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Mr. Polales has spent his career investigating, coordinating and trying criminal cases in the State of Illinois. He now focuses his work in the area of white-collar criminal defense, corporate compliance and internal investigations.
Representing a number of subjects of interest in federal grand jury investigations involving allegations of theft of trade secrets, unlawful access to stored electronic communications, public corruption, mail, wire and securities fraud and other financial crimes.
Successfully representing a large corporate entity in a Commodities Futures Trading Commission investigation of potential market manipulation.
Conducting internal investigations and representing health care providers embroiled in false claims act investigations conducted by the Office of the Inspector General of the Department of Health and Human Services and United States Attorneys Offices.
Providing counsel to a securities exchange in connection with computer and internet issues.
Pursuing and defending fraud claims in civil commercial litigation.
Successfully represented a real estate development company in a corporate dissolution case resulting in the dismissal of the case at the close of the cross-examination of the Plaintiff.
In November 2010, successfully defended a Chicago Police Officer in a Federal criminal civil rights case in the Northern District of Illinois resulting in a not guilty jury verdict.
Advisor to the United States Attorney in matters affecting complex financial and public corruption investigations and prosecutions; Northern District of Illinois’ first Anti-Terror Task Force Coordinator post 9/11.
Supervised as many as 36 senior Assistant United States Attorneys. Oversaw investigation and prosecution of complex white-collar crimes, consisting primarily of complex financial and fiduciary fraud, securities fraud, health care fraud, defense contractor fraud, commodities fraud, and public corruption matters. Supervised numerous tax and other criminal matters.
Personally reviewed and evaluated new matters presented to the United States Attorney’s Office relating to fraud or other misconduct affecting federally insured financial institutions. Supervised six to eight prosecutors, two financial auditors, and a paralegal dedicated to financial institution fraud cases. Organized, supervised and coordinated numerous investigations involving the Comptroller of the Currency, Office of Thrift Supervision, and FDIC. Supervised two Deputy Chiefs of Special Prosecutions who handled Financial Institution Fraud Coordinator duties from 1998 to 2002.
Supervised 10-12 Assistant United States Attorneys in the investigation and prosecution of complex white-collar crimes, including complex fraud and public corruption. Served as Civil Rights Coordinator (1989 to 1991). Served as Assistant to the Special Counsel to Attorney Generals Reno and Barr in the internal Department of Justice investigation of fraud claims by INSLAW, a software vendor to the Department of Justice.
Supervised 8-10 Assistant United States Attorneys in the investigation and prosecution of white-collar crimes, and other federal criminal matters, including numerous narcotics prosecutions.
Responsible for the investigation and prosecution of a wide variety of federal criminal offenses involving financial institution, health care, securities, defense contractor, commodities, tax and other fraud, money-laundering, organized crime racketeering and narcotics. Briefed and argued approximately 15 appeals before the Seventh Circuit Court of Appeals.
United States v. Michael Segal, Near North Insurance Brokerage, Inc. and Daniel Watkins (2001-2004). Initiated and led the investigation and eight week jury trial of Segal and the corporate defendant on all charges and the return of the largest jury forfeiture in the history of the Northern District of Illinois.
United States v. Joseph Cusimano and Van Craig Thompson (1989-1992). Initiated and conducted the investigation and led the prosecution of an income tax conspiracy and false statement case relating to the fraudulent use of corporate assets for political campaigns.
United States v. Three Traders, et al. (1988-1989). Successfully prosecuted three traders for racketeering and fraud crimes uncovered during “Operation Sourmash,” the FBI’s “Group I” undercover investigation of fraudulent trading practices at the Chicago Board of Trade’s U. S. Treasury Bond Pit.
United States v. Robert Bailin, et al. (1990-1991). Tried a six month jury trial of twelve defendants on charges of racketeering and fraud arising out of “Operation Hedgeclipper,” the FBI’s “Group I” undercover investigation of fraudulent trading practices at the Chicago Mercantile Exchange’s Japanese Yen Pit.
United States v. Thomas Kolter (1994-1995). Conducted the investigation and successful prosecution on fraud charges of the former General Counsel of futures commission merchant, Stotler Group, in the wake of its collapse and bankruptcy.
United States v. Albert Tocco and Clarence Crockett (1988-1990). Tried the five-week “anonymous” jury trial of a Chicago “mob boss” resulting in the conviction of both defendants on all charges, including a murder and extortion racketeering charge.
United States v. Juventino Herrera-Rivera, et al. (1984-1987). Tried the ten-week, eight defendant racketeering, continuing criminal enterprise, and conspiracy jury trial resulting in the conviction of all defendants on over 100 charges arising out of “Operation Durango,” an Organized Crime Drug Enforcement Task Force undercover investigation of the Herrera narcotics organization.
United States v. Angel Rojas, et al. (1995-1996). Tried the four-week jury trial of four defendants resulting in their conviction on all charges relating to a twelve-defendant cocaine distribution conspiracy involving the distribution of over 1000 pounds of cocaine.
United States v. Robert Tezak, et al. (1990-1995). Initiated and conducted the investigation and successful prosecution of Robert Tezak, former coroner of Will County and majority shareholder of International Games, Inc. (the maker of the family card game UNO), resulting in the conviction of Tezak and five co-defendants, including Kenneth Floyd, the former President of the Joliet, IL. Teamsters Local, on charges of mail fraud, arson and obstruction of justice.
United States v. Richard Joutras (1998). Successfully represented the Government in the prosecution and guilty plea of the Chairman of the Board of a bank holding company charged with insider trading prior to the merger of the bank with another financial institution.
United States v. Kevin Jones (1999-2001). Initiated and conducted the investigation and led the successful prosecution of the Illinois Governor’s Assistant for Minority Affairs as a result of his shakedown of a start-up renal care business seeking a Certificate of Need before the Illinois Health Facilities Planning Board.
United States v. George J. W. Smith (2000-2002). Conducted the investigation and successful prosecution of the only Cook County Circuit Court Judge convicted in the Northern District of Illinois since Operation Greylord, on charges of unlawfully structuring cash transactions in order to generate funds to secure his appointment as an Associate Judge.
United States v. Raletta Ingram and 15 other related cases (1999-2004). Initiated and led the investigation and successful prosecution of GSA employees and vendors engaged in a systematic pattern of fraud and bribery in the procurement of goods and services by GSA inside the Dirksen Federal Courthouse in Chicago.
United States v. 8 Material Witnesses (2001). Led the investigation that quickly cleared eight Egyptian males residing in Evansville, Indiana, in connection with allegations that a terrorist conspiracy existed to destroy the Sears Tower shortly after 9/11.
United States v. Larry Flynt (1983-1984). Successfully prosecuted Larry Flynt, the publisher of Hustler Magazine for contempt of court after he disrupted a court appearance before United States Magistrate Olga Jurco.
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§ 301-10.1 Am I eligible for payment of transportation expenses?
§ 301-10.2 What expenses are payable as transportation?
§ 301-10.3 What methods of transportation may my agency authorize me to use?
§ 301-10.4 How does my agency select the method of transportation to be used?
§ 301-10.5 What are the presumptions as to the most advantageous method of transportation by order of precedence?
§ 301-10.6 What is my liability if I do not travel by the authorized method of transportation?
§ 301-10.7 How should I route my travel?
§ 301-10.8 What is my liability if, for personal convenience, I travel by an indirect route or interrupt travel by a direct route?
§ 301-10.100 What types of common carrier transportation may I be authorized to use?
§ 301-10.105 What are the basic requirements for using common carrier transportation?
§ 301-10.106 When must I use a contract city-pair fare?
§ 301-10.107 Are there any exceptions to the use of a contract city-pair fare?
§ 301-10.108 What requirements must be met to use a non-contract fare?
§ 301-10.109 What is my liability for unauthorized use of a non-contract carrier when contract service is available and I do not meet one of the exceptions for required use?
§ 301-10.110 May I use contract passenger transportation service for personal travel?
§ 301-10.111 When may I use a reduced group or charter fare?
§ 301-10.112 What must I do when different airlines furnish the same service at different fares?
§ 301-10.113 What must I do if I change or do not use a common carrier reservation?
§ 301-10.114 What must I do with unused Government Transportation Request(s) (GTR(s)), ticket(s) or refund application(s)?
§ 301-10.115 Am I authorized to receive a refund or credit for unused transportation?
§ 301-10.116 What must I do with compensation an airline gives me if it denies me a seat on a plane?
§ 301-10.117 May I keep compensation an airline gives me for voluntarily vacating my seat on my scheduled airline flight when the airline asks for volunteers?
§ 301-10.121 What classes of airline accommodations are available?
§ 301-10.122 What class of airline accommodations must I use?
§ 301-10.123 When may I use other than coach-class airline accommodations?
§ 301-10.124 What are coach-class Seating Upgrade Programs?
§ 301-10.125 When may I use the 14-hour rule to travel other than coach-class (see § 301-10.123(b)(6))?
§ 301-10.131 What does United States mean?
§ 301-10.132 Who is required to use a U.S. flag air carrier?
§ 301-10.133 What is a U.S. flag air carrier?
§ 301-10.134 What is U.S. flag air carrier service?
§ 301-10.135 When must I travel using U.S. flag air carrier service?
§ 301-10.136 What exceptions to the Fly America Act requirements apply when I travel between the United States and another country?
§ 301-10.137 What exceptions to the Fly America Act requirements apply when I travel solely outside the United States, and a U.S. flag air carrier provides service between my origin and my destination?
§ 301-10.138 In what circumstances is foreign air carrier service deemed a matter of necessity?
§ 301-10.139 May I travel by a foreign air carrier if the cost of my ticket is less than traveling by a U.S. flag air carrier?
§ 301-10.140 May I use a foreign air carrier if the service is preferred by or more convenient for my agency or me?
§ 301-10.141 Must I provide any special certification or documents if I use a foreign air carrier?
§ 301-10.142 What must the certification include?
§ 301-10.143 What is my liability if I improperly use a foreign air carrier?
§ 301-10.160 What classes of train accommodations are available?
§ 301-10.161 What class of train accommodations must I use?
§ 301-10.162 When may I use other than coach-class train accommodations?
§ 301-10.163 What is an extra-fare train?
§ 301-10.164 When may I use extra-fare train service?
§ 301-10.180 Must I travel by a U.S. flag ship?
§ 301-10.181 What is my liability if I improperly use a foreign ship?
§ 301-10.182 What classes of ship accommodations are available?
§ 301-10.183 What class of ship accommodations must I use?
§ 301-10.190 When may I use a transit system as a means of transportation in conjunction with official travel?
§ 301-10.200 What types of Government vehicles may my agency authorize me to use?
§ 301-10.201 For what purposes may I use a Government vehicle other than a Government aircraft?
§ 301-10.202 What is my liability for unauthorized use of a Government vehicle?
§ 301-10.220 What requirements must I meet to operate a Government-furnished automobilefor official travel?
§ 301-10.260 May I use a Government aircraft for travel?
§ 301-10.261 When may I use a Government aircraft for travel?
§ 301-10.262 How will my agency authorize travel on Government aircraft?
§ 301-10.263 What travel authorization documents must I present to the aircraft management office that operates the Government aircraft?
§ 301-10.264 What amount must the Government be reimbursed for travel on Government aircraft?
§ 301-10.265 Will my travel on Government aircraft be reported?
§ 301-10.266 Is information available to the public about travel on Government aircraft by senior Federal officials and non-Federal travelers?
§ 301-10.300 When may I use a POV for official travel?
§ 301-10.301 How do I compute my mileage reimbursement?
§ 301-10.302 How do I determine distance measurements for my travel?
§ 301-10.303 What am I reimbursed when use of POV is determined by my agency to be advantageous to the Government?
§ 301-10.304 What expenses are allowable in addition to the POV mileage rate allowances?
§ 301-10.305 How is reimbursement handled if another person(s) travels in a POV with me?
§ 301-10.306 What will I be reimbursed if authorized to use a POV between my residence and office and then from my office to a common carrier terminal, or from my residence directly to a common carrier terminal?
§ 301-10.307 What will I be reimbursed if I use a POV to transport other employees?
§ 301-10.308 What will I be reimbursed if I park my POV at a common carrier terminal while I am away from my official station?
§ 301-10.309 What will I be reimbursed if I am authorized to use common carrier transportation or a rental vehicle and I use a POV instead?
§ 301-10.310 What will I be reimbursed if I am authorized to use a Government-furnished automobile and I use a privately owned automobile instead?
§ 301-10.400 What types of special conveyances may my agency authorize me to use?
§ 301-10.401 What types of charges are reimbursable for use of a special conveyance?
§ 301-10.402 What will I be reimbursed if I am authorized to use a special conveyance and I use a POV instead?
§ 301-10.403 What is the difference between a Government aircraft and an aircraft hired as a special conveyance?
§ 301-10.420 When may I use a taxi, TNC, innovative mobility technology company, shuttle service or other courtesy transportation?
§ 301-10.421 How much will my agency reimburse me for a tip to a taxi, TNC, innovative mobility technology company, shuttle service, courtesy transportation driver, or valet parking attendant?
§ 301-10.450 What are the policies when authorized to rent a vehicle for official travel?
§ 301-10.451 May I be reimbursed for the cost of collision damage waiver (CDW) or theft insurance?
§ 301-10.452 May I be reimbursed for personal accident insurance?
§ 301-10.453 What is my liability for unauthorized use of a rental automobile obtained with Government funds?
5 U.S.C. 5707, 40 U.S.C. 121(c); 49 U.S.C. 40118; OMB Circular No. A–126, revised May 22, 1992.
FTR Amdt. 70, 63 FR 15955, Apr. 1, 1998, unless otherwise noted.


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FindACase | Kazazian v. Vail Resorts, Inc.
Kazazian v. Vail Resorts, Inc.
VAIL RESORTS, INC., and VAIL CORPORATION, INC., Defendants.
Michael E. Hegarty United States Magistrate Judge.
Defendant The Vail Corporation (“TVC”) seeks to dismiss Plaintiff Nina Kazazian's second cause of action for violations of the Fair Labor Standards Act (“FLSA”) and the Colorado Minimum Wage Act (“CMWA”). Ms. Kazazian bases her claim on TVC's failure to pay the required minimum wage, and separately, TVC's payment of an inadequate wage based on the cost of living. I first find that, apart from the minimum wage requirement, Colo. Rev. Stat. § 8-6-104 does not create a private right of action to sue employers for providing an inadequate wage. I then find that Ms. Kazazian fails to assert sufficient factual allegations to support her minimum wage claims. Accordingly, I grant TVC's Motion to Dismiss Plaintiff's Second Claim for Relief. However, to the extent Ms. Kazazian is able to assert good faith allegations correcting this pleading deficiency, I will permit her to file an amended complaint.
Defendant Vail Resorts, Inc. (“VRI”) separately seeks dismissal of Ms. Kazazian's claims in their entirety. I agree with VRI that Ms. Kazazian fails to allege facts supporting a finding that VRI was her employer under the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), Title VII, the FLSA, and the CMWA. Additionally, Ms. Kazazian does not allege that VRI was the plan administrator of her employee benefits plans, as is required to state a claim under the Employee Retirement Income Security Act (“ERISA”). Therefore, I find that Ms. Kazazian fails to state a claim against VRI. However, because it appears the Ms. Kazazian may be able to correct at least some of these deficiencies through a simple amendment, I grant her leave to file an amended complaint.
The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Ms. Kazazian in her Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Ms. Kazazian worked as a ski instructor at Defendants' ski resorts from January 2008 to May 2016. Am. Compl. ¶ 10, ECF No. 53. In February 2013, Ms. Kazazian informed her direct supervisor, Janet Lawrence, that she had a disability requiring intermittent leave. Id. ¶ 14. Ms. Lawrence did not indicate that this would be a problem. Id. Then, On April 1, 2013, Ms. Kazazian fell at work while walking to her locker room. Id. ¶ 15. Because this caused Ms. Kazazian to be unable to work for the rest of the season, she filed a workers' compensation claim. Id.
Ms. Kazazian resumed working the following season. Id. ¶ 16. In March 2014, Ms. Kazazian received a performance plan regarding timeliness. Id. Ms. Kazazian informed her supervisor that the timeliness issues were a symptom of her disability. Id. By the end of the 2014-2015 season, Ms. Kazazian's supervisor told her that her timeliness was no longer an issue, and she was taken off the performance plan. Id. ¶ 21.
In February 2015, Ms. Kazazian informed Defendants that they overcharged her for COBRA premiums she paid in 2014. Id. ¶ 34. Although Defendants admitted that they owed Ms. Kazazian more than $1, 200.00, Defendants have not paid her these funds. Id.
In August 2015, Ms. Kazazian learned that she had permanent hearing loss as a result of her workplace injury in April 2013, and she notified her employer that she was seeking additional benefits under the Colorado Worker's Compensation Act. Id. ¶ 22. In September, Ms. Kazazian received her performance review for the 2014-2015 season. Id. ¶ 23. The review stated that because Ms. Kazazian refused to work certain holidays and had other performance related issues, she would be rehired only as a part-time instructor for the 2015-2016 season. Id. ¶ 24.
In October 2015, Ms. Kazazian applied for several open full-time positions at Defendants' resorts, including mountain counsel, contract counsel, litigation counsel, lunchroom monitor, and Star Rider. Id. ¶ 26. She was not interviewed for any of the positions. Id. As a result, Ms. Kazazian filed a charge of discrimination with the EEOC. Id. ¶ 27.
Beginning shortly after Ms. Kazazian filed her EEOC complaint, and continuing through April 2016, Ms. Kazazian was not assigned any private lessons and was told not to come to work on multiple occasions. Id. ¶¶ 29-31. When Ms. Kazazian complained, Ms. Lawrence further reduced Ms. Kazazian's schedule to holidays only. Id. ¶¶ 32-33.
In May 2016, Ms. Kazazian was informed that she would not be rehired as a ski instructor for the following season. Id. ¶ 36. Additionally, she was designated as “ineligible for rehire.” Id. When Ms. Kazazian opposed the decision, Ms. Lawrence stated that although the performance evaluation contained incorrect statements, she could not alter Ms. Kazazian's designation. Id. ¶ 38.
Proceeding pro se, Ms. Kazazian filed the present case on January 25, 2018. Compl., ECF No. 1. Although Ms. Kazazian initially filed this case under a pseudonym, I denied her motion to proceed anonymously. Order on Mot. to Proceed Anonymously, ECF No. 32. As a result, Ms. Kazazian filed the operative Amended Complaint to include her true name. Am. Compl., ECF No. 53. Ms. Kazazian asserts three causes of action: (1) discrimination, (2) violations of the FLSA and CMWA, and (3) a violation of ERISA. Id. ¶¶ 39-77. Relevant here, Ms. Kazazian's second claim contends Defendants violated the FLSA and CMWA by failing to pay her the minimum wage. Id. ¶ 51. Additionally, Ms. Kazazian claims Defendants violated Colo. Rev. Stat. § 8-6-104 by paying her a wage that was “inadequate to supply the necessary cost of living and to maintain [her] health, ” regardless of whether it was in compliance with the state-mandated minimum wage. Id. ¶¶ 53-55.
On March 7, 2018, TVC responded to Ms. Kazazian's allegations through the present Motion to Dismiss. TVC's Mot. to Dismiss, ECF No. 19. TVC contends that Ms. Kazazian's second cause of action fails to state a claim, because Ms. Kazazian does not allege facts showing TVC failed to pay her the minimum wage. TVC's Mot. to Dismiss 3-4. Furthermore, TVC asserts the CMWA does not create a private right of action against employers for paying an inadequate wage greater than the minimum wage. Id. at 4-5. In response, Ms. Kazazian contends her allegation that “Defendant failed to pay Plaintiff [the] minimum wage for all hours worked by the Plaintiff in one or more weeks, ” is sufficient to state FLSA and CMWA claims. Resp. to TVC's Mot. to Dismiss 3, ECF No. 34. Further, Ms. Kazazian argues that TVC cites no authority supporting a finding that the CMWA does not create a private right of action for inadequate wages in excess of the minimum wage. Id. at 4-5. Ms. Kazazian seeks leave to file an amended complaint in the event I find her allegations insufficient. Id. at 5-6. TVC filed a reply brief on April 30, 2018. Reply in Supp. of TVC's Mot. to Dismiss, ECF No. 42.
VRI responded to the Complaint by submitting a separate motion to dismiss, which seeks to dismiss all the claims against it. VRI's Mot. to Dismiss, ECF No. 20. According to VRI, Ms. Kazazian does not assert a claim against it, because she does not allege that VRI was her employer or a plan administrator of her employee benefits plan. Id. To support its arguments, VRI attaches declarations of TVC employees. ECF Nos. 20-1, 20-3. Ms. Kazazian responds by arguing that I may not consider these declarations at the motion to dismiss stage. Resp. to VRI's Mot. to Dismiss 2-3, ECF No. 35. Additionally, Ms. Kazazian states that it would be premature to consider VRI's motion as one for summary judgment. Id. at 4-7. VRI filed its reply brief on April 30, 2018. Reply in Supp. of VRI's Mot. to Dismiss, ECF No. 43.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

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§ 297-409 Powers and duties.
§ 297-411 Notice of hearing.
§ 297-412 Public hearing required.
§ 297-418 Expansion or extension of nonconforming uses.
§ 297-419 Appeals to County Commissioners.
Appeals from any final order, decision, requirement or interpretation made by an administrative official in the enforcement of any matter authorized by Article 66b, Annotated Code of Maryland, as amended, as provided in § 297-417.
Editor's Note: Said article was repealed by Acts 2012, 426, effective 10-1-2012. See now the Land Use Article, Division I, Title 2.
Applications for special exception uses and enlargements, extensions, modifications or revocations of special exceptions, as provided in § 297-415.
Applications for variances, as provided in § 297-416.
Application for the extension or enlargement of a nonconforming situation, as provided in § 297-418.
Any other matter the Board is required to act upon by any other County ordinance adopted pursuant to Article 66b, Annotated Code of Maryland, as amended.
The Board may adopt rules and regulations governing its procedures and operations not inconsistent with the provisions of this chapter.
A filing fee will be charged for the Board's processing of any appeal; special exception; enlargement, extension or modification of a special exception use; variance; or extension or enlargement of any nonconforming situation, continuations, reconsiderations or any other decision of the Board.
The appropriate filing fee shall be established in the Schedule of Fees and Charges adopted by the County Commissioners.
Editor's Note: See Ch. 236, Fees, Art. IV.
Within 60 days of receipt of an application, the Zoning Officer shall send written notice of the time and date of the hearing to the applicant.
Not less than 14 days prior to the hearing, the applicant or his agent shall mail a notice by certified mail, return receipt requested, to each property owner that is within a two-hundred-foot radius of the property line that is the subject of the hearing, of the time, date, place and nature of the public hearing. The applicable notification list shall be provided by the Planning Division to the applicants. The applicant shall file, with the Zoning Officer, an affidavit of mailing of such notice as an exhibit in the public hearing prior to 4:30 p.m. of the day of the hearing. Filing the affidavit of mailing shall constitute substantial compliance with the notice requirement unless cause to the contrary is shown.
At least 14 days prior to a hearing, the applicant shall erect a sign(s) provided by the Zoning Officer on the subject property. Such sign(s) will be erected within 10 feet of the boundary line of such land which abuts every public road, and if the property does not abut a public road, the sign shall be posted at the nearest public road which provides access to the subject site. The sign shall be affixed to a rigid board and be maintained by the applicant until a decision is issued by the Board. It is a violation of this chapter for anyone to remove or tamper with such sign during the period it is required to be posted. The applicant shall file an affidavit, with a picture of the posted sign, certifying the posting of said sign with the Zoning Officer prior to 4:30 p.m. of the day of the hearing.
In the case of special exceptions, notice of the time and place of the public hearing, together with a summary of the proposed regulation, restriction or boundary, shall be published in at least one newspaper of general circulation in the jurisdiction once each week for two successive weeks, with the first such publication of notice appearing at least 15 days prior to the hearing.
Before making a final decision on any appeal or application, the Board shall hold a hearing on the matter to be considered.
The hearing shall be open to the public, and all people aggrieved by the outcome of the appeal or application shall be given an opportunity to present testimony and evidence and to cross-examine persons who testify.
The Board may place reasonable and equitable limitations on the presentation of testimony and evidence, arguments and the cross-examination of witnesses consistent with the rules and regulations adopted under § 297-409 so that all relevant issues may be heard and decided without undue delay.
The Board may continue the hearing until a subsequent meeting or date and time certain and may keep the record of the hearing open to receive additional evidence or information. The record shall be closed prior to when the Board issues its written order.
Any interested person shall have the right to submit, in accordance with the established rules, oral or written testimony at the public hearing. A record of the case file, including a complete record of the testimony at the hearing, the votes of all members of the Board, all properly marked exhibits presented at the hearing and the application, will be kept by the Zoning Officer.
In all cases a written decision shall be issued by the Board and shall be provided to the applicant, all parties of interest who appeared or testified during the hearing and all other persons who make a request for a copy.
The decision of the Board approving, denying or dismissing any application shall be issued within 60 days from the close of the last public hearing, unless such time is extended by an official resolution adopted by the Board.
Within 15 days after the Board issues its written decision, any party in interest may file a motion for reconsideration of the decision or a provision or condition contained in a decision with the Zoning Officer.
The party filing such a motion shall transmit copies to all parties to the proceedings and shall file an affidavit of mailing with the Zoning Officer.
The matter will be placed on the Board's agenda within 30 days after the Zoning Officer has transmitted the motion to the Board.
The Board, on an affirmative vote of three members, may decide to reconsider any issue(s) raised in the motion for reconsideration.
If the Board votes to reconsider, the hearing shall be held within 30 days after such vote.
The hearing will be conducted in accordance with the Board's Rules of Practice and Procedure and written decision issued pursuant to § 297-413.
The implementation and enforcement of this chapter is based upon the division of the County into zones within which the use of land and buildings and the bulk and location of buildings and structures in relation to the land are substantially uniform. It is recognized, however, that there are certain uses which, because of their unique characteristics, cannot be properly classified in a particular zone without consideration in each case of the impact of those uses upon neighboring land and of the public need for the particular use, at the particular location proposed.
This section establishes procedures and minimum standards for the consideration and authorization of special exception uses.
The granting of a special exception does not exempt the applicant from obtaining a zoning permit or complying with all other requirements of this chapter or any applicable County, state or federal law.
Any property owner or other person with an enforceable legal interest in a property may file an application to use such land for one or more of the special exceptions provided in the zone in which the land is located.
An application for a special exception shall be filed with the Zoning Officer on a form prescribed by the Zoning Officer. The application shall be accompanied by such plans and/or data as necessary for the Board to make a reasoned decision and shall include a statement, in writing, by the applicant and adequate evidence showing that the proposed use will conform to the applicable standards. The application shall be forwarded from the Zoning Officer to the Board of Appeals for review and decision. The Board of Appeals shall conduct a public hearing and issue a written decision on the application which contains findings of fact and conclusions of law to support the Board's decision.
Zoning Officer's reports. The Zoning Officer shall provide a written report to the Board of Appeals at least 14 days prior to the scheduled public hearing. The report shall contain preliminary findings as to the extent that the application conforms to the requirements of this chapter. The failure to provide a report or to meet the time limitations herein shall not affect the authority of the Board to hold the public hearing at its scheduled date and time.
Public hearing. The Board shall require notice pursuant to the requirements of § 297-411 and shall conduct the public hearing and render a decision on the special exception which adheres to the provisions of this article.
Will not be detrimental to or endanger the public health, safety and general welfare.
Is a permissible special exception in the zone.
Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or the general neighborhood.
Complies with the standards and requirements set forth in Article XIII.
Will cause no objectionable impact from traffic, noise, type of physical activity, fumes, odors, dust or glare.
Will provide adequate utilities, water, sewer or septic system, access roads, storm drainage and/or other necessary public facilities and improvements. If a use requires an adequate public facilities review by the Planning Commission, such review shall be made a condition of the granting of the special exception by the Board.
Will provide adequate ingress and egress and be so designed as to minimize traffic congestion in the public streets.
Is in accordance with the objectives of the Charles County Comprehensive Plan.
Conforms to the applicable regulations of the zone in which it is located and to the special requirements established for the specific use.
The number of persons living, working or visiting on the site.
Traffic conditions, including facilities for pedestrians; parking facilities; the access of vehicles to roads; peak periods of traffic; and proposed roads, but only if construction of such roads will commence within the reasonably foreseeable future.
The orderly growth of the neighborhood and community and the fiscal impact of the requested special exception on the County.
The effect of odors, dust, gas, smoke, fumes, vibration, glare and noise upon the use of surrounding properties.
The need for additional on-site security, fire protection, waste disposal or such other facilities not normally provided by the County.
Limitation of the hours of operation related to the impact of the requested special exception on surrounding uses, such as schools, houses of worship, theaters, hospitals and similar places of public use.
The purposes set forth in this chapter, the Comprehensive Plan and related studies for land use, roads, parks, schools, sewers, water, population, recreation and the like.
The environmental impact, the effect on sensitive natural features and opportunities for recreation and open space.
The requirements of the Critical Area Zone.
The preservation of cultural and historical landmarks.
Effect of denial of a special exception.
No application for a special exception use which has been denied wholly or in part by the Board shall be accepted by the Zoning Officer for a period of one year from the date of said order of denial.
Notwithstanding Subsection J(1), the Board of Appeals may, at any time, consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the Zoning Officer.
Enlargements, extensions or modifications. The Board may permit the enlargement, extension or modification of an existing special exception use pursuant to the procedural requirements of this article related to notice, conduct of the public hearing and the Board's decision. The initiation of such an action and standards for the Board's decision shall conform to the requirements of this section for the granting of an application for a special exception.
The Board issues a written decision containing findings of fact and conclusions of law to support the decision on whether the special exception is renewed pursuant to the requirements of this section for the granting of an application for a special exception.
The Board may grant a renewal for a longer or shorter period of time than was established in the original decision granting the special exception.
Complaints. Complaints received concerning the operation of any special exception shall be directed to the Zoning Officer, who shall take appropriate action as provided by law. All complaints must be in writing. Anonymous complaints shall not be accepted.
Failure to comply with conditions. Whenever the Board shall find, in case of any special exception heretofore or hereafter granted pursuant to the provisions of this article, that any of the terms, conditions or restrictions upon which such special exception was granted are not being complied with, the Board is authorized, after due notice to all parties concerned and granting full opportunity for a public hearing, to revoke the special exception. The Board is authorized to request and obtain investigations and reports as to compliance from such County or state agencies or administrative officers as may be appropriate. This action may be in addition to any action taken by the Zoning Officer under the provisions of Article XXVI.
The Zoning Officer shall transmit a written report to the Board which indicates which terms or conditions of the special exception are not being complied with by the special exception holder.
The Board, by an affirmative vote of at least three members, shall issue an order to the special exception holder, along with the report of the Zoning Officer, to show cause why such special exception should not be revoked.
The show-cause order shall specify the date, time and place of the hearing. The date of the hearing will be a minimum of 30 days after the date of the order to allow the special exception holder reasonable time to prepare for the hearing.
Copies of the order shall also be sent by certified mail, return receipt requested, to the owner of the subject property, if not the special exception holder, the Zoning Officer, persons who have submitted complaints concerning the special exception and, at the discretion of the Board, to those persons who received notice of the original application for the special exception, as well as to other interested persons, organizations or governmental agencies.
The show-cause hearing shall be limited to the consideration of the issues specified in the show-cause order.
Within 60 days after the close of record of the hearing, the Board shall issue a written determination containing findings of fact and conclusions of law regarding the issues presented. The Board, by an affirmative vote of at least three members, may reaffirm or revoke the special exception or amend, add to, delete or modify the existing terms or conditions of the special exception. If necessary, the Board may adopt a resolution extending the time in which to issue its decision.
A copy of the decision shall be transmitted to the special exception holder and all parties to the hearing and persons who received copies of the show-cause order.
Abandonment and failure to initiate. Whenever a special exception is not in use or does not operate for a period of three years, or whenever an approved special exception is not initiated and commenced within three years after the date of approval, the approved special exception shall be automatically null and void without any further action by the Board being required.
Burden of proof. The applicant for a special exception shall have the burden of proof on all questions of fact which are required to be determined by the Board or are required to meet any of the provisions of this section.
An application for a variance shall be submitted to the Board of Appeals by filing a copy of the application with the Zoning Officer. Applications shall be handled in the same manner as applications for special exceptions in conformity with the provisions of this article.
The Board is authorized to grant variances from the strict application of these regulations when, by reason of exceptional narrowness, shallowness or shape of specific parcels of property or by reason of exceptional topographical conditions or other extraordinary situations or conditions of specific parcels of property, the strict application of the regulations of this chapter would result in peculiar and unusual practical difficulties to, or exceptional or undue hardship upon, the owner of said property. However, the Board of Appeals shall not grant variances that will substantially impair the intent, purpose and integrity of this chapter. This provision shall not be construed to permit the Board, under the guise of a variance, to change the permitted use of land.
That special conditions or circumstances exist that are unique to the subject property or structure and that a strict enforcement of the provisions of this chapter would result in unwarranted hardship which is not generally shared by owners of property in the same land use classification.
That strict enforcement of the provisions of this chapter would deprive the property owner of rights commonly shared by other owners of property in the area.
That the granting of a variance will not confer upon an applicant any special privilege that would be denied to other owners of like property and/or structures within the same zone/land use classification.
That the variance request is not based upon conditions or circumstances which are self-created or self-imposed.
That greater profitability or lack of knowledge of the restrictions shall not be considered as sufficient justification for a variance.
That the proposed variance is consistent with the Charles County Comprehensive Plan.
In granting variances, the Board may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be compatible with the surrounding properties.
A variance may be issued for an indefinite duration or for a specified duration.
The nature of the variance and any conditions attached to it shall be specified in the Board's decision. All conditions are enforceable in the same manner as any other applicable requirement of this chapter. The granting of the variance does not constitute issuance of a zoning permit.
The granting of a variance does not exempt the applicant from complying with all other requirements of this chapter or any applicable County, state or federal law.
Reapplication. Whenever the Board disapproves an application for a variance on any basis other than the failure of the applicant to submit a complete application, no reapplication will be accepted by the Zoning Officer or considered by the Board for a period of one year from the date of the Board's disapproval.
The Board may, at any time, consider a new application affecting the same property as an application previously denied if the new application is substantially similar to the application previously denied. A new application is one that differs in some substantial way from the one previously considered as determined by the Zoning Officer.
The burden of persuasion and of presenting evidence sufficient to allow the Board to reach a conclusion that the required criteria listed in Subsections B and C have been met remains with the applicant seeking the variance.
Requests for variance in the Critical Area Zones shall not be heard unless the Critical Area Commission has received a copy of the variance request at least two weeks prior to the scheduled public hearing.
The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the critical area zones, and the granting of the variance will be consistent with the spirit and intent of the County's Critical Area Program and associated ordinances as well as state laws and regulations adopted under Title 8, Subtitle 18, of the Natural Resources Article of the Annotated Code of Maryland and COMAR 27.01.11.
The Board shall further find that the granting of the variance will be in harmony with the general purpose and intent of this chapter, shall not result in a use not permitted in the zone in which the property subject to variance is located and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
Implementation of any mitigation measures which relate to habitat protection areas as delineated in the Charles County Critical Area Program and as required by state and/or County agencies.
In considering an application for variance, the Board of Appeals shall presume that the specific development activity in the critical area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of Natural Resources Article, Title 8, Subtitle 18, COMAR Title 27, and the requirements of the County's Critical Area Program.
If the variance request is based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed, the County shall consider that fact.
An applicant has both the burden of production and the burden of persuasion to overcome the presumption of nonconformance established in Subsection K above.
Based on competent and substantial evidence, the Board shall make written findings as to whether the applicant has overcome the presumption of nonconformance established above.
Any other person deemed appropriate by the County.
In granting the variance, the Board may prescribe such conditions and safeguards as it deems appropriate which comply with the intent of this chapter and the Charles County Critical Area Program. Violations of such conditions and safeguards, when made part of the terms under which the variance is granted, shall be deemed a violation of this chapter and enforceable under Article I.
Planning staff shall provide a copy of the written decision to the Critical Area Commission staff within 10 working days after the written decision regarding a variance application is issued.
No permits shall be issued for a development activity subject to a variance until the applicable thirty-day appeal period has elapsed.
An appeal from any final order or decision of an administrative official may be taken to the Board by an aggrieved applicant. An appeal is taken by filing a written notice of appeal with the Zoning Officer and the Board specifying the grounds therefor. The date and time of filing shall be entered on the notice by the Zoning Officer.
An appeal must be filed within 30 days after the date of the decision or order appealed from.
Whenever an appeal is filed, the Zoning Officer shall transmit to the Board the entire record relating to the action appealed from. All Board hearings or appeals are de novo proceedings.
An appeal stays all construction or activities that are the subject of a duly issued stop-work order. An appeal stays all other actions by the Zoning Officer seeking enforcement or compliance with the order or decision appealed from, unless the Zoning Officer certifies to the Board that a stay would cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the Board or a court, issued on application of the party seeking the stay, for due cause shown.
The Board may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from and may make any order, requirement, decision or determination that, in its opinion, ought to be made in the case before it. To this end, the Board shall have all the powers of the administrative official from whom the appeal was taken.
When an appeal is taken to the Board in accordance with this section, the Zoning Officer shall have the initial burden of presenting to the Board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall have the burden of persuasion on all questions of fact which are to be determined by the Board.
The Board is authorized to consider and approve the expansion or extension of an existing nonconforming situation in accordance with the provisions and requirements of this Article XXV.
A decision of the Board granting an extension or expansion of an existing nonconforming situation shall adhere to the standards provided in this Article XXV.
An appeal from a final order or decision of the Board of Appeals for a special exception for surface mining, an asphalt plant, concrete plant or sand and gravel washing, crushing or screening may be taken to the County Commissioners by an aggrieved party as described in Article 66b, § 4.08(a), of the Annotated Code of Maryland. An appeal is taken by filing a written notice of appeal with the County Commissioners specifying the grounds therefor. The date and time of filing shall be entered on the notice by the County Clerk.
Editor's Note: Said article was repealed by Acts 2012, 426, effective 10-1-2012. See now the Land Use Article, § 4-401 et seq.
An appeal must be filed within 30 days after the date of the decision or order appealed from. The term shall be calculated from the date the order is executed by signature of all participating members and the Clerk to the Board of Appeals.
Whenever an appeal is filed, the Clerk to the Board shall transmit to the County Commissioners the entire record relating to the action appealed from. All Commissioner hearings on appeals are "on the record" proceedings; however, relevant evidence and testimony may be allowed in cases where, in the judgment of the Commissioners, it represents information that could not have been available to the Board at the time of the Board's public hearing and the testimony is necessary for the proper disposition of the matter.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Officer certifies to the Commissioners that a stay would cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the Commissioners or a court, issued on application of the party seeking the stay, for due cause shown.
The Commissioners may reverse or affirm, in whole or in part, may modify or remand, the order, requirement, decision or determination appealed from and may make any order, requirement, decision or determination that, in its opinion, ought to be made in the case before it. To this end, the Commissioners shall have all the powers of the Board of Appeals.
The County Commissioners will notify all parties to the proceeding before the Board of Appeals that an appeal has been filed by mailing notice that an appeal has been filed within three days of receiving the notice of appeal. Any party before the Board may participate as a party in an appeal by filing a written notice of intent to participate in the appeal with the County Commissioners within 15 days from the date of the notice that an appeal has been filed. Other aggrieved parties may file motions as intervenors in the case and present argument. The burden of presenting evidence is borne by the appellant, who shall have the burden of persuasion on all questions which are to be determined by the Commissioners.
The Commissioners shall adopt rules and procedures for considering an appeal of a special exception under this section, including the time for filing legal memoranda, presenting oral argument and issuing a written decision and order deciding the appeal.
The decision and order of the County Commissioners may be appealed to the Circuit Court in accordance with the provisions of Article 66b, § 4.08.


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The Civil Rights Division submitted an appeals brief on February 15, arguing that the Boy Scouts' leasing of parkland from the City of San Diego does not violate the Constitution. In Barnes-Wallace v. Boy Scouts of America, the U.S. District Court held that the Boy Scouts of America is a religious organization and therefore leases between the City and the Scouts to operate portions of city parkland violated the Establishment Clause of the Constitution. The United States' amicus brief to the Ninth Circuit Court of Appeals in San Francisco explains that the Boy Scouts is not a religious organization for constitutional purposes, and that in any event the leases are value-for-value transactions that would not violate the Constitution even if made by the city with a church or other religious organization.
The suit was brought by the ACLU on behalf of six San Diego residents in U.S. District Court in San Diego challenging two leases for city-owned, undeveloped parkland. In exchange for use of the land, the Boy Scouts agreed to invest several million dollars developing the sites, pay all operating and maintenance costs, and open the facilities for use by other San Diego youth organizations and individuals. Pursuant to these leases, the Boy Scouts built an aquatic center on Fiesta Island for swimming, canoeing, and other water sports, and built a campground in Balboa Park. The City of San Diego has entered similar leases for the development and maintenance of city-owned buildings and parkland with more than 100 other community organizations. The lawsuit challenges the leases on the ground that the Boy Scouts is a religious organization and that the leases therefore violate the Establishment Clause of the Constitution. The District Court agreed, and invalidated both leases.
The Civil Rights Division's brief argues for reversal, stressing that the fact that the Boy Scout Oath mentions God and the Scout Law includes reverence as a virtue does not transform the Boy Scouts into a church for Establishment Clause purposes. Rather, the brief explains, the Boy Scouts "is a social and recreational organization dedicated to promoting good character, citizenship, and personal fitness in young boys in a manner that does not undermine, and in fact respects and supports, the religious values with which they enter the program." The brief also explains that even if this case did involve an actual church, the leases would nonetheless be a legitimate arms-length arrangement in which each side gave something of value to obtain a benefit: the Boy Scouts paid a substantial sum of money in development and maintenance costs and received use of the land, and the City gave use of the land in exchange for the Scouts providing valuable recreational resources that are open to the public. Such arrangements, made between the City and many other San Diego nonprofit groups, maximize the public benefit from public land. The brief further explains that the activities at issue–camping, canoeing, and swimming–are secular in nature and are simply outside the purview of the Establishment Clause.
"Put simply, the Boy Scouts of America is not a church, and camping, canoeing, and swimming are not religious activities," said R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division. "The Boy Scouts should not be barred from leasing public lands on an equal basis with other youth groups."
The United States Court of Appeals for the Seventh Circuit handed down an important victory for the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) on February 1. In Sts. Constantine and Helen Greek Orthodox Church v. City of New Berlin, the appeals court unanimously held that New Berlin, Wisconsin violated RLUIPA when it declined to rezone a 40-acre plot of land to permit a Greek Orthodox congregation to build a church. The Civil Rights Division submitted a friend-of-the-court brief, and argued the case for the United States before the court. This is only the second federal appellate decision upholding the claim of a house of worship under RLUIPA. The United States also participated in the first RLUIPA appellate victory, Midrash Sephardi v. City of Surfside, argued by Assistant Attorney General R. Alexander Acosta and handed down by the U.S. Court of Appeals for the Eleventh Circuit last year.
In Sts. Constantine and Helen, the Seventh Circuit held, in an opinion by Judge Richard Posner, that the city's denial of rezoning, and its proposal of various "delaying game" procedural hoops, imposed a substantial burden on the church's religious exercise. The Court rejected the trial court's reasoning that a substantial burden could be found only if a church demonstrated that it could locate nowhere else in the jurisdiction. Instead, the court found that "the burden here was substantial. The Church could have searched around for other parcels of land... , or it could have continued filing applications with the City, but in either case there would have been delay, uncertainty, and expense."
The court explained that the purpose of the "substantial burden" provision of RLUIPA is to "backstop[ ] the explicit prohibition of nondiscrimination in the later sections of the Act." The substantial burden provision thus addresses "the vulnerability of religious institutions–especially those that are not affiliated with the mainstream Protestant sects or the Roman Catholic Church– to subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards."
The Civil Rights Division submitted a brief with the Florida Supreme Court on January 25 arguing that the Florida Court of Appeals employed an erroneous reading of U.S. Supreme Court precedent when it struck down a Florida school-choice program.
The case involves Florida's Opportunity Scholarship Program, which provides students in failing schools with scholarships to use at the school of their choice, whether public or private. Several Florida taxpayers, represented by the ACLU, People for the American Way, and a number of other nonprofit advocacy groups, challenged the case under the Establishment Clause of the United States Constitution as well as provisions of the Florida constitution. The State of Florida, joined by the Urban League and parents who intervened in the case, vigorously defended the scholarship program. After the Supreme Court upheld school vouchers in Zelman v. Simmons-Harris in 2002, the plaintiffs dropped their Establishment Clause claim, but continued to pursue their Florida constitutional claims.
On November 12, 2004, the Florida Court of Appeals ruled that the Opportunity Scholarship Program violated a provision of the Florida Constitution that bars money from the state treasury from being used "in aid of any sectarian institution." Prior Florida Supreme Court cases had upheld tax exemptions and revenue bonds that aided religious institutions under this no-aid provision, because these benefit programs were not directed at aiding religion but were simply general welfare programs in which religious institutions sought to participate. The appeals court, however, distinguished these cases on the ground that they did not involve direct cash transfers as does the Opportunity Scholarship Program. The appeals court also rejected the argument of the State and the intervernors that applying the Florida constitution to bar students choosing religious schools from the program would be discrimination against religion in violation of the Free Exercise Clause of the U.S. Constitution. The appeals court found this case to be similar to Locke v. Davey (2004), in which the U.S. Supreme Court held that barring a state-scholarship recipient from using his scholarship toward a divinity degree did not violate the Free Exercise Clause.
In its amicus brief to the Florida Supreme Court, the Civil Rights Division argues that the Florida Court of Appeals misread Locke v. Davey. Locke, the brief stresses, "did not purport to overrule prior Free Exercise precedents barring discrimination against religion, but simply applied these precedents to the specific situation of a State declining to fund the actual training of clergy." The brief points out that the Opportunity Scholarship Program involves neither of the two special circumstances highlighted by the Supreme Court in Locke: the long historical pedigree of the principle "prohibit[ing] using tax funds to support the ministry," and the "relatively mild burden" on scholarship recipients due to the small amount of the scholarship in that case and the ability of divinity school students to use it toward courses of study at other schools.
The brief explains how the Opportunity Scholarship presents an entirely different set of facts from those in Locke. First, in contrast to the mild burden on the scholarship recipient in Locke, the Opportunity Scholarship Program provides children from poor areas with scholarships of several thousand dollars. Denying these scholarships could dramatically and negatively impact these children. Second, unlike the bar on funding clergy training upheld in Locke, "[h]ere, by contrast, the State actively is seeking means to improve general primary and secondary education for the poorest of students. No comparable historical pedigree exists for barring such funds from being used by families for tuition at religiously affiliated primary and secondary schools."
The brief also explains how the interpretation of the Florida no-aid provision adopted by the Florida Court of Appeals would jeopardize a wide range of Florida programs, from Medicaid funds that go to religiously affiliated hospitals to state programs for students with disabilities, some of whom attend religious schools. The court of appeals' interpretation of the no-aid provision would thus lead to discrimination against religious students and other benefit recipients in a wide range of programs, raising serious federal constitutional questions. Given these serious consequences of the court of appeals' reasoning, the brief urges the Florida Supreme Court to apply the doctrine of constitutional avoidance, that is, avoiding creating federal constitutional difficulties whenever possible. The brief argues that the best interpretation of the no-aid provision in this case therefore is to interpret it consistent with prior precedent allowing aid under general welfare programs to go to religious uses through the private choices of beneficiaries. This would avoid the First Amendment problems, both in this case and in future cases involving other programs.
On February 2, 2005, the Civil Rights Division closed its investigation into whether the City of Lyndhurst, Ohio violated the rights of an Orthodox Jewish Synagogue under the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied it a use permit. The investigation was closed in response to the City Council's changing course and deciding to grant the permit.
The Warrensville Center Synagogue was founded in 1959 to serve an Orthodox Jewish congregation in Cleveland Heights, an eastern suburb of Cleveland, Ohio. The congregation consists substantially of elderly Holocaust survivors, and currently numbers a little under 200 members. The congregation sold its facility in Cleveland Heights because many of its members had difficulty walking long distances. In August 2000, the congregation purchased a lot of slightly less than one acre in Lyndhurst, Ohio, on a site where congregants could more easily walk to services.
On August 23, 2001, the Planning Commission denied Warrensville Center Synagogue's application, stating that the application failed to meet the objectives and specific requirements of the city's Master Plan and zoning ordinance, which requires a two-acre minimum lot size for religious institutions. On September 4, 2001, the City Council affirmed the Commission's denial of the congregation's application, stating that the parcel was a non-conforming lot.
The Civil Rights Division opened an investigation of the city in December 2003 to determine if it had violated the synagogue's RLUIPA rights. In November 2004, the parties reached an agreement on a revised building plan that the city believed would be better suited to the lot size and that the congregation agreed would accommodate its needs. With the Mayor's assistance, the congregation also reached an agreement to share parking with the Church of the Good Shepherd on an adjoining parcel. With these concerns addressed, the city approved the revised application for a conditional use permit and the variances necessary to enable the synagogue to build on the location it had chosen. The Civil Rights Division closed its investigation in response.
Assistant Attorney General for Civil Rights, R. Alexander Acosta, applauded the city's approval of the synagogue: "We are pleased that the city was able to find a solution that accommodated both the rights of the synagogue members and the concerns of the city in managing development."
The Civil Rights Division's prosecutions of religious-based bias crimes continue to yield strong results. Prosecuting the perpetrators of bias-motivated crimes remains a top priority of the Justice Department. During Fiscal Year 2004, the Justice Department brought a record number of criminal civil rights prosecutions.
Portland, Oregon Cemetery Desecration: Two Oregon men have pleaded guilty to desecrating a Jewish cemetery in Portland. The two men admitted that on May 24, 2003, they vandalized the Congregation Shaarie Torah Cemetery by painting swastikas and anti-Semitic slogans in order to frighten and intimidate area Jewish residents. On January 13, the Division announced that Sean Andrew Sigley, a self-described white supremacist, pleaded guilty to federal conspiracy charges. He will be sentenced on March 28, 2005, and faces up to ten years in prison. His accomplice, Steven Hale Smith, pleaded guilty to damaging religious property on February 3, 2005. He also awaits sentencing. The case was investigated by the Federal Bureau of Investigation and the Portland Police Bureau.
Voice mail threats to Nebraska Mosque: George M. Doyle, II, who pleaded guilty to leaving threatening voice mail messages on the answering machine of the Islamic Center of Omaha on November 17, 2004, was sentenced to 10 days imprisonment and required to apologize to his victims.
E-mail threat to Muslim Organization: On January 13, 2005, Dale T. Ehrgott pleaded guilty to sending threatening emails from Reno, Nevada to the Washington, D.C. offices of the Council on American-Islamic Relations. He was sentenced by the court to one year's probation and fifty hours of community service.

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For the third time since April, we look at preferred venue in Indiana. As we previously discussed, in American Family Insurance Co. v. Ford Motor Co., the Indiana Supreme Court interpreted Trial Rule 75(A)(4) to allow preferred venue in the county where a defendant business’s registered agent resides. At the start of this year, however, Indiana overhauled its business laws by adopting the Uniform Business Organizations Code. With that adoption came Indiana Code § 23–0.5–4–12, which states, “The designation or maintenance in Indiana of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in Indiana. The address of the agent does not determine venue in an action or a proceeding involving the entity.” Upon enactment of Section 12, the question became whether it overruled American Family Insurance. In Morrison v. Vasquez, the Court of Appeals of Indiana sought to provide an answer.
Before getting into how the court reached its conclusion, we should start with a simple overview of Indiana venue procedure and the American Family Insurance decision.
We agree that this definition from the Business Corporation Act is not what the venue rules had in mind. Indiana Code section 23-1-20-19 was enacted over fifteen years after the adoption of Trial Rule 75 as a part of the overhaul of the Business Corporation Act. The currently effective Rules of Trial Procedure, including Trial Rule 75, were adopted in 1970. At that time Indiana’s corporation law required that both foreign and domestic corporations maintain a “principal office in this state” where a designated resident agent for service of process could be found. It is that office to which Trial Rule 75 referred by using the same phrase to provide in subsection (4) that preferred venue lies in “the county where . . . the principal office of a defendant organization is located.” When the Business Corporation Act was adopted in 1986, what had formerly been called the “principal office in this state” was designated the “registered office.” This avoided the confusion between “principal place of business,” which means the corporate headquarters for purposes of federal diversity jurisdiction under 28 U.S.C. section 1332, and “principal office,” which means the place in Indiana where one serves the corporate registered agent. By adopting the term “registered office,” the Business Corporation Act did not intend to change the venue rules for foreign corporations. Indeed, foreign corporations qualified to do business under other laws, for example, the Financial Institutions Act, to this day are required to have a “principal office in this state.” In short, at the time the current Rules of Trial Procedure were proposed, the phrase “principal office” referred to what is currently known as the “registered office” of a foreign corporation qualified to do business in Indiana. Thus, if a foreign corporation is qualified to do business in Indiana under the Business Corporation Act, it will necessarily have a “principal office in the state”—now called a “registered office”—irrespective of where its corporate headquarters may be. Accordingly, subsection (4) of Trial Rule 75 establishes preferred venue in the county of the defendant organization’s registered office.
Further, we do not find Morrison’s argument that [Section 12] is ineffective under Trial Rule 75(D) to be persuasive. Trial Rule 75(D) provides in part: “Any provision of these rules and any special or general statute relating to venue, the place of trial or the authority of the court to hear the case shall be subject to this rule, and the provisions of any statute fixing more stringent rules thereon shall be ineffective.” As explained above, Trial Rule 75(A)(4) provides that preferred venue lies in the county where “the principal office of a defendant organization” is located, and [Section 12] provides that the address of the registered agent does not determine venue. Thus, [Section 12] does not, by its express terms, fix more stringent rules related to venue than the terms of Trial Rule 75(A)(4).
To the extent Am. Family Ins. Co. may have determined that the term “principal office” in subsection (4) of the rule referred to a domestic corporation’s “registered office,” that determination was premised on Indiana corporation law which has since been considerably amended. Specifically, the Court in Am. Family Ins. Co. observed that, at the time Rule 75 was adopted in 1970, Indiana’s corporation law required that corporations maintain a “principal office in this state” where an agent for service of process could be found and that, “[w]hen the Business Corporation Act was adopted in 1986, what had formerly been called the ‘principal office in this state’ was designated the ‘registered office.’” The Court expressly found that, “[b]y adopting the term ‘registered office,’ the Business Corporation Act did not intend to change the venue rules for foreign corporations.” Thus Am. Family Ins. Co.was based on the corporation law adopted in 1986 and the fact the statutory provisions added by the legislature at that time did not intend to change the venue rules. However, Indiana’s corporation law was significantly amended by Pub. Law No. 118-2017 (eff. Jan. 1, 2018). . . . Thus the Indiana corporation law upon which Am. Family Ins. Co.was centered has been extensively amended, and the specific statutory provision relied upon in that case has been repealed and [Section 12] has been added. We decline to find that [Section 12]’s provision that the address of a registered agent does not determine venue fixes a more stringent rule related to venue than Trial Rule 75 or is ineffective pursuant to Trial Rule 75(D).
Do I agree with the court of appeals? I do not. Under 75(A)(4), venue is proper in “the county where either the principal office of a defendant organization is located or the office or agency of a defendant organization or individual[.]” That appears to say that the “principal office” is distinct from “the office . . . of a defendant organization.” But Section 12 renders “principal office” void. That is necessarily a statute that fixes a more stringent rule—it has cut out half of subdivision (4).
Our “rules of procedure prevail over any statute or statutory construction.” The General Assembly itself has recognized that we have sole authority over “practice and procedure in all the courts of Indiana,” and that “all laws in conflict with the supreme court's rules have no further force or effect.” Thus, in this conflict between Indiana Code § 35–38–4–2 and our Appellate Rule 9, the former must give way to the latter.
Accordingly, if Section 12 is purporting to overrule Trial Rule 75, then Section 12 must give way. And that looks to be exactly what Section 12 is purporting to do.
There are two more statutes we should also consider. The first is Indiana Code § 34–8–1–3, to which the Indiana Supreme Court referred in the excerpt above. It states, “The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court, and thereafter all laws in conflict with the supreme court’s rules have no further force or effect.” That statute really does not add much, except to confirm the General Assembly’s agreement with the Indiana Supreme Court as to the court’s own power.
The second statute is one that has never been substantively addressed by an Indiana Appellate Court. Indiana Code § 34–8–2–1 reads, “The general assembly of the state of Indiana affirms the inherent power of the supreme court of Indiana to adopt, amend, and rescind rules of court affecting matters of procedure, and the general assembly reaffirms the power given to the supreme court to adopt, amend, and rescind rules of court, including the rules of court adopted in this chapter, as set forth by IC 34–8–1–1. However, the power of the supreme court to adopt, amend, and rescind rules of court does not preclude the creation, by statute, of alternatives to the change of venue.” The last sentence is the one of note. Even if the General Assembly could reserve any such control over procedures for change of venue, this is not a matter of change of venue, but of affixing venue in the first place.
I think Section 12 is an overreach by the General Assembly and cannot form a basis for changing course from American Family Insurance. Only a properly enacted amendment to Trial Rule 75(A)(4) can do what the Indiana Court of Appeals asserts Section 12 has done.
That said, I think transfer may be sought to the Indiana Supreme Court but doubt that the issue will be taken up by the court any time soon. Although the result is one that appears to offend the separation of powers and proper amendment to the Trial Rules, it is likely to be viewed as a triviality and not a battle worth picking for the state’s highest court. Still, were I on the court, I would vote to grant transfer.
Before closing, one other decision from this week merits note. In Holland v. Indiana Farm Bureau Insurance, it was held that the statute of limitations on a claim by an insurer for subrogation funds held by an attorney on behalf of the insured is two years and begins to run at the time the insurance company knows (or, presumably, should have known) the attorney (or, presumably, the client) refuses to pay.
On November 7, 2018, a separate panel of the Court of Appeals of Indiana issued a decision directly contrary to Morrison, finding Morrison wrongly decided. It now looks like transfer will be sought in Morrison and a near certainty that the Indiana Supreme Court will grant transfer to resolve the split.
Morrison v. Vasquez, ---N.E.3d---, No. 18A-CT-376, 2018 Ind. App. LEXIS 305 (Ind. Ct. App. Aug. 28, 2018) (Brown, J.).
Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971 (Ind. 2006) (Boehm, J.).
Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind. Ct. App. 1999) (Riley, J.).
Western Sales & Serv. v. Ford Motor Co.,576 N.E.2d 631, 632 (Ind. Ct. App. 1991) (Shields, J.).
State v. Holtsclaw, 977 N.E.2d 348, 350 (Ind. 2012) (Massa, J.).
Parkison v. Thompson, 164 Ind. 609, 626–27, 73 N.E. 109, 115 (1905) (Jordan, J.).
Holland v. Ind. Farm Bureau Ins., No. 18A-PL-792, 2018 Ind. App. LEXIS 303 (Ind. Ct. App. Aug. 28, 2018) (Baker, J.).
Colin E. Flora, Indiana: Preferred Venue Rests with Registered Agent Designated to the Secretary of State, Not with Process Agents Registered for Other Purposes, Hoosier Litig. Blog (Apr. 20, 2018).
Colin E. Flora, Did the Indiana Court of Appeals Just Rewrite Trial Rule 75(A)?, Hoosier Litig. Blog (Apr. 28, 2018).


Supreme Court Decides Republic of Sudan v. Harrison et al.
On March 26, 2019, the U.S. Supreme Court decided Republic of Sudan v. Harrison et al., No. 16-1094, holding that the Foreign Sovereign Immunities Act of 1976 (FSIA) requires a mailing to be sent directly to the foreign minister’s office in the foreign state to perfect service. 28 U.S.C. §1608(a)(3).
Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U.S.C. §§1604, 1605–1607. If a suit falls within one of these exceptions, FSIA provides for personal jurisdiction “where service has been made under section 1608.” 28 U.S.C. §1330(b). In particular, it sets out in hierarchical order the methods by which “[s]ervice . . . shall be made.” 28 U.S.C. §1608(a). The third method includes “sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.” §1608(a)(3).
Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. At respondents’ request, the clerk of the court sent the service packet, return receipt requested, to Sudan’s Minister of Foreign Affairs at the Sudanese Embassy in the U.S. The clerk certified that the service packet had been sent and certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan.
Sudan filed a notice of appeal and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the U.S. The Second Circuit affirmed, reasoning that the statute was silent on where the mailing must be sent and that the method chosen was consistent with the statute’s language and could be reasonably expected to result in delivery to the foreign minister.
The Supreme Court reversed. The Court emphasized that, although this was not the only plausible reading of the statutory text, the most natural reading of the Act’s language is that service must be mailed directly to the foreign minister’s office in the foreign state. A letter or package is “addressed” to an intended recipient when his or her name and “address” is placed on the outside of the item to be sent. And the noun “address,” in the sense relevant here, means “the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with.” A foreign nation’s embassy in the U.S. is neither the residence nor the usual place of business of that nation’s foreign minister. Similarly, to “dispatch” a letter to an addressee connotes sending it directly. It is also significant that service under §1608(a)(3) requires a signed returned receipt to ensure delivery to the addressee. Additionally, this interpretation of §1608(a)(3) avoids potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations.
Justice Alito delivered the opinion of the Court in which Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Thomas filed a dissenting opinion.
Download Opinion of the Court.