ArchivePage 2 of 227

New Laws make it Difficult for Cities to Use Traffic Cameras

Many states have laws on the books that make it difficult to legally use traffic cameras against unsuspecting drivers. Ohio’s recently gained media attention when lawmakers, in an effort to stop the essential “cash cow” that comes from traffic cameras, passed Senate Bill 342 with the intention of eliminating the use of traffic cameras around the state by requiring full-time police officer presence alongside traffic cameras.

Prior to the passage of the bill, Cleveland collected roughly $5.8 million from traffic camera violations. Violators of SB 342 lose local government funding equal to the amount of fines they’ve collected. Traffic Camera

The new law came after the Ohio Supreme Court ruled the state couldn’t directly ban cities from using cameras based on the constitutional “home rule” and, for some municipalities, it’s definitely working as a deterrent. It’s expensive to have police officers man the traffic cameras, which is why many cities have stopped using traffic camera programs altogether.  But, what Ohio lawmakers didn’t expect is the backlash from city governments that have found a way around the new law in the form of speed guns equipped with cameras.

The Ohio Supreme Court has already ruled municipalities have, under the “home rule,” the power to establish laws in accordance with the powers of local government, which includes the use of traffic cameras. Did they get it right?

Legality in Question

Other states, such as Florida, have issued rulings making it illegal to issue tickets via red light cameras, reasoning that cities cannot delegate their police power to private vendors. While others, like Missouri, have ruled that red light cameras shift the burden of proof from the state onto the defendant to prove the defendant was not operating the vehicle at the time of the violation.

Common arguments made against the use of traffic cameras include:

  • Red light cameras cause more crashes and reduce safety and do nothing to prevent an accident. While it may reduce right turn crashes, the use of red light cameras has been found by some to increase rear-end crashes.
  • Red light cameras are an invasion of privacy. Private companies typically own the cameras, which means your pictures are stored on private computer servers with no way to track when, or if, they’re deleted.
  • Red light cameras are not the most effective way of reducing red light violations. One study found that between 70-80% of red light camera violations came from the 1st second after the light turned red.  Georgia increased the timing of their yellow light timing by merely 1 second and saw a 72% reduction in red light violations.
  • Red light cameras are used primarily to raise money, not improve safety.
  • Ticket recipients are not notified quickly after the offense, putting potential violators at risk for missing deadlines.
  • There is no guarantee of delivery of citation. Even though traffic camera violations are civil in nature, proper delivery is still required.
  • There is no certifiable witness to the supposed violation. You have a constitutional right to confront your accuser; it’s difficult to cross-examine a camera.
  • The driver of the vehicle is not positively identified. Someone other than the owner of the car could have been driving.  This seems to be one of the biggest issues and, perhaps, the best argument against legality.

Speed guns equipped with cameras allow officers to issue a higher volume of tickets over the traditional route of pulling drivers over. One Ohio city mayor stated an officer could essentially write 1,000 tickets per day if they wanted to.  Although speed gun cameras appear to be completely legal under SB 342, using them doesn’t really solve any of the issues surrounding the legality of the traffic cameras in the first place.

Specifically, the argument that cities use them simply as a means to generate income for the city can still be made. Further, it seems nearly impossible for an officer to positively identify the driver of a vehicle if that officer is writing 1,000 tickets per day.

Traffic Camera Evidence Could Prove Useless

Two pending appeals in the Ohio Supreme Court put the constitutionality of SB 342 up for debate, but the bill has already passed scrutiny with the Court of Appeals and lawmakers aren’t expecting it to be overturned. Ohio seems to be following the trend, which means accused violators, in Ohio and other states with similar laws, will be able to use these types of laws to fight pending tickets.

If a city violated a state law restricting the use of traffic cameras, any evidence provided from said camera would be thrown out. Without the testimony of an officer, a city would have no evidence to fill the burden of proof. Even considering Ohio’s use of officer presence on speed gun cameras, I don’t believe it would be enough to uphold a ticket under that argument due to the fact that officers are often just taking pictures of a license plate without making any contact with the driver.

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.

A Prank Too Far: Is Google Liable for the Fallout of an Ill-Conceived Prank?

Google is committed to their pranks, coming up with inventive April Fools jokes every year. Just last year they had twelve different pranks running, from playing Pacman in Google Maps to suggesting the song Sandstorm for nearly every music video on YouTube.  In 2011, Google announced that all their products would default to the Comic Sans font.  They also introduced a Meow Me Now app, which would locate kittens in the user’s vicinity.  This year, Google outdid themselves, and it came back to bite them.

As one of their many 2016 pranks, Google added a “Send + Drop Mic” button to Gmail. The button was an orange affair that read “Send +” then showed an animation of a small hand dropping a microphone.  It replaced the usual “Send and Archive” button and was positioned immediately next to the “Send” button.  When clicked, the button added a gif of a Minion from the movie series Despicable Me dropping a microphone and muted the thread—preventing the user from seeing any further replies. Mic Drop

Even though the button provided a pop-up warning the user what would happen if they sent their email in this manner when you scrolled over it, complaints of issues stemming from the confusingly position of the feature starting rolling in almost immediately after the feature rolled out. A bug in the feature also made the normal send button sometimes function as if the user had clicked the “Send + Drop Mic” button.  Several users reported losing job opportunities, while others complained that the feature had actually cost them their job.

The feature was only up for 12 hours before Google discontinued it and issued an apology for any inconvenience it had created. Google has also stated that they are working to undo the damage by bringing back all replies to “mic dropped” email threads.

Given that it was April Fools’ Day, everything posted on the internet is suspect. There is a real possibility that the users complaining of lost jobs and job opportunities were playing a prank of their own or simply fabricating their stories.  However, the situation raises the question, could Google be liable for the jobs and jobs opportunities lost due to their prank?

Negligent Dropping of Microphones

Negligence is one of the most common civil causes of action. While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty – That the accused had a duty. You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty – The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact But for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages The accuser has suffered some loss as a result of the accused’s negligent act.

Where people have lost their job or a job opportunity, their lost wages certainly represent damages. This just leaves the first four elements to figure out.

So did Google fail to act with the care of a reasonable person in their design and implementation of their “Drop the Mic” feature? This is a fairly fact specific determination, but we can look at what we know.  The design of the feature itself included a bug which made otherwise normal use of Gmail send the “Drop the Mic” version of that email.  In order to show whether Google acted with proper care, we would need to see if they knew about the bug prior to release.  Their apology statement certainly implies that they had no knowledge of the bug.  There could be a situation where the feature was created and released in such a slapdash manner that they should have expected substantial issues with the feature.  However, there is no evidence of this at this point and it seems fairly unlikely from a software company as established as Google.

So if the bug in the feature isn’t a breach of duty, is the implementation of the feature? There is an argument that a reasonable person would not have placed the “Drop Mic” button right next to the “send button” for the very reasons that occurred- users would click on the wrong button.  However, the button was of a bright color and looked substantially different from the normal “Send and Archive” button.

What’s more, the button created a pop-up explaining its function when the cursor scrolled over it. This being said, many users complained that they could only see the pop-up right before they clicked the “Drop the Mic” button.  Google has itself stated that they feel they should have included a confirmation pop-up that required a second click before “dropping the mic.”  The facts here are fairly tenuous, but there is a credible argument that Google’s implementation of their April Fools’ joke breached the duty of reasonable care.  This being said, it would be a heck of an uphill battle to prove it.

So with duty and breach established, sort of, let’s look to causation. Could a plaintiff show that but-for the “Drop the Mic” feature they would not have lost their job?  One of the very few instances of somebody losing their job over Google’s prank is a writer who claims he accidentally clicked the “Drop the Mic” button when sending his articles to his editor.  Due to the mute function, the writer states that he never received the suggested edits and missed his deadline.  His editor also took offense to the slight to her suggestions of the minion mic drop and ultimately fired him.

In a situation such as that of the writer, it seems likely that but-for the confusing positioning of the “Drop the Mic” button he would not have lost his job.

There is a real chance that Google may be vulnerable to a negligence lawsuit if the facts available are true and complete. However, not only may there be facts we do not know, the case is already fairly tenuous as to whether Google has actually breached a duty.  There is a real chance that Google may be vulnerable to a lawsuit, however it’s a slim chance at best.

Protecting Your Business

Google has opened themselves up to potential lawsuits through what seemed to be a fun prank. Their danger is at best moderate, but wherever possible, it’s best to avoid such danger all together.  When preparing to offer a product or service, consider the potential implications of the use of that product or service.  If you are unsure whether you might be placing yourself in a lawsuit’s crosshairs, consult a lawyer.  You don’t want to end up in a courtroom with a Judge dropping the mic.

Can I AirBnB My Rental If I Have a “No Subletting” Clause?

If you own or rent property in any major city, you likely have heard of AirBnB. AirBnB is now utilized by over 190 countries. It is considered a way to make easy money by property owners and renters alike, targeting travelers who prefer to stay in someone’s home or rental unit as opposed to a hotel. Beyoncé, for instance, rented a $10,000 a night home in Los Altos Hills, California for the Superbowl. Several months later, Justin Bieber rented the same home. Sublease

More than the rich and famous, AirBnB targets budget-conscious travelers. Typically AirBnB offers “more bang for your buck” than hotels in similar areas. Where renters or homeowners stay in the unit with AirBnBers, it also offers the added bonus of a local city dweller to recommend restaurants, nearby shopping areas, and tourist attractions.

While AirBnB is internationally popular, many landlords worldwide dislike AirBnb when the landlords’ tenants sublease their property to consumers.

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.

Why Do Landlords Oppose Their Tenants Utilizing AirBnB?

Landlords from many cities are against AirBnB. Their opposition depends on the local laws and regulations.

First, AirBnb rental by tenants creates a residency that can lead to a more long-term tenancy, which the landlord’s mortgage lender typically forbids and which can constitute a material breach of their mortgage contract. Second, it may qualify as a House in Multiple Occupancy, which could require the landlord to acquire a specific business license and additional liability insurance.

In San Francisco, most tenants are covered by rent control such that the rent can only be raised by a certain amount each year. 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 in the summer, 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.

Can Landlords Limit AirBnB?

The short answer is it depends. Different cities have different regulations. In most cities, a landlord can include a “no subletting” clause limiting a tenant’s ability to utilize AirBnB. A “no subletting” clause dictates that the tenant cannot rent out all or part of the apartment for any length of time. If you violate the provision, your landlord can evict you.

However, in Victoria, Australia, a court ruled that tenants cannot be evicted for violating the subletting clause. In a recent case, a tenant argued that AirBnB guests do not have “exclusive possession” of the rental apartment, or the right to use the premises at the exclusion of all others, including the landlord herself. The Victorian Civil and Administrative Tribunal concluded that AirBnB guests cannot be said to have exclusive possession of an AirBnB unit because AirBnB specifically limits possession. The case is the first authoritative case of its kind in the world.

It is important to note that most American jurisdictions do not follow this principle. Instead, they conclude that no subletting clauses can limit a tenant’s use of AirBnB if it is included in the residential lease.

Mississippi Adoption Agencies May be Able to Deny Placement of Child Based on Premarital Sex

Remember when businesses could refuse service to African-Americans? Mississippi has just passed a religious freedom bill that puts a halt to any progression made in the LGBT community since Obergrfell v. Hodges and it sure reminds me of when blacks were segregated from whites. Will we ever learn from past mistakes?

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both public and state employees to discriminate against anyone they believe doesn’t align with their religious beliefs. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergrfell.

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The LGBT community will take the biggest hit from this bill, but many are overlooking an even smaller portion of the bill that focuses on adoption agencies. Essentially, adoption agencies, whether public or private, will be able to discriminate against potential adopting parents if they believe those parents are having premarital sex. Say what?

A Closer Look at the Bill

The actual text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Now on it’s face, it looks like the State of Mississippi is promoting, or rather supporting, this belief. What the bill actually says is that the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs.

Discriminatory action on behalf of the government means the government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. The bill isn’t necessarily promoting this belief so much as they are granting protection from governmental backlash.

Still seems a bit backwards though doesn’t it? The bill further reads:

“Section 3. (2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction…”

It’s broadly written, which means adoption agencies could essentially deny placement of a child on the basis of the agencies religious beliefs that sex is reserved for married couples. Is this going to be on a pre-adoption questionnaire?  Asking whether someone is having sex outside of marriage would be a violation of the right to privacy, but the agencies could just assume certain people are engaging in premarital sex.  Sounds a whole lot like religious discrimination, doesn’t it? Let’s look at an example to see how this could actually play out.

  • Bill and Cindy want to adopt a child. Both have good jobs and would be excellent parents, however they don’t believe in marriage and, instead, live together as domestic partners.

A “religious organization” under the bill includes a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity…” Adoption agencies are run by either public (state) or private entities, which means privately held companies run by religious organizations could refuse their services to anyone they want under the freedom of religion umbrella.

  • An adoption agency with firmly religious roots finds out that Bill and Cindy are not married and since they strongly believe sexual relations are reserved for married couples, they choose to deny placing a child with them.

The Bill Might Not Actually Violate Any Rights

The Federal Civil Rights Act of 1964 prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.

A couple’s ability to parent should not rest solely on the basis of religion or marriage. However, while the act itself of discriminating based upon religious beliefs is a violation of the Act, maybe even a violation of the right to privacy, the text of the bill itself may not be violating any rights because it only prohibits the government from taking governmental action against those that choose to discriminate, rather than having the government itself be the discriminating party.

Whether the application of the bill plays out as written is a different story. If applied discriminatorily, it won’t matter how the text of the bill is written.  That’s going to be a key distinction when this bill is inevitably challenged.  Those that the bill affects will have to take suit up with the individuals discriminating, rather than with the government.



<