The Wage and Hour (Overtime and Minimum Wage/Unpaid Wages) Practice Group is involved in litigation primarily relating to overtime and/or minimum/unpaid wage claims brought under the Fair Labor Standards Act or arising under Florida law (Florida's statute requiring minimum wages to be paid and Florida's unpaid wage statute). Litigation in this area includes disputes as to whether the employee is even entitled to any overtime, minimum wages, or unpaid wages, whether the employee worked for the entity that is being sued, whether the employee is exempt from overtime (e.g., a manager, professional, administrative assistant, driver or mechanic for a motor carrier, etc.), whether the employee was properly paid his overtime, whether the employee engaged in misconduct that is a setoff to any overtime owed or that could give rise to a counterclaim, whether the plaintiff is illegally residing in the country, whether the Fair Labor Standards Act applies to the business that is being sued (it does not apply to local businesses that are not enterprises engaged in interstate commerce), whether the plaintiff engaged in illegal activity (e.g., failure to pay taxes on earnings) which may impact on the employee's right to recover overtime, and many other defenses. These matters are routinely litigated by our firm in the state and federal courts as well as in administrative proceedings brought by the Department of Labor.
It has been estimated that 30% of all wage and hour cases are filed in the Southern District of Florida, because there are many plaintiffs' attorneys in that district who advertise heavily. A significant number of the cases brought are completely frivolous, and we have been able to successfully have many of the cases that we have defended thrown out of court. For those few that have gone to trial, the vast majority of the verdicts have been in favor of the defendants, primarily on the grounds that the plaintiff did not even work there or worked for a different corporate entity, the Fair Labor Standards Act did not apply to the business that was being sued (e.g., the employer was found not to be an enterprise engaged in interstate commerce), no overtime was owed/plaintiff was not entitled to overtime, or overtime was paid. At times, we have sought to recover costs and attorney fees directly from the lawyer who brought the frivolous claim, and we have been successful in this regard (or at least partially so) on numerous occasions.
Have you ever had a FLSA case dismissed?
Have you ever had a court grant summary judgment in your client's favor in a FLSA case?
Do you routinely represent plaintiffs also, or just defendants?
Have you ever litigated against the attorney suing me, and if so, what is your record against him?
Do you have any suits pending in which the plaintiff's attorney suing me is the defense lawyer in a case brought by you on behalf of one of your plaintiff clients?
Have you ever tried to verdict a FLSA case?
If so, what is your record in trials involving FLSA cases?
Have you ever successfully defended an appeal of a FLSA case in which you won?
Have you ever litigated in the Supreme Court of the United States, and are you licensed to practice there?
Have you ever sought sanctions against a plaintiff lawyer bringing a FLSA case, and were you successful in having any part or all of your client's attorney fees refunded?
List of Representative Clients: Tecta America, Inc., Bennett Auto Supply, Inc., Weiss & Woolrich Southern Enterprises, Inc., The Town of Davie, Florida, Nanak's Landscaping, Inc., Paradise Awnings Corporation, and E.W. Ventures, Inc.
List of Representative Cases: Our firm enjoys the pleasure of having many legal victories either by dispositive motion (e.g., motion to dismiss, motion for summary judgment, motion for involuntary dismissal) or via jury verdict or having the plaintiff simply dismiss his or her case without receiving any compensation or anything of value in return. A sampling of those cases is set forth below.
This was a Fair Labor Standards Act case. The firm represented the defendants. The trial court granted summary judgment in favor of the defendants on the ground that the plaintiff could not prove that the corporate defendant was an enterprise engaged in interstate commerce for purposes of the FLSA or that the plaintiff could prove that he could establish individual coverage. The trial court further held that 29 C.F.R. § 776.23, which states that any construction worker working at a hospital is entitled to bring a FLSA claim, was arbitrary and capricious. The corporate defendant had less than $500,000 in gross annual sales volume, and thus was not subject to the Act. The plaintiff unsuccessfully argued that the corporate defendant had certain expenses that suggested that the gross sales volume exceeded $500,000.
Further, the firm argued that the trial court should grant summary judgment on the ground that the plaintiff was an illegal alien. The court did not address that issue.
On appeal, the defendants argued that the trial court's order should be affirmed on the grounds provided for by the trial court, and, if not, that affirmance was required because the plaintiff was an illegal alien. The Eleventh Circuit held oral argument on January 18, 2010, and in late May, 2010, requested that the Solicitor General of the United States (Elena Kagan) give the Obama Administration's position concerning whether an illegal alien could recover under the FLSA. The federal government thereafter submitted a brief on the issue. The Eleventh Circuit ultimately did not determine that issue, but on November 17, 2011, issued this opinion, which is a watershed opinion concerning the legal standards that a plaintiff must show to prove both enterprise coverage and individual coverage under the Fair Labor Standards Act, and the opinion upheld the finding that 29 C.F.R. § 776.23 is arbitrary and capricious.
The firm represented a physician in a case alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant runs a successful medical practice in Palm Beach County. The Plaintiff sued for back wages, liquidated damages, and attorney fees under the FLSA.
The firm persuaded the Court to grant summary judgment in our client's favor after showing that the physician was not subject to the FLSA because his practice did not have two or more employees engaged in interstate commerce, and thus was not an enterprise engaged in interstate commerce as defined by 29 U.S.C. § 203(s)(1). See Dent v. Giaimo, 606 F. Supp. 2d 1357 (S.D. Fla. 2009). The Court rejected the Plaintiff's theory that having out-of-state residents as clientele or calling out of state insurance companies made it subject to the FLSA and entered summary judgment for the Defendant. After the grant of summary judgment in our client's favor, the firm was able to secure approximately $14,000 in attorney fees ($7,170.00 pursuant to the Court Order and additional fees for litigating the attorney fees issue that are mentioned in the opinion) for the client, based on the court's finding that the Plaintiff's attorney had filed the case without ensuring FLSA standards could be met.
The firm represented the Defendant (a manufacturer's representative for playground equipment) in an action alleging four counts of Fair Labor Standards Act violations and two counts under Florida unpaid wage statutes. The Defendant defended the case on the ground that the Plaintiff was an independent contractor who (by virtue of that status) had no cause of action under the FLSA or under Florida's unpaid wage statutes. Florida Statutes § 448.08. The Defendant's motion for summary judgment was granted. Murray v. Playmaker Servs., LLC 512 F. Supp. 2d 1273 (S.D. Fla. 2007). Following the courts' decision, the Defendant moved for attorney fees on the ground that the case was frivolous or, in the alternative, the continued litigation of the case past the discovery stage was litigated after Plaintiff's counsel knew or should have known the case was frivolous. The motion for attorney fees was granted in part by the United States District Court for the Southern District of Florida in the amount of $23,375.00. Murray v. Playmaker Servs., LLC , 548 F. Supp. 2d 1378 (S.D. Fla. 2008). The Plaintiff appealed, but the Eleventh Circuit Court of Appeals upheld the sanctions against the plaintiff's attorney for vexatious multiplication of the proceedings.
The firm represented Defendant D & W Foods, Inc. (a family-owned restaurant in Fort Lauderdale, Florida) in an action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was a waiter at a restaurant owned by the Defendants. The case was dismissed because the Plaintiff could not establish individual coverage under the FLSA and the Defendant was not subject to enterprise coverage under FLSA, because its gross, annual revenues did not exceed $500,000. In addition to successfully getting the case dismissed, the Defendant was awarded partial attorney fees and costs after the court found that the Plaintiff's suit was frivolous and that the Plaintiff's attorney did not perform the requisite pre-suit investigation to determine if the suit had merit.
The firm represented the defendant in a suit alleging wage and overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendants filed a motion to dismiss the case as frivolous and requested that the court convert the motion into one for summary judgment because the defendant had not employed the plaintiff during the statute of limitations provided for in the FLSA. The Plaintiff eventually conceded to the court that he had filed suit for a claim that was outside the statute of limitations and Plaintiff therefore moved for voluntary dismissal. The court granted the Plaintiff's motion for voluntary dismissal with the stipulation that the Plaintiff' attorney pay the Defendants the reasonable costs and attorney fees incurred while defending the claim.
The firm represented the Defendant a local company that installs and services swimming pools. The Plaintiff was an employee who brought suit under the Fair Labor Standards Act for alleged failure to pay overtime and retaliatory termination under 29 U.S.C. § 215(a)(3) of the FLSA. The Defendants moved to dismiss the case or in the alternative for summary judgment. The court granted the motion after finding that there was no enterprise coverage over the Plaintiff's claim, nor was the employee covered individually under FLSA. The court held that Defendant's business was not subject to FLSA just because they used supplies that had previously traveled in interstate commerce or that Plaintiff installed products that had previously traveled in interstate commerce.
The firm obtained a summary judgment ruling in favor of their client Bennett Auto Supply, Inc. in a case alleging violations pursuant to the overtime provisions under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Defendant, Bennett Auto Supply, Inc., sells auto parts and supplies on a wholesale and retail basis throughout the State of Florida. The Plaintiff held three positions with Bennett Auto: store manager, assistant store manager, and assistant store manager II. Suit was brought against the company after Plaintiff was discharged. The case had significant ramifications to the defendant because the company utilizes and has utilized the three different positions at many of its stores.
Bennett Auto successfully moved for summary judgment arguing that not only were all three positions exempt from FLSA coverage under the executive exemption but also under the administrative exemption. Concerning the executive exemption, Bennett Auto was able to show that the Plaintiff's primary duty consisted of management duties, he customarily directed the work of at least two other workers, and had input on the hiring and firing of employees. Concerning the administrative exemption, Bennett Auto was able to show that the Plaintiff had an office, non-manual labor, position and regularly exercised discretion and decision-making on matters of significance. The entry of summary judgment was not appealed.
The firm represented Tocodrian, Inc. which operated a local restaurant. The Plaintiff brought suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking unpaid overtime compensation, liquidated damages, costs, and attorney fees. The Defendant moved for summary judgment, which the court granted after finding that the Defendant was not engaged in interstate commerce and thus was not subject to the FLSA. The court also held that regardless of the fact that the Defendant was not an enterprise engaged in interstate commerce, the Plaintiff did not work in excess of 40 hours, and thus was not entitled to any overtime.
The firm represented the Defendant, which is a local automotive repair business. The plaintiff was an employee who brought suit under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., alleging unpaid overtime compensation. The Defendant moved for summary judgment because (1) Defendant was not subject to the FLSA (it was not an enterprise with gross revenue that exceeded $500,000 annually) and (2) the Plaintiff could not establish individual coverage, namely, that he himself was engaged in interstate commerce as an employee of the Defendant. The motion was granted. Navarro v. Broney Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008). The plaintiff appealed the summary judgment ruling only as to the issue of individual coverage, claiming that he was engaged in interstate commerce because the automotive parts he used to repair the vehicles flowed in interstate commerce until the parts reached the customer. The court rejected this argument and found that the parts' interstate activity ended when the parts reached the retailer's shop from which the Defendant purchased the parts. The Plaintiff's purchase of those parts and taking those parts and placing them in or on customers' cars was purely an intrastate activity that did not constitute the engagement of interestate commercem and thus the Plaintiff could not establish individual coverage under the FLSA. The Plaintiff filed a writ of certiorari with the Supreme Court of the United States which was summarily denied after the firm's Brief in Opposition was filed. See Navarro v. Broney Automotive Repairs, Inc., 129 S. Ct. 507 (2008).
The firm represented a small, family-owned carpentry business in a suit alleging unpaid overtime wages against the company and owner pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was a cabinet installer and assembler for the company. The Plaintiff claimed he was an employee directly involved in interstate commerce due to the fact that he was sometimes sent to local hardware and retail stores to pick up items (used to make the and assemble the cabinets) that had previously traveled in interstate commerce. The court granted the Defendant's motion for summary judgment finding that purchasing goods in Florida that had previously traveled in interstate commerce did not qualify as participating in interstate commerce. Guzman v. Irmadan, Inc., 551 F. Supp. 2d 1368 (S.D. Fla. 2008). The court had previously limited discovery to the issue of coverage under the FLSA and limited the Plaintiff to approximately 34 days of discovery which greatly reduced the attorneys fees and costs in the case that were expended. See Guzman v. Irmadan, Inc., 2008 WL 926375 (S.D. Fla. 2008). The Eleventh Circuit Court of Appeal affirmed the grant of summary judgment.
The firm represented the Defendant which operates a local bakery. The Plaintiff was a cake decorator who worked at the company. The Plaintiff filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney fees and costs. The court granted the Defendant's motion for summary judgment finding that Plaintiff would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses, which the Plaintiff eventually conceded. The gross sales volume of the Defendant did not exceed $500,000 annually.
The firm represented the Defendant who is a local floor finisher. The Plaintiffs were laborers who worked at the company. The Plaintiffs filed a claim alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., seeking back wages, liquidated damages, interest, attorney fees and costs. The court granted the Defendant's motion for summary judgment finding that Plaintiffs would not be able to meet the burden of proof that Defendant was subject to the FLSA under either the enterprise or individual coverage analyses. The Defendant's gross sales volume did not exceed $500,000 annually. The Defendants filed a motion for attorney fees and costs against Plaintiffs' counsel, as they believed that the case was completely frivolous. The Magistrate Judge has recommended legal fees and costs totaling $7,480.00 be awarded to Defendant's counsel and such recommendation is subject to the review of the District Judge assigned to the case.
The firm represented the Defendant (a local autobody repair shop) in a suit for overtime violations brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant moved for summary judgment on the grounds that the Plaintiff did not meet the requirement for individual coverage under the FLSA and the Defendant did not meet the requirements for enterprise coverage. Plaintiff had argued the Defendant was subject to the FLSA based on the fact that parts used in the shop originated from out of state. The court found that the Defendant was not engaged in interstate commerce because all of the parts used within his body shop were purchased from local retailers or wholesalers and his shop only performs services within the state of Florida, and the business did not have gross revenue that exceeded $500,000 annually. Summary judgment was entered for the defendant. The Defendant moved for attorney fees and costs to be assessed against Plaintiff and his counsel, and the fee issue was resolved by the parties before it was ruled on by the Court.
The firm represented the Defendants who own and operate a local hotel in Miami Beach. The Plaintiff was a night manager for the hotel and brought suit alleging overtime violations under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court granted the Defendant's motion for summary judgment after finding that the Plaintiff was subject to the FLSA overtime exemption for managers because during the relevant time period he had the ability to hire and fire other employees, customarily and regularly directed the work of two or more employees, and was the sole manager present. Therefore, he was a manager not entitled to overtime.
The firm represented the Defendant, a local business that provides ditch digging and cable burying services. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court found that it was undisputed that the goods and materials used in the Defendant's business were purchased and used locally, and that the Defendant did not provide any services out of state. The court rejected the Plaintiff's argument that the cables buried by defendant would eventually be connected to an interstate network and thus should qualify as engaging in interstate commerce. The court was not persuaded that Defendant's purely local activity could be deemed interstate commerce based on what the customer planned to use it for in the future. Defendant's motion for summary judgment was granted.
After the court granted summary judgment for the defendants in this Fair Labor Standards Act case on the ground that the FLSA did not apply to the corporate defendant because it did not have the requisite gross annual sales volume ($500,000), see Rodriguez v. Marble Care Int'l, Inc., 2011 WL 918634 (S.D. Fla. 2011), and it was clear that no pre-suit investigation was conducted by plaintiffs' counsel, the firm filed a motion for attorney fees and sanctions against plaintiff's counsel, and the motion was granted in part, awarding the small business defendant $8,340.00 in attorney fees for the filing of a frivolous lawsuit. The court entered a separate order taxing costs in the favor of the defense client in the amount of $1,251.61. Rodriguez v. Marble Care Int'l, Inc., 862 F. Supp. 2d 1316 (S.D. Fla. 2012).
On September 19, 2012, in this Fair Labor Standards Act case in which the firm was representing the defendant-employer, the firm successuly argued to the trial court that it should grant summary judgment in favor of the defendant on the ground that the FLSA did not apply to it, because the defendant-employer did not have the requisite $500,000 in gross annual sales volume required by the Act. Arilus v. Joseph A. DiEmmanuele, 895 F. Supp. 2d 1257 (S.D Fla. 2012). The Eleventh Circuit Court of Appeals affirmed the grant of summary judgment in this opinion.
This was a Fair Labor Standards Act case. The trial court granted summary judgment in favor of the defendant (the firm's client) on the ground that the plaintiff could not prove that the defendant-employer had any knowledge that overtime hours were being worked by the plaintiff.
This case was brought by the plaintiff pursuant to the Fair Labor Standards Act, under the theory that the defendant-employer owed the plaintiff unpaid overtime and also terminated the plaintiff in retaliation for exercising her rights under the FLSA. The defendant was a small Jamaican restaurant represented by the firm. On October 26, 2012, the firm convinced the trial court to grant summary judgment against the plaintiff and in favor of the firm's defense client. The court had earlier dismissed the overtime claim, see Joseph v. Nichell's Caribbean Cuisine, Inc., 862 F. Supp. 2d 1309 (S.D. Fla. 2012), and in this order granted summary judgment as to the retaliation claim, which was the plaintiff's only claim remaining.
In this Fair Labor Standards Act case, the firm represented the defendant-employer from the plaintiff's claims that he was entitled to overtime and that he worked it without being properly paid for it. Concerning some of the plaintiff's co-workers, a jury had previously found that the workers were properly paid their overtime after a 2-week jury trial. Barrera v. Tecta America South Florida, Inc., f/k/a Weiss & Woolrich Southern Enterprises, Inc., Case No. 09-21841-CIV-DLG (S.D. Fla.). After 208 docket entries, the plaintiff, who was an illegal alien, was apparently deported as he could not appear for trial. Accordingly, the defendants moved for involuntary dismissal, and that motion was granted.
On June 27, 2012, in this Fair Labor Standards Act case, firm successfully represented its client, as it convinced the court to grant in part the defendant-employer's (represented by the firm) motion to dismiss the case. The client is one of the world's most reknowned limousine companies. The court previously struck the statement of claim that the plaintiff had filed as being completely deficient in regard to calculating the plaintiff's alleged damages. Ceant v. Tinkler, 2012 WL 1933557 (S.D. Fla., Feb. 24, 2012).
This was a Fair Labor Standards Act case which the court dismissed because the plaintiff's attorney was forced to admit after engaging in discovery that the case was frivolous.
The firm represented the Defendant, a local business that provides the installation of fire sprinklers and related products in commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The court found that it was undisputed that the goods and materials used in the Defendant's business were purchased and used locally, and that the Defendant did not provide any services out of state. The court rejected the Plaintiff's argument that the related materials were made out of state, when there was no proof of that that was so. The court was not persuaded that Defendant's purely local activity could be deemed interstate commerce. Defendant's motion for summary judgment was granted as to enterprise coverage. In Lainez v. Francis Engineering, Inc., 2009 WL 3334124 (S.D. Fla. 2009), the court had previously granted summary judgment in the Defendant's favor as to individual coverage under the FLSA.
The firm represented the Defendant, a local business that provides the installation of telecommunications wiring in commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to dismiss the case on the ground that venue was not proper in the Middle District of Florida. The court dismissed the action on the ground of improper venue, holding that the case should be filed in the Southern District of Florida (the case was originally filed in the Middle District of Florida). The Plaintiff's attorney withdrew from representation, and although the Plaintiff vowed to find an attorney in the Southern District of Florida and re-file the suit there, the Plaintiff never did, and now the statute of limitations has run on the claim.
The firm represented the Defendant, a local business that installed windows and doors in both residential and commercial buildings. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to dismiss on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion to dismiss.
The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment.
The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant (a cook) who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment. The court had previously limited discovery to the issue of coverage under the FLSA and limited the Plaintiff to approximately 34 days of discovery which greatly reduced the attorneys fees and costs in the case that were expended. See Delisle v. LGY Corp., 535 F. Supp. 2d 1266 (S.D. Fla. 2008).
The firm represented the Defendant, a local restaurant. The Plaintiff was a worker in the restaurant who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for involuntary dismissal on the grounds that the Plaintiff and his attorney had engaged in gross misconduct during the discovery period and sought attorneys fees and costs as sanctions. The court granted the motion for involuntary dismissal, and partially granted the motion for sanctions awarding part of the fees and the costs that were sought. For the orders concerning the issuance of attorneys fees and costs against the plaintiff and his attorney, see Herard v. ATN Restaurant, Inc., 2007 WL 4302703 (S.D. Fla. 2007) and Herard v. ATN Restaurant, Inc., 2008 WL 123596 (S.D. Fla. 2008).
The firm represented the Defendant, a local business that engaged in residential and commercial remodeling. The Plaintiff was a laborer who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion for summary judgment on the ground that the Fair Labor Standards Act does not apply to it, because its gross annual sales volume never exceeded $500,000 and because it did not employ two or more persons engaged in interstate commerce. The court found that it was undisputed that the FLSA did not apply to the Defendant, and therefore granted the motion for summary judgment.
The firm represented the Defendant, a local landscaping company. The Plaintiff was a laborer for the company who filed suit alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Defendant filed a motion to compel arbitration and stay proceedings, in order for the case to be removed from court and jury system, and brought before a private arbitrator, who would act as judge and jury.
The firm represented the individual Defendant Linda Johnson, who was alleged to have had day-to-day operational control over the corporate Defendant, in an action alleging overtime violations under the Fair Labor Standards Act. The firm defended the case on the ground that Linda Johnson was not individually and personally liable for any overtime owed. [D.E. 98]. After discovery, the Plaintiffs agreed to dismiss the case receiving no money or other compensation for their claims and the court accepted the resolution of the case in that manner, because Defendant Johnson did not have day-to-day operational control over the corporate Defendant. [D.E. 110].
The firm represented the Defendants (Weiss & Woolrich Contractors Co., Inc. and A.R.B.S., Inc., which were wrongly-named defendants, as the proper defendant was Weiss & Woolrich Southern Enterprises, Inc., which is a roofing company) in an action alleging overtime violations under the Fair Labor Standards Act. [D.E. 5]. The Defendants defended the case on the ground that the Plaintiff was not employed by the two companies that were sued and concerning the proper defendant's liability, no overtime was worked that was not properly paid. [D.E. 6, 18]. After discovery, the Defendants filed a motion for summary judgment on their defenses requesting that the court throw the case out of court. [D.E. 90, 91]. The Defendants had previously filed a motion for sanctions with the court requesting the reimbursement of all attorney fees in the case, alleging the case was patently frivolous. [D.E. 52]. The Plaintiff agreed to dismiss the case receiving no money or other compensation for his claims and the court accepted the resolution of the case in that manner. [D.E. 96, 111].
The law firm of Glasser & Kleppin was recently able to obtain a joint stipulation of dismissal with prejudice for its client, A to Z Real Estate Management, in a lawsuit filed in the United States District Court for the Southern District of Florida. The Plaintiff in the case filed a Complaint on April 30, 2012, setting forth one (1) substantive count pursuant to the Fair Labor Standards Act ("FLSA") for alleged unpaid overtime wages. The Plaintiff sought back wages, liquidated damages, interest, attorney fees, and litigation expenses. However, the Plaintiff ultimately agreed to dismiss his lawsuit with prejudice upon the exchange of discovery and after defense counsel took his deposition receiving no compensation for such dismissal. Specifically, the Plaintiff conceded that A to Z Real Estate Management, Inc was not a covered employer under the FLSA and that he was a manager exempt from recovering damages under the FLSA. Thus, the Plaintiff failed to receive any money for his claims.
The firm represented the Defendant Best Deli of Tamarac in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a worker at a local restaurant/deli. [D.E. 12]. The firm filed a motion to dismiss on behalf of the Defendants, because the corporate Defendant did not have gross annual revenue that exceeded $500,000, and thus was not subject to the FLSA. [D.E. 15]. The Plaintiff, after discovery, could not establish that the Defendant's gross annual revenue exceeded $500,000, and the case was dismissed for failure to prosecute. [D.E. 55].
The firm represented the Defendant J.M.J.J., Inc., which is a valet service for automobiles, in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a driver by the Defendant. [D.E. 1]. The firm filed a motion to dismiss on behalf of the Defendant, because the FLSA did not apply to the Defendant. [D.E. 5]. The Plaintiff, after discovery, could not establish that the FLSA applied to the Defendant, and agreed to dismiss the case receiving no money. [D.E. 20, 21].
Glasser & Kleppin represented the Defendant Quality Staffing Services, Corp. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The twelve (12) plaintiffs were employed as workers (waiters and busboys) at local country clubs. [D.E. 1]. The firm filed a motion to dismiss on behalf of the Defendants, because the corporate Defendant was not subject to the FLSA. [D.E. 10]. The Defendants also filed a motion for involuntary dismissal, because the Plaintiffs filed another lawsuit alleging allegations diametrically opposite to the allegations in this case, namely, that the Defendants lured Plaintiffs here from the Philippines with promises of work, but were not assigning them any work (and thus by implication they could not be working overtime). [D.E. 43]. The Defendants attempted to engage in discovery and depose the Plaintiffs about their contradictory claims, but the Plaintiffs refused to appear for their depositions, which caused the court to order their depositions. [D.E. 70]. The Plaintiffs did not intend to appear for their depositions and shortly thereafter dismissed the case receiving no money. [D.E. 71, 75].
The firm represented the Defendant CSC Enterprises, Inc. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was employed as a worker at local tavern. [D.E. 1]. The firm filed an answer and affirmative defenses on behalf of the Defendant raising numerous defenses. [D.E. 15]. The Defendant admitted that it owed the Plaintiff $5.31 in overtime, but the Plaintiff insisted that he was owed approximately $500.00, and the Defendant decided to moot the case and stop the expenditure of attorney fees it would simply provide the Plaintiff a check for the approximately $500.00, and then move to dismiss the case and strike attorney fees. [D.E. 24]. The court was intrigued by the dispute as to whether $5.31 was owed or $500.00 and it held an evidentiary hearing to determine the extent of liability. At the hearing, the court was convinced that only $5.31 was owed, and it was incensed with the filing of the lawsuit and the exorbitant claim for attorney fees made by the Plaintiff's attorneys that it ordered the Plaintiff to return the check of the approximately $500.00, as a sanction, and dismissed the case [D.E. 33]. Thus, neither the Plaintiff nor his attorneys received anything for the case.
The firm represented the Defendant Nanak's Landscaping, Inc. in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff was employed as a worker in the landscaping industry. [D.E. 1]. The firm filed an answer and affirmative defenses on behalf of the Defendant raising numerous defenses, and brought a counterclaim against the Plaintiff for theft. [D.E. 5]. The Plaintiff claimed that he was only owed $420.44 in overtime damages, and therefore the Defendant decided to simply provide the Plaintiff with a check for that amount, and then to file motion seeking to have the case adjudicated as being moot. [D.E. 13]. Meanwhile, the Defendant filed a motion for summary judgment on the ground that the FLSA does not apply to it. in light of another district judge ruling just that against this same Defendant. Bien-Aime v. Nanak's Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008). [D.E. 27]. The Plaintiff had enough, and moved for voluntary dismissal, seeking to have his own case dismissed. [D.E. 28]. The court dismissed the case. [D.E. 29]. The Plaintiff then moved for approximately $20,000 in attorney fees and costs [D.E. 34], which the court denied because the Plaintiff failed to comply with the Local Rules governing attorney fee motions. [D.E. 36]. The Defendant moved for a ruling that the case was moot, and the court had no jurisdiction to hear any dispute between the parties, and that there was no jurisdiction because the FLSA does not apply to this Defendant in light of another district judge's ruling that the FLSA does not apply to Nanak's Landscaping, Inc. in a related case. Bien-Aime v. Nanak's Landscaping, Inc., 572 F. Supp. 2d 1312 (S.D. Fla. 2008). [D.E. 37]. The Plaintiff renewed his motion for attorneys fees [D.E. 38], which was denied on the ground that the case had already been dismissed. [D.E. 45]. Thus, no attorney fees or costs were obtained by the Plaintiff or his counsel.
The firm represented the Defendant White Science, L.L.C., which is a business that operates jewelry kiosks in shopping malls, in a case alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a sales representative by the defendant. [D.E. 1]. The firm filed an answer and affirmative defenses which raised the defense that the FLSA does not apply to the defendant. [D.E. 7]. Shortly thereafter, the Plaintiff, without engaging in any discovery, filed a motion requesting that the court allow here to dismiss her case, which the court allowed. [D.E. 12, 13].
The firm represented the Defendant, which is a college. Plaintiff filed a one-count Complaint against the Dean of the college (Mr. Dooley) on June 30, 2004 alleging that Plaintiff was terminated from his employment and was still owed $975.00 for his last week of work, plus 12 hours of unpaid wages. (Complaint ¶ 23). Plaintiff titled this one count, "Claim for Unpaid Wages Against the Employer", and sought recovery under Florida Statutes § 448.08. Mr. Dooley moved to dismiss the Complaint on July 13, 2004 for failing to state a cause of action in that a claim for unpaid wages should be brought under the Fair Labor Standards Act (the FLSA preempts the state wage claim) and § 448.08 does not allow for the recovery of unpaid wages (it pertains to the recovery of attorney fees to the prevailing party in an action for unpaid wages).
The firm on behalf of the Dean set the hearing on the Motion to Dismiss for August 11, 2004. Plaintiff then, unilaterally and without conferral with undersigned counsel, filed a three-count First Amended Complaint against the college raising an entirely new claim, and simultaneously noticed four depositions. That filing rendered moot the legal sufficiency of the original complaint, because it was superceded via the filing of an amended complaint. Vanderberg v. Rios, 798 So. 2d 806 (Fla. 4th DCA 2001). The three-count First Amended Complaint contained allegations of breach of contract, quantum meruit, and a violation of the Florida Whistleblower Act. The Whistleblower Act claim alleged that IEC: 1) falsified student grades; 2) falsified student attendance records; 3) falsified course schedules; 4) falsified faculty lists; 5) engaged in fraud in connection with student loans; and 6) sexually harassed students. (See First Amended Complaint ¶ 15). The court dismissed the first, second, and third complaints, because the plaintiff could not state a cause of action. The dismissal of the Third Amended Complaint was with prejudice. No appeal was filed.
The firm represented the Defendant in a claim alleging overtime violations pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Plaintiff was employed as a secretary/receptionist at a local autobody shop. The court partially granted summary judgment in favor of defendant, but did not throw the whole case out. After a three-day jury trial, which occurred in mid-May, 2010, the jury found in favor of the Defendant, indicating on the verdict form that while Plaintiff had worked overtime she had been compensated for her overtime hours at the applicable time and one-half rate, and that the Defendant provided the Plaintiff a flexible work schedule that accommodated her doctor's appointments during pregnancy and allowed her to leave work to care for her child. The court held that this was a defense verdict, and entered final judgment in favor of the Defendants.
The firm successfully represented the Defendant in a case alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. The Plaintiff alleged that he was covered by the FLSA due to the contract work he performed servicing forklifts for Caterpillar, Inc. The Court found that performing maintenance on a forklift that was neither moving in interstate commerce nor moving goods while it was being repaired did not qualify as being "engaged in interstate commerce" and was instead an isolated local activity. Additionally, the Court held that the Plaintiff did not carry his burden to prove that he worked any overtime hours for which he was improperly compensated. This case was a three-day bench trial before The Honorable Jose E. Martinez of the Southern District of Florida, which took place in mid-April, 2010.
On October 19, 2012, the court taxed costs against the 14 plaintiffs and in favor of the firm's employer client for a little more than $32,000.00. This was a Fair Labor Standards Act case that went to trial for approximately 2 weeks, and resulted in a jury verdict in favor of the firm's clients on May 10, 2011. The defendant is believed to be the world's largest roofing company. In another cited decision, the trial court denied the plaintiffs's motion for new trial, alternatively, motion for judgment as a matter of law. Barrera v. Tecta America South Florida, Inc., 2012 WL 1933319 (S.D. Fla. 2012). The plaintiffs did not appeal.
On September 29, 2012, the court taxed costs against the plaintiffs and in favor of the firm's employer client for just shy of $10,000.00. The firm had received a favorable jury verdict after a several-day trial conducted by Chris Kleppin of the firm. The case was brought by numerous plaintiffs under the Fair Labor Standards Act.
The court taxed costs against the plaintiff for just under $9,000.00, after the firm prevailed against the plaintiff after a jury trial, in which the jury found that the Fair Labor Standards Act did not apply to the plaintiff and that the plaintiff did not work any overtime in any event for the defendant, which owns and operates a hotel on Miami Beach, Florida.
On March 27, 2013, the Eleventh Circuit Court of Appeals decided an appeal and a cross-appeal in favor of the firm's defense client. This case was a Fair Labor Standards Act case, and the firm brought a counterclaim against Plaintiff Rakip under Florida's civil theft statute, Florida Statutes § 772.11, which the court converted into a breach of contract claim during the trial. Shortly before trial, the court granted summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim on the ground that he released it. The jury rendered a verdict in favor of the defendants on the FLSA claim, finding that Plaintiff Jeronimo was an exempt manager not entitled to overtime and that in any event no overtime was worked. The jury also rendered a verdict on the counterclaim in favor of the defendants for $1,360.00 against Plaintiff Rakip. After trial, the court denied the plaintiffs' post-trial motions, except it took away the jury's award of $1,360.00 against plaintiff away and granted judgment as a matter of law in favor of the plaintiff. See Rakip v. Paradise Awnings Corp., 2011 WL 6029981 (S.D. Fla., Nov. 30, 2011). The plaintiffs appealed the grant of summary judgment in favor of defendants as to Plaintiff Rakip's overtime claims and the defendants cross-appealed the court's granting judgment as a matter of law in favor of Plaintiff Rakip as to the counterclaim. The Eleventh Circuit affirmed the grant of summary judgment in favor of the defendants as to Plaintiff Rakip's overtime claim, but reversed the trial court's grant of judgment as a matter of law as to the breach of contract claim and reinstated the jury verdict of $1,360.00 on the counterclaim.
In this case, on November 4, 2011, after a 7-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor as to all four (4) plaintiffs' Fair Labor Standards Act claims (for alleged $200,000 in overtime that was not paid and thousands of dollars in alleged minimum wages that were not paid). The jury found that there were no overtime or minimum wage violations and that the corporate Defendant was not an enterprise engaged in interstate commerce as defined by 29 U.S.C. § 203(s)(1) of the FLSA, and thus even if the Plaintiffs had proven wage and hour violations the Defendants would have prevailed. Previously, three Plaintiffs were involuntarily dismissed from the lawsuit under Federal Rule of Civil Procedure 41(b) for failure to prosecute. The Defendants prevailed and received a final judgment in their favor against the Plaintiffs.
In this case, on November 2, 2011, the firm received a verdict in its defense client's favor after a 3-day jury trial in federal court in a case alleging failure to pay overtime under the Fair Labor Standards Act. The two main issues that were tried were (1) whether the Plaintiff could prove that she was individually engaged in interstate commerce while she worked for the Defendant (i.e., that she regularly and recurrently participated in the actual movement of persons or things across state lines); and (2) whether Plaintiff worked overtime in any workweek. The court ruled at the summary judgment stage that the corporate Defendant was as a matter of law not an enterprise engaged in interstate commerce for purposes of 29 U.S.C. § 203(s)(1) of the FLSA. The jury found in favor of the Defendant as to both issues that were tried, and consequently a final judgment was issued in favor of the Defendant and against the Plaintiff.
In this case, on May 10, 2011, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor as to all fourteen (14) plaintiffs' Fair Labor Standards Act claims (for alleged overtime that was not paid and alleged missing hours/unpaid wages). The jury found that there were no overtime or minimum wage violations and that the firm's clients did not employ the Plaintiffs pre-August 27, 2007.
In this case, on December 3, 2010, after a 10-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor in an FLSA case and also successfully prosecuted a counterclaim against one of the plaintiffs for $1,360.00. The court granted summary judgment as to Plaintiff Rakip's wage and hour claims, after an evidentiary hearing was held just before the first day of trial. As to Plaintiff Jeronimo's wage and hour claims, the jury found that he was a manager not entitled to any overtime and that in any event he did not work any overtime for which he was not properly paid.
In this case, on October 27, 2010, after a 3-day jury trial in federal court, the firm received a jury verdict in its defense clients' favor in a FLSA (alleged overtime violations) case. The jury found that the FLSA did not apply to the small local business, a repairer and installer of air conditioning systems on yachts.
In this case, on September 9, 2010, the firm received a jury verdict in its defense clients' favor following a 4-day federal court jury trial. It was a case brought under the Fair Labor Standards Act for failure to pay overtime and for breach of contract. The jury found that the Plaintiff never even worked for the Defendants, and that there was no contract entered into between the parties.
In this case, on February 20, 2009, the firm received a verdict in its defense clients' favor after a 3-day jury trial in federal court in a case alleging failure to pay overtime under the Fair Labor Standards Act. The jury found that the FLSA did not apply to the local dry cleaners.
In this case, on July 2, 2008, the firm received a jury defense verdict in his client's favor in a Fair Labor Standards Act case. The jury deliberated for less than five minutes. The jury found that the FLSA did not apply to the local sign installation company.
In this wage and hour case brought under the Fair Labor Standards Act, on March 2, 1999, the firm received a verdict in its defense client's favor after a bench trial before The Honorable Shelby Highsmith, as the court found that the plaintiff was not entitled to overtime and was not able to prove that she worked overtime hours without being properly paid. The trial lasted three (3) days.


Accordingly, the Church asked a Salt Lake City law firm for a legal analysis of the proposed initiative to be submitted to the voters next fall. We wanted to know what the initiative would actually do, if adopted. The law firm's memorandum with its analysis follows. That memorandum raises grave concerns about this initiative and the serious adverse consequences that could follow if it were adopted. We invite all to read the attached memorandum and to make their own judgment.
The following analysis addresses some of the legal issues raised by the proposed Utah Medical Marijuana Initiative, which may appear on the ballot in November 2018.
The Marijuana Initiative Will Allow Some People to Grow Their Own Marijuana. Holders of medical cannabis cards who live more than 100 miles from a cannabis dispensary would be allowed to grow “up to six cannabis plants for personal medical use ….” (Section 26-60b-201(6)(d).) Nothing in the Initiative allows the State to license or monitor homegrown marijuana operations.
The Marijuana Initiative Will Allow People Who Grow Their Own Marijuana to Evade Purchase and Use Limits. The Marijuana Initiative allows users to purchase up to 2 oz. of cannabis (or 10 grams of tetrahydrocannabinol or cannabidiol) from dispensaries every 14 days. (Section 26-60b-502(3)-(4).) But nothing in the Initiative prevents a person who is authorized to grow his own marijuana from consuming more than that from his own home-grown plants (which can be very large) or from also buying the maximum amount from a dispensary.
The Marijuana Initiative Requires the State to Destroy Records of Cannabis Sales after 60 Days, which Will Hamper Law Enforcement. Because pharmacies distribute controlled substances, they are subject to strict record keeping requirements under both federal and state law, and all those records must be kept for at least five years. See Utah Admin. Code. § R156-37-602. The Marijuana Initiative does not impose these requirements on cannabis production establishments or dispensaries. And it requires the Department of Health to destroy the records it receives from cannabis production facilities and dispensaries within 60 days. (Section 26-60b-103.) This will severely hamper the ability of law enforcement to investigate and punish violations.
The Marijuana Initiative Allows Dispensaries to Give Free Samples to Medical Cannabis Cardholders. (Section 26-60b-502(7).) This will encourage marijuana use.
The Marijuana Initiative Allows a Person With a Criminal Background, Including Drug Convictions, to Get a Medical Cannabis Card. (Section 26-60b-201.) There is no restriction for prior convictions. Also, there is no provision in the Initiative for revoking a person’s medical cannabis card.
The Marijuana Initiative Allows Patients to Get a Recommendation from a Physician Based on a One-time Visit. Nothing in the Initiative requires the physician who refers a patient for a medical cannabis card to have a prior relationship with the patient, to review the patient’s medical records, or to schedule a follow-up visit to see how the treatment is working. The physician is required to do “a full assessment of the patient’s condition and medical history,” but this can presumably be done through patient reporting during a single visit. (Section 26-60b-107(4).) In states that have legalized medical marijuana, “prescribing physicians typically have no prior relationship with the applicant-patient” and often know nothing more about the patient than what the patient discloses during a single visit. Also, nothing in the Marijuana Initiative prevents a patient from going to a different physician every six months to get a renewal recommendation.
The Marijuana Initiative Does Not Require a Prescription. Once a person has a medical cannabis card, which is good for six months unless the physician recommends a shorter time (section 26-60b-201(5)), the cardholder can buy the maximum amount allowed under the law every 14 days and use it as he or she chooses. (Section 26-60b-502(3)-(4).) The Initiative does not require that the physician prescribe a specific dosage, and continued use is not determined by the effectiveness of the treatment. The dosage is not determined by the severity of the person’s illness or current need; and the amount that can be purchased is the same for every medical cannabis cardholder regardless of the type or severity of the condition.
The Marijuana Initiative Does Not Require Monitoring of the Medical Effects of Marijuana Usage on Particular Patients. Drugs interact with patients in different ways depending on age, illness, medical and family history, and use of other medications. Unlike other legal drugs, which are closely monitored for adverse effects and interactions prior to being made generally available to the public, the Initiative bypasses the normal scientific processes designed to ensure that patients are properly protected. The Initiative does not require physicians to monitor patients for adverse side effects arising from marijuana use.
The Marijuana Initiative Prohibits Accountability for Physicians. The Initiative prohibits any kind of civil or criminal liability, or even licensure sanctions, against any physician who recommends treatment with cannabis “in accordance with this chapter.” (Section 26-60b-108.) A physician could routinely rubber stamp recommendations for a medical cannabis card after a brief visit, or mistakenly recommend marijuana use under conditions where it would do harm, and there is no mechanism in the Initiative for investigating, punishing, or imposing sanctions on the physician.
The Marijuana Initiative Allows Minors to Use Medical Marijuana. A parent or guardian can get a medical cannabis card if his or her child has a “qualifying illness.” (Sections 26-60b-201(2)(b) and 26-60b-105(1).) There is no lower age limit.
The Marijuana Initiative Will Make Marijuana More Accessible to Minors. A careful review of the 2015-2016 National Survey on Drug Use and Health, conducted by the Substance Abuse and Mental Health Services Administration, an agency within the U.S Department of Health and Human Services, reveals that marijuana usage among children ages 12-17 (and adults ages 18-25) is generally significantly higher in states that have legalized recreational and medicinal use. Utah had the lowest rates of usage in the nation among both age groups. The marijuana initiative may change that.
The Marijuana Initiative Immediately Legalizes Possession By a Person With a Medical Marijuana Card from Another State. (Section 58-37-3.7(2).) In other words, Utah must honor medical marijuana cards issued by other states.
The Marijuana Initiative Prohibits Landlords from Refusing to Rent to Medical Marijuana Users. (Section 26-60b-110.) The Initiative does not say whether landlords can prohibit the possession or use of marijuana on the premises. But they cannot refuse to rent to a person because they are a medical cannabis card holder unless doing so would cause the landlord to lose a federal benefit.
The Marijuana Initiative Prohibits Local Law Enforcement from Cooperating With Federal Authorities Enforcing Federal Laws that Are Violated by Legal Use of Cannabis in Utah. (Section 58-37-3.8.) This could eventually affect distribution of federal law enforcement funds to Utah.
The Marijuana Initiative Only Requires Cannabis Dispensaries to Be 300 feet (One Football Field) from Residential Neighborhoods and Only 600 Feet from Schools, Churches, Libraries, Parks, and Playgrounds. (Section 4-41b-201(2)(a).) This is true even though federal law substantially increases penalties for distributing marijuana within 1,000 feet of schools and playgrounds. See 21 U.S.C. § 860.
The Marijuana Initiative Could Weaken Penalties for Causing Serious Bodily Injury while Operating a Vehicle Under the Influence of Marijuana. Current law states that a person who negligently operates a motor vehicle while “having in the person’s body … marijuana, tetrahydrocannabinols, or equivalents” and causes an accident resulting in serious bodily injury is guilty of a second degree felony. Utah Code § 58-37-8(2). The Marijuana Initiative appears to narrow this liability from anyone who has marijuana in their system to only those who ingest marijuana while operating a motor vehicle. Specifically, Section 58-37-3.6b(b) of the Initiative states: “An individual is not exempt from the penalties described in this title for ingesting cannabis or a cannabis product while operating a motor vehicle.” Whether intended or not, this poorly-worded provision appears to narrow liability for driving under the influence of marijuana.
The Legislature May Choose Not to Remedy Unintended Consequences. Laws often have unknown or unintended consequences. That will almost certainly be the case here. State legislatures are often reluctant to amend or repeal ballot initiatives, choosing instead to respect the will of the people.
Marijuana Cultivation, Distribution, and Possession are Federal Crimes with Stern Penalties. Congress criminalized the cultivation, distribution, and possession of marijuana. See 21 U.S.C. § 801 et seq. Marijuana is a Schedule 1 drug, listed alongside heroine, methamphetamine, LSD, and mescaline. See 21 U.S.C. § 812. Penalties range from up to one year imprisonment for a first conviction of possessing a small amount of marijuana (up to two years for a second conviction and three for a third conviction) to up to 5 years to life for selling or cultivating marijuana—depending on the amount—with fines ranging from $1,000 to $1,000,000. See 21 U.S.C. § 841 et seq. Distribution to a minor and distribution within 1,000 feet of a school or other protected place substantially increases the penalties. See 21 U.S.C. §§ 859-860. A person convicted of possessing marijuana can also be denied certain federal benefits. See 21 U.S.C. §§ 862, 862a.
The Marijuana Initiative Will Put Utahans at Serious Risk of Federal Prosecution. On January 4, 2018, Attorney General Jeff Sessions rescinded the Obama administration’s lenient approach to federal marijuana laws. He reminded Federal prosecutors of Congress’s determination “that marijuana is a dangerous drug and that marijuana activity is a serious crime.” Federal prosecutors may now vigorously enforce federal marijuana laws. Passing the marijuana initiative will encourage Utahans to violate federal marijuana laws, which could result in prosecution and imprisonment.
Gun Owners Who Rely on the Marijuana Initiative May Face Severe Federal Sentences. Federal law imposes a mandatory minimum sentence of 5 years imprisonment on any person who “carries a firearm” or “in furtherance of such a crime, possesses a firearm” while selling or possessing marijuana. 18 U.S.C. § 924(c). This law is “often applied to nonviolent gun owners who do not actually harm or injure anyone. Additionally, the law applies even to legally purchased and registered guns and rifles found in the person’s home, even if the guns were not present or used during the actual offense.” A person with a concealed-carry permit who lawfully carries a firearm while relying on the marijuana initiative to possess or distribute marijuana risks years of mandatory imprisonment.
Immigrants Who Rely on the Marijuana Initiative Could Harm Their Immigration Status. According to the Immigrant Legal Resource Center, “Immigrants may reasonably think that using marijuana according to these state laws will not hurt their immigration status. Unfortunately, that’s wrong! It is still a federal offense to possess marijuana, and immigration is a part of federal law.” Use or possession of marijuana can affect the immigrant if, for example, he or she applies for a green card, applies for citizenship, or travels outside the United States.
 Two ounces is a substantial amount of marijuana. Nick Lindsay, How Many Grams In An Ounce, Green Rush Daily at https://greenrushdaily.com/many-grams-ounce/ Niraj Chokshi, How Much Weed Is in a Joint? Pot Experts Have a New Estimate, NY Times, July 14, 2016 available at https://www.nytimes.com/2016/07/15/science/how-much-weed-is-in-a-joint-pot-experts-have-a-new-estimate.html?_r=0.
 See Substance Abuse and Mental Health Services Administration, Reports and Detailed Tables from the 2016 National Survey on Drug Use and Health available at https://www.samhsa.gov/samhsa-data-outcomes-quality/major-data-collections/reports-detailed-tables-2016-NSDUH and https://www.samhsa.gov/data/population-data-nsduh/reports?tab=38.
 See also United States Sentencing Guidelines Manual available at https://www.ussc.gov/guidelines.
 See Memo from Attorney General Jeff Sessions to United States Attorneys dated Jan. 4, 2018 available at https://www.documentcloud.org/documents/4343764-Sessions-marijuana-memo.html. See also Charlie Savage and Jack Healy, Trump Administration Takes Steps That Could Threaten Marijuana Legalization Movement, NY Times, Jan. 4, 2018 available at https://www.nytimes.com/2018/01/04/us/politics/marijuana-legalization-justice-department-prosecutions.html (explaining that the new policy “freed prosecutors to more aggressively enforce federal laws against [marijuana] in states that have decriminalized its production and sale”).


The sheriff is authorized to seize the vehicle used in the commission of a person's second or subsequent violation of T.C.A. § 55-10-401, or the second or subsequent violation of any combination of T.C.A. § 55-10-401 and a statute in any other state prohibiting driving under the influence of an intoxicant. Only POST-certified or state-commissioned law enforcement officers are authorized to seize such vehicles. T.C.A. § 55-10-414(a) and (d). In order for the provisions of T.C.A. § 55-10-414(a) to be applicable to a vehicle, the violation making the vehicle subject to seizure and forfeiture must occur in Tennessee within five years of the first offense, which must have occurred on or after January 1, 1997. T.C.A. § 55-10-414(b).
All vehicles subject to forfeiture under the provisions of T.C.A. § 55-10-414 shall be seized and forfeited in accordance with the procedure set out in Title 40, Chapter 33, Part 2. T.C.A. § 40-33-201. The Department of Safety is designated as the applicable agency, as defined by T.C.A. § 40-33-202, for all forfeitures authorized by T.C.A. § 55-10-414. See also Rules of Tennessee Department of Safety Administrative Division, CHAPTER 1340-2-2, The Rules of Procedure for Asset Forfeiture Hearings.
See Notice of Seizure and Forfeiture Warrant under Seizure of Controlled Substances and Related Property for a discussion of the applicable procedure to be used.
Seizure of Vehicle Used by Person Driving on Revoked License .
The sheriff is authorized to seize the vehicle used in the commission of a person's violation of T.C.A. § 55-50-504 when the original suspension or revocation was made for a violation of T.C.A. § 55-10-401 or a statute in another state prohibiting driving under the influence of an intoxicant. A vehicle is subject to seizure and forfeiture upon the arrest or citation of a person for driving while such person's driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while such person's driving privileges are cancelled, suspended or revoked is not required. T.C.A. § 55-50-504(g).
All vehicles subject to forfeiture under the provisions of T.C.A. § 55-50-504(g) shall be seized and forfeited in accordance with the procedure set out in Title 40, Chapter 33, Part 2. T.C.A. § 40-33-201. The Department of Safety is designated as the applicable agency, as defined by T.C.A. § 40-33-202, for all forfeitures authorized by T.C.A. § 55-50-504(g). See also Rules of Tennessee Department of Safety Administrative Division, CHAPTER 1340-2-2, The Rules of Procedure for Asset Forfeiture Hearings.


§ 89-2 Information to be filed with Clerk.
§ 89-3 Adherence to code of conduct.
§ 89-5 Availability of code of conduct.
§ 89-6 Prohibited acts; penalties.
§ 89-7 Authority to remove violators from premises.
§ 89-8 Anger management counseling for violators.
§ 89-9 Code of Conduct Committee.
§ 89-10 Violation procedures and hearings.
Criminal history background checks — See Ch. 130.
A written specification of the behavior of the parents, guardians, coaches and officials prepared by the Burlington City Athletic Association, Inc. (BCAAI), or its successors, which must, at a minimum, incorporate the terms of this chapter and must be consented to in writing by the parents and legal guardians of the minor participants of each youth sports activity. The BCAAI, or its successor, shall have the authority to modify the written specifications per resolution and approval thereof of this Council.
Comprised of a duly elected member from each youth sports activity and two members of the BCAAI.
Any sports organization pursuant to a City-sponsored or a nonprofit or similar charter which is affiliated with or received monetary or other support or services from the City of Burlington or regularly utilizes any facilities owned, operated, or maintained by the City, which sports organization participates in sporting competitions involving minors.
Any competition, practice or instructional event involving one or more youth sports activities.
Each youth sports activity shall annually advise the City Clerk of the name, address, and telephone number of its duly elected member who shall serve on the Code of Conduct Committee commensurate with his/her term of office with the youth sports activity.
Every sports activity shall be required to follow the code of conduct as set forth in this chapter.
The Code of Conduct Committee shall be charged with enforcing the provisions of this chapter.
The code of conduct will be made available to all parents and guardians of each child participating in a sports activity.
Any participant, parent, guardian, guest, spectator, coach, or official at any youth sports event who initiates a fight, scuffle, or any type of physical abuse or threats of abuse towards any player, coach, official, parent, or spectator shall be banned from attendance at all youth sports events within the City of Burlington for a period not exceeding 12 months from the date of the incident.
Any participant, parent, guest, coach or official at any youth sports event who enters the field of play, court or rink during any youth sports event for the purpose of physically or verbally abusing or confronting coaches, players or officials shall be banned from attendance at all youth sports events within the City of Burlington for a period not exceeding 12 months from the date of the incident.
Any participant, parent, guest, spectator, coach, or official at any youth sports event who verbally abuses officials, players, or spectators, including the use of obscene or profane language or gestures, or racial, ethnic or sexual slurs, may be reprimanded from the date of the incident and shall be subject to discipline as provided by the applicable code of conduct, up to but not to exceed 12 months in duration.
Any participant, parent, guest, spectator or official at any youth sports event who throws or causes to be deposited any object on the field of play, court or rink during any youth sports event may be banned from attendance at all youth events for a period not to exceed 12 months from the date of incident.
Any participant, parent, official, coach or spectator at any youth sporting event shall be subject to the authority of all field officials, including umpires, referees, and elected league officials or coaches of the youth sport activity. This authority shall also include any youth teams practice or instructional event, and such authority shall include the authorization to direct any person or persons involved in any incident in violation of this chapter or applicable code of conduct to immediately remove themselves from the premises.
Any participant, parent, official, coach, or spectator 18 years old or older who is banned for 12 months from a youth sports event for a violation of this code of conduct shall be required to complete anger management or an equivalent counseling program consisting of not less than 12 hours of instruction and shall provide proof of satisfactory completion to the Code of Conduct Committee.
Any person 17 years old or younger who is banned for 12 months from a youth sports event for violation of this code of conduct shall be required to complete anger management or equivalent counseling program consisting of not less than six hours of instruction and shall provide proof of satisfactory completion to the Code of Conduct Committee.
The Code of Conduct Committee shall meet in January of each year to elect a Chairman and Secretary, and such other officers as the Code of Conduct Committee shall deem appropriate, and may meet as often as is necessary to conduct its business and for the purpose of enforcing this chapter.
In order to conduct business and hearings or change or adopt new codes of conduct, a quorum of five Committee members must be present and will have all authority as set forth in this chapter.
The Code of Conduct Committee may establish rules and procedures as it deems appropriate for the conduct of its business and, in default thereof, shall operate pursuant to Robert's Rules of Order to the extent they are not in conflict with this chapter.
Upon determination by a majority vote of the highest ranking official and the governing board of the youth sports activity that a parent, guest, spectator, coach or official at any youth sports event sponsored by such youth sports has violated a provision of this chapter or the code of conduct of the youth sports activity, the Code of Conduct Committee shall forward to such violator a notice, via regular and certified mail, identifying the date, location, nature of the violation and the period of the banning or other action to be taken in response to such violation.
Any parent, official, coach or spectator at a youth sports event who believes that there has been a violation of this chapter or the code of conduct has been violated shall forward their name, address, phone number, violation of ordinance, date, location of violation and nature of the violation to the Code of Conduct Committee. The Committee will then investigate the incident and, upon determination by majority vote of the committee, such official shall forward to such violator a notice, via regular and certified mail, indicating the date and location and nature of the violation and the period of banning or other action to be taken in response to such violation.
Any person receiving such notice who wishes to contest same shall appeal to the City of Burlington Code of Conduct Committee within seven calendar days of the mailing of said notice by forwarding a copy of said notice with a written request for appeal, specifically setting forth the basis of such person's contest of the notice of violation, via personal delivery, fax or certified mail, to the Chairperson of the Code of Conduct Committee at the address specified and, if none, then to the Code of Conduct Committee, c/o City of Burlington, 525 High Street, Burlington, New Jersey 08016.
Upon receipt of such appeal, the Code of Conduct Committee shall convene within seven days and provide an opportunity for said person and any interested person or persons to appear and be heard with respect to the occurrence of any violation and action taken by the Code of Conduct Committee.
The Code of Conduct Committee shall review statements, firsthand accounts and any other pertinent information or documentation relevant to the violation and, upon a majority vote of members of the Committee present at such hearing, may sustain, overturn, or modify the notice of violation consistent with this chapter or the code of conduct.
All notices of violation and banning or other actions taken shall remain in effect until overturned or modified by the Code of Conduct Committee.
In the event any notice of violation is not appealed within seven days of such notice, said notice of violation and action taken by the official or Code of Conduct Committee, including banning from youth sports events or other action taken, shall become final.


Since the United States Supreme Court's seminal decision in 1819 in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), holding that the Supremacy Clause embodied in Article VI of the United States Constitution prohibits the states from levying a tax on the United States without its consent, the federal government and its instrumentalities have enjoyed immunity from state taxation. See, e.g., United States v. New Mexico, 455 U.S. 720 (1982).
It is clear, however, that Congress can waive such immunity by statute. As with many federal instrumentalities, Congress has waived such immunity in the case of the Federal Deposit Insurance Corporation ("FDIC") for state and local ad valorem real property taxation. From its inception, and prior to the adoption of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), section 15 of the Federal Deposit Insurance Act (12 U.S.C. § 1825) ("FDIA'') provided that the FDIC "shall be exempt from all taxation now or hereafter imposed by any State, county, municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, Territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed."
Section 402(e) of the National Housing Act (12 U.S.C. § 1725(e)) ("NHA'') contained an identical provision regarding the Federal Savings and Loan Insurance Corporation ("FSLIC").
During the 1980's, as appointment of the FDIC and FSLIC as receiver for insolvent financial institutions became more common, the question arose whether the constitutional immunity expressed in sections 15 of the FDIA and 402(e) of the NHA applied to failed banks and thrifts for which the FDIC or FSLIC was acting as receiver. Congress resolved this issue in section 219 of FIRREA by redesignating section 15 of the FDIA as section 15(a) and adding an express subsection (b) to clarify that the FDIC's immunity extends to receiverships.
Section 15(b) of the FDIA confirms that the FDIC has the same immunity from state taxation when acting as a receiver as it does in its corporate capacity. Moreover, Congress expressly set forth in section 15(b)(2) and (3) certain limitations on the waiver of immunity for ad valorem real property taxes. In many instances these limitations previously had been implied by the courts.
The increasing number of thrift and bank failures that preceded the adoption of FIRREA has continued unabated to the present. The Resolution Trust Corporation ("RTC"), which was created in FIRREA to replace the FSLIC as receiver for failed thrifts, and the FDIC, through appointment as receiver for failed financial institutions, have been called upon to control and administer an unprecedented amount of real estate assets, both in number and value. For example, at the end of 1990 the RTC had a real estate portfolio consisting of 41,509 properties, having an aggregate book value of $19.4 billion. These figures exclude delinquent real estate mortgage loans which, in many instances, will ultimately be foreclosed. These delinquent loans, together with the estimates of future institutions to be closed, indicate that the RTC's real estate portfolio is likely to grow before it subsides. Although the FDIC's present portfolio is not as large, it is larger than at any time in its history, and also is expected to increase.
The burden of dealing with such a large volume of real estate is considerable. The FDIC and RTC generally have only a limited ability to prepare in advance for managing the assets of a financial institution for which they are appointed receiver. Moreover, the sheer volume of assets and the number of institutions makes it difficult to assimilate the necessary information quickly. Finally, the difficulties of administration may be affected by the quality of the affected institution's records. In many cases, the records are either incomplete, in disarray or both.
Often, records are not current regarding ad valorem real property tax liabilities. In many cases, taxes that are already delinquent at the time the receiver is appointed become further delinquent, and taxes which are not delinquent become so. Because of the importance of property tax revenues for state and local budgets, the magnitude of the FDIC and RTC holdings of real property and the specific provisions in section 15(b) of the FDIA, each of the FDIC and the RTC (collectively, the "Corporations") proposes to adopt a Statement of Policy Regarding the Payment of State and Local Property Taxes (each referred to as the "Policy") to provide guidance for the payment of such taxes consistent with the provisions of section 15.
Application to the FDIC and the RTC. The Policy applies to both the FDIC and the RTC. Although section 15(b) of the FDIA, by its terms, only provides for the FDIC, other language in FIRREA indicates that Congress intended that the RTC have an identical immunity status. Section 501 of FIRREA added section 21A(g) to the Federal Home Loan Bank Act ("FHLBA") (12 U.S.C. § 1421 et. seq.) to confirm the RTC's immunity from all state taxation generally and to waive such immunity for ad valorem real property taxation. The provision is similar to section 15(a) of the FDIA regarding the FDIC. Section 21A(b)(1)(B) of the FHLBA, in establishing the RTC, provides that the RTC "when it is acting as a conservator or receiver of an insured depository institution shall be deemed to be an agency of the United States to the same extent as the Federal Deposit Insurance Corporation when it is acting as a conservator or receiver of an insured depository institution." Similarly, section 21A(b)(4) of the FHLBA affords to the RTC the same powers and rights as the FDIC to carry out its duties. In particular, it explicitly confirms that section 15(b) applies to assets or liabilities transferred under section 13 of the FDIA to the RTC in its corporate capacity by the RTC as receiver.
Section 15 of the FDIA is silent about the immunity of the FDIC or the RTC when acting as conservator. However, the legislative history of section 15(b), as well as the similarity of powers and duties of conservators and receivers, implies that the FDIC and the RTC, as conservator, enjoy similar tax immunity. On the other hand, the Corporations recognize that financial institutions in conservatorship continue to operate as business entities. Similar considerations obtain with respect to a bridge bank, and when a Corporation is managing a special asset pool arising out of a large bank assisted transaction. Accordingly, the Policy provides that the Corporations, when acting in such capacities, will not assert the tax immunity recognized in section 15(b) at this time, although the Corporations reserve the right to reconsider this position in the future.
The Corporations are often appointed as conservator for an institution which has acquired certain assets and assumed certain liabilities from a receiver pursuant to a purchase and assumption agreement. In such cases, the liabilities assumed generally do not include all tax obligations. The Policy states that the Corporations, as conservators, will not be liable for those obligations not assumed from the receiver. This disclaimer of liability is not based on a claim of conservatorship immunity; instead liability is disclaimed because the institution in conservatorship has not legally assumed those obligations. A bridge bank that has acquired assets and assumed liabilities in a similar manner, is also entitled to disclaim tax-related obligations it has not legally assumed.
Section 15 of the FDIA is similarly silent as to whether immunity applies to the operations of a subsidiary of an institution in receivership or conservatorship, which is controlled indirectly by the ownership of the stock of the subsidiary. Strong legal and policy considerations support the position that immunity applies to the operations of a subsidiary in the same manner as it applies to the operations of the receivership or conservatorship. Nevertheless, because of various concerns, including the maintenance of the separate corporate identities of subsidiaries, the Corporations reserve the right to reconsider whether immunity applies to the operation of subsidiaries. Accordingly, the Policy provides that such immunity will not be asserted at this time.
1. Payment of Taxes: The Policy provides that the Corporations will pay proper tax obligations, but recognizes that prompt payment must be consistent with sound business judgment and the orderly administration of receiverships.
2. Taxes on Owned Real Property: Section 15(b)(1) expressly waives the Corporations' constitutional immunity with respect to ad valorem real property taxation. Accordingly, the Policy acknowledges that property which the Corporations own in fee, however acquired, is subject to ad valorem real property taxation. However, the Policy recognizes that the waiver of immunity in section 15(b) is only for real property taxes assessed according to the property's value. Accordingly, immunity has not been waived for taxes imposed on real property that are not based on value and the Policy so states. For example, some types of special assessments, which traditionally are based on property factors other than value, such as front footage, are not ad valorem real property taxes and, therefore, the Corporations are not liable for them. See, Federal Reserve Bank of St. Louis v. Metrocentre Improvement District #1, City of Little Rock, Arkansas, 657 F.2d 183 (8th Cir. 1981); United States v. City of Adair, 539 F.2d 1185 (8th Cir. 1976).
3. Taxes on Secured Interests in Real Property: The largest category of assets which the Corporations acquire as receiver are loans secured by mortgage interest in real property. The Policy acknowledges that real property which is the subject of such interests is also subject to ad valorem real property taxes.
4. Taxes on Personal Property: Because section 15(b)(1) waives immunity only for ad valorem real property taxation, the Policy provides that the Corporations are immune from all forms of personal property taxation.
5. Other Related Taxes: The Policy makes clear that the Corporations are immune from taxes imposed on them as a result of transactions involving real property, even if the tax is measured by the value of the property. Such taxes are not taxes on the property itself, but rather excise taxes on transactions involving real property.
State statutes typically provide for the accrual of interest and penalties if real property taxes are not paid when due. The character and amount of such charges vary from state to state. Section 15(b)(3) of the FDIA expressly provides that the Corporations are not liable for amounts "in the nature of penalties or fines, including those arising from the failure of any person to pay any . . . tax . . . when due." This provision expresses the common law rule, see, e.g., Missouri Pacific Railway Co. v. Ault, 256 U.S. 554 (1921), and is consistent with the general rule that receivers (and innocent creditors) should not be burdened by punitive assessments. See Professional Asset Management v. Penn Square Bank, 566 F.Supp. 134 (W.D. Okla. 1983). Section C of the Policy reiterates this provision by providing that the Corporations will neither pay, nor recognize liens for, such amounts. Similarly, the Corporations will not pay attorneys' fees or other costs which state law may impose upon delinquent taxpayers.
Historically, the United States and its instrumentalities have always been immune from claims for interest, except where Congress has expressly waived such immunity. See, e.g., Library of Congress v. Shaw, 478 U.S. 310 (1986). The statute is silent whether immunity is waived for interest accruing on delinquent tax amounts, and that silence suggests immunity has not been waived. In analogous situations, the courts have utilized varying analytical approaches to determine whether the waiver of immunity from real property taxes implicitly carried with it a waiver for interest. Compare, Reconstruction Finance Corporation v. Texas, 229 F.2d 9 (5th Cir. 1956), cert. denied, 351 U.S. 907 (1956), with United States v. Consumers Scrap Iron Corporation, 384 F.2d 62 (6th Cir. 1967). Recent Supreme Court decisions raise further uncertainty whether immunity from interest should be considered to be waived in the absence of an express provision. Compare, Loeffler v. Frank, 486 U.S. 549 (1988), with Library of Congress v. Shaw, 478 U.S. 310 (1986). The Corporations recognize the importance to state and local governments of revenues derived from real property taxes and, for now, the Policy provides that the Corporations generally will pay interest, but not penalties, on delinquent taxes.
However, the Corporations also recognize that the purpose of interest is to compensate for the loss of the use of funds resulting from the failure to pay taxes when due. Thus, interest is to be distinguished from additional amounts which are charged as punishment for failure to pay when due. There is no uniformity among the states regarding the imposition of interest or penalties for late payment of taxes. Some states impose both an interest charge and a penalty, while others impose only interest or a penalty.
For purposes of federal instrumentality liability, the characterization of the charge under state law as "interest," "penalty," or "compensatory" or "punitive" is not determinative. That is a question determined under federal law. See Missouri Pacific Railroad v. Ault, 256 U.S. 554 (1921). Compare United States v. La Franca, 282 U.S. 568 (1931). Nonetheless, the Corporations have determined to follow generally the characterization of additional charges as "interest" or "penalty" as determined by the law of the state, and will pay those charges which state law denominates as "interest" at the state statutory rate. In some states such as Texas, although the state statute denominates a charge as "interest," the Supreme Court of the state has held that the charge is a penalty. In such instances, the judicial rule will be applied and no interest will be paid. Additionally, state law will continue to be monitored and, in the event that a state legislature or court characterizes as interest a charge which is clearly and demonstrably a penalty, the Corporations will not pay such amount. (This could be the result, for example, if a fixed "interest" amount is charged without reference to the time the base amount is delinquent.) Each of the Corporations specifically reserves all rights to challenge any interest charge it believes is a penalty.
1. Foreclosures: Section 15(b)(2) of the FDIA provides that "no property of the Corporation shall be subject to levy, attachment, garnishment, foreclosures or sale without the Corporation's consent." Even in the absence of such an express provision, the courts had held that a real estate tax lien could not be foreclosed in derogation of an interest (whether a fee interest or a mortgage interest) held by a federal instrumentality, where immunity has not been waived. See New Brunswick v. United States, 276 U.S. 547 (1928); Rust v. Johnson, 597 F.2d 174 (9th Cir. 1979). The statute makes clear that notwithstanding the waiver of immunity, state and local taxing authorities may not sell or foreclose against property in which the Corporations hold an interest without fully protecting that interest. This prohibition recognizes the considerable burden faced by the Corporations in administering the assets involuntarily acquired by them, and that substantial value would be lost to the Corporations solely because of lack of knowledge of the property interest if real estate tax liens could be enforced through traditional sale or foreclosure remedies. Section D of the Policy reiterates this prohibition, absent the Corporations' consent. As the Supreme Court held in New Brunswick, the taxing authority can seek to sell its interest so long as the FDIC's or the RTC's interest is protected, i.e., the Corporations can continue to enforce their interest as provided in the Policy.
2. Attachment: Section 15(b)(2) of the FDIA provides that no involuntary lien shall attach to the property of the Corporation. One example of an involuntary lien is a lien that automatically attaches for delinquent taxes. Because the assets of a financial institution for which one of the Corporations has been appointed as receiver do not become "the property of the Corporation" until the receivership appointment, any involuntary liens that are attached prior to the appointment of the receiver are valid. Although in most states, a real estate mortgage interest represents an interest in the real property, it is not tantamount to ownership of the property itself. Because the involuntary lien for delinquent real property taxes attaches to the property itself, nonconsensual liens purporting to attach to property owned in fee by a corporation are considered void, but liens may attach to property in which a corporation holds only a mortgage interest as security for a loan. See New Brunswick v. United States, 276 U.S. 547 (1928).
3. Priority: The waiver of immunity from ad valorem real property taxes indicates that, with respect to liens that properly attached to property before the Corporation obtains fee title to such property (whether by appointment as receiver, lien foreclosure, or otherwise), the taxing authority is entitled to have its lien satisfied, from any residual value redounding to the Corporation. With respect to property owned in fee, therefore, the effect of the prohibition against foreclosure or sale is that the Corporations, by granting or withholding consent, can control the time and manner in which property is sold.
The Corporations will take the same position with respect to such tax liens when one of the Corporations holds only a mortgage interest in the property. Thus a valid lien for ad valorem real property taxes and interest will be recognized as being entitled to priority over a Corporation's mortgage interest (assuming that the tax lien would be entitled to priority under state law over a non-Federal mortgage holder).
The Corporations will recognize the priority of non ad valorem real property tax liens that attached prior to a Corporation's obtaining any interest in the property. However, because immunity is not waived for personal property taxes, any liens that attach to personal property after a Corporation acquires a lien or security interest in such property will be subordinate to each of the Corporation's interest. Such subordination is required because if the value of the personal property is not sufficient to cover both a Corporation's lien and the tax lien, to provide priority for the tax lien would diminish the value of a Corporation's interest, thereby subjecting it to the taxation from which it is immune.
4. Sale of Tax Liens: Some states provide for a different, usually higher rate of interest if the tax lien has been sold in satisfaction of tax claims. Moreover, this rate is applied to the entire amount of taxes, interest and penalties paid by the tax lien or property purchaser. In this case, if a tax sale takes place before a corporation obtains an interest in the property or with respect to a tax lien that has priority over the Corporation's lien, the Corporation will pay the entire amount due to the purchaser of the lien. The charges are considered to be merged together in the hands of the purchaser to whom the amount paid is simply the purchase price for the release of the lien or property, subject to redemption. If the sale takes place with respect to a lien that is junior to the lien of a Corporation, the sale must protect fully the Corporation's lien. Some states may provide for the accrual of an additional penalty after the tax lien on the property has been sold in satisfaction of the tax claims. Pursuant to the Policy such penalties will not be paid.
E. Challenges to Assessed Valuation: Section 15(b)(1) of the FDIA provides that "notwithstanding the failure of any person to challenge an assessment under state law of such property's value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed." This language permits the receiver to challenge the asserted value of a property whether or not the receiver was the owner of the property at the time of assessment.
The statute is very broad on its face. For example, literally it authorizes a receiver to challenge a prior assessment which served as the basis for a tax paid by a borrower prior to the receivership, when the institution only held a mortgage interest. The apparent purpose of the provision, however, was to permit the receiver to contest tax assessments made at the time property was owned in fee and especially where such tax has not been paid, on the ground that the taxes were based on an incorrect assessed valuation. Because high assessed valuations could help a troubled institution avoid required regulatory writedowns, is was often not in the institution's interest to challenge overstated assessment valuations. The Policy focuses on this and provides that challenges generally will be limited to the current and preceding tax year, and to situations involving previously filed tax protests. However, the Policy also recognizes that where substantial amounts are at issue, and the likelihood of success if great, assessments may be challenged to the full extent permitted under FIRREA and the FDIA, including periods when the property was owned in fee by the FDIC or the RTC as receiver or by an institution subsequently placed in receivership. Although under the statute the Corporations are not obligated to pay any amounts based on a challenged assessment until the challenge is resolved, the Policy permits the Corporations to tender payment of taxes during the pendency of a challenge based on the assessment level they deem appropriate, provided such payment will not prejudice any challenge.


text:
Richard V. Allen, President Ronald Reagan’s first national security adviser and a member of the Defense Policy Board during the George W. Bush presidency, is a long-standing political figure closely associated with rightist foreign policy circles. Currently a senior fellow at the Hoover Institution, a conservative think tank based at Stanford University that serves as home to Condoleezza Rice and other former Bush administration figures, Allen is a frequent op-ed contributor to various U.S. media outlets, including the right-wing National Review and the neoconservative-dominated Wall Street Journal editorial page.
1. Richard V. Allen, "Degrees of Acceptance at Notre Dame," New York Times, April 12, 2009.
2. Richard V. Allen, " Obama's Experience Doesn't Match Up,” Wall Street Journal, July 24, 2008.
3. Richard V. Allen, “Reincarnating Reagan,” National Review Online, September 13, 2007.
4. Center for Public Integrity, "Defense Policy Board Advisory Committee (as of December 2002),” (accessed June 18, 2009).
5. Hoover Institution, “Richard V. Allen".
6. Philip Burch, Reagan, Bush, and Right-Wing Politics: Elites, Think Tanks, Power, and Policy: Part A: The American Right Wing Takes Command: Key Executive Appointments (Greenwich, CT: JAI Press, 1997), p.19.
7. Richard V. Allen, “Reaganaut Realism Should Guide Foreign Policy,” Human Events, December 4, 2006.
8. For more on the Council for National Policy and its membership base, see Right Web Profile: Council for National Policy.
9. Richard Allen, “Jeane Kirkpatrick and the Great Democratic Defection,” New York Times, December 16, 2006, p. A17.
10. Elisabeth Bumiller, “The Powers and Puzzles of Richard Allen; The Disappearing 'Disappearing Act' of the National Security Adviser,” Washington Post, June 28, 1981.
11. Council of Public Relations Firms, Who We Are: Industry Announcements, May 20, 2003.

matches: V. V. V. V. V. V.