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�1 Petitioner Myron Stephenson, the presumed father of the child involved in the underlying custody dispute, brings this special action from the trial court's order requiring him to submit to paternity testing. Petitioner contends that the trial court abused its discretion in requiring such testing without a prior determination that paternity testing is in the best interests of the child, or, in the alternative, without conducting an evidentiary hearing to determine the merits of the biological mother's collateral attack on the validity of her previously executed affidavit of acknowledgment of father's paternity. Although we disagree with father's first contention, we agree with his second argument, and for the following reasons, we accept special action jurisdiction and grant relief.
�2 The minor child was born to mother, an unmarried woman,on April 4, 1992. On April 5, 1992, father named himself as"parent" and signed the child's birth certificate, which was registered with the state on April 23, 1992. The child has resided with father and his wife for more than six years, since she was approximately one month old. Mother was incarcerated for most of the child's life.
That [mother] does not know with certainty the identity of the biological father of the minor child, and that paternity of the child has not been established by a court of law.
On April 29, 1996, an order was entered in Marsupia County Superior Court, awarding "permanent custody" of the child to father and his wife, awarding reasonable visitation to mother, and otherwise adopting the facts set forth in the stipulation.
�4 On May 15, 1996, an "Affidavit of Acknowledgment of Paternity" was executed, which, on its face, appears to contain notarized signatures of both mother and father, set forth on a form provided by the Arizona Department of Health Services, Office of Vital Records. That affidavit declared father to be the biological father of the child.
[Father and his wife] have no blood relationship to the child in question . . . .
[Father] filed an affidavit of acknowledgment of Paternity with the State of Arizona, . . . that was supposedly signed by [mother] that is an obvious forgery. This forgery was obviously filed by [father] and signed by persons unknown. [Father] also filed a father's affidavit of acknowledgment and filed it with the State claiming to be the father. His affidavit will be proven false by a DNA test.
Paternity is at issue. Mother contends that [father] is not the true or adoptive father of [the child.] Custody and visitation are at issue, as well. Under the statutory scheme now in effect, a biological parent is presumed to be awarded the primary custody in the child's best interest against a nonparent.
Paternity testing is also necessary and is in the best interest of [the child] because she is half American Indian and her heritage and privilege which comes therewith is at stake.
In establishing [father's] legal paternity, no testing was done to date. [Father and his wife] secured the voluntary acknowledgment of paternity from the Mother. However, the acknowledgment was not truly voluntary. Mother was about to be incarcerated at the time these documents were generated. Further, Mother contends not all the documents are her actual signatures.
Counsel for [father] indicates to the court that there is an affidavit of acknowledgment of paternity wherein [father] acknowledges paternity, and that pursuant to A.R.S. 12- 582, that should constitute a judgment that he is the parent of the said child. The court declines to accept that as res. judicata, and based upon that, the court affirms its previous minute entry of May 28, 1998. The court is in receipt of an affidavit of acknowledgment of the attorney.
Counsel for [father] indicates that the affidavit does contain the mother's signature and he will forward such to the court . . . .
A.R.S. � 25-807(C) provides that "The Court on its own motion, or on motion of any party to the proceedings, shall order the mother, her child or children, and the alleged father to submit to the drawing of blood samples or the taking of deoxyribonucleic acid probe samples.["] In applying this statute, the court must specifically consider whether it would be in the best interest of the child for the case to proceed. Ban v. Quigley, 168 Ariz. 196, 812 P.2d 1014 (App. 1990).
In the present situation [mother] seeks to establish paternity under A.R.S. � 25- 803(A)(1) which permits the Mother to commence paternity proceedings. [Father] maintains that [mother] signed an Affidavit of Acknowledgement of Paternity, recognizing [father] as the father of the child. The validity of this Affidavit has been challenged by [mother] as a forgery and the court must disregard it at this point.
[Father] requests that if the Court disregards the affidavit and orders Paternity Testing that a hearing to determine what is in the best interest of the child be held first. . . . [Father and his wife] maintain that the child knows no other family but [them] and to disrupt that stable family relationship now by allowing a paternity action is not in the best interests of the child.
The present [facts] do not suggest the formation of a "family unit" that would warrant such protection. [Mother] entered into the Custody Stipulation because she was incarcerated and agreed to give [father and his wife] custody of the child because she felt it was at that point to be in the child's best interest. The Stipulation left open the possibility that [mother] could regain custody of the child when [mother] was better able to care for the child. [Father and his wife] were only granted temporary custody of the child while [mother] was incarcerated and rehabilitating herself, the "family unit" as put forth in Ban could not exist because there always existed the possibility [mother] would return and seek to modify the Custody Stipulation. Absent a protectable "family unit," the court can order the parties to submit to paternity tests without first holding a "best interest" hearing.
As to [father's] claim that he is the presumptive father, A.R.S. 25-814(A)(1) presumes a man to be the father if "he and the mother of the child were married at any point in the ten months immediately preceding the birth." As [father and mother] were never married, and the Affidavit of Paternity is suspect, [father] cannot be considered the presumed father. Without this presumption [father] has no special rights that warrant a hearing prior to the ordering of the test that will establish the child's paternity.
�9 On this basis, the trial court denied father's request for an evidentiary hearing and ordered the parties to submit to paternity testing. Father brought this special action from that order.
�10 An order regarding paternity testing is an interlocutory order appropriate for special action review. Antonian v. Superior Court, 186 Ariz. 1, 4, 918 P.2d 203, 206 (App. 1996). Additionally, because father raises issues of first impression and statewide importance, which require speedy resolution because they involve the custody of a young child, we conclude that special action relief is warranted, and, in the exercise of our discretion,we accept special action jurisdiction. See Ban v. Quigley, 168Ariz. 196, 197, 812 P.2d 1014, 1015 (App. 1990).
�11 We first address father's contention that the trial court abused its discretion by not holding an evidentiary hearing on the best interests of the child before ordering paternity testing. Here lies primarily on this court's decision in Ban v. Quigley, in which we recognized Arizona's "strong public policy of preserving the family unit when neither the mother nor the mother's husband disavows the latter's paternity of the child." Id. at 199, 812 P.2dat 1017. Under those specific circumstances, we held, the trial court must specifically consider whether it would be in the best interests of the child for the case to proceed before a putative father may be permitted to seek blood tests in an attempt to rebut the presumption of the husband's paternity.
�12 In Ban, we recognized that an attack on paternity by a presumed stranger outside the "family unit" could have a potentially "irreversible disruption" in a situation where,"because of bonding it is in the child's best interest to continue his or her relationship with the presumed father." Id. at 200, 812P.2d at 1018. Because the trial court had not inquired into the child's best interests before ordering paternity testing of the presumed father in Ban, we vacated the order and remanded for an evidentiary hearing.
�13 This situation, however, is distinguishable from Ban, not only factually, but on a public policy basis as well. The person challenging paternity in this case is the biological mother of the child, not a presumed stranger to the "family unit." In an analogous situation, we pointed out that a party may obtain paternity testing without any showing of "good cause," when one of the statutory presumptive parents, as opposed to a stranger to the family unit, challenges paternity. See Antonian, 186 Ariz. at5, 918 P.2d at 207.
In Arizona, however, the "best interests of the child" cannot prevent mandatory paternity testing under A.R.S. section 12-847(C) because "the determination of the best interest of the child must be made separately, after the resolution of biological paternity," when the mother contests the presumptive father's paternity, and when the tests confirm the presumptive father is not biologically related to the child. R.A.J. v. L.B.V., 169 Ariz. 92, 94-96, 817 P.2d 37, 39-41 (App. 1991). Thus, this line of cases preventing mandatory testing for policy reasons does not apply in this case where mother asserts that husband is not the biological father.
Id. at 7, 918 P.2d at 209.
�15 Father argues that, since Antonian was decided, this court recently held that a best interests determination was necessary even when the paternity of a presumptive father was challenged by the biological mother. See Worsted v. Worsted,245 Ariz. Adv. Rep. 15 (App. June 10, 1997). That case, however,has been vacated by our supreme court, and is of no precprecedential value. See In re the Marriage of Worsted, 270 Ariz. Adv. Rep.65, 960 P.2d 624 (1998).
�16 Father also relies on a Kansas case cited in the vacated Worcester opinion, In re Marriage of Ross, 783 P.2d 331 (Kan.1989). The Ross court, relying on Ban v. Quigley, held that the trial court had erred in refusing to hold a best interests hearing before ordering paternity testing of the presumptive father at the request of the biological mother. Id. at 339. The court reasoned, "The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child." Id. at 338-39. We note that the Ross court relied on the Uniform Parentage Act, see 783P.2d at 334, which has not been adopted in Arizona, although we have found its policies persuasive. See Ban v. Quigley, 168 Ariz. at 199, 812 P.2d at 1017. Although we agree with the Ross court's observation, we are compelled to follow the policies set forth by our legislature in this area.
�17 Our statutory scheme provides that a mother may commence a proceeding to establish paternity. Ariz. Rev. Stat. (A.R.S.) �25-803(A)(1). After paternity is established, the court may address custody and visitation issues. A.R.S. � 25-803(B). If father has established paternity, custody and visitation are determined pursuant to A.R.S. � 25-408. A.R.S. � 25-803(B). Any modification of the child's custody and visitation necessarily includes an examination of the child's best interests at that time. A.R.S. � 25-408(B); A.R.S. � 25-403(A). If, however, mother establishes father's nonpaternity, father may still seek to retain custody as a nonparental pursuant to A.R.S. � 25-415, which also necessitates an inquiry into the child's best interests. A.R.S. �25-415(B)(C). Thus, the legislature has adequately provided for an inquiry into the best interests of the child, regardless of the paternity determination, and has determined that the issue will be addressed once a paternity determination is made upon request of a proper party. As we noted in Antonian, "the legislature, by definitively narrowing the category of who can be a 'party' to a paternity proceeding, has thereby implicitly determined who has 'good cause' to request mandatory paternity testing . . . ." 186Ariz. at 7, 918 P.2d at 209. Similarly, the legislature, by providing for a paternity determination upon the request of a presumptive parent prior to a custody or visitation determination based on the child's best interests, has not mandated a best interests hearing prior to paternity testing. Accord R.A.J. v. L.B.V., 169 Ariz. 92, 96, 817 P.2d at 37, 41 (App. 1991).
�19 Father also challenges the trial court's paternity testing order on the basis that it allows mother to make a statutorily impermissible collateral attack on her prior acknowlegement of father's paternity. The trial court's ruling explicitly rejected this argument because mother had alleged her affidavit was "a forgery and the court must disregard it at this point." That ruling also explicitly rejected father's argument that, from the face of that affidavit, father was a "presumptive parent," because of the "suspect" nature of the affidavit as well as the fact that father and mother were never married. We conclude that the trial court misapplied the burden of proof and failed to consider the statutory presumptions that apply in this case.
1. A birth certificate signed by the mother and father of a child born out of wedlock.
2. A notarized statement signed by both parents acknowledging paternity or separate substantially similar notarized statements acknowledging paternity.
3. An agreement by the parents to be bound by the results of genetic testing including any genetic test previously accepted by a court of competent jurisdiction, or any combination of genetic testing agreed upon by the parties, and an affidavit from a certified laboratory that the tested father has been excluded.
4. A birth certificate accompanied by the statement authorized under subsection D of this section.
B. On filing a document required in subsection A of this section with the clerk of the superior court, the clerk shall issue an order establishing paternity, which shall include the social security number of the parents.
C. On entry of an order by the clerk of the superior court, the paternity determination has the same force and effect as a judgment of the superior court.
D. If the birth of a child born out of wedlock occurs in a health care institution, the mother and father may sign a written, notarized statement acknowledging the father's paternity. This statement shall accompany the certificate of live birth filed pursuant to � 36-322.
Former A.R.S. � 12-852 (1994).
�21 Mother asserts that father failed to file with the superior court either the signed birth certificate or the acknowledgement of paternity, that he never obtained an order of paternity from the court, and that he thus failed to obtain a paternity determination that has the force and effect of a judgment from the superior court.
4. A notarized statement is signed by both parents acknowledging paternity or separate substantially similar notarized statements are signed acknowledging paternity.
C. Any presumption under this section shall be rebutted by clear and convincing evidence.
A.R.S. � 25-814. No requirement of filing a document with the superior court is mandated for this presumption to attach.
If the mother of a child is unmarried at the time of birth of the child and was unmarried throughout the ten months immediately preceding such birth, the name of the alleged father, if any, shall not be entered on the birth certificate unless sworn statements acknowledging such paternity are voluntarily presented by both the alleged father and the mother, or unless paternity has been established by a court of competent jurisdiction.
A.R.S. � 36-322(G)(1994). Thus, the legislature envisioned that either a sworn acknowledgement or a court order was sufficient to establish paternity on the child's birth certificate.
�24 The fact that father did not additionally pursue the alternative procedure of filing these documents with the superior court did not deprive him of his paternity presumption otherwise acquired under these alternative statutes. This conclusion is bolstered, in our opinion, by the legislature's subsequent 1997amendment to � 25-812 to add subsection D, which now specifically provides an alternative procedure to acknowledge paternity, and which constitutes a blending of these former provisions. See note10, supra.
The mother, father or child, or a party to the proceeding on a Rule 60(c) motion may challenge a voluntary acknowledgement of paternity at any time after the sixty day period [for rescission, provided in subsection H] only on the basis of fraud, duress or material mistake of fact, with the burden of proof on the challenger and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgement shall not be suspended during the challenge except for good cause shown. The court shall order the mother, her child or children and the alleged father to submit to genetic testing and shall direct that appropriate testing procedures determine the inherited characteristics, including blood and tissue type. If the court finds by clear and convincing evidence that the genetic tests demonstrate that the established father is not the biological father of the child, the court shall vacate the determination of paternity and terminate the obligation of that party to pay ongoing child support.
�26 Father contends, and we agree, that, at a minimum, this statutory scheme presumes that a purported voluntary acknowledgement of paternity is valid and binding until proven otherwise. The legislature has conferred on an affidavit of acknowledgement of paternity a presumption of validity, which maybe rebutted only by clear and convincing evidence, and has strictly limited the avenues of collateral attack on such a determination to only those involving "fraud, duress or material mistake of fact."
�27 Here, the trial court ignored the statutory mandated burden of proof imposed on mother as the party challenging the validity of the acknowledgement. Instead, the court accepted as true mother's bare allegations that the voluntary acknowledgement of paternity was "suspect" because it was challenged as a "forgery"and concluded, erroneously, that "the court must disregard it at this point." By failing to afford to father the statutory presumption to which he was entitled pursuant to A.R.S. � 25-814(A)(4), the court allowed mother to collaterally attack father's presumed paternity without first factually establishing the threshold statutory grounds of fraud, duress, or material mistake of fact by a Rule 60(c) evidentiary hearing. We conclude that this cannot be what the legislature intended.
�28 Although A.R.S. � 25-812(E) provides for mandatory genetic testing on motion of a party to a proceeding challenging a voluntary acknowledgement of paternity, the statute explictly places the burden of proof on the challenger, and therefore implicitly requires an evidentiary showing, beyond just a mere allegation, of a permissible basis for such a challenge. See,e.g., Eardrum v. Terrabonne, 560 So. 2d 887 (La. App. 1990)(father did not carry evidentiary burden to prove that signature on affidavit of paternity was either forged or obtained through duress). Indeed, even before these statutory restrictions existed,we historically prohibited a collateral attack on a prior determination of paternity, absent an evidentiary showing that the prior determination was "the product of extrinsic fraud" by"affirmative proof of irregularity." Bill By and Through Bill v. Gossett, 132 Ariz. 518, 520, 647 P.2d 649, 651 (App. 1982).
�29 We conclude that, on this record, mother's hare allegations that her signature was "forged" and that father is note the biological parent of the child are insufficient, standing alone, to meet her burden of proof to establish grounds of fraud,duress, or material mistake of fact that would enable the court to order mandatory paternity testing pursuant to A.R.S. � 25-812(E). Unless mother makes such an evidentiary showing to establish a threshold basis for relief from the presumption of the validity of the affidavit of acknowledgement of paternity, father's statutory presumption of paternity precludes the trial court from ordering mandatory genetic testing over father's objection. Any other interpretation of A.R.S. � 25-812(E) would defeat the legislature's clear intent to narrow an untimely collateral attack on another person's statutory presumed paternity.
�30 Mother cites the refutable presumption in A.R.S. � 25-415(B) that it is in the child's best interest to award custody to her, as the legal parent. That presumption, however, applies only when "a person other than a child's legal parent is seeking custody," and not when, as here, father is the presumed "legal parent" of the child as the presumed biological father. See A.R.S. �25-415(G)(2)("Legal parent" means "a biological or adoptive parent whose parental rights have not been terminated").
�31 Mother further argues that the prior custody order entered by the superior court "found that the child's biological father is unknown," and that this judicially-established fact should preclude father's allegation of paternity. That order,however, was entered on April 29, 1996, prior to execution of the affidavit of acknowledgement of paternity on May 15, 1996, and was not based on a evidentiary showing but only on a stipulation by the parties that mother "does not know with certainty the identity of the biological father of the minor child, and that paternity of the child has not been established by a court of law." Even that stipulation, on its face, does not preclude father's assertion of paternity. Furthermore, mother has not, in any of these proceedings, even alleged the identity of another potential biological father, nor does the prior order establish another person's paternity. We therefore conclude that the prior custody order has no preclusive effect in the current paternity and custody proceedings.
�32 Mother also points out that, under the Indian Child Welfare Act, 25 U.S.C. �1901 et seq., a nonblood relative has no standing under federal law to seek custody of the child. Again,because mother has failed to meet her threshold burden to establish grounds to entitle her to rebut the clear statutory presumption in this case that father is the biological parent, those provisions have no relevance at this point in the proceedings. See 25 U.S.C. � 1903(9)("'parent' means any biological parent or parents of an Indian child. . . . It does not include the unwed father where paternity has not been acknowledged or established")(emphasis added).
�33 We therefore agree with father that the trial court abused its discretion in ordering the parties to submit to genetic testing without first holding an evidentiary hearing to require mother to establish grounds of fraud, duress, or material mistake of fact under Rule 60(c). Until mother makes an evidentiary showing of such grounds, with an opportunity for father to rebut it, father's presumption of paternity prevents the mandatory testing mother seeks under A.R.S. � 25-812(E).
�34 For the foregoing reasons, we vacate the order requiring the parties to submit to paternity testing. This matter is remanded for an evidentiary hearing in which mother must establish grounds to entitle her to relief under Rule 60(c), in accordance with A.R.S. � 25-812(E), before paternity testing may be required.
�35 Jurisdiction accepted; relief granted.

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Before becoming a driving instructor I spent 37 years in the motor trade. I started this career as an apprentice with Rolls Royce, before moving on to being quality control engineer and test driver for Jaguar, and then a senior service advisor for a Honda garage in West London. So I suppose you could say that I know my way around a car!
I really love being an instructor, and believe that although learning to drive and the safety that goes with it needs to be taken seriously, it's important to have a laugh and enjoy the time spent behind the wheel. I am very patient with my pupils and help them to understand what we are are learning, why we are learning it, and how we put that into practice.
I now teach in an automatic car, as there is an increasing demand for automatic lessons as automatics become a more popular choice for driving in London traffic. In addition they are becoming a more affordable and readily available option, not just limited to the higher end of the car market.
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"Passed today first time with Gary V. He is an awesome instructor who took time to put me at ease and answer all my questions (even if I asked the same thing over and over). Truly a great instructor who enabled me to pass with ease even when I wasn't confident I would."
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"Gary V is a fantastic instructor; very clear instructions, always patient when practising manoeuvres and very flexible and committed to you as a customer (he got up at 4am to drive me to my test!!) I could not have asked for a nicer and more encouraging teacher. I passed my test, first time, after only 3 weeks of lessons. Thank you Gary!"
"Gary V is a very calm and friendly instructor, and always created a very positive atmosphere during our lessons, which is exactly what I was after. Unfortunately my previous instructor (whilst good at his job) made me feel quite negative during lessons which hindered my progress. I took a look at this website to see which other driving schools were good in my area and found Elite Driving School right at the top. Thankfully they did serve my area, and all the previous negativity I held vanished as soon as I began with Gary V. Lessons were longer and more frequent, and I began to progress at a much faster rate. In the end I managed to pass my practical test on the first go, with four minor faults. Gary is exactly what you would want from an instructor, and I would highly recommend him if you are looking to start driving lessons. As well as technical knowledge and experience, he is cheerful and easy to get along with, always asking what I've been getting up to and allowing us to have friendly conversation as well as learning. I feel a bit sad that I won't be able to see him a few times a week anymore, as he actually made me look forward to driving lessons, rather than dread them.All in all, going with Elite Driving School has been the best decision I could have made. It's definitely on the expensive side, but in my opinion worth the money. I'm sure all of their other instructors work to the same standards as Gary V, so if you do live in any of the postcodes they cover, definitely get in touch. You won't regret it."
"I passed my test today after having on 20 hours :) Gary Vigee was my driving instructor and was amazing. Would definetely recommend him to anyone wanting to drive. He was very supportive and helpful and wanted me to pass."
"I really enjoyed taking my lessons with Gary; Gary is an excellent driving instructor, calm, professional he made me feel relaxed in each lesson and helped me get over any fears of driving that I had. He gave me the confidence and knowledge to be able to drive I would recommend Gary to friends and family. "
I'm very pleased with instructor Gary. I didn't have a lot of confidence in beginning, but with instructors help, I could be more confident while driving. He help me with roundabouts and maneuvers. With lots of patience and instructing I passed practical test on first time. You couldn't get better instructor then Mr Gary. Thank you. You deserve five star rating."
"Gary V. In West London have been my instructor for about a year. He is patient but persistent and helped me to gain more confidence when driving. I had never driven before in the past. He has been very flexible with lessons outside work hours and at weekends. The lessons have been fun (for the most part) and I have learned a lot about many things. I passed my practical test at first attempt today with only 4 (a bit silly really) minor faults. So very pleased. Thank you Gary and Elite! "
"I can say Gary is very friendly and professional instructor. I've had 20 hours of tuition with him at all times he was patient even when I made a big mistakes. Because of his professionalism and tactics I've passed my practical test at first attempt with 0 faults. He really gave me the confidence with roundabouts, junctions and all manoeuvres. Many thanks Gary.I would highly recommend Gary to anyone who is looking forward to passing their test at first attempt and to be a safe driver."
"Passed my test first time with Gary after only 18 days after my 17th birthday. Gary is a great Instructor, he explains any problems clearly and gives you confidence as a new driver. He is very reliable and accommodating with a really positive approach to teaching. I would definitely recommend anyone to learn to drive with Gary."
"I would like to thank Gary for passing my test. He is not just a brilliant instructor. Gary is a great, easy going and reliable person. Big thank you for his patience and support. I would definitely recommend him! Thank you Gary..."
"I am absolutely thrilled to have passed my practical driving test. I would like to thank my instructor Gary for helping me to get through. Gary is a highly skilled and very experienced driving instructor who knows the “ins and outs” of his trade very well. He tailored the lessons exactly to suit my requirement to pass in the shortest time possible whilst targeting my numerous bad habits. (I have been driving for more than a decade in my home country – India).His instructions were always very clear and right to the point and the lessons were good fun too. Gary inspired so much confidence in my ability to drive well, so on the test day I was almost looking forward to showing off my driving skills. Gary never lost his calm temperament and had a very optimistic and positive attitude in my driving abilities. He would instantly flag up areas of concern and look to rectify those, which showed his attentiveness to my driving. I was impressed at how easily he helped me understand how to do particular manoeuvres.I will have no hesitation in recommending Pinnacle Driving School and Gary to anyone contemplating driving lessons in the future.Once again thank you Gary!"
"I really enjoyed taking my lessons with Gary; Gary is an excellent driving instructor, calm, professional he made me feel relaxed in each lesson. He gave me the confidence and knowledge to be able to drive and would definitely recommend Gary to friends and family."
"Gary is a brilliant instructor, he's very calm and patient which is a really good asset to have in this business. When I booked my first lesson with Gary, the process was very quick and easy. Throughout my driving lessons Gary has been very flexible with lesson times and he is always on time and reliable. I am very lucky to have had Gary as my instructor as he has made me a safe and confident driver. I recommend Gary to everyone, as he is trustworthy, caring, friendly and a great teacher who makes you feel comfortable."

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[294 U.S. 125, 126] Messrs. Leslie C. Garnett and Harry L. Underwood, both of Washington, D.C., for petitioner.
[294 U.S. 125, 128] Mr. Hatton W. Sumners, of Dallas, Tex., for the House of Representatives of the United States, amicus curiae.
[294 U.S. 125, 135] Mr. Frank J. Hogan, of Washington, D.C., for respondent.
This petition for a writ of habeas corpus was brought in the Supreme Court of the Disttrict of Columbia by William P. MacCracken, Jr., against Chesley W. Jurney, the Sergeant at Arms of the Senate of the United States. The writ issued; the body of the petitioner was produced before that court; and the case was then heard on demurrer to the petition. The trial court discharged the writ and dismissed the petition. The Court of Appeals, two justices dissenting, reversed that judgment and remanded the case to the Supreme Court of the District, with directions to discharge the prisoner from custody. 63 App.D.C. 342, 72 F.(2d) 560. This Court granted certiorari because of the importance of the question presented. 293 U.S. 543 , 55 S.Ct. 113, 79 L.Ed. --.
The petition occupies, with exhibits, 100 pages of the printed record in this Court; but the only additional aver- [294 U.S. 125, 145] ments essential to the decision of the question presented are, in substance, these: The Senate had appointed the special committee to make 'a full, complete and detailed inquiry into all existing contracts entered into by the Postmaster General for the carriage of air mail and ocean mail.' MacCracken had been served, on January 31, 1934, with a subpoena duces tecum to appear 'instanter' before the committee and to bring all books of account and papers 'relating to air mail and ocean mail contracts.' The witness appeared on that day; stated that he is a lawyer, member of the firm of MacCracken & Lee, with offices in the District; that he was ready to produce all papers which he lawfully could; but that many of those in his possession were privileged communications between himself and corporations or individuals for whom he had acted as attorney; that he could not lawfully produce such papers without the client first having waived the privilege; and that, unless he secured such a waiver, he must exercise his own judgment as to what papers were within the privilege. He gave, however, to the committee the names of these clients; stated the character of services rendered for each; and, at the suggestion of the committee, telegraphed to each asking whether consent to disclose confidential communications would be given. From some of the clients he secured immediately unconditional consent; and on February 1 produced all the papers relating to the business of the clients who had so consented.
On February 2, before the committee had decided whether the production of all the papers should be compelled despite the claims of privilege, MacCracken again appeared and testified as follows: On February 1 he personally permitted Givven, a representative of Western Air Express, to examine, without supervision, the files containing papers concerning that company; and authorized [294 U.S. 125, 146] him to take therefrom papers which did not relate to air mail contracts. Givven, in fact, took some papers which did relate to air mail contracts. On the same day, Brittin, vice president of Northwest Airways, Inc., without MacCracken's knowledge, requested and received from his partner Lee permission to examine the files relating to that company's business and to remove therefrom some papers stated by Brittin to have been dictated by him in Lee's office and to be wholly personal and unrelated to matters under investigation by the committee. Brittin removed from the files some papers; took them to his office; and, with a view to destroying them, tore them into pieces and threw the pieces into a waste paper basket.
First. The main contention of MacCracken is that the so-called power to punish for contempt may never be exerted, in the case of a private citizen, solely qua punishment. The argument is that the power may by used by the legislative body merely as a means of removing an existing obstruction to the performance of its duties; that the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; and hence that there is no power to punish a witness who, having been requested to produce papers, destroys them after service of the supoena. The contention rests upon a misconception of the limitations upon the power of the Houses of Congress to punish for contempt. It is true that the scope of the power is narrow. No act is so punish- [294 U.S. 125, 148] able unless it is of a nature to obstruct the performance of the duties of the Legislature. There may be lack of power, because, as in Kilbourn v. Thompson, 103 U.S. 168 , there was no legislative duty to be performed, or because, as in Marshall v. Gordon, 243 U.S. 521 , 37 S.Ct. 448, L.R.A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to be of a character to obstruct the legislative process. But, where the offending act was of a nature to obstruct the legislative process, the fact that the obstruction has since been removed, or that its removal has become impossible, is without legal significance.
The power to punish a private citizen for a past and completed act was exerted by Congress as early as 1795;4 and since then it has been exercised on several occasions. 5 It was asserted, before the Revolution, by the colonial [294 U.S. 125, 149] assemblies, in imitation of the British House of Commons; and afterwards by the Continental Congress and by state legislative bodies. 6 In Anderson v. Dunn, 6 Wheat. 204, decided in 1821, it was held that the House had power to punish a private citizen for an attempt to bribe a member. No case has been found in which an exertion of the power to punish for contempt has been successfully challenged on the ground that, before punishment, the offending act had been consummated or that the obstruction suffered was irremediable. The statements in the opinion in Marshall v. Gordon, supra, upon which MacCracken relies, must be read in the light of the particular facts. It was there recognized that the only jurisdictional test to be applied by the court is the character of the offense; and that the continuance of the obstruction, or the likelihood of its repetition, are considerations for the discretion of the legislators in meting out the punishment.
Third. MacCracken contends that he is not punishable for contempt, because the obstruction, if any, which he caused to legislative processes, had been entirely removed and its evil effects undone before the contempt proceedings were instituted. He points to the allegations in the petition for habeas corpus that he had surrendered all papers in his possession; that he was ready and willing to give any additional testimony which the committee might require; that he had secured the return of the papers taken from the files by Givven, with his permission; and that he was in no way responsible for the removal and destruction of the papers by Brittin. This contention goes to the question of guilt, not to that of the jurisdiction of the Senate. The contempt with which MacCracken is charged is 'the destruction and removal of certain papers.' Whether he is guilty, and whether he has so far purged himself of contempt that he does not now deserve punishment, are the questions which the Senate proposes to try. The respondent to the petition did not, by demurring, transfer to the court the decision of those questions. The sole function of the writ of habeas corpus is to have the court decide whether the Senate has jurisdiction to make the determination which it proposes. Compare Barry v. United States ex rel. Cunningham, 279 U.S. 597 , 49 S.Ct. 452; Henry v. Henkel, 235 U.S. 219 , 35 S.Ct. 54; In re Gregory, 219 U.S. 210 , 31 S.Ct. 143.
The judgment of the Court of Appeals should be reversed; and that of the Supreme Court of the District should be affirmed.
[ Footnote 1 ] Pursuant to Senate Resolution 349, Seventy-Second Congress, Second Session.
[ Footnote 2 ] Upon the conclusion of the hearing on February 2, the committee made to the Senate a report (No. 254) setting forth the facts elicited. Thereupon the Senate, by Resolution No. 169, directed a warrant to issue, commanding the sergeant at arms to take MacCracken into custody before the bar of the Senate; 'to bring with him the correspondence ... referred to and then and there to answer such questions pertinent to the matter under inquiry ... as the Senate may propound. ...' The warrant was served on February 2, 1934; MacCracken was paroled in the custody of his counsel to appear at the bar of the Senate at noon, February 5, 1934. On that day (in view of Resolution No. 172) he was released from custody under Resolution No. 169; and the proceedings under Resolution No. 169 are not here involved.
[ Footnote 4 ] Robert Randall and Charles Whitney were taken into custody by the House of Representatives, on December 28, 1975, on charges of attempting to bribe some of its members. Whitney was discharged on January 7, 1796, before trial. Randall, however, on January 6, was found guilty of a contempt and of a breach of the privileges of the House, was reprimanded by the Speaker, and was committed to the custody of the sergeant at arms until further order of the House. On January 13 his petition to be discharged from custody was granted, upon payment of fees. 5 Annals, 4th Cong., 1st Sess., 166-195, 232, 200-229, 237, 243.
[ Footnote 5 ] In 1832, Samuel Houston, having been arrested and tried by the House of Representatives for assaulting a member, was reprimanded and discharged on payment of fees. 8 Debates, 22d Cong., 1st Sess., 2512-2620, 2810-3022. In 1865 A.P. Field was taken into custody for assaulting a member and was reprimanded by the Speaker. 70 Globe, 38th Cong., 2d Sess., 991. So, too, Charles C. Glover, in 1913. Cong. Rec., 63d Cong., 1st Sess., 281-283, 499-503, 1431-1453. In 1870 Patrick Wood, for a similar offense, was imprisoned for three months by order of the House. 94 and 95 Globe, 41st Cong., 2d Sess., 4316, 4317, 4847, 5253, 5301. In 1795 Sen. James Gunn, whose challenge of a member of the House was considered a breach of privilege, escaped with an apology. 5 Annals, 4th Cong., 1st Sess., 786- 790, 795-798. See Shull, Legislative Contempt-An Auxiliary Power of Congress (1934) 8 Temple L. Quart. 198.
[ Footnote 6 ] See Potts, Power of Legislative Bodies to Punish for Contempt (1926) 74 U. of Pa. L., Rev. 691, 700-719; Clarke, Parliamentary Privilege in the American Colonies, Essays in Colonial History Presented to Charles McLean Andrews (1931) p. 124 et seq.; May, Law and Usage of Parliament (5th Ed. 1863) pp. 83-97. Since the American Revolution, it has been held that colonial assemblies of the British Empire have, in the absence of express grant, and 'without any usage, any acquiescence, or any sanction of the Courts of Law,' no power to adjudicate upon, or punish for, contempts, Kielley v. Carson, 4 Moore P.C. 63; even when the contempt is committed in the presence of the Assembly by one of its own members, Doyle v. Falconer, L.R. 1 P.C. 328; Barton v. Taylor, 11 App.Cas. 197. Compare Whitcomb's Case, 120 Mass. 118, 122, 21 Am.Rep. 502. But upon some colonial assemblies contempt powers as broad as those of the British House of Commons have been conferred. Compare Dill v. Murphy, 1 Moore P.C. (N.S.) 487; The Speaker of the Legislative Assembly of Victoria v. Glass, L.R. 3 P.C. 560; Fielding v. Thomas (1896) App. Cas. 600.
[ Footnote 7 ] The many instances in which the Houses of Congress have punished contumacious witnesses for contempt are collected and discussed in Eberling, Congressional Investigations (1928). See, too, Dimock, Congressional Investigating Committees (1929); Landis, Constitutional Limitations on the Congressional Power of Investigation 1926) 40 Harv.L. Rev. 153. Compare May, op. cit., supra, pp. 407, 408. Witnesses found guilty of prevaricating before investigating committees have been imprisoned by the House of Commons under circumstances indicating that there was no thought of inducing further testimony, but only of punishing for the past offense. See case of Charles Woolfen, 112 Comm.Jour. 354, 372, 377; of Acton, Sheriff of London, Petyt, Miscellanea Parliamentaria (1680) p. 108; of Randolph Davenport, Id., p. 120.
[ Footnote 8 ] See remarks of Sen. Charles Pinckney in the case of the Editor of the Aurora, 10 Annals, 6th Cong., 1st Sess., 69; of Rep. Barbour and Rep. Poindexter in the case of Colonel Anderson, 32 Annals, 15th Cong., 1st Sess., 624, 654; of Rep. Polk in the case of Samuel Houston, 8 Debates, 22d Cong., 1st Sess., 2512; of Sen. Sumner in the case of Thaddeus Hyatt, 53 Globe, 36th Cong., 1st Sess., 1100; see, too, Jefferson's Manual, 293-299.
[ Footnote 9 ] See remarks of Rep. Orr, 43 Globe, 34th Cong., 3d Sess., 404, 405.
[ Footnote 10 ] Samuel Houston was in fact indicted, convicted, and fined in the criminal court of the District of Columbia on account of the same assault for which he was reprimanded by the House. See 2 Op.Attys.Gen. 655.

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When is it Proper to Classify Delivery Drivers as Independent Contractors?
This is another post written in a Q & A format and is intended to help California delivery drivers to determine whether they are improperly classified as independent contractors. In one of our prior posts, we discussed how the legal distinction between independent contractors and employees can be an important one when it comes to determining workers’ rights. For example, under California labor laws, employees are entitled to various wage-and-hour benefits (i.e. overtime meal break premiums), anti-discrimination and retaliation protections. However, the California Labor Code does not provide the same protections to independent contractors.
I work at a local restaurant in the Bay Area as a delivery driver. I often work more than 8 hours per day and more than 40 hours per week. My boss tells me that I am an independent contractor and he does not have to pay me overtime compensation. I am paid a flat fee of $2,000 per month and I am required to work 6 days per week. I do not work anywhere else. I use my own car and I personally pay for all vehicle-related expenses, including cost of gas, maintenance, repairs, bridge tolls, and insurance.
My boss is the one who mainly supervises the delivery process. He assigns each delivery order to a specific driver based on drivers’ experience and delivery time. He also determines the order of deliveries. He constantly supervises my work via cell phone. In addition, he regularly calls me asking to report to work on my days off, expecting me to report within 15-30 minutes.
Am I an employee or independent contractor and does my boss have to pay me for my overtime and vehicle expenses?
You are likely misclassified as an independent contractor and your employer is violating California Labor Code by refusing to pay you for overtime hours and reimburse your vehicle-related expenses. It looks like your boss exercises extensive control over the manner and means by which you accomplish your work.
(8) whether the parties believe they are creating an employer-employee relationship. Estrada, Cal.App.4th at. 10.
It is important to understand that just because an employee signs an independent contractor agreement and receives a 1099 IRS form, it does not mean that such an employee is an independent contractor. As the California Court of Appeal has noted in Estrada, the label that parties place on their employment relationship “is not dispositive and will be ignored if their actual conduct establishes a different relationship.” Estrada, 64 Cal. Rptr.3d at 355.
While the question whether a delivery driver is an employee varies from case to case, California and federal case law tends to suggest that delivery drivers, performing functions similar to those of our hypothetical employee, are not independent contractors.
FedEx Drivers. For example, in a recently decided federal case, Alexander v. FedEx Ground Package System, Inc., ___ F. 3d. ___ (9th Cir. 8/27/14), applying California’s right-to-control test, the Ninth Circuit held that FedEx drivers were improperly misclassified as independent contractors. The court concluded that FedEx’s policies and procedures clearly allowed FedEx to exercise a great deal of control over the manner in which its drivers did their jobs. FedEx controlled its drivers’ clothing from “their hats down to their shoes and socks.” FedEx required drivers to paint their vehicles a specific shade of white, mark them with the distinctive FedEx logo, and to keep their vehicles “clean and presentable [and] free of body damage and extraneous markings.” FedEx could and did control the times its drivers can work and how and when drivers delivered their packages. Most importantly, the Court ignored the fact that FedEx provided its drivers with “entrepreneurial opportunities” (the ability to take on multiple routes and vehicles and to hire third-party helpers) explaining that under California case law it did not undermine a finding of employee status.
Furniture Delivery Drivers. For example, in another recently decided federal case, Ruiz v. Affinity Logistics, ___F.3d ___ (9th Cir. 6/16/14), the Ninth Circuit, applying the above-stated California Borello test, has found that furniture delivery drivers were misclassified as independent contractors and were entitled to sick leave, vacation, holiday, and severance wages. In Ruiz v. Affinity, the plaintiff worked as a driver for a furniture delivery company that had a contract with Sears. His responsibilities included loading, delivering and installing furniture and appliance. The company required the plaintiff and other drivers to get a fictitious business name, a business license, and a commercial checking account. Also, each driver was required to sign an independent contractor agreement.
However, the Ninth Circuit found that the drivers were employees because Affinity had the right to control the details of the drivers’ work, including the drivers’ rates, schedules, and routes. For example, the company set the drivers’ flat “per stop” rate; the drivers could not negotiate for higher rates; the company controlled the equipment—the trucks, tools, and mobile phones—and the helpers the drivers used. Affinity also controlled the appearance of the drivers by requiring them to wear uniforms and prohibiting drivers from wearing earrings, displaying tattoos, and sporting certain designs of facial hair. Affinity also closely monitored and supervised its drivers. Each morning, Affinity required drivers to report to the warehouse, where Affinity had several offices, and attend the stand-up meeting.
Courier Service Drivers. In another case, Air Couriers Internat. v. Employment Development Dept., 150 Cal. App. 4th 923 (Cal. App. 3d Dist. 2007), the California Court of Appeals found that for purposes of unemployment insurance programs the drivers were employees because the company retained control over the delivery operation, the drivers worked a regular schedule and often had regular daily routes, the drivers infrequently turned down jobs, the drivers were not engaged in a separate profession or operating an independent business, and the drivers made no major investments in equipment or materials.
Similarly, in JKH Enterprises, Inc. v. Department of Industrial Relations, 142 Cal. App. 4th 1046 (Cal. App. 6th Dist. 2006), the Court of Appeals also found that courier services drivers who provided delivery services on the company’s behalf were employees for worker’s compensation purposes In JKH, the court concluded that the functions performed by the drivers did not require a high degree of skill, and those functions constituted the integral heart of the company’s courier service business. The court rejected the company’s contention that its lack of control over the details of the work, the drivers’ use of their own cars, and the presence of the independent contractor profiles dictated the conclusion that the drivers were independent contractors. Id.
Food delivery drivers. In another case, the Court of Appeals similarly held that the pizza delivery driver was improperly classified as an independent contractor because the pizza shop controlled all aspects of the driver’s job. Toyota Motor Sales U.S.A. v. Superior Court, 220 Cal. App. 3d 864 (Cal. App. 2d Dist. 1990). The court explained that Defendants hired Plaintiff to deliver pizzas to its customers and directed and controlled: 1) the number and type of pizzas to be delivered, 2) the time the deliveries would occur, 3) the locations to where they would be delivered, and 4) the price to be charged for each pizza and the amount of money to be collected from the customer. Id. at 875-876.
Truck Drivers. However, in State Compensation Insurance Fund v. Brown, 38 Cal. Rptr. 2d 98 (Cal. Ct. App. 1995), the California Court of Appeal found that the truck driver plaintiffs were independent contractors. There, the truck driver worked for more than one broker at a time, had “complete control over their working conditions and the manner in which a load was transported (including whether or not to hire assistants),” and were “entirely free to accept or reject an assignment without reprisal.” Id. at 105.
In a personal injury case, Millsap v. Federal Express Corp.,277 Cal. Rptr. 807(Cal. App. 1st Dist.1991), the California Court of Appeal held that a driver was an independent contractor where he used his own car to deliver packages, was paid on a “per route” basis, and “[o]ther than to say ‘be careful’ or to give him directions to a particular location, . . . [the company] did not instruct [the driver] as to how to make the deliveries or how to drive his car.”).
If you feel like you have been misclassified as an independent contract, it is important that you consult a legal professional who can carefully evaluate your case and provide adequate legal advice or representation. For a free consultation, please contact our San Francisco employment law attorney.

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§ 105-2 Findings of fact.
§ 105-3 Statement of purpose.
§ 105-4 Methods of reducing flood losses.
§ 105-7 Basis for establishing areas of special flood hazard.
§ 105-8 Violations and penalties.
§ 105-9 Abrogation and greater restrictions.
§ 105-11 Warning and disclaimer of liability.
§ 105-13 Provisions for flood hazard reduction.
The Legislature of the State of New Jersey has in the New Jersey Statutes delegated the responsibility to local government units to adopt regulations designed to promote the public health, safety and general welfare of its citizenry. Therefore, the Township Committee of Knowlton Township, New Jersey, does ordain as follows.
The flood hazard areas of Knowlton Township are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief and impairment of the tax base, all of which adversely affect the public health, safety and general welfare.
These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazard, causing increases in flood heights and velocities, and by the occupancy in flood hazard areas by uses vulnerable to floods or hazardous to other lands which are inadequately elevated, floodproofed or otherwise protected from flood damages.
Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard in such a manner as to minimize future flood-blight areas.
Ensure that potential home buyers are notified that property is in an area of special flood hazard.
Ensure that those who occupy areas of special flood hazard assume responsibility for their actions.
Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion hazards or which result in damaging increases in erosion or in flood heights or velocities.
Control filling, grading, dredging and other development which may increase flood damage.
A request for a review of the Township Engineer's interpretation of any provision of this chapter or a request for a variance.
A designated AO, AH or VO Zone on a community's Digital Flood Insurance Rate Map (DFIRM), with a one-percent-annual-or-greater chance of flooding to an average depth of one foot to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.
A nonbasement building: i) built, in the case of a building in an area of special flood hazard, to have the top of the elevated floor elevated above the ground level by means of piling, columns (posts and piers) or shear walls parallel to the flow of the water; and ii) adequately anchored so as not to impair the structural integrity of the building during a flood of up to the magnitude of the base flood. In an area of special flood hazard, "elevated building" also includes a building elevated by means of fill or solid foundation perimeter walls with openings sufficient to facilitate the unimpeded movement of floodwaters.
Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified by either an approved state program as determined by the Secretary of the Interior, or directly by the Secretary of the Interior in states without approved programs.
The lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for the parking of vehicles, building access or storage in an area other than a basement, is not considered a building's lowest floor, provided that such enclosure is not built so to render the structure in violation of other applicable nonelevation design requirements.
A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle."
Structures for which the start of construction commenced on or after the effective date of this chapter and includes any subsequent improvements to such structures.
A manufactured home park or subdivision for which the construction of facilities for servicing the lot on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) is completed on or after the effective date of this chapter.
A vehicle which is built on a single chassis; 400 square feet or less when measured at the longest horizontal projections; designed to be self-propelled or permanently towable by a light-duty truck; and designed primarily not for use as a permanent dwelling but as a temporary living quarters for recreational, camping, travel, or seasonal use.
For other than new construction or substantial improvements under the Coastal Barrier Resources Act (P.L. 97-348), includes substantial improvement and means the date the building permit was issued, provided that the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of a slab or footings, the installation of piles, the construction of columns or any work beyond the stage of excavation, or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling, nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
A walled and roofed building, as well as a manufactured home, or a gas or liquid storage tank, that is principally aboveground.
A grant of relief to a person from the requirements of this chapter which permits construction in a manner otherwise prohibited by this chapter where specific enforcement would result in unnecessary hardship.
This chapter shall apply to all areas of special flood hazards within the jurisdiction of Knowlton Township.
Flood Insurance Rate Map for Warren County, New Jersey (All Jurisdictions), as shown on Index and Panel Nos. 34041C0101E, 34041C0102E, 34041C0103E, 34041C0104E, 34041C0106E, 34041C0108E, 34041C0109E, 34041C0111E, 34041C0119E, 34041C0114E, 34041C0116E, 34041C0117E, 34041C0118E, 34041C0119E, 34041C0206E, 34041C0207E; the effective date of which is September 29, 2011.
The above documents are hereby adopted and declared to be a part of this chapter. The Flood Insurance Study and maps are on file at 628 Route 94, Columbia, New Jersey.
No structure or land shall hereafter be constructed, located, extended, converted or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this chapter or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than $500 or imprisoned for not more than 60 days, or both, for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein contained shall prevent Knowlton Township from taking such other lawful action as is necessary to prevent or remedy any violation.
This chapter is not intended to repeal, abrogate or impair any existing easements, covenants or deed restrictions. However, where this chapter and another ordinance, easement, covenant or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
Liberally construed in favor of the governing body.
The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This chapter does not imply land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This chapter shall not create liability on the part of Knowlton Township or by any officer or employee thereof, or Federal Insurance Administration, for any flood damages that result from reliance on this chapter or any administrative decision lawfully made thereunder.
Elevation in relation to mean sea level of the lowest floor (including basement) of all structures.
Elevation in relation to mean sea level to which any one structure has been floodproofed.
Plans showing how any nonresidential floodproofed structure will meet the floodproofing criteria of § 105-13B and after the structure is built, a certification by a registered professional engineer or architect that the structure as built meets the criteria of § 105-13B.
Description of the extent to which any watercourse will be altered or relocated as a result of the proposed development.
Designation of the Township Engineer. The Township Engineer is hereby appointed to administer and implement this chapter by granting or denying development permit applications in accordance with its provisions.
Review all development permits to require that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.
Review all development permits to determine if the proposed development is located in the floodway, assure that the encroachment provisions of § 105-13C are met.
Permit review fee. Applicant for review shall submit a fee of $50, together with the application to cover costs of review of the application. In the event that additional sums are required for review, the Township Engineer shall so advise the applicant.
Use of other base flood data. When base flood elevation and floodway data have not been provided in accordance with § 105-7, Basis for establishing areas of special flood hazard, the Township Engineer shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer § 105-13B(1), Residential construction, and § 105-13B(2), Nonresidential construction.
Verify and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.
Maintain the floodproofing certifications required in Subsection A(3).
Interpretation of FIRM boundaries. Make interpretations, where needed, as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in Subsection D.
The Township Committee shall hear and decide appeals and requests for variances from the requirements of this chapter.
The Township Committee shall hear and decide appeals when it is alleged there is an error in any requirement, decision or determination made by the Township Engineer in the enforcement or administration of this chapter.
Any person aggrieved by the decision of the Township Committee or any taxpayer may appeal such decision to the appropriate court, as provided in New Jersey Statutes.
The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use.
The relationship of the proposed use to the Comprehensive Plan and Floodplain Management Program for that area.
The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters, and the effect of wave actions, if applicable, expected at the site.
The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities, such as sewer, gas, electrical and water systems, and streets and bridges.
Upon consideration of the factors listed above and the purposes of this chapter, the Township Committee may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.
The Township Engineer shall maintain the records of all appeal actions, including technical information, and report any variances to the Federal Insurance Administration upon request.
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that items D(1)(d) through  above have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.
A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in Subsection D(1)(d), or conflict with existing local laws or ordinances.
Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest flood elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
All new construction of substantial improvements shall be constructed by methods and practices that minimize flood damage.
New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharges from the systems into floodwaters.
Base flood elevation data shall be provided for subdivision proposals and other proposed development which is greater than the lesser of 50 lots or five acres.
Enclosure openings. For all new construction and substantial improvements, fully enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria: A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above-grade. Openings may be equipped with screens, louvers or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters.
Enclosure openings. For all new construction and substantial improvements, fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria: A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters.
Within any AO Zone on the Township's FIRM, all new construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated above the highest adjacent grade at least as high as the depth number specified in feet (at least two feet if no depth number is specified); and require adequate drainage paths around structures on slopes to guide floodwaters around and away from proposed structures.
Be floodproofed so that below the base flood level plus one foot the structure is watertight with walls substantially impermeable to the passage of water; have structural components with the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting the applicable provisions of this subsection. Such certification shall be provided to the official as set forth in § 105-12C(4)(b).
Manufactured homes shall be anchored in accordance with Subsection A(1)(b).
Prohibit encroachments, including fill, new construction, substantial improvements and other development, unless a technical evaluation demonstrates that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
If Subsection C(1) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this section.
Prohibit the placement of any manufactured homes, except in an existing manufactured home park or existing manufactured home subdivision.
In all areas of special flood hazard in which base flood elevation data has been provided and no floodway has been designated, the cumulative effect of any proposed development, when combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than 0.2 foot.


text:
← Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Margaret H. Allison, Appellant, v. Charter Rivers Hospital, Inc., Respondent.
Prior History: [***1] Appeal From Lexington County. William P. Keesley, Circuit Court Judge.
Counsel: Robert J. Thomas and Robert P. Wood, both of Rogers, Townsend & Thomas, of Columbia, for appellant.
Monteith P. Todd, of Sowell, Todd, Laffitte, Beard & Watson, of Columbia, for respondent.
Judges: Hearn, J. Huff and Stilwell, JJ., concur.
n2 We decide this case without oral argument pursuant to Rule 215, SCACR.
Allison entered Charter in April of 1992 for treatment of her addiction to prescriptive medication. During the years preceding her admission, she had led a very inactive lifestyle.
Five days after she entered Charter, she learned she was scheduled to participate in a ropes course. Allison inquired about the ropes course from Katherine McCall, who was in charge of the activity. Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust. Allison expressed to Katherine her reservations about doing anything physical because of her [**603] lack of past physical activity. Allison also asked several patients about the ropes course. A woman in her seventies and a younger girl with back problems told Allison that they chose not to participate in the course. After collecting this information, Allison decided to participate in the course.
At the beginning of the activity, Allison and the other participants circled around Katherine. Katherine asked them [***3] to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag. As soon as she started to run, Allison fell on her left knee. She immediately told Katherine about her injury. Katherine instructed her to sit out the remainder of the tag game, which lasted around three or four minutes. The group then proceeded to the ropes course. While walking to the course, Allison again expressed her reservations about participating in the activity. Katherine asked her to at least try and assured her that if she fell, the group would catch her.
According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.
Allison explained that a participant was to walk backwards on a rope strung [*614] between trees while holding onto a wire from above. The bottom rope was approximately two and a half feet from the ground at the base trees but sagged and swayed in the middle. She stated the participants were instructed to let go of the wire from above if they fell. Four members of the group, acting as spotters, [***4] were to follow Allison to catch her if she fell.
Allison watched all the other participants and waited until last to try the tension traverse herself. She saw a male patient fall and scrape his shin. When it was her turn, the group lifted her up onto the rope, and she caught hold of the top wire. She testified she was about four feet from the tree when she fell.
The group was not able to break her fall, and she landed on her right knee.
Katherine and some of the participants tried to life her, but Allison passed out from the pain. She was taken by ambulance to the emergency room at Lexington Medical Center.
Allison filed a complaint against Charter in October of 1993. Charter asserted as defenses a general denial of negligence, assumption of risk, and contributory negligence. At the close of the evidence, Allison moved to strike the defense of assumption of risk. She argued that because of the South Carolina Supreme Court’s decision abolishing contributory negligence as a complete bar to recovery, n3 the doctrine of assumption of risk was narrowly limited and did not apply to her case. In the alternative, she argued that if the doctrine of assumption of risk applied, there was no [***5] evidence in the record to support the defense. The trial court denied the motion. The jury returned a general verdict in favor of Charter.
n3 The South Carolina Supreme Court abrogated the doctrine of contributory negligence in favor of comparative negligence for all causes of action arising on or after July 1, 1991. Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). This cause of action arose in 1992. In response to Allison’s motion to strike, Charter withdrew the defense of contributory negligence at the trial.
Allison argues the defense of assumption of risk was not available to Charter as a complete defense to her action. [*615] She relies on this court’s decision in Davenport v. Cotton Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997), aff’d as modified, 333 S.C. 71, 508 S.E.2d 565 (1998). In Davenport, we held “assumption of risk is no longer a complete defense to an injured person’s negligence claim. Assumption of risk is [***6] to be treated as another facet of comparative negligence rather than as an absolute bar to recovery.” Davenport, 325 S.C. at 516, 482 S.E.2d at 574. The South Carolina Supreme Court recently affirmed this holding and abolished assumption of risk as a bar to absolute recovery. Davenport, 333 S.C. 71, 508 S.E.2d 565 (1998). The court held “that a plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom is greater than the negligence [**604] of the defendant.” 333 S.C. at 87, 508 S.E.2d at 573-4.
The supreme court, however, limited its ruling to apply only to Davenport and to all causes of action arising or accruing after November 8, 1998, the date of the supreme court’s opinion. The court held: “Thus, except for this case, if a cause of action arose or accrued prior to our decision today, it will be governed by the common law form of assumption of risk, if applicable, as it existed under South Carolina case law before this opinion.” Davenport, 333 S.C. at 87-88, 508 S.E.2d at 574. In view of the supreme court’s decision to limit the application of its holding in Davenport, we hold the trial judge [***7] did not err in refusing to strike the defense of assumption of risk as a complete bar to Allison’s action.
Allison next asserts there was no evidence in the record to support the defense of assumption of risk. We disagree.
The defense of assumption of risk is generally a question of fact for the jury. Baxley v. Rosenblum, 303 S.C. 340, 347, 400 S.E.2d 502, 507 (Ct. App. 1991). Allison’s motion to strike the defense of assumption of risk was essentially a motion for a directed verdict on the issue. When ruling on a motion for a directed verdict, the trial judge must view the evidence in the light most favorable to the party opposing the motion. Moore v. Levitre, 294 S.C. 453, 454-5, 365 S.E.2d 730, 730 (1988); Baxley, 303 S.C. at 346, 400. N.E.2d at 506. If the evidence supports more than one reasonable inference with [*616] respect to a claim or defense, the judge must deny the motion and submit the case to the jury. Moore, 294 S.C. at 455, 365 S.E.2d at 730; Baxley, 303 S.C. at 346, 400. N.E.2d at 506. This court may only reverse the denial of a motion for directed verdict when there is no evidence to support the ruling below. Creech v. South Carolina Wildlife & Marine [***8] Resources Dep’t, 328 S.C. 24, 28-9, 491 S.E.2d 571, 573 (1997).
Under prior case law, the defense of assumption of risk required four elements: “(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.” Davenport, 333 S.C. at 78-79, 508 S.E.2d at 569; see also Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct. App. 1988).
The ropes course instructor and several patients explained the ropes course to Allison. Allison was aware that two patients had elected not to participate in the course because of their physical condition. She was also aware the object of the activity was for the participants to be caught by their fellow participants as they fell. Furthermore, before attempting the tension traverse, Allison observed the other participants’ attempts, including that of a man who skinned his shin and required medical attention.
We find the record contains sufficient evidence of the elements of assumption of risk to create [***9] a jury issue.
Huff and Stilwell, JJ., concur.

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Beginning in the mid-2000s, the United States Patent and Trademark Office (“PTO”) issued final rejections for a number of Mr. Hyatt’s applications, which he subsequently appealed to the Patent Trial and Appeal Board(“PTAB”). The examiners never filed answers to Mr. Hyatt’s briefs, and the PTAB never acquired jurisdiction over his appeals. The PTO instead reopened prosecution of 80 previously rejected applications. Mr. Hyatt, in turn, filed a lawsuit in Nevada district court alleging unreasonable delay of his applications by reopening of prosecution instead of hearing the appeals.
While the lawsuit was still pending, Mr. Hyatt also filed a petition for rulemaking with the PTO requesting that the USPTO repeal or declare unenforceable MPEP § 1207.04. Mr. Hyatt challenged the PTO’s subsequent denial of his petition in Nevada district court under the Administrative Procedure Act (“APA”), arguing that the PTO procedures were “arbitrary and capricious, in excess of statutory authority, and without observance of procedure required by the law.” The district court dismissed the action for lack of subject matter jurisdiction and further declined to transfer the case because Mr. Hyatt’s claims were “likely precluded” by his prior unreasonable delay lawsuit. On appeal, the Federal Circuit reversed the court’s dismissal for lack of subject matter jurisdiction but affirmed its grant of the PTO’s motion for summary judgment, because Mr. Hyatt’s claims were either time-barred or relied on erroneous statutory interpretation.
First, the Federal Circuit found the district court had subject matter jurisdiction over Mr. Hyatt’s APA claim under both 28 U.S.C. §§1331 and 1338(a) as the question of whether the PTO has violated the APA in applying its own regulations raised a substantial question under the patent laws. Furthermore, the exclusive jurisdiction of the Federal Circuit and E.D. Va. to hear civil actions under 35 U.S.C. § 145 that ask for reviewof PTAB decisions “does not displace the district court’s jurisdiction over APA challenges to the PTO’s denial of a petition for rulemaking.” The court did not need exclusive jurisdiction over denials of petitions for rulemaking in order to protect its future jurisdiction.
Thus, had Mr. Hyatt requested any relief regarding the 80 pending claims in the present lawsuit, the outcome of the Court’s holding may have been different.
Mr. Hyatt’s argument that the PTO promulgated MPEP § 1207.04 without notice-and-comment was a procedural argument. The right of action accrued when the agency adopted the rule in 2005. Mr. Hyatt’s failure to bring his notice-and-comment claim until ten years later rendered it time-barred. Furthermore, because the 2014 amendment to MPEP § 1207.04 merely clarified the meaning of an existing term and was not substantive, the statute of limitation was not reset then. Similarly, the PTO’s discussions of reopening prosecution in 2011 and 2013 did not restart the statute of limitation.
Mr. Hyatt’s argument that MPEP § 1207.04 conflicted with 37 C.F.R. § 41.39 was neither procedural nor substantive but instead a “policy-based challenge,” and the right of action also accrued in 2005 – with the adoption of the provision – again rendering the challenge outside the six-year statute of limitations period.
However, Mr. Hyatt’s argument that MPEP § 1207.04 violated 35 U.S.C. § 6(b)(1) was a substantive challenge, and right of action accrued in 2015 with the PTO’s denial of Mr. Hyatt’s petition for rulemaking – an adverse application of MPEP § 1207.04 against him. Nonetheless, the court found that the claim was based on an erroneous interpretation of § 6(b)(1) and thus lacked merit.
Under § 6(b)(1), the PTAB has the duty to, “on written appeal of an applicant, review adverse decisions of examiners upon applications for patents pursuant to section 134(a).” However, “the text does not require the PTAB to reach the merits of every appeal that is filed.” The PTO may instead impose procedural conditions prior to PTAB’s review of an appeal, which may result in its dismissal. An examiner’s decision not to reopen prosecution is merely“another condition that must be satisfied before an appeal reaches the Board.” Furthermore, reopening prosecution does not deprive applicants of their right to appeal final examiner rejections – once the examiner adds new grounds for rejection, an applicant may appeal it.
An APA challenge to a rule within the MPEP on procedure or policy grounds must be filed within six years of rule adoption. The PTAB is not required to reach a decision on an appeal if the examiner chooses to reopen prosecution during that appeal.