her appeal its full weight, they accept the allegations as true.5)If they would have decided for Ms. Wilson, they could have sent the case back to Nevada district court to have the evidence issues fully litigated. Ms. Wilson was never even given a chance for a trial. Her claim was dismissed even before the summary judgment phase.

Even if are still inclined to disbelieve Ms. Wilson6)You do you!, just know that the 9th Circuit here did not decided against her because they thought she was lying about consumption. They accept her allegations that she only possess the card but doesn’t consume and still denied her gun rights just as a medical marijuana card holder.

 

2.  What’s the Deal With This Term “Unlawful user of or addicted to any controlled substance“?

Great question! Wouldn’t “unlawful user” be sufficient?7)in English, yes, but this is the law What would you say if I told you “unlawful user of or addicted to any controlled substance” is actually of term of art, in law?8)I know; contain yourself

Because I care for you, dear reader, I dissected the Code of Federal Regulations9)You are not the only person asking, wait, what is this? I will explain because we are all about empowering you. Most everyone is familiar with the ‘Separation of Powers’ under our Constitution. The legislature writes the laws, the executive enforces the law, the judicial branch evaluates. It is not practical for the legislature to write out every detail of new laws, so often the rule making (that is, how the law will be put into effect. For example, the legislature will say “No drug users can buy guns,” but how that law is enforced (will the federal government assign an agent to every gun store? Maybe an open letter would be more efficacious) will be assigned to the appropriate executive department, in this case the ATF. and found the definition. I will reproduce it in full so you may see it in all its glory:10)Remember as you read, people classified as an “unlawful user” may not buy a gun in Nevada

Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.11)source (emphasis added)

Thoughts on what the bold section above means? Where did I put my Wittgenstein12)Doubtful, we want to be having a function vs. essence discussion with legal code (Drudge-esq) alarm13)Must have left it in the sandbox again..darn?14)It’s “not limited to…within a matter of days or weeks before”

I have now read that sentence at least 6 times. It makes less sense with each rereading. The problem is the word “recently,” which Merriam-Webster defines as “during a period of time that has just passed15)Did they really split the infinitive? Oy.

Above, we have the government applying the word “recently,” then denying the word’s definition. How can something be “recent” if it hasn’t happened in weeks?16)That’s how it’s done Ron Darling

I don’t have much else to add on this point other than, if you don’t like this, write your congresswoman.

One last point on this section of the CFR. Did you notice that they made a distinction in the definition for members of the armed services17)In theory, I’m not against this?

Would the case have turned out differently if she was retired from the Air Force? Should it?18)I can see both sides

This is not useful for gun sellers that want to obey the law.

This is the open letter19)the link in the opinion is broken cited in the Opinion that the ATF sent to the gun sellers.

..It’s pretty obvious why the seller denied Ms. Wilson a firearm. Can’t blame him; the man is just trying to run a small business without federal interference.

[End Update. Thanks for coming back. Just wait until Friday when I drop 2000 words about the legal ramifications of misnaming a Wade Phillips'20)Apparently “dog” is a defense? “Blitz”… -Brian]

Are We Going to Allow a Federal Court to Distinguish Away Our 2nd Amendment Rights?

[Editor’s note] Hello and welcome to your Labor Day Weekend ClearCast!

Did you hear what a California federal court did your 2nd Amendment rights?

Our friends in the media have only begun to notice what happened in San Francisco earlier this week.

Yes, you read that right. A federal court said that Nevadans may not buy a gun if they are a registered medical marijuana patient.

(I can hear the chorus of objections of all sides…not to worry folks, that’s what we are here for.)

Unfortunately, Mr. Flake and Mr. Barlow had/have client obligations this week, and asked me to supplement this ClearCast.

First, you need to understand that Nevada is under the jurisdiction of the 9th Circuit, as you can see below:

circuit map

Now you understand why a ruling from San Francisco can affect your gun rights. On to the show!

Beneath the video I added aides to help with the discussion.

[Still noting]

Here is a link to the opinion. And here is a link to the ATF form discussed (the question is “e”). Here is how the DEA schedules different drugs.

I think Mr. Barlow and Mr. Flake have the global analysis of this case exactly right: that one of our fellow Nevadans wanted to use the federal courts to expand the scope of the 2nd Amendment (count me in the group that think’s Ms. Wilson’s protest is reasonable), and said protest went horribly wrong, and in fact, they achieved the exact opposite of the desired result.21)This is has been a horrific Summer for fans of conservative jurisprudence [and I’m not talking about North Carolina, that nonsense isn’t conservative, it’s just racist partisanship], or at least as the media describes it. Recall the reproductive rights case handed down by the SCOTUS a few weeks ago? They essentially cemented access to an abortion as a fundamental right. It seems, from afar, that the conservative strategy to undermine abortion was to distinguish away the rights in small phases. For example, see the difference between the rights articulated in Roe v. Wade verses Planned Parenthood v. Casey. In this year’s Texas case, the anti-abortion folks got a little too overzealous, and decided to run that Texas law (requiring abortion clinics to have all the same medical equipment as a hospital, without justification [except that they don’t like abortion, which doesn’t count]) all the way up the chain. Instead of getting the abortion prohibition [which always seemed unlikely], the Supreme Court drew a bright line for how far abortion restrictions can go. The court would have never commented on abortion without prompting; now, (from my humble perspective) they will need a constitutional amendment to outlaw abortion.

I see something similar here. It seems absurd that a medical condition would prevent someone from buying a gun; so the lawyer here thought he was onto something. However, these constitutional challenges are not free (literally in terms of cost, but also in terms of political risk) because you are at risk of a judge taking your facts and making the law he wants. This means if you are going to bring a constitutional challenge, especially because it affects everyone, you have a duty to argue this case correctly. I agree with my employers, the lawyer here made a huge error of omission of not questioning the government’s assertions that medical marijuana has no medicinal value and/or medical marijuana users are more inclined to be violent. We, as Nevadans, would be better off if they would have never brought this legal challenge. Please don’t challenge constitutional law if you are unable to/won’t prepare sufficiently. It affects all of us.

Before you head off for your Labor Day fun, I want to show my liberal friends why I support my 2A brothers and sisters. I am going to quote a graf22)Yes, I just did that from Wilson:

Because the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden–albeit minimally and only incidentally–the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well. For instance, the Fourth Amendment allows an officer to burden an individual’s right to be free from searches when the officer has “reason to believe” the person is armed and dangerous, see Terry v. Ohio, 392 U.S. 1, 27 (1968), a standard comparable to the “reasonable cause to WILSON V. LYNCH believe” standard of § 922(d). Moreover, as previously noted, there are various ways for individuals in Wilson’s position to minimize or eliminate altogether the burdens that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter place on their Second Amendment rights. Accordingly, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive intermediate scrutiny, and the district court did not err in dismissing Wilson’s Second Amendment claims.23)pp 18-19

You see now, liberals? Yes, that’s right. The constitutional amendments are stronger, together24)sorry. They are using that awful Terry decision (where the Supreme Court gutted the 4th Amendment under specious reasoning)25)This is only my opinion to justify why the 2nd Amendment does not mean what we all understand it to mean in a post-Heller world.

ALL of us need to support ALL constitutional rights, or we ALL will be sorry..

Thanks for watching!

-Brian

Transcript:

Jonathan: Welcome to ClearCast, today’s episode of ClearCast. Today, we’ve got Jordan Flake, and myself, Jonathan Barlow, we’re attorneys here, and there’s a super-interesting case that came out of the Ninth Circuit Court of Appeals, that’s based in California, yesterday, and it ducktails two very hot-topic issues in the law and society today. It dealt with gun rights, under the Second Amendment, and Medical Marijuana use, and the rights of those who hold Medical Marijuana cards under State law. The Ninth Circuit is a part of the Court of Appeals that covers nine Western States, including mainly California, is the largest one, of course, but it also covers Nevada, which is where we are.

Jordan, you have to tell us a little bit about what this case said, and what it does?

Jordan: Well, first of all, the very second that you mention Second Amendment rights, Gun Rights, and Medical Marijuana, hopefully, everybody is just filled with opinions, and filled with all kinds of angst, and that’s fine, that’s what we’re here for. We’re very interested in advancing the discussion.

Let me just run down what happened: A woman in Nevada in 2011 went to go purchase a gun, and Brian’s our off-camera support here; he’ll help us and correct us if we get any of the facts wrong

Brian: Hi, everyone!

Jordan: She went to go purchase a gun in 2011, and she was denied, because she has a Medical Marijuana Card. She is confused; she says, “Well, I have a right to bear arms under the Second Amendment, and the mere fact that I have a Medical Marijuana Card shouldn’t be a big deal!” In fact, she said she didn’t even use marijuana …

Jonathan: She just kept the card?

Jordan: She just kept the card because maybe it made her feel cool … Made her be able to hang with the cool kids, and show the card, and be like, “Yeah, I don’t really smoke, because I don’t like it …” Anyway, she was denied purchasing a gun, so she brought this lawsuit, essentially saying, “Listen, this is not valid grounds for restricting, and taking away my Second Amendment rights to bear arms and purchase a gun.”

The government came along and …

Jonathan: The Federal Government …

Jordan: The Federal Government, yeah, it’s really important to know, what we’re talking about here is the Federal Government, because the Federal Government classifies marijuana as a “Schedule 1 drug.” A Schedule 1 drug is a drug that is deemed by the Federal Government not to have any practical medical uses; that’s a hot topic for a different day, because I know a lot of you out there will be saying, “Well, Medical Marijuana has been shown to have …”

Jonathan: It’s legal!

Jordan: It’s legal, and it has been shown to have good uses. Well, one of the frustrating thing about this case, jumping ahead in the story a little bit, is that we missed an opportunity to put some of these arguments about how Medical Marijuana helps people in front of the court. That’s one of the things that’s frustrating about it.

Basically, what happened here, is because it’s a Schedule 1 drug, ATF, Alcohol, Tobacco, and Firearms, the Federal Agency, sent out a letter to all the gun sellers in the country, and said, “Listen: If a potential purchaser of a gun has a Medical Marijuana Card, they can’t purchase the gun, because we have restrictions against people with substance abuse issues purchasing guns.”

Jonathan: The interesting thing for this lady is that that the law, or that mailing, came from the ATF, says it doesn’t matter if they don’t even use marijuana, because the gun seller is required to infer … Something along those lines, the gun seller is supposed to infer that the person, because they hold a card, is a user of Schedule 1, regardless of whether they actually use or not.

Jordan: Right, so the purchaser comes running and screaming into court, screaming “My Second Amendment rights have been taken away!” Whenever rights are taken away, whenever constitutionally-conferred rights are taken away from an individual in this country, the court looks at that with what’s called a “Standard of Review,” which can be kind of like, “Does the law that takes it away, is it somewhat reasonable?” There are different levels of scrutiny there, there’s something called “Strict Scrutiny” that says it has to be … Absolutely, the law has to be narrowly tailored to achieve a compelling purpose, and that’s not really what they said here.

They instead looked at something called “Intermediate Scrutiny,” which is essentially just, “Is the law generally able to fulfill this important, not narrowly tailored to fulfill a compelling interest, but just kind of somewhat tailored to fulfill an important interest …” It’s kind of a weird distinction. You’re the Con Law scholar …

Jonathan: Right, and the woman thought she was going to come in here and expand gun rights; that’s what she really was trying to do, was expand gun rights, and the Court did a 180 on her, and actually shot her in the foot, so to speak …

Jordan: The Court came back and said, “Listen: This thing that the ATF has done, and this thing that the Federal Government has done, is basically okay … It’s only moderately restrictive, because guess what, young woman? You can actually go, shred that Medical Marijuana Card, and then go out and get a gun. It’s not like we’re totally taking away your Second Amendment rights, here; we’re just saying that, if you have a Medical Marijuana Card, you can’t get a gun … But you can get rid of the card, or you can purchase a gun in September, and get a Medical Marijuana Card in October …” You know what I mean?

That’s how the Court looked at it, and they said, “It’s not extremely restrictive; it’s not like we’re saying ‘women can’t purchase guns ever,’” because then it’s like … The woman’s like, “Well, I can’t change who I am,” you know what I mean? This is more … The government’s like, “Listen, this job is somewhat generally tailored towards this objective,” but the real issue here, and the thing I was referencing, and I think the last point that we’ll make here is, the plaintiff’s attorney, the attorney who was representing the young woman, really missed an opportunity to shove a bunch of evidence in front of the court, saying “Things have changed with marijuana since the 1980’s.”

They didn’t present any evidence to show that most of the users of medical marijuana are legit, low-crime, oftentimes high-demographic, socioeconomically speaking, way less likely to commit crimes, oftentimes … The typical example would be your 85-year-old grandmother who is using medicinal marijuana because she has glaucoma. The plaintiff failed to make all of these arguments, and unfortunately, that probably resulted in the door being slammed shut on this situation, and who knows when the Court will bring it back up for review.

Jonathan: That’s the interesting last note, is that we have what? Twenty-five or so states that allow Medical Marijuana use. Again, this Ninth Circuit decision only applies to the nine states in the Ninth Circuit, so theoretically, one of the states that’s not in the Ninth Circuit, you could have a similar case come up in the Sixth Circuit …

Jordan: In that case, hopefully, the attorney would bring forth the mountain of evidence that has justified the use of Medical Marijuana in nearly half the states, and basically use that to have a more robust conversation. What happened here was, the attorney didn’t offer the evidence, so the Court just kind of said, “Okay, well, they’re not offering any evidence here; we’re just going to accept the notions and assumptions we have about drugs, based on studies from the 1980’s, which notions and assumptions have been drastically altered through study, and usage, and things of that nature.

Kind of interesting …

Jonathan: Totally. If you live here in one of the nine states in the Ninth Circuit, and you hold a Medical Marijuana Card, and you want to go and purchase a handgun, now you have a decision: If you want to keep your Medical Marijuana Card, you get no gun; if you want a gun, you’ve got to get rid of your Medical Marijuana Card. That’s the state of law right now in these nine states.

Jordan: Right. As we always say to close these things out, we are very interested in your opinions on Medical Marijuana, and Gun Control, and especially this case. I think that, on our blog, we’ll have a link to the decision. Feel free to hit us up on Twitter, or our blog, or Facebook, and let us know what your thoughts are on this.

Thanks so much for joining us for ClearCast.

 

Footnotes   [ + ]

1. because we care!
2. Come on, get it together
3. p. 12
4. or even in the state of Nevada
5. If they would have decided for Ms. Wilson, they could have sent the case back to Nevada district court to have the evidence issues fully litigated. Ms. Wilson was never even given a chance for a trial. Her claim was dismissed even before the summary judgment phase.
6. You do you!
7. in English, yes, but this is the law
8. I know; contain yourself
9. You are not the only person asking, wait, what is this? I will explain because we are all about empowering you. Most everyone is familiar with the ‘Separation of Powers’ under our Constitution. The legislature writes the laws, the executive enforces the law, the judicial branch evaluates. It is not practical for the legislature to write out every detail of new laws, so often the rule making (that is, how the law will be put into effect. For example, the legislature will say “No drug users can buy guns,” but how that law is enforced (will the federal government assign an agent to every gun store? Maybe an open letter would be more efficacious) will be assigned to the appropriate executive department, in this case the ATF.
10. Remember as you read, people classified as an “unlawful user” may not buy a gun in Nevada
11. source
12. Doubtful, we want to be having a function vs. essence discussion with legal code
13. Must have left it in the sandbox again..darn
14. It’s “not limited to…within a matter of days or weeks before”
15. Did they really split the infinitive? Oy.
16. That’s how it’s done Ron Darling
17. In theory, I’m not against this
18. I can see both sides
19. the link in the opinion is broken
20. Apparently “dog” is a defense?
21. This is has been a horrific Summer for fans of conservative jurisprudence [and I’m not talking about North Carolina, that nonsense isn’t conservative, it’s just racist partisanship], or at least as the media describes it. Recall the reproductive rights case handed down by the SCOTUS a few weeks ago? They essentially cemented access to an abortion as a fundamental right. It seems, from afar, that the conservative strategy to undermine abortion was to distinguish away the rights in small phases. For example, see the difference between the rights articulated in Roe v. Wade verses Planned Parenthood v. Casey. In this year’s Texas case, the anti-abortion folks got a little too overzealous, and decided to run that Texas law (requiring abortion clinics to have all the same medical equipment as a hospital, without justification [except that they don’t like abortion, which doesn’t count]) all the way up the chain. Instead of getting the abortion prohibition [which always seemed unlikely], the Supreme Court drew a bright line for how far abortion restrictions can go. The court would have never commented on abortion without prompting; now, (from my humble perspective) they will need a constitutional amendment to outlaw abortion.

I see something similar here. It seems absurd that a medical condition would prevent someone from buying a gun; so the lawyer here thought he was onto something. However, these constitutional challenges are not free (literally in terms of cost, but also in terms of political risk) because you are at risk of a judge taking your facts and making the law he wants. This means if you are going to bring a constitutional challenge, especially because it affects everyone, you have a duty to argue this case correctly. I agree with my employers, the lawyer here made a huge error of omission of not questioning the government’s assertions that medical marijuana has no medicinal value and/or medical marijuana users are more inclined to be violent. We, as Nevadans, would be better off if they would have never brought this legal challenge. Please don’t challenge constitutional law if you are unable to/won’t prepare sufficiently. It affects all of us.

22. Yes, I just did that
23. pp 18-19
24. sorry
25. This is only my opinion
Las Vegas Casino host employee non-compete

Podcast Preview: Las Vegas Casino Workers Need to Know About the New Law for Non-Compete Contracts

Rising podcast star, Greg Hamblin, hosted one of our partners, Jared Richards, on the latest episode of his podcastOn The Docket.

Thank you for all the wonderful feedback as well!

For today’s episode, I would like to call your attention to this article in the Las Vegas Sun describing the recent opinion from the Nevada Supreme court, Golden Road Motor Inn v. Islam (The last name of the employee litigating).

A quick summary: The Nevada Supreme Court held that non-compete provisions in employment contracts must be reasonable, or they are invalid.

What does this mean for you? If you are working in Nevada and signed a non-compete agreement, watch this short clip.

The segment begins just as Mr. Richards is describing the facts from Golden Road Motor Inn..

 

 

Transcript:

Jared Richards:  The non-compete agreement was too broad. Traditionally, trial courts have the ability to take a non-compete agreement, and it’s called blue pencil, they can amend, if they find something that’s unreasonable because non-competes can’t be so unreasonable as to really bar somebody from gainful employment and I think this one barred her from working for any casino within 150 miles.

Greg: Oh, wow.

Jared Richards: That destroys her employment opportunities. 150 miles, that’s a long distance for somebody who I think was a janitor or a menial worker. Normally, a court would just simply say, “We are going to bar you from performing … We’re going to change the contract to bar you from performing this specific service that you were doing for your old employer and other employers,” so if you were a janitor there, you could still be a server, you could still be anything else.

But the Nevada Supreme Court moved away from the blue line principle and just simply said, “Guys, it’s in a valid contract, and that’s it,” which throws into question a huge number of contracts in the state of Nevada because so many people will take slightly over-broad, unreasonable positions with the hope and understanding that the trial court, if it’s found to be unreasonable is going to reduce it to the point of being reasonable.

Brian: Right, okay.

Jared Richards: Now, instead of reducing to the point of being reasonable-

Brian: They’re just tossing it out.

Jared Richards: They’re just tossing, which means, if you’ve put, and the restrictions generally are, they look at the type of work you’re doing and whether you could easily switch to another type of work. They look at the distance that you’re being restricted and they look at the time on which you’re being restricted. Now, a lot of employers are asking whether or not their contracts are valid at all.

Brian: Can I ask about casino hosts in Las Vegas in particular? Very competitive industry. The high end hotels – I used to work in casino – the hosts move in between hotels a lot.

Jared Richards: They don’t want their high rollers running with the hosts.

Brian: But any of these host contracts valid?

Jared Richards: Well, I don’t know. I mean, it would depend on the-

Brian: If they had one of these non-competes in them?

Jared Richards: No, it would depend. Now, I think that if you were to say, “You cannot work as a … If you come and work for us a host, you can’t work as a host, that very specific field, in the Las Vegas area, or within a 5 mile radius of our casino, or 10 mile radius of our casino” you might be able to get away with that, a court might look, for a year. A court might look at that and say, “Well, that’s reasonable.” The whole thing of 5 years or 150 miles, or just you’re not able to-

Brian: Or working at a casino.

Jared Richards: Right, or working for a competitor at all.

Brian: Right.

Jared Richards: Those things, now are extremely risky and if you have any of those in your contracts, your contracts may be invalid, or at least the non-compete provisions.

Brian: Right. Do you think that the casinos should rewrite the contracts or just hope that they don’t get sued.

Jared Richards: No. It’s not that they’ll get dues. It’s that they can’t enforce them. They’re never going to get sued for the non-compete. I won’t say never, but it’s when the casino tries to enforce the non-compete that everyone can just thumb their nose at the casino saying, “This is not a valid portion of your contract.”

If the casino really wants that protection, they need to now reconsider, they need to narrow the restriction and yeah, they’ll need people to re-sign.

 

Las Vegas Raiders stadium

ClearCast Episode 3: Serious Concerns About the Las Vegas Raiders Stadium

[Editor’s note] Hello and welcome to Friday’s ClearCast!

The whole Las Vegas Valley is discussing the Las Vegas Raiders stadium proposal, but there are still a lot of questions out there about bias1)The LVRJ is owned by the same person trying to acquire the stadium.

Our own Jordan Flake, Esq., although excited at the prospect of a NFL team, is concerned about the finances of the Raiders stadium as a passionate Nevadan.

Mr. Flake was kind enough to give me a few minutes of his time so that these concerns will be made public. He, like you, is worried about Nevada taxpayers.

I have gone through the transcript and added the appropriate links so you may follow along.

Thanks for watching! Have a great weekend.

-Brian

 

Transcript:

Hello. I’m Jordan Flake with Clearcast. On this Clearcast today, we want to talk about something really interesting, I think. It’s this Raider’s stadium that they’re proposing to build here in Las Vegas. As you can hopefully see, it’s a pretty good-looking stadium and it comes with a price tag of 1.9 billion dollars.

That’s right, 1.9 billion dollars is what they’re projecting for the cost. I just want to talk about this for a second. I’m really excited to get any opinions of any of our viewers or listeners. First of all, let me just say, I look at this and my natural inclination is to say that’s cool.

That’s great. I want an NFL team in Las Vegas.

Not a huge Raiders fan2)kidding Raider nation!, but I figure I can learn to somehow become a Raider’s fan, but there’s still some, as always, there’s still some lingering concerns and questions in the background.

Obviously, the first one is where are we going to come up 1.9 billion dollars, and what are some of the concerns swirling around that? What about maintaining it? How about is this what people really want here in Las Vegas?

Is it something that the public is really standing behind? First of all, one of the concerns is that the private investors here have, which include the Adelson’s and the Raiders themselves, the Raiders organization, they basically came to Las Vegas and said, “You want us, the Raider’s here in Las Vegas?

Okay, fine, Nevada. Give us 750 million dollars.” That’s basically what they’re demanding. “750 million or we won’t even, essentially, we won’t even consider it,” and the 750 million goes towards creating the stadium.

The proposal for getting the 750 million is to increase the, what is the name, Brian? Brian’s here.

Brian: Resort tax.

Jordan Flake: Resort tax, yes. Thanks. The resort tax right now is 12.5% of whatever a guest pays for their room. They want to increase that by .8 essentially, so that would make it 13.3 resort tax. That might not seem like a big deal because a lot of residents here in Nevada aren’t the ones paying these resort taxes.

They’re the out of towners who come to Nevada and they just stay in the hotels, but there are two concerns.

 

Is This How We Want the Resort Tax Revenue Spent?

One is we already have a pretty high resort tax.

One of the highest in the nation is Oregon at about 14% for every room, and it’s like, man, does Las Vegas want to be like, “Oh, hey, sorry, last year’s resort tax was 12.5. This year’s resort tax is 13.3. Go Raiders.” You know what I mean?

It’s a little bit in question whether or not that will disincentivize guests from coming to Las Vegas. I don’t know.

I feel like people coming to Las Vegas are so focused in on partying that they’re not really going to get too scared away by the .8% increase, but we do have to keep in mind that we’re competing with other gambling destinations throughout the world at this point and we have to make sure that we’re a reasonable place to visit.

Here’s my real concern with increasing the 12.5% to 13.3% or whatever it would be, is that it really doesn’t give us very much more room to increase that if we really needed it for something else.

Imagine that there was some kind of a statewide emergency that needs to and the state incurs a lot of debt that needs to get repaid in response to a statewide emergency. Imagine we have some other serious budget crisis in Nevada. Then we can’t then very easily … We could take it and we could take that 12.5 and bump it up to 13 or even 13.3, but we can’t very easily once it’s at 13.3 bump it up to 14 or 14.5 without really putting a strain on the marketability of the Las Vegas brand.

Think about what we’re doing here is we’re potentially incurring some taxation type costs, for what? For the entertainment that would be a Raiders franchise. Not a traditionally super winning team recently, of course.3)Now if the Broncos are interested..

That being said, this is a public and private venture.

The public would have that 750 million dollar stake in the stadium. It’s not like the investors are hopefully going to get the full benefit of it.

That’s obviously another concern is the investors are very savvy and we hope, and that’s one of the things we have to be wary of is that they’re taking advantage of the public funds to structure the deal in a way that would just enrich themselves, so that’s obviously another concern.

 

Stadium Maintenance Concerns

More concerns, what if we put up the 750 million as taxpayers, these would be the resort tax, and then they just say, “Oh, we need more money.”

What protections are in this contract and this building of the stadium contract that prevent them from just all of a sudden saying that they need more money or how about what happened to Quebec City in Canada?

In Quebec City, they built a stadium so that an NHL team would come, and you’re scrolling through your NHL knowledge, and it turns out that no hockey team actually came, so they just have this really beautiful multi-million dollar stadium in Quebec City, but they don’t really have any NHL team that would go and play in that stadium, so now they’re having to pay maintenance costs for this stadium and find other uses for it, and they just didn’t get the promised benefit.

What if something like that happened here? We build a stadium and the Raiders, for whatever reasons, find a loophole and decide not to come, or maybe one of the other California cities swoops in and outbids us?

We’re just not sure.

 

Does Popular Opinion Matter?

One other issue is just how do people actually feel about this? Like I said earlier, my tendency is just to be like, “Oh, Raiders, cool. A football team. Yeah. In Las Vegas. I want it.”

They did a poll here, a Rasmussen poll, and it turns out that 55% of Clark County voters are actually against funding the stadium and only 35% are in favor of funding the stadium.

This reminds us of what happened in Cobb County, which is a county in Atlanta, with respect to the Braves stadium. The chairman, Tim Lee, the Cobb County chairman didn’t really pass this by the voters before he tried to use taxes to fund 500 million dollars in a stadium for the Braves in Cobb County, and he, of course, did not win his next election.

One of the options here that our public officials should consider is actually just putting this to a vote. We have some time. We can get it on the ballot4)Unfortunately, this option is not being considered. Let everybody vote.

If they want to put up the 750 million and raise the resort tax and bring in an NFL team, then so be it.

Yay, democracy!

Anyway, those are just some of the concerns and considerations. I’ve just barely scraped the surface.

As always, I’d be very interested to hear what you have to say about the stadium, about the Raiders franchise, about whether or not public funds should be used to fund this public/private venture.

Definitely reach out to us on our blog, on our Facebook page, on our Twitter, and just let us know. Again, if you need any help with any type of legal issue, please feel free to call Clear Counsel Law Group. We’d be happy to assist you.

Thank you so much for joining us for Clearcast today.

 

Footnotes   [ + ]

1. The LVRJ is owned by the same person trying to acquire the stadium
2. kidding Raider nation!
3. Now if the Broncos are interested..
4. Unfortunately, this option is not being considered

Do the Dog Bite Laws in Nevada Need to Change?

Hello and welcome to Episode 2 of ClearCast!

We are sure you have heard about the horrific story of the child in Las Vegas that was killed by a pit bull. The fact that the dog had a previous violent incident has many folks in the Valley upset1)and not unreasonably.

In turn, two of our partners sat down for a few minutes to discuss the current state of the dog bite laws in Nevada.

Good information for all Nevada families!

Thanks for watching.

Analyzing the Current State of Nevada’s Dog Bite Laws

Transcript:

Jordan Flake: Hi, I’m Jordan Flake, and this is Attorney Jared Richards. His is a personal injury attorney. Welcome to today’s Clearcast. We’re talking about a really sad event that occurred just very recently here in Las Vegas. Imagine this scenario: A nine-year-old boy was going to visit his friend’s house. As soon as he showed up at the door, the owner’s pit bull jumped out of the house and attacked the child, a nine-year-old, and ended up killing him. There was a fatality involved with the pit bull.

We brought Jared on today because he’s a personal injury attorney, and he knows a lot about what we would colloquially refer to as dog bite law.

Let’s talk about this for a second here. Just kind of, let’s start really broad and general. Every time a dog bites a person, is the dog owner liable or how does that how does the law kind of even start to work on this? Before we even get to the fatality, if you’re just jogging along and somebody else is jogging with their dog the opposite direction, and that dog bites your ankle?

Jared Richards: Right. First of all, tragic, tragic occurrence, and our heart goes out to the family of the boy. In general, we don’t have any specific statutes that address the negligence aspect of dog bite liability. We have some criminal statutes, but it’s not for general negligence, which means we just go under general negligence law which we call just General Negligence Common Law.

Jordan Flake: There is not some statute that says, “This is dog bite law, NRS1774 in Nevada. There is just we go under what happened in previous cases?

Jared Richards: Right. Kind of.

Jordan Flake: Okay.

Jared Richards: There is a criminal statute, and if you violate the criminal statute then you automatically are going to be liable for damages that are done when you violate the criminal statute. You don’t have to violate the criminal statue …

Jordan Flake: In order to be held …

Jared Richards: In order to be held responsible.

Jordan Flake: Okay.

Jared Richards: Right, but if you violate the criminal statue your [inaudible 00:02:16].

Jordan Flake: What is …?

Jared Richards: What it is is everybody has the duty to act as a reasonably safe and prudent person. It’s my duty, it’s your duty, it’s everybody’s duty at all times.

Jordan Flake: Which is why we can’t drive recklessly.

Jared Richards: That’s why we can’t drive recklessly, we can’t drive drunk, we can’t drive distracted. We have to follow the basic safety rules of society as a reasonably prudent, safe person would do. Now, if we breach that duty and as a result of us breaching that duty somebody gets hurt then we’re on the hook for the damage that we’ve caused.

In the case of a dog the question is going to be up to the jury of what would a reasonably prudent and safe person, as an owner, have done in that situation?

This is where we get into questions about whether the one bite rule would apply or not? The one bite rule is a traditional common law doctrine where the owner isn’t going to be responsible until the animal has actually attacked somebody at least once before because they don’t know that the animal is dangerous.

I don’t know that would actually apply here. What’s really a jury is going to at and say was there sufficient notice to this particular owner that this particular dog was dangerous?

Jordan Flake: Just so everyone knows out there, the background also on this is that that dog was previously cited for attacking another dog.

Jared Richards: Right.

Jordan Flake: The question is, does that constitute sufficient notice so that the owner of the dog would have said, “You know what if a guest is coming to my home or if the front door is open and we’re just dealing with the screen door I better make sure this pit bull is restrained because somebody could come to the door and freak my dog out.”

Jared Richards: If you’re the person who owns the dog or if you’re the insurance company, like the homeowner’s insurance that’s backing up the dog, you’ve got to be careful about that because you’re going to have a lot of juries out there that might think that. If it’s already attacked another animal then it might attack a human. But, there might be juries that think the other way around. It really is going to depend on what the ultimate juries believe. What they think was proper notice to the owner that this was a potentially dangerous animal.

Now, the criminal statute is a little bit different. The criminal statue defines animals under two different varieties, under dangerous and vicious. Dangerous means that when it’s provoked it’s going to get defensive. Vicious means …

Jordan Flake: It goes out looking for trouble.

Jared Richards: Yeah, it goes out looking for trouble. You don’t need to provoke it. Once it’s been either cited as a vicious animal or you observed it be a vicious animal and you’ve seen it go out and bite then you have seven days, you can’t transfer it and you have seven days to get rid of it. If you don’t do that and somebody gets hurt then you’ve committed a misdemeanor. You’ve actually violated criminal law and you are, what we call, negligent to per se. You are just … The law’s going to assume that you’ve breached it.

Jordan Flake: That’s if they’re vicious?

Jared Richards: If the dog is vicious.

Jordan Flake: It seems, kind of, actually light because if you know your dog’s basically a weapon …

Jared Richards: Yeah, and that makes sense. If you’ve gone to the point where you’re actually committing misdemeanors then you’re going to be held viable. You don’t have to actually get to the point of committing the misdemeanor to be held liable. You don’t have to know that you’re dog is vicious. You have to know that the dog is vicious before you get criminally cited. To be civilly liable all you have to know is …

Jordan Flake: The dog is dangerous.

Jared Richards: You have to act as a reasonably sane person would act.

Jordan Flake: It’s interesting, the records show in Clark County that there’s been like 154 complaints made against dogs and only nine have been characterized as dangerous of those 154 that we kept records of and zero have been classified as vicious. I think it’s a pretty rare, apparently, a pretty rare classification.

Jared Richards: That’s interesting. Does that mean that there just aren’t that many vicious animals out there or …

Jordan Flake: Do the standards need to change to where …

Jared Richards: Or do the people who are enforcing the standards just not actually enforce them?

Jordan Flake: Right and that’s going to be the issue going forward here is people are going to look at this case and they’re going to say, “Well, what went wrong? This dog was already cited as having bit another dog and we have a …” The thing that we have here is a deceased child. That’s a total tragedy.

Jared Richards: Right, that kid is dead.

Jordan Flake: It’s just … When I heard about this story I was just shocked. He’s nine. He’s a nine-year-old kid killed by a dog.

Jared Richards: What’s interesting is that for a while there was a movement, again in various states, when you have a vicious breed of animal like a pit bull, an ultra-aggressive breed of animal or at least the public might perceive as ultra-aggressive that the owner is just going to be assumed to be already on notice that this is a dangerous animal and so they’re going to be liable in tort the first time the thing attacks because they’re going to assume they’re already on notice.

Jordan Flake: You buy a pit bull you know you’re buying a pit bull and you know what you’re doing.

Jared Richards: There’s been a counter movement in the past couple of years where you’ve had certain states that pass anti-discrimination laws against breeds of animals. I know that Nevada has also implemented that to a certain extent in the criminal statue. It does make you wonder how that would play in the tort. Can a jury still assume that, I don’t know if you buy a Rottweiler or you buy a pit bull, you buy a mountain lion, that at some point you have notice that the animal you bought does pose a danger to others just because of it’s breed.

Jordan Flake: It’s very, very interesting and I think very fertile for academic discussion is it’s obviously very unethical to look at race in human beings as a measure of whether or not there’s a potential for them to a commit a crime.

Jared Richards: We tend to anthropomorphize, I’m going to screw up the word, these animals and although … Listen, I like animals too. I like dogs. They have feelings too. However …

Jordan Flake: The stats don’t like. Pit bulls kill humans. They do. I just looked at the stats. It’s incredible. Pit bulls are the ones that … It’s overwhelmingly 70% children but they’re being by a lot of pit bulls and …

Jared Richards: Significantly more pit bulls have killed …

Jordan Flake: Than Golden Retrievers.

Jared Richards: Or Poodles.

Jordan Flake: Or Poodles or Chihuahuas. It turns out there …

Jared Richards: Not that many Chihuahua deaths.

Jordan Flake: Okay, so maybe last point here, the kid’s name was Derion Stevenson. If the Stevenson’s were to come into your office and talk to you about this case and they said, “Hey listen, we’re going throw unimaginable pain and suffering. We have his funeral costs and it’s just been horrible for us. What are our prospects for recovering in this case. What insurances are out there?”

Jared Richards: That’s an interesting question because the natural insurance that you would assume would apply would be the homeowner’s insurance. Most people in the State of Nevada or the United States of the world don’t really have enough assets to cover an injury like this. My goodness, the boy is dead. Unless you’re Wal-Mart you’re probably not going to have the kind of money to really truly compensate this family, not that money can. You won’t have the kind of money to truly compensate.

What you’d look at first is the homeowner’s insurance. The problem you’re going to have and something you have to look at is there are certain homeowner’s insurances that specifically exclude coverage of what the insurance company defines as vicious animals.

Jordan Flake: Which may be different that the state definition, by the way.

Jared Richards: Right. If I’m going to rely on statistics I’m probably going to rely on the statistics of insurance companies excluding then the state because …

Jordan Flake: Absolutely.

Jared Richards: Insurance companies are, sorry, cold heart less data driven beasts where this state …

Jordan Flake: The odd makers and actuaries know their stuff.

Jared Richards: The state does as well.

Jordan Flake: The state, yeah, a lot of interest and so forth.

Jared Richards: A lot of political interest going on. The first danger is is this specifically excluded by the insurance policy and if it is, and this is research I haven’t done, is it even allowed to exclude this then there may be additional umbrella insurance. After that you need to make the decision, do you go after the actual personal assets of the family and if you did would they just file bankruptcy? At that point even though you’ve lost a child, which is horrible, trying to take away all the property of somebody else also ruins their life. It may not make your life better. Those are all things that are difficult to weigh and sometimes it’s right and sometimes it’s not. Those are all things that that person, they need an attorney. They just need one.

Jordan Flake: Absolutely.

Jared Richards: Whatever attorney they go to they should go to one that has experience in personal injury, preferably experience in animal tort and that is compassionate enough they could actually try to walk them through some of these very, very difficult choices and issues that they’re going to have to deal with.

Jordan Flake: Absolutely. Thank you for joining us for Clearcast. Let’s just do a few little takeaways.

First of all, Jared is a great personal injury attorney. He’s my partner but still he’s a great personal injury attorney. If anybody out there has a question about a dog bite case or some other personal injury please seek his expertise. He will do a free consultation.

Second, is we would love to hear what you think. If you could chime in on the blog or on Twitter or Facebook and let us know what you think about pit bulls, about whether or not the laws are too lax, whether or not there’s any justice in this situation, what you know … You may know something about this story or have an opinion that we don’t. We love going back and reading over those comments.

Three, just thank you so much for joining us for Clearcast and we’ll hope to see you here in the future.

Thanks so much.

Jared Richards: Thank you.

 

Footnotes   [ + ]

1. and not unreasonably
rent, las vegas, nevada

ClearCast Episode 1: Should Home Buyers Fear Rent-to-Own Arrangements?

This morning, the New York Times published a very interesting exposé on rent-to-own agreements, with the examples cited from South Carolina and Ohio.

The article is worth reading in full, but to quickly summarize: Many folks out there are signing rent-to-buy agreements as a cheap alternative to buying a home. However, people are not aware of the terms of some of these agreements. There are examples cited in the article of people putting $10,000 into repairing their homes, only to be evicted for a missed rent payment.

Do Nevada consumers need to be concerned about rent-to-own leases? Will Nevada law protect you?

 

 

If you would like to see the video produced along with the article, you may see it below:

 

Transcript:

Hi, my name is Jordan Flake. I’m an attorney with Clear Counsel Law Group. Welcome to ClearCast and the goal of ClearCast is to take issues that are in the news and hopefully offer some kind of helpful legal insight or at least move the discussion along, hopefully in a productive manner.

I was reading the New York Times this morning and I learned something that might be of interest to some of our Nevada citizens because it has to do with property.

It seems like Nevada is a state where when we’re talking about real property and homes, a lot of interesting stuff happens in Nevada, California, and Florida. This is something that is happening throughout the country but not as much in Nevada but it’s still something that we really need to look out for.

The article is called “Rent-to-Own Homes: A Win-Win for Landlords and a Risk for Struggling Tenants”. Let me describe what a rent-to-own scenario is.

In the wake of the financial disaster home situations happened over the course of the last several years, several homes stayed vacant and big conglomerates, real estate conglomerates would come along and purchase up these small homes, maybe for $10,000 because they’re just vacant homes sitting on lots, they’ve fallen into disrepair.

Well, they have some options at this point, these conglomerates, these real estate conglomerates could pour a lot of money into these homes and try to sell them or they could pour a lot of money in these homes, bring them up to code and try to rent them out.

They could either sell them or rent them out.

What these real estate companies decided to do is kind of a tricky third option and the tricky third option that they tried to do and they’re trying to do is something called a rent-to-own contract.

The reason it’s tricky and worrisome is because there are a lot of protections for renters and there are a lot of protections for purchasers, but what these sophisticated real estate companies are trying to do is create this third path that really doesn’t offer very many consumer protections and let me show you a little bit what that would like like.

 

An Example of How Rent-to-Own Would Work

They purchase a house in South Carolina for $7,000 because it’s fallen into disrepair, nobody wants it, and it’s far, far below code and there’s all kinds of unpaid violations for this, that and the other, and then they go to a potential tenant and they say, “Hey listen. Not only can we rent you this property but what we’ll do is it will be a rent-to-own situation. You’re not a traditional renter and you’re not a traditional buyer but what you are is you are renting to own this property and we’re going to have you to come move into this. You pay $1,000 down or $1,500 down and you start paying $600 per month, and at the end of the long lease term, then you’ll actually own this property.”

They move in and they’re like, “Okay, good. This is great.” Then they find out that the renter is responsible for making repairs and the way the real estate company gets away with that is they say, “Okay, you’re not a traditional renter. You’re actually renting to own this property so because of that, you have to pay for the repairs.”

They’re not a traditional seller and so it’s not like that the home is actually in their name, they’re not a traditional seller-buyer operation so the home isn’t in their name.

They’re sitting there in this ambiguous third category where the renter is responsible for paying to bring this house up to code and to put money into it.

Guess what? The real estate company is actually still in the driver’s seat because all of a sudden, the renter is using all the money to bring the home up to code and misses two or three rent payments, and they can just kick them out.

Now they have a property that now has that much more value because the renter put money into it. They can then turn around and rent that to somebody else who will then put more value into it.

They keep getting this home that gets more value into it with really no intention to ever have it be sold because they just can arbitrarily kick people out.

This is the type of thing that has come out of this new strange landscape after the housing collapse. This is something that I want Nevada consumers to be very aware of.

 

Make Sure You Read Your Lease Carefully

Are you getting into something that sounds like a rent-to-own type scenario? Are you in a position where you’re being asked to put repairs into your house, but you’re not certain whether or not you should be paying for those repairs? Are you do something that is neither a traditional landlord-tenant type arrangement nor is it a traditional residential purchase type arrangement? Because if you are, you could be on very thin ice.

Landlord and tenant law is very well established and there are certain rights and protections that the tenant has and the landlord has. Residential purchases are very well established and there are certain protections given to both the buyers and the sellers.

What we have is real estate companies and sophisticated parties attempting to come and occupy this strange gray area where they lure people in saying, “Hey, you can own a home. Put down the money on this and start making these repairs and start paying rent and pretty soon the house will be yours.” There’s no protections and there’s no really great established body of law.

We look through the Nevada revised statutes and couldn’t find anything that was directly on point in these situations.

Again, we have established law for landlord-tenant, established law for residential purchase, but nothing in this third category.

If you’re aware of these situations, if you are involved in one of these situations, maybe you’re an owner or a landlord who actually wants to do this the right way.

These are all reasons to give us a call and we can help you figure out how to stay on top of it and how to do this is an honest and accurate way.

In any event, my heart goes out to those tenants who are right now potentially being exploited by these more sophisticated parties and it will probably be years and years and years before the law really catches up and addresses these different situations.

This is basically what I noticed this morning and what had got me thinking about.

Please feel free to reach out to Clear Counsel Law Group if you have any questions or issues and also on our Twitter and Facebook pages or our blog. We’re very interested to hear your own experiences and your own comments.

Thanks so much.

 

back to school, school bus, school zone, las vegas, nevada

It’s Back to School Time..Now Do I Have to Stop for That School Bus?

It’s almost back to school time which means, sometime in the next couple weeks, many parents out in the Valley will be going through this yearly inquiry:

“How fast may1)you all speak with impeccable grammar from what I hear I drive in this school zone?”

“Do I have to stop for this school bus if there is a median between us?”

“Do I have to stop for the crossing guard?”

Let this be the year we all know for sure! Onward and upward.

Hopefully, the answers I found are helpful. Worst case, you can notate the relevant statute in your ithing just in case you need to reference it during a traffic stop.

May You Pass a School Bus?

As loyal2)by no means a requirement! Rick Hasen is a great writer. readers of the Clear Counsel Legal Blog, you know that we live in a (newly modified!) Dillon rule state, meaning that the state, in most cases, must expressly assign power to legislate to a locality.3)Small footnoted tangent: Have you seen (this is rhetorical, I know you’re busy) what the legislature did to our Dillon rule common law last session? First, I’ll define the terms. Justice Dillon (of Iowa) wrote a common law doctrine in the 19th Century adopted by Nevada courts. The Dillon Rule, as it’s known, states that localities do not have the authority to legislate unless said authority is expressly granted by the state government. Last legislative session, the state government made a significant amendment. Check out Section 5 of new bill: “As a general rule on local governmental power, Dillon’s Rule serves an important function in defining the powers of county government and remains a vital component of Nevada law. However, with regard to matters of local concern, a strict interpretation and application of Dillon’s Rule unnecessarily restricts a board of county commissioners from taking appropriate actions that are necessary or proper to address matters of local concern for the effective operation of county government and thereby impedes the board from responding to and serving the needs of local citizens diligently, decisively and effectively.”(emphasis added). If you, like me, are tired of the “tyranny of the north” as I like to call it, this is a great result! Clark County brings in almost all of the state’s revenue, and in turn, should be given the authority to pass the laws necessary to improve our lovely community without folks from Elko stopping us. This was impossible under the old Dillon Rule. Hope is on the way my friends..Hopefully my friends in Clark County realize what we have here..4)After some cursory research, this may be the first time the Dillon Rule (in about 150 years) that it has been codified by a state. Pretty interesting in terms of history of law.

Therefore, most of the applicable laws with regards to school zones come from the state government, in particular Chapter 484B Rules of the Road. This is where we will begin our examination.

NRS 484B.353  Overtaking and passing school bus: Duties of driver; exceptions; penalties.

      1.  Except as otherwise provided in subsection 2, the driver of any vehicle, when meeting or overtaking, from either direction, any school bus, equipped with signs and signals required by law, which has stopped to receive or discharge any pupil and is displaying a flashing red light signal visible from the front and rear, shall bring the vehicle to an immediate stop and shall not attempt to overtake or proceed past the school bus until the flashing red signal ceases operation.

      2.  The driver of a vehicle upon a divided highway need not stop upon meeting or passing a school bus which is positioned in the other roadway. The driver of a vehicle need not stop upon meeting or passing a school bus where traffic is controlled by a traffic officer.

      3.  Any person who violates any of the provisions of this section is guilty of a misdemeanor and:

      (a) For a third or any subsequent offense within 2 years after the most recent offense, shall be punished by a fine of not more than $1,000 and the driver’s license of the person must be suspended for not more than 1 year.

      (b) For a second offense within 1 year after the first offense, shall be punished by a fine of not less than $250 nor more than $500 and the driver’s license of the person must be suspended for 6 months.

      (c) For a first offense or any subsequent offense for which a punishment is not provided for in paragraph (a) or (b), shall be punished by a fine of not less than $250 nor more than $500.

      (Added to NRS by 1969, 1506; A 1975, 825; 1991, 276; 1997, 3060; 2007, 15) — (Substituted in revision for NRS 484.357) (emphasis added)

Why are the laws written in such obscure language? I could speculate, but that isn’t productive. Either way, I apologize on their behalf. You deserve better.

Let’s Unpack This Statute

Section 1 establishes that there are two conditions necessary to require you to stop:  1.) The school bus is stopped with its lights flashing (or stop sign out) and

2.) Children are entering or exiting the bus.

Neither element is sufficient on its own to require you to stop (as written). Both elements must be present, or you are free to drive along on your merry way.

Now, let’s take a look at that awkwardly constructed sentence in Section 2.  While driving in a “divided highway,” you “need not stop” if the stopped school bus is on the “other roadway,” or if a traffic officer controls traffic on the opposite side of the street.

So may you pass a stopped school bus on the other side of a median? It depends what they mean by “divided highway.”

Although not defined in Chapter 484B, Chapter 484A of the NRS applies to “Traffic Laws Generally.” From 484A, we have a definition of a “divided highway.” The term “means a highway divided into two or more roadways by means of a physical barrier or dividing section, constructed so as to impede the conflict of vehicular traffic traveling in opposite directions.”5)Cite

And there we have it. No need to stop if the stopped bus on the the opposite side of a “divided highway.” Aren’t you glad we checked?

There Are Many Prohibitions Regarding Driving in a School Zone: Get a Pen

Just don’t drive faster than 15 mph, right? I mean, that is a requirement, yes. But not even close to the only one. I have included all of NRS 484B.363 to make my point:

      NRS 484B.363  School zone or school crossing zone: Speed limit; designation; signs; U-turn and overtaking another vehicle prohibited; determination of hours in which speed limit is in effect; additional penalty if driver is proximate cause of collision with pedestrian or person riding bicycle.

      1.  A person shall not drive a motor vehicle at a speed in excess of 15 miles per hour in an area designated as a school zone except:

      (a) On a day on which school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone indicates that the speed limit is not in effect.

      2.  A person shall not drive a motor vehicle at a speed in excess of 25 miles per hour in an area designated as a school crossing zone except:

      (a) On a day on which school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone indicates that the speed limit is not in effect.

      3.  The driver of a vehicle shall not make a U-turn in an area designated as a school zone or school crossing zone except:

      (a) When there are no children present;

      (b) On a day on which school is not in session;

      (c) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (d) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (e) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone or school crossing zone indicates that the speed limit is not in effect.

      4.  The driver of a vehicle shall not overtake and pass another vehicle traveling in the same direction in an area designated as a school zone or school crossing zone except:

      (a) On a day on which the school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone or school crossing zone indicates that the speed limit is not in effect.

      5.  The governing body of a local government or the Department of Transportation shall designate school zones and school crossing zones. An area must not be designated as a school zone if imposing a speed limit of 15 miles per hour would be unsafe because of higher speed limits in adjoining areas.6)Dillon!

      6.  Each such governing body and the Department of Transportation shall provide signs to mark the beginning and end of each school zone and school crossing zone which it respectively designates. Each sign marking the beginning of such a zone must include a designation of the hours when the speed limit is in effect or that the speed limit is in effect when children are present.

      7.  With respect to each school zone and school crossing zone in a school district, the superintendent of the school district or his or her designee, in conjunction with the Department of Transportation and the governing body of the local government that designated the school zone or school crossing zone and after consulting with the principal of the school and the agency that is responsible for enforcing the speed limit in the zone, shall determine the times when the speed limit is in effect.

      8.  If, while violating any provision of subsections 1 to 4, inclusive, the driver of a motor vehicle is the proximate cause of a collision with a pedestrian or a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653.

      9.  As used in this section, “speed limit beacon” means a device which is used in conjunction with a sign and equipped with two or more yellow lights that flash alternately to indicate when the speed limit in a school zone or school crossing zone is in effect.

      (Added to NRS by 1985, 640; A 1993, 2586; 1999, 2674; 2011, 1635; 2015, 1574) — (Substituted in revision for NRS 484.366) (emphasis added)

When did you stop reading? After the first time you saw the term “speed limit beacon”7)Was there a contest at the legislature to come up with the most obscure term possible for school zone signs? Who even uses beacon in this context anymore?8)Want to try something fun, ask a millennial to use “beacon” in a sentence.

I don’t blame you. This stuff is nearly unintelligible.

We don’t let obscure language hold us down. Not now, not ever9)ok, possibly soon. Let’s summarize the law in language real people use:

  1. The speed limit in a school zone is 15 MPH, applicable additionally for the 30 minutes before/after school. The speed limit in a school crossing zone is 25 MPH. Neither are in effect on days that children are not in school. What’s the difference between a school zone and a school crossing zone? About 10 MPH, it seems. As you can see in Section 5, the state assigned school zone designations to the localities. You will want to check the signage around your neighborhood school. Don’t just assume you are in a school crossing zone! Especially if you are in Clark County (see below).
  2. If the school zone in question uses signs with the flashing yellow light (speed limit beacon), when the lights are off, you may drive the normal speed.
  3. If the school speed limit is in effect, then you are not permitted to make a U-turn nor pass another car in the school (crossing too) zone.
  4. Section 8 informs us that if you violate any of the above provisions, and there is an accident, you can be charged with Reckless Driving10)NRS 484B.653. I know you were driving carefully in school zones already because we care about the children of our community, but you don’t want a Reckless Driving charge filed against you for driving 30 MPH either.
For those of you living in Clark County, in reference to my first point above, there is Clark County Code that is applicable. I will reproduce the language so you can see wrote their laws differently:
14.24.030 – Prima facie speed limit.
 
The speed of any vehicle upon a street or highway within this county not in excess of the limits specified in this section or established in this title is lawful unless proved to be in violation of this chapter. The speed of any vehicle upon a street or highway in excess of the limits specified in this section or established in this title is prima facie unlawful. The prima facie limits referred to above are as follows:
 
(a) Fifteen miles per hour:
 
(1) When passing a school building or the grounds thereof adjacent to the street or highway while children are going to or leaving such school during school hours on days on which such school is in session. Such prima facie limit also shall apply when passing any school grounds which are not separated from the street or highway by a fence, gate or any other physical barrier, while such grounds are in use by children.
How’s your Latin? It’s a dead language only to those that don’t write about the law.. Prima facie translates to “at first impression.” In law, it’s often meant to convey “on its face.” Through all the obscure language here, all the County is saying is that the speed limit is 15 MPH in school zones where there is no signage indicating otherwise. The only school crossing zones in Clark County will be indicated as such11)Drive 15 MPH unless you see a sign that says you may go 25 MPH

I wish I could explain the Latin use.

Must You Yield to a Crossing Guard?

In short, yes. Let’s go right to the text of NRS 484B.350:

      NRS 484B.350  Stop required in obedience to direction or traffic-control signal of school crossing guard; penalty; additional penalty if driver is proximate cause of collision with pedestrian or person riding bicycle.

      1.  The driver of a vehicle:

      (a) Shall stop in obedience to the direction or traffic-control signal of a school crossing guard; and

      (b) Shall not proceed until the highway is clear of all persons, including, without limitation, the school crossing guard.

      2.  A person who violates subsection 1 is guilty of a misdemeanor.

      3.  If, while violating subsection 1, the driver of a motor vehicle is the proximate cause of a collision with a pedestrian or a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653. (This is a the reckless driving statue. It includes terms for jail time.)

      4.  As used in this section, “school crossing guard” means a volunteer or paid employee of a local authority, local law enforcement agency or school district whose duties include assisting pupils to cross a highway.

      (Added to NRS by 2003, 364; A 2011, 1635) — (Substituted in revision for NRS 484.356) (emphasis added)

Now that’s what I call legislating! How refreshingly clear!

The driver “shall12)shall is not a suggestion stop” at the direction of the crossing guard.

You may not drive through the cross walk until all people, including the crossing guard, are clear of the highway. This does not mean after the group of people have walked past your car. I only emphasize this because I see people turning through walk signs all the time. Be aware of the requirements for school zones!

Below I included a two more school bus statues that you might find interesting. The first requires that state to have posted school zone signs13)relevant if you are pulled over for speeding and the second codifies that a school bus may not drive faster than 55 miles per hour14)an exception for when traveling on highways with a higher speed limit.

Have a great year of school everyone! Bless our wonderful teachers.

  NRS 484B.367  School zone or school crossing zone: Requirements for signs; placement of portable signs.

      1.  Each permanent sign which designates a school zone or school crossing zone and the speed limit in that zone must be uniform in size and color and must clearly designate the hours during which the speed limit applies.

      2.  Each portable sign designating a school zone or school crossing zone and the speed limit in the zone must be uniform in size and color. A portable sign may be placed on or beside a roadway only during those hours when pupils are arriving at and leaving regularly scheduled school sessions.

      (Added to NRS by 1985, 640; A 2001, 955; 2003, 365) — (Substituted in revision for NRS 484.3665)

      NRS 484B.360  Maximum speed of school bus.  A school bus shall not exceed:

      1.  A speed of 55 miles per hour when transporting pupils to and from school; or

      2.  The speed limit posted by a public authority for the portion of highway being traversed when transporting pupils to and from any activity which is properly a part of a school program.

      (Added to NRS by 1969, 1486; A 1973, 1297; 1977, 407; 2015, 1351) — (Substituted in revision for NRS 484.365)

If you are interested in further reading on Dillon Rule vs. Home Rule, I found this fun little ditty.

Footnotes   [ + ]

1. you all speak with impeccable grammar from what I hear
2. by no means a requirement! Rick Hasen is a great writer.
3. Small footnoted tangent: Have you seen (this is rhetorical, I know you’re busy) what the legislature did to our Dillon rule common law last session? First, I’ll define the terms. Justice Dillon (of Iowa) wrote a common law doctrine in the 19th Century adopted by Nevada courts. The Dillon Rule, as it’s known, states that localities do not have the authority to legislate unless said authority is expressly granted by the state government. Last legislative session, the state government made a significant amendment. Check out Section 5 of new bill: “As a general rule on local governmental power, Dillon’s Rule serves an important function in defining the powers of county government and remains a vital component of Nevada law. However, with regard to matters of local concern, a strict interpretation and application of Dillon’s Rule unnecessarily restricts a board of county commissioners from taking appropriate actions that are necessary or proper to address matters of local concern for the effective operation of county government and thereby impedes the board from responding to and serving the needs of local citizens diligently, decisively and effectively.”(emphasis added). If you, like me, are tired of the “tyranny of the north” as I like to call it, this is a great result! Clark County brings in almost all of the state’s revenue, and in turn, should be given the authority to pass the laws necessary to improve our lovely community without folks from Elko stopping us. This was impossible under the old Dillon Rule. Hope is on the way my friends..Hopefully my friends in Clark County realize what we have here..
4. After some cursory research, this may be the first time the Dillon Rule (in about 150 years) that it has been codified by a state. Pretty interesting in terms of history of law.
5. Cite
6. Dillon!
7. Was there a contest at the legislature to come up with the most obscure term possible for school zone signs? Who even uses beacon in this context anymore?
8. Want to try something fun, ask a millennial to use “beacon” in a sentence.
9. ok, possibly soon
10. NRS 484B.653
11. Drive 15 MPH unless you see a sign that says you may go 25 MPH
12. shall is not a suggestion
13. relevant if you are pulled over for speeding
14. an exception for when traveling on highways with a higher speed limit
unjust enrichment

Podcast Preview: Unjust Enrichment and That Free Lunch..

Earlier this week, the newest star on the podcasting circuit, Greg Hamblin, hosted one of our partners, Jordan Flake, on his new podcastOn The Docket.

We have gotten a lot of great feedback from these podcasts, thank you!

For today’s episode, I must ask you this: If you ordered a printer, but then were delivered a pallet of printers that will not fit inside your home, do you get to keep them?

Our preview begins with Jordan answering this question…

 

Unjust Enrichment: When Are You Obligated to Return the Items?
Transcript1)Been lightly edited for readability:

Jordan Flake: ..but let’s say that a company does make an error and it works to your benefit to the tune of 50,000 or $100,000. They either deliver a lot of printers or when they’re refunding you money instead of refunding you $1,000 they refund you $10,000. One question we get is, “Well, can I keep it?” Finder’s keepers, they made the mistake. It’s their mistake and their bad and it’s mine.

Greg:  That’s always my first reaction.

Jordan Flake: Right.

Brian: Whenever something bad happens to someone else to my benefit I think, “Oh, well. All right, it’s my lucky day.”

Jordan Flake: In as much as we’re talking about examples from the internet, if you want to sound like an internet pro on giving the true actual advice in this circumstance, is that the law, ever since the days of “ye olde timey England,” has recognized a legal principle called unjust enrichment, which basically says that if somebody gives you some kind of an economic benefit for which you did not give some kind of consideration or some kind of equivalent value, then you are on the hook for that amount of money. That’s what we call unjust enrichment. That’ll sometimes come up in the context of like a contract for services or somebody will basically get the benefit of …

Greg: An accident, basically, right?

 

unjust enrichment

 

Jordan Flake: Right, yeah, it’s an accident. Somebody will get the benefit of somebody who drops off valuable materials, or leaves a printer, or gives them extra money. Then they come along and say, “Well, no, you were unjustly enriched by this situation; therefore, you can’t keep the benefit.” Do you have a question there?

Brian: Yeah, so in the example with the printers, what is the obligated to do to avoid an unjust enrichment lawsuit?

Jordan Flake: This is not my official position…what happens is the unjust enrichment really happens if that person takes the possession and ownership and control of the printers. Merely leaving them out in the parking lot where they were delivered doesn’t unjustly enrich that individual. It’s the following the bad internet advice where it’s like, “Hey, sell the printers on Craig’s List and turn it into $100,000.” At that point that individual is enriched to the value of the four pallets of printers. If he just says, “Whoa, I’m just going to cover these with a tarp,” which I think somebody gave him that advice

Brian: Right.

Jordan Flake: … call the company. Then he’s not really enriched by that situation because he didn’t take them into his possession.

Greg: In that case what was happening was they were saying, “In the state that you are in there’s a statute that says, ‘You have an obligation to do what you reasonably can to protect other people’s property even if it was mistakenly given to you or put in your possession.'” In that case he figured since he can’t bring it inside. He doesn’t have room for four pallets inside much less fit them through the door. He would protect them from the weather, call the people immediately so that they could come and take care of it. That was about the limit of what he could reasonably do to protect this stuff.

Jordan Flake: If the bank ever makes a big error in your favor, don’t run to the ATM, pull out all the money and blow it on the strip because there’s a good chance that they could come after you and say, “Hey, you knew or should have known this money wasn’t yours. You didn’t do anything to earn it and you’re on the hook for it.”

Greg: Now this doesn’t apply to situations like someone leaves you something in their will because there’s a situation you get something and you haven’t done anything for it. It’s not an unjust enrichment.

Jordan Flake: Right, it’s not an unjust enrichment if it was intended it be a gift. There’s a presumption that you were my friend or whatever for my life and as a recognition of our friendship then this is a gift that I’m going to give you, even though that doesn’t necessarily require friendship. I think anything like that there’s a difference between a gift and you wouldn’t leave … The individual in this scenario wouldn’t have claimed, “Well, the pallets of printers were given to me by the company as a gift.” They just really like me as a customer. That’s the idea I think is there’s a little distinction there.

 

Footnotes   [ + ]

1. Been lightly edited for readability

Podcast Preview: Makeup for Your Tattoos?

Earlier this convention week, rising star Greg Hamblin hosted one of our partners, Jordan Flake, on his new podcastOn The Docket.

As you have heard from previous episodes, the we touch on a wide-array of topics. The law can wear many hats.

This week’s episode, we discussed the (now national story) of a Las Vegas judge that decided a defendant needed to have his tattoos covered up in order for there to be a fair trial.1)You will see pictures if you click the link.

 

 

Transcript: The Las Vegas Judge and Tattoos

Greg Hamblin: He’s a Neo-Nazi, and he’s got a whole bunch of tattoos, including the tear drop tattoos that’s meant to indicate that you’ve killed someone, and swastikas, and things like that. The makeover was actually going to be makeup to cover all these tattoos, so that when he’s in front of a jury, they won’t see those things.

Jordan Flake: That’s interesting.

Greg Hamblin: Isn’t it?

Brian: He’s spending 2 hours with a makeup artist, each day before trial, because the judge was concerned the jurors were scared of his appearance, and would not be able to evaluate the facts fairly. The other thing, most interesting part about it, is that he didn’t have the tattoos when he committed the crime.

Greg Hamblin: Oh.

Brian: I know. Chew on that fact.

Jordan Flake: That’s actually the part of it that helps me live with it. I think, otherwise, you just …

Greg Hamblin: You want to say, “Well, you chose to get these stupid tattoos that are meant to send a very clear signal about … ”

Jordan Flake: Right. There’s part of me that wants to say, “Look, if this is your identity, then your identity is something that … ” Your credibility and your character is something that jurors are allowed to consider, and if these tattoos are part of your identity, and part of your character, then that’s something that they should consider when evaluating whether or not they believe your side of the story. However, if at the time of the robbery, this individual didn’t have those tattoos, I can see a judge saying, “Listen, the only way to make this fair as of that point in time … ” He, still, at that point in time, even though he didn’t have the tattoos, was the same person who eventually would go and get these distasteful tattoos. That’s interesting. Yeah.

 

tattoos, las vegas, nevada, judge

 

Greg Hamblin: I guess, part of the problem was during jury selection, the judge would ask questions, and the jurors would say things like, “Well, the tattoos mean something, so he’s telling us that he’s a murderer.” They’re drawing meaning from the tattoos, and I can see the judge’s point of view that they’re going in with a predetermined idea of what kind of person this is.

Greg Hamblin: Again, yeah, it’s a tough one.

Jordan Flake: Was it the judge pushing for this, or was it the defense team?

Greg Hamblin: Do you know, Brian?

Brian: It was the judge, because they couldn’t get a jury selected.

Jordan Flake: Okay. Yeah, I could see that being a problem. The judge is sitting there during voir dire

Brian: Even the prosecutor wanted them to do it, because they couldn’t get a jury seated.

Jordan Flake: Everyone was just like, they were cycling through. My wife had to go down to jury duty recently. I wish she would’ve sat in on this one. That would’ve been great. “Juror number 649.” Nope. Don’t like Nazis. Sorry. The whole Nazi thing’s a problem with me. I could even imagine the defense counsel, or the prosecutor, anyone doing the questioning of voir dire, they’re like, “If someone has sworn allegiance to Hitler, would you still be able to be objective about this person?” Could you imagine somebody sitting there, and be like, “Oh, yeah. Hitler. That’s no big deal with me. Let me just put it on the record that if you’ve sworn allegiance to Hitler, then I really don’t condemn that at all.” Okay. All right.

This is all coming together. This is why you drill down into the facts, because the first second I heard about this story, I was like, “Okay. None of that’s going to be taken into consideration.” A few minutes go by, and we learn a little bit more about this story, and you’re like, “Okay. I can see the judge that.” Now, actually, I think standing in the judge’s shoes, the prosecutor’s shoes, the defense counsel’s shoes, it just makes sense. Got to get this guy into makeup, and now, maybe he’ll have some jurors who are like, “Oh, that’s a really good makeup job.” I would like to see this guy after makeup, because he looks totally weird, in spite of their best efforts. The thing that eventually condemns this guy is, “Something just didn’t look right about him. There was something about his skin, or his eyes. He had this waxy, almost sub-human appearance about him, and even though I think he’s probably not guilty of this crime, he just had this fake look about him.”

Greg Hamblin: He seems like a perfectly decent Nazi, but …

Jordan Flake: Yeah. Something looked off about him, and that’s we decided to find him guilty.

Brian: What about the slippery slope of it, though? What about the next defendant that comes out and says that, “You guys need to give me a wig, because the jurors are assuming that bald people are evil.” Of color defendants, why are we only making accommodations for white defendants?

Jordan Flake: That would have to come out in voir dire, though, if we got the same answer over and over again. I have red hair, and so I would want that, if I were ever up for a crime, I would want my defense counsel to ask, “Mr. Flake is a redhead. Do you just feel like you would want to prosecute and find a redhead guilty, just for having red hair?” I’d want that to be one of the questions that they ask.

Greg Hamblin: “Do you have anything against people who don’t have a soul?”

Jordan Flake: “Yes. Mr. Flake doesn’t have a soul.” Does that cause you any problems in terms of … Yeah.

 

 

Footnotes   [ + ]

1. You will see pictures if you click the link.
class action

Podcast Preview: Why Are Class Action Lawsuits Permitted?

Earlier this week, Greg Hamblin hosted two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..The fun part about recording a podcast with one, Jared Richards, Esq., is that in the midsts of a irreverent conversation about law in the news, there will be a two minutes window where he explains, clearly and succinctly, why the legal system permits class action lawsuits:

 

 

Why Are There Class Action Lawsuits?

Transcript:

Greg Hamblin:   First question, in the Federal Appeals Court on Thursday, throughout a 7.25 billion antitrust settlement reached by Visa and MasterCard with millions of retailers that had accused the card networks of doing what?

Jared Richards:  Overbilling of some sort. Charging too large of transactions fees?

Greg Hamblin:   Yes, that’s it exactly. More specifically that they had fixed their fees in a monopolistic way. The Appeals Court said that the accord was unfair to retailers that stood to receive little or no benefit at all and decertified the case as a case action. I don’t know what that means.

Jared Richards:  Wow.

Greg Hamblin:   What’s wow? What does it mean when it’s decertified as a class action?

class action

Jared Richards:  It’s problematic because the idea of the class action is that the individual cases are too small to ever make it economically viable to bring it to court because any given lawsuit, even like the extreme low end lawsuits, are going to cost $10,000.

A big one like this would cost millions and so you bring everybody together and sue them together. You sue with everybody together it’s a class.

What you do is, because it’s infeasible, where it’s very difficult to go out and actually get everybody to sign up, you just have the court declare that everybody who falls in this class, meaning all merchants, will already be parties, will already be plaintiffs and they have to opt out, which is generally the way it goes.

It can go the other way but generally this way and that you have to write a letter saying that I don’t want to be part of it or maybe you’ll get mail saying I do want to be part of it.

If he’s decertified in class, what he’s saying is that every merchant, their damages are so different that they don’t really fit well as a class. While that may be true that Walmart’s damages are going to be significantly different than the florist that we talked about earlier, …

Greg Hamblin:   Jack Benny‘s Florist.

Jared Richards:  … Jack Benny’s Florist, the problem is that Jack Benny’s Florist is never going to be able to hire a lawyer to make this make economic sense. That’s why you want it to be a class.

Greg Hamblin:   I see.

Jared Richards:  That’s really difficult for the smaller guys. Even if they wouldn’t get a whole lot of benefit that’s probably also because they didn’t get a whole lot of damage.

 

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