Ohio’s Version of the Scarlett Letter

“On the breast of her gown, in fine red cloth, surrounded with an elaborate embroidery and fantastic flourishes of gold-thread, appeared the letter A.”

Bright yellow plates with bright red numbers and letters. Legislature has mimicked Nathaniel Hawthorn’s Scarlet Letter and, unlike Hester Prynne, Ohioan’s are undoubtedly wearing their scarlet letters with shame.

Ohio’s current laws mandate OVI (most know it as DUI) offenders must forfeit their existing license plates in exchange for a restricted plate, which so happens to be a blaring yellow and red. Compare those restricted plates with the normal (and virtually unnoticeable) white and blue lettered plates and, boom, you’re instantly known as a criminal and publicly shamed. Here’s a quick run down of the law:

  • A refusal of the BAC test will result in an automatic license suspension, for a period of 1 to 5 years
  • Failure of the BAC test will result in an automatic license suspension, for a period of 90 days to 3 years
  • The judge will have discretion whether to grant the offender specialized driving privileges during the suspension
  • Any “high-tier” DUI offender granted specialized driving privileges must forfeit their normal license plate and exchange it for the bright yellow and red restricted plate. High-tier offenders have a BAC of 0.17 or higher
  • These yellow plates are only given to DUI offenders
  • The plate must be kept on the offender’s registered vehicle throughout the entire term of the suspension, regardless of who is driving

Is This Form of Public Shaming Legal?

Many courts have found some sort of public shaming legal, while others have not. Proponents against public shaming punishments argue such punishments violate Free Speech and are Cruel and Unusual Punishment, but as with anything, it largely depends on the court and the circumstances surrounding the case.  Ohio License

Pennsylvania’s sentencing code requires sentencing to be for the purpose of rehabilitation, or reforming the criminal. The Pennsylvania Supreme Court found requiring a defendant to send a picture of herself in handcuffs with an apology to her fellow co-workers as part of her sentence was solely for the purpose of humiliation and was not upheld.

Ohio’s sentencing code has a similar purpose: to rehabilitate, punish, and deter. Legislature insists their scarlet letter law was created to deter driving under the influence and not humiliation.  Is the embarrassment of driving around with a plate that everyone knows as a DUI offender enough to deter driving under the influence?  Maybe, but it’s probably not enough.

If deterrence is truly the only intent, an ignition interlocks is an alternative that accomplishes even better results with less constitutional implications. The biggest downsides of interlock ignitions are the costs involved with installing.

Is This a Lawsuit Waiting To Happen?

Sex offender registry laws are the perfect example of a scarlet letter law extending to other types of crimes and they have the approval of the Supreme Court. However, a sex offender registry is not quite as public as the yellow license plate because it’s less conspicuous and any harm to the offender is outweighed in the interest of public safety.

Florida has been challenged on their version of the scarlet letter law. There, DUI offenders are required to place bumper stickers on their cars that read “CONVICTED DUI.” Florida’s law was ultimately upheld because the bumper sticker was attached to a velcro strip and the law permitted the sticker to be removed when the DUI offender was not driving the car.

Ohio’s law brings more risk because these laws have the potential to not only affect the offender, but innocent persons as well.

Consider these scenarios:

  1. Tom gets convicted of a DUI and is required to put the yellow plate on his car. Tom and Hester share a car. Hester is a stay-at-home mom. They live in the country with no school bus routes, so Hester participates in a carpool with other parents to drive their kids to and from school. Hester now has to drive with yellow plates that scream “DUI Offender!” Other parents complain and will no longer allow Hester and her children to be a part of the weekly carpool. Hester now has no way to get her children to school on the days Tom has the car.
  2. Same scenario as above. Tom has decided to interview for a higher paying position. Tom’s interview is going great and is going to be offered the job, but just as he was pulling out of the parking lot, the interviewer noticed the yellow license plates and decided not to give him a job.

In both scenarios, Hester and Tom have been unfairly punished as a result of the DUI plates. Unlike a sex offender registry, someone other than the DUI offender is being unfairly stigmatized.

The distinction between Ohio’s law and Florida’s law is the inability to remove the license plate. Not only does the law unfairly require innocent persons that are forced to drive the offender’s car to wear a scarlet letter, but it also raises potential bias and constitutional implications for the offender.

Legal Use of Marijuana Jeopardizes Parental Rights

Are you a parent who has a medical marijuana card? You might want to rethink before you get your marijuana treatment. Unbeknownst to you, you may be taking a risk of losing your child. That’s a warning parents who smoke pot should be aware of, but is nowhere in the statute to be found. There is no bright line rule on whether a legal use of marijuana makes a parent unfit. Nevertheless, your state can suddenly take your child away. Now, you must choose either your treatment or your child.

That’s the dilemma Raymond Schwab, an honorary veteran, is facing. Raymond suffers from PTSD and is a Colorado-registered medical marijuana user who resides in Kansas with his wife Amelia and their six children. Raymond and Amelia decided to move to Colorado so Raymond could continue his marijuana treatment. They were completely oblivious that they were going to lose custody of their children if they remained in Kansas.  Medical Cannabis

On the day they were packing to leave, Raymond’s mother-in-law took their five children to a police station and reported that the children had been abandoned, of which she now regrets, according to Denver Post. Since then, the Kansas law enforcement investigated the report of abuse but dismissed the case concluding as “unsubstantiated finding.” Simply put, they found no child abuse.

Nevertheless, Kansas child welfare agency did not return the kids to their parents and have been holding the custody of the children. According to Kansas Child Protective Services when CPS determines that a child is unsafe, CPS makes a recommendation to the court for removal of a child from the home. Presumably, CPS must have determined that those five children were unsafe and removal was necessary because CPS has been holding onto the custody of the five children over nine months. The Kansas court is now demanding Raymond to give up cannabis, to comply with four months of drug free urinalysis tests including a drug legal in Colorado for therapeutic uses.

Kansas Law Empowers Child Protective Services to Take Kids Away From Home

Kansas’s decision to remove Raymond’s children from their home seems overreaching and drastic. Overreaching, because Raymond’s marijuana use did not occur in Kansas, the home state, but in Colorado, where such use is legal. Taking families apart because of his simple use of marijuana as a medication is drastic and traumatic for both children and parents. It just seems unfair for someone like Raymond, who did not violate Kansas marijuana law.

One reason for such extreme consequences may be the mixed standards of marijuana laws among the states. Currently, 23 states and D.C. have legalized medical marijuana. In Colorado, possession of marijuana for medical and recreational use is legal whereas Kansas prohibits marijuana for any reasons. These mixed standards create a case such as Raymond’s. Does out-of-state medical marijuana use by a parent make the parent unfit in a state that absolutely prohibits marijuana?

Not only does Kansas law prohibit marijuana for any reason, but it also treats

marijuana as one of the most dangerous and addictive drugs. The federal government and many states classify drugs as Schedule I, most dangerous level, to Schedule V, the least dangerous drugs. In Kansas, marijuana is classified as a Schedule I substance with such drugs as heroin and meth, which means that it has a high potential for abuse and no recognized medical value. This limits how it can be studied or used medically. The strict prohibition and overgeneralization of marijuana treatment of Kansas law seem to empower the state’s child welfare agency’s decision to take families apart based on a mere speculative and obscure danger.

Raymond did not violate the Kansas marijuana prohibition statute. The state, however, claims that Raymond’s retroactive or prospective legal use of marijuana in Colorado was or is going to be unsafe to his children.

The CPS’s balancing test underestimates the degree of harm that the children might experience when they are taken away from their natural home. Removal from the home and replacement in the home can lead to feelings of instability, loss of status, and a loss of control as children may always expect and fear that they can be removed and replaced at any time without explanation. Lack of understanding of the foster care system and the process may lead to feelings of loss and/or rejection for children grappling to understand the separation from their biological families.

Instability in foster care is a serious problem for child development. We hear more and more problems in foster care system. In 2014, a two-year-old Alex Hill was taken away from her home because her parents used marijuana. After placed in a foster home, the toddler girl was physically abused and eventually killed by her foster mother. The Texas child welfare agency took the child away from her home simply because her parents smoked pot while their baby was sleeping in bed upstairs. The child was then placed in a “safe environment,” namely, foster care. That safe environment is where she died.

Best Interest of Child

The different standards of marijuana law among the states render a parent who is legally entitled to smoke pot in one state to become unfit parent in another. That is arbitrary. Furthermore, by taking the kids away, Kansas demands that Raymond forfeit his right to use medical marijuana as a patient in Colorado. The stigma against marijuana allows the state to dictate a decision without carefully considering whether it would be in the children’s’ best interests. As a result, the removal produces traumatic experiences for the children, rather than providing safe and temporary environment for the children’s well-being. According to the Denver Post, Raymond and Amelia have only seen their children three times since their separation in April 2015

The essence of child welfare decision should be made based on the best interest of child. Arguably, parents who abuse illegal drugs can put their children at incredible risk. Parents who use addictive drugs may be incapable of caring for children and the children would become susceptible to drug use themselves.

However, Raymond was in compliance with both Kansas and Colorado law. Also, marijuana is not addictive. Given the degree of resulting trauma the children may go through, compared to the degree of potential harm by having a father who uses marijuana for his illness, Kansas’s decision to take the kids away is erroneous. Holding onto the custody of the children over nine months based on overblown concerns is not for the best interests of the children.

San Francisco Bay Area Airbnb Laws

With Super Bowl 50 just days away, many San Francisco Bay Area residents are looking to capitalize on the Airbnb market. Luxury hotels are practically booked. Rooms in the prestigious Fairmont Hotel range from $1,500 to $10,000 a day with a minimum stay of four days. Even lower-end hotels like Travelodge are charging $1,100 a night. In the alternative, approximately 75% of Airbnb listings in San Francisco bay area are asking more than $360 per night. Someone can even rent a tree house in Burlingame, California for $495 a night the five days leading up to the Super Bowl.

With so many people looking to Airbnb to make some easy money during Super Bowl week, it begs the question, what are the San Francisco laws pertaining to Airbnb?

What is Airbnb and How Does it Work?

Simply put, Airbnb is a room letting website. It allows people to list, find and rent lodging from all over the world, including popular destinations such as Paris, London, Berlin, and state side in cities such as San Diego, New York, and Miami. It is privately owned and is reportedly worth $25 billion. The primary source of Airbnb’s revenue comes from service fees from bookings.

What are the Airbnb Laws as They Pertain to San Francisco?

In October 2014, San Francisco Mayor Edwin Lee signed San Francisco Ordinance No. 218-14, thereby allowing some residential properties to conduct short-term residential rentals. Here are the basic rules:

Primary Residence Requirement. To register a listing, you must live in the residence for at least 275 days per year. If you haven’t lived there for an entire year, you must have lived in the specific residential unit for 60 consecutive days prior to your application. If you own a multi-unit building, you may only register the specific residential unit in which you reside.  For Rent

Liability Insurance. Hosts must maintain at least $500,000 of liability insurance or provide proof that liability coverage in an equal or higher amount is provided by the hosting platform (such as Airbnb).

Limits. You may only register one residential unit, and all residential units subject to the Affordable Housing Program or units designated as below market rate (BMR) are ineligible.

Why is Airbnb Controversial?

In November 2015, Proposition F, a measure that would have substantially curbed short-term rentals, lost by 55% to 45%. It was one of the most contentious issues on the ballot.

Opponents of Airbnb argue that using housing as hotels diverts scarce housing to lucrative but illegal all-year round hotels. San Francisco typically only sees 2,000 new units added to the housing market each year. A few hundred units off the market significantly impacts an already over-extended city.

Landlords are also largely against Airbnb. In San Francisco, most tenants are covered by rent control such that the rent can only be raised by a certain amount each year. So what are they upset about? Let’s say a tenant has been renting a one bedroom, one bathroom unit since 1980 and pays $800 a month due to rent control. If the tenant is able to get $500 a night the four days leading up to the Super Bowl, the tenant stands to make $2,000 on the transaction, pocketing $1,200 after she pays her monthly rent. Landlords believe this type of arrangement unfairly enriches the tenant. Many landlords include “no subletting” clauses in their residential leases to prevent their tenants from utilizing Airbnb.

And who is pro-Airbnb? Airbnb, which advertises their company as providing middle-class people a way to make ends meet. Tenants may see Airbnb as an easy way to make extra cash. Homeowners who elect to use Airbnb also believe they have a right to do with their property as they please, and utilizing Airbnb can help pay their mortgage. Many Airbnb users have great experiences and are able to visit places which would be prohibitively expensive if not for Airbnb.

Regardless of if you are for or against Airbnb, one thing is for certain – both hotels and Airbnb hosts stand to make a lot of money during Super Bowl weekend.

Flint Water Crisis: Where Can They Go From Here?

Before 2016, a large part of America never heard of Flint, Michigan. The city was one of the largest manufacturers of cars. It was once the base for the company GM and made most of the company’s Buick and Chevrolet models. But eventually the factory closed, and soon Flint became better known for its high crime and poverty.

Now, Flint is the city where the water supply is contaminated from the old lead pipes directing water to the public. An estimated 6,000 to 12,000 citizens are severely poisoned with toxic levels of lead in their blood.

A simple financial choice to switch to a cheaper water supply left so many of its residents severely ill or disabled. What can the residents do now? Is there any legal action they can take?

Can the Citizens of Flint Take Legal Action?

Yes, they can, and they did. Twice.

A class action suit filed on November 13, 2015. It claims that 14 city officials are responsible for replacing the safe water with “dangerous…and…inadequately treated” water. They ask for injunctive and declaratory relief as well as monetary damages.

The November Class Action claims that the 14 city officials violated the citizen’s substantive due process by removing safe water while under authority from the law.  Lead Water

A second class action suit was filed on January 27, 2016 against city officials. It asks the court to order city officials to replace all lead pipes in the city and follow federal requirements for drinking water. They also ask for equitable relief to help with health and medical care due to the contaminated water.

There are now two class action suits filed because of the Flint Water Crisis. But will they succeed?

They May Win, But Filing A Class Action Is Only The Beginning And May Not Be Enough.

In order for a class action suit to go forward, the class must be certified, or approved, by the judge. The judge can refuse to certify the class for many reasons. It may take at least a year or more for a class to be certified, or the class may never be certified.

A class action may take years to resolve and cost hundreds of thousands of dollars. Most class actions end with a settlement. Attorney’s fees may reduce the amount the class will receive, depending on the nature of the settlement.

Despite the limits of a class action suit, it is the best option for the citizens of Flint. If the classes are certified, then the class action suits will probably settle. The class will receive whatever they requested for relief and any monetary relief must be spread among the entire class.

But the class may have upwards to 12,000 individuals. So each class member may receive a substantially smaller amount than if they pursued a claim individually. But even if they wanted to, the people of Flint cannot sue the state. Government officials are immune to torts stemming from negligence due to sovereign immunity.

If It Feels Unsatisfying, It’s Because It Is

Its good public policy to protect lawmakers and government officials from lawsuits arising from best intentions.

The decision to switch the city’s water supply was in good faith. But what unsettles the nation is how officials waited and ignored the lethal amount of lead. It was only addressed when its damaging effects were undeniable. Now, an estimated 6,000 to 12,000 children are affected by the contaminated water. They will need comprehensive treatment and may face a lifetime of behavioral and cognitive disorders.

For the people of Flint, whatever amount they receive does not change the fact that effects of the Water Crisis will live on in its children. Even after 20 years, the impact will be evident in its residents.

Monetary damages can be awarded based on loss of future earnings and the cost of living with a disability. They look at the victim’s age, extent of injuries, earning capacity, loss of income, and impact on the life of the victim. But for compensation in a class action, the court will not be able to examine each effected resident. Instead, each resident may be treated as more or less suffering the same amount of damages.

In the end, the residents of Flint will need to rely on the government that has failed them. They must wait and hope that the City of Flint, Genesee County, and the State of Michigan will help them recover from a fatal error.

Appeals Court Denies “Uber” for Planes

If you want to get from Dallas to Washington, D.C. fast, wouldn’t it be nice to contact a pilot in an Uber-like plane service? Well, keep dreaming. In December 2015, the U.S. Court of Appeals for the District of Columbia Circuit struck down the idea.

Flytenow, Inc. developed a web-based service allowing private pilots to offer their planned itineraries to passengers. The itineraries were only given to passengers willing to share in the pilot’s expenses to fly to their destination. The company contacted the Federal Aviation Administration, or FAA, regarding the legal interpretation of its compliance with the Federal Aviation Act of 1958 and other FFA regulations.

A dispute arose when the FFA concluded Flytenow’s pilots needed a commercial license. Normally, pilots are considered common carriers. A common carrier offers its services to the general public. The services are offered in compensation of goods, property or messages over a defined route. Typical types of common carriers include mass transit, such as airlines, taxis, cruises, and ferries.

This means private pilots can’t use Flytenow to offer their services.

Flytenow Wanted the Court to Set Aside the FAA’s Interpretations because of Inconsistency

The company filed a lawsuit based on objections like:

  • The FFA misinterpreted its regulations when it decided passengers would be compensating the participating pilots
  • The FFA erred when it concluded pilots using Flytenow.com would be holding out an offer transportation to the public

The Court found both objections unpersuasive.

By sharing expenses, private pilots are being compensated for their trips. If a person called a private cab service, the amount of gas is probably calculated into the amount paid to the driver. The same would have been true of Flytenow’s pilots. By getting paid a portion or half of their expenses, consumers would save money. Essentially, there’s an exchange of value.

Thus, they aren’t private pilots, but commercial pilots.  Plane

Another problem with Flytenow’s argument is trying to redefine “holding out.” According to FAA Advisory Circular, pilots are barred from advertising their services to the public. The company tried to argue its’ pilots don’t advertise to the public. They submit their flight plans to the Flytenow.

However, the FFA argued that by giving their flight plans to the company, they are advertising their services to the public. For example, an individual wanting to fly to California from Missouri could look at a flight plan on the company’s website. He could then decide to “share” the expenses of the flight with a pilot flying to California.

The Right to Sue

The court got it right. The company holding itself out as a professional service to the public does create a risk to unsuspecting passengers when its pilots are not in fact held to professional standards. Passengers are under the impression the company and its pilots are common carriers. Common carriers have the experience and credential to fly commercially. If Flytenow and its pilots were allowed to present themselves as commercial and a plane crashes, passengers and/or their family would have difficulty suing under common carrier negligence.

Negligence is the failure to act with reasonable care as another in a similar or same situation would. When transporting passengers from one area to another, common carriers have the duty to:

  • Provide reasonably safe vehicles fit for an intended purpose
  • Provide careful drivers or pilot of reasonable skill and good habits
  • Exercise all standard precautions for the safety of all passengers
  • Comply with all safety laws
  • Use vigilance and utmost care in transporting all passengers
  • Warn passengers of any potential dangers the common carrier knows about

A private pilot doesn’t have to do those things. So making the pilots commercial instead of private gives passengers more legal protection.

Maybe the public won’t have to imagine an Uber-like plane service for very long. Maybe the right company will hire commercial pilots willing to fly planes to destinations for pay. For now though, we can only dream of avoiding the long waits at airline terminals and trying to book the best flight at the best price.