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See 67 S.Ct. 27. [328 U.S. 293, 294] Mr. Roger S. Foster, of Philadelphia, Pa., for petitioner.
Messrs. C. E. Duncan, of Tavares, Fla., and George C. Bedell, of Jacksonville, Fla., for respondents.
This case involves the application of 2(1) of the Securities Act of 19331 to an offering of units of a citrus grove development coupled with a contract for cultivating, marketing and remitting the net proceeds to the investor.
The Securities and Exchange Commission instituted this action to restrain the respondents from using the mails and instrumentalities of interstate commerce in the offer and sale of unregistered and nonexempt securities in violation of 5(a) of the Act, 15 U.S.C.A. 77e(a). The District Court denied the injunction, 60 F.Supp. 440, and the Fifth Circuit Court of Appeals affirmed the judgment, 151 F.2d 714. We granted certiorari, 327 U.S. 773 , 66 S.Ct. 821, on a petition alleging that the ruling of the Circuit Court of Appeals conflicted with other federal and state decisions and that it introduced a novel and unwarranted test under the statute which the Commission regarded as administratively impractical.
Most of the facts are stipulated. The respondents, W. J. Howey Company and Howey-in-the-Hills Service [328 U.S. 293, 295] Inc., are Florida corporations under direct common control and management. The Howey Company owns large tracts of citrus acreage in Lake County, Florida. Duringt he past several years it has planted about 500 acres annually, keeping half of the groves itself and offering the other half to the public 'to help us finance additional development.' Howey-in-the-Hills Service, Inc., is a service company engaged in cultivating and developing many of these groves, including the harvesting and marketing of the crops.
Each prospective customer is offered both a land sales contract and a service contract, after having been told that it is not feasible to invest in a grove unless service arrangements are made. While the purchaser is free to make arrangements with other service companies, the superiority of Howey-in-the-Hills Service, Inc., is stressed. Indeed, 85% of the acreage sold during the 3-year period ending May 31, 1943, was covered by service contracts with Howey-in-the-Hills Service, Inc.
The land sales contract with the Howey Company provides for a uniform purchase price per acre or fraction thereof, varying in amount only in accordance with the number of years the particular plot has been planted with citrus trees. Upon full payment of the purchase price the land is conveyed to the purchaser by warranty deed. Purchases are usually made in narrow strips of land arranged so that an acre consists of a row of 48 trees. During the period between February 1, 1941, and May 31, 1943, 31 of the 42 persons making purchases bought less than 5 acres each. The average holding of these 31 persons was 1.33 acres and sales of as little as 0.65, 0.7 and 0.73 of an acre were made. These tracts are not separately fenced and the sole indication of several ownership is found in small land marks intelligible only through a plat book record. [328 U.S. 293, 296] The service contract, generally of a 10-year duration without option of cancellation, gives Howey-in-the-Hills Service, Inc., a leasehold interest and 'full and complete' possession of the acreage. For a specified fee plus the cost of labor and materials, the company is given full discretion and authority over the cultivation of the groves and the harvest and marketing of the crops. The company is well established in the citrus business and maintains a large force of skilled personnel and a great deal of equipment, including 75 tractors, sprayer wagons, fertilizer trucks and the like. Without the consent of the company, the land owner or purchaser has no right of entry to market the crop;2 thus there is ordinarily no right to specific fruit. The company is accountable only for an allocation of the net profits based upon a check made at the time of picking. All the produce is pooled by the respondent companies, which do business under their own names.
The purchasers for the most part are non-residents of Florida. They are predominantly business and professional people who lack the knowledge, skill and equipment necessary for the care and cultivation of citrus trees. They are attracted by the expectation of substantial profits. It was represented, for example, that profits during the 1943-1944 season amounted to 20% and that even greater profits might be expected during the 1944-1945 season, although only a 10% annual return was to be expected over a 10-year period. Many of these purchasers are patrons of a resort hotel owned and operated by the Howey Company in a scenic section adjacent to the groves. The hotel's advertising mentions the fine groves in the vicinity and the attention of the patrons is drawn to the [328 U.S. 293, 297] groves as they are being escorted about the surrounding countryside. They are told that the groves are for sale; if they indicate an interest in the matter they are then given a sales talk.
It is admitted that the mails and instrumentalities of interstate commerce are used in the sale of the land and service contracts and that no registration statement or letter of notification has ever been filed with the Commissioni n accordance with the Securities Act of 1933 and the rules and regulations thereunder.
Section 2(1) of the Act defines the term 'security' to include the commonly known documents traded for speculation or investment. 3 This definition also includes 'securities' of a more variable character, designated by such descriptive terms as 'certificate of interest or participation in any profit-sharing agreement,' 'investment contract' and 'in general, any interest or instrument commonly known as a 'security." The legal issue in this case turns upon a determination of whether, under the circumstances, the land sales contract, the warranty deed and the service contract together constitute an 'investment contract' within the meaning of 2(1). An affirmative answer brings into operation the registration requirements of 5(a), unless the security is granted an exemption under 3(b), 15 U.S.C.A. 77c(b). The lower courts, in reaching a negative answer to this problem, treated the contracts and deeds [328 U.S. 293, 298] as separate transactions involving no more than an ordinary real estate sale and an agreement by the seller to manage the property for the buyer.
By including an investment contract within the scope of 2(1) of the Securities Act, Congress was using a term the meaning of which had been crystallized by this prior judicial interpretation. It is therefore reasonable to attach that meaning to the term as used by Congress, especially since such a definition is consistent with the statutory aims. In other words, an investment contract for purposes of the Securities Act means a contract, trans- [328 U.S. 293, 299] action or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical as ets employed in the enterprise. Such a definition necessarily underlies this Court's decision in Securities Exch. Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344 , 64 S.Ct. 120, and has been enunciated and applied many times by lower federal courts. 5 It permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issuance of 'the many types of instruments that in our commercial world fall within the ordinary concept of a security.' H. Rep.No.85, 73rd Cong., 1st Sess., p. 11. It embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.
The transactions in this case clearly involve investment contracts as so defined. The respondent companies are offering something more than fee simple interests in land, something different from a farm or orchard coupled with management services. They are offering an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by respondents. They are offering this opportunity to persons who reside in distant localities and who lack the equip- [328 U.S. 293, 300] ment and experience requisite to the cultivation, harvesting and marketing of the citrus products. Such persons have no desire to occupy the land or to develop it themselves; they are attracted solely by the prospects of a return on their investment. Indeed, individual development of the plots of land that are offered and sold would seldom be economically feasible due to their small size. Such tracts gain utility as citrus groves only when cultivated and developed as component parts of a larger area. A common enterprise managed by respondents or third parties with adequate personnel and equipment is therefore essential if the investors are to achieve their paramount aim of a return on their investments. Their respective shares in this enterprise are evidenced by land sales contracts and warranty deeds, which serve as a convenient method of determining the investors' allocable shares of the profits. The resulting transfer of rights in land is purely incidental.
Thus all the elements of a profit-seeking business venture are present here. The investors provide the capital and share in the earnings and profits; the promoters manage, control and operate the enterprise. It follows that the arrangements whereby the investors' interests are made manifest involve investment contracts, regardless of the legal terminology in which such contracts are clothed. The investment contracts in this instance take the form of land sales contracts, warranty deeds and service contracts which respondents offer to prospective investors. And respondents' failure to abide by the statutory and administrative rules in making such offerings, even though the failure result from a bona fide mistake as to the law, cannot be sanctioned under the Act.
This conclusion is unaffected by the fact that some purchasers choose not to accept the full offer of an investment contract by declining to enter into a service contract with [328 U.S. 293, 301] the respondents. The Securities Act prohibits the offer as well as the sale of unregistered, non-exempt securities. 6 Hence it is enough that the respondents merely offer the essential ingredients f an investment contract.
We reject the suggestion of the Circuit Court of Appeals, 151 F.2d at page 717, that an investment contract is necessarily missing where the enterprise is not speculative or promotional in character and where the tangible interest which is sold has intrinsic value independent of the success of the enterprise as a whole. The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. If that test be satisfied, it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value. See S. E.C. v. C. M. Joiner Leasing Corp., supra, 320 U.S. 352 , 64 S.Ct. 124. The statutory policy of affording broad protection to investors is not to be thwarted by unrealistic and irrelevant formulae.
'... the record in this case shows that not a single sale of citrus grove property was made by the Howey Company during the period involved in this suit, except to purchasers who actually inspected the property before purchasing the same. The record further discloses that no purchaser is required to engage the Service Company to care for his property and that of the fifty-one purchasers acquiring property during this period, only forty-two entered into contract with the Service Company for the care of the property.' 60 F.Supp. at page 442.
Simply because other arrangements may have the appearances of this transaction but are employed as an evasion of the Securities Act does not mean that the present contracts were evasive. I find nothing in the Securities Act to indicate that Congress meant to bring every innocent transaction within the scope of the Act simply because a perversion of them is covered by the Act.
[ Footnote 1 ] 48 Stat. 74, 15 U.S.C. 77b(1), 15 U.S.C.A. 77b(1).
[ Footnote 2 ] Some investors visited their particular plots annually, making suggestions as to care and cultivation, but without any legal rights in the matters.
[ Footnote 4 ] State v. Evans, 154 Minn. 95, 191 N.W. 425, 27 A.L.R. 1165; Klatt v. Guaranteed Bond Co., 213 Wis. 12, 250 N.W. 825; State v. Health, 199 N.C. 135, 153 S.E. 855, 87 A.L.R. 37; Prohaska v. Hemmer-Miller Development Co., 256 Ill.App. 331; People v. White, 124 Cal.App. 548, 12 P.2d 1078; Stevens v. Liberty Packing Corp., 111 N.J.Eq. 61, 161 A. 193. See also Moore v. Stella, 52 Cal.App.2d 766, 127 P.2d 300.
[ Footnote 5 ] Atherton v. United States, 9 Cir.,. 128 F.2d 463; Penfield Co. of California v. S.E. C., 9 Cir., 143 F.2d 746; S.E.C. v. Universal Service Association, 7 Cir., 106 F.2d 232; S.E.C. v. Crude Oil Corp., 7 Cir., 93 F. 2d 844; S.E.C. v. Bailey, D.C., 41 F.Supp. 647; S.E.C. v. Payne, D.C., 35 F.Supp. 873; S.E.C. v. Bourbon Sales Corp., D.C., 47 F.Supp. 70; S.E.C. v. Wickham, D.C., 12 F.Supp. 245; S.E.C. v. Timetrust, Inc., D.C., 28 F.Supp. 34; S.E.C. v. Pyne, D.C., 33 F.Supp. 988. The Commission has followed the same definition in its own administrative proceedings. In re Natural Resources Corporation, 8 S.E.C. 635.
[ Footnote 6 ] The registration requirements of 5 refer to sales of securities. Section 2(3) defines 'sale' to include every 'attempt or offer to dispose of, or solicitation of an offer to buy,' a security for value.

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Rodriguez v Republic Services, Inc.
This case was before the court on the parties’ cross-motions for summary judgment. At issue was whether the defendants pay policy—whereby they paid their trash collector employees purported “day rates” for days worked during the week (i.e. Monday-Friday) and hourly pay for weekend work—complied with 29 C.F.R. § 778.112, the regulation governing payment of day rates. The court held that it did not, because violated the clear language of the regulation and because the plaintiffs performed the same work during the week for the defendants as they did on the weekends (i.e. it was 2 different forms of pay for the same type of work). Following the court’s order denying their motion for summary judgment, the defendants sought reconsideration, which was also denied by the court with a further explanation. Both order are discussed here.
Defendant BFI Waste Services of Texas, LP d/b/a Allied Waste Services of San Antonio (“BFI”) operates a residential collection, recycling and waste disposal business in and around San Antonio, Texas. Gilbert Rodriguez (“Plaintiff Rodriguez”) and Refugio Campos (“Plaintiff Campos”) were employed by BFI as Residential Route Drivers and thus were primarily responsible for driving through various residential garbage routes collecting and disposing of residential waste. Plaintiff Rodriguez worked for BFI from August of 2012 until February of 2013, while Plaintiff Campos worked for BFI from September of 2012 until November of 2012.
During the relevant time period, BFI paid Plaintiff Rodriguez and Plaintiff Campos (collectively “Plaintiffs”) under a “hybrid compensation plan” that included payments based on both a daily and hourly rate. For the five regularly scheduled work days of the week, Plaintiffs were paid a base day rate of $120. Plaintiffs were also required on occasion to work a day during the weekend (the “Sixth Day”) at the discretion of their supervisor. On the Sixth Day, despite Plaintiffs performing the same work as on the regularly scheduled days, Plaintiffs were paid at an hourly rate based upon each employee’s regular rate of pay for a trailing thirteen-week average. In addition, it appears that Plaintiffs were provided “incentive payments” of $10 for each day worked, including both the regularly scheduled days and the Sixth Day.
If Plaintiffs worked for more than forty hours in a workweek, BFI paid them overtime. The way in which BFI calculated this overtime is exemplified by the pay stub of Plaintiff Rodriguez for the week ending on September 1, 2012. During this week, Plaintiff Rodriguez worked for a total of 51.23 hours at a day rate of $120 over the five regularly scheduled work days. In addition, Plaintiff Rodriguez worked for 6.12 hours on the Sixth Day at an hourly rate of $15. Thus, when taking into account the $60 incentive payment, Plaintiff Rodriguez’s compensation for 57.35 hours was $751.80.
To calculate Plaintiff Rodriguez’s overtime compensation, BFI first determined the “regular rate of pay” by dividing Plaintiff Rodriguez’s total non-overtime compensation for the week by his total number of hours worked. Specifically, BFI divided Plaintiff Rodriguez’s total non-overtime compensation of $751.80 by his 57.35 hours worked. Accordingly, the resulting “regular rate of pay” obtained by BFI for the week ending on September 1, 2012, was $13.11.
BFI then paid Plaintiff Rodriguez overtime for all hours worked in excess of forty at half their regular rate of pay. For the week ending on September 1, 2012, this meant that BFI paid Plaintiff Rodriguez 17.35 hours of overtime at $6.55 per hour, for a total of $113.72 in overtime pay. BFI then added this overtime amount to Plaintiff Rodriguez’s “straight-time” compensation, found by applying the regular rate of $13.11 to all 57.35 hours, to arrive at Plaintiff Rodriguez’s total compensation of $865.52 for the week.
After a brief discussion of 778.112 and 778.115 (the regulation which permits an employer to pay 2 different amounts/types of pay for 2 different types of work), the court explained that 778.115 was inapplicable to the case, because the plaintiffs here performed the same type of work, regardless of the day of the week (i.e. the defendants could not substantiate the hourly pay on this ground). The court similarly analyzed and disposed of the defendants’ 3 remaining arguments as well.
Defendants have provided the Court with a 1967 DOL opinion letter which Defendants argue demonstrates the DOL’s approval of a compensation plan “very similar to the one at issue in this case.” The scenario addressed in the opinion letter revolved around school bus drivers who were also employed as custodians and who were compensated at a day rate of $10. In addition, these bus drivers were paid $2.00 per hour for taking extra bus trips. The letter goes to outline the method for calculating an employee’s regular rate of pay under sections 778.112 and 778.115, before appearing to conclude that the regular rate of pay for these employees could be calculated under section 778.112 by adding the wages earned at both the day and hourly rates and then dividing by the total hours worked in the week. From this, Defendants reason that the DOL has previously approved “essentially the same compensation structure” as the one at issue.
Defendants also argue that, when viewed in the proper context, the DOL regulation concerning day rates supports BFI’s “hybrid” compensation plan. To reach this conclusion, Defendants correctly note that following section 778.109 in the FLSA regulations is a list of “some” different compensation arrangements and the proper method for calculating the employee’s regular rate of pay under each. See 29 C.F.R. § 778.109. Given this context, Defendants reason that section 778.112 merely sets forth one specific situation in which the DOL chose to illustrate the proper regular rate calculation. In other words, Defendants believe that section 778.112 only demonstrates the proper calculation method for scenarios in which an employee is paid a day rate and “no other form of compensation for services.” Defendants therefore conclude that while this regulation exemplifies one way that a regular rate of pay may be determined, it does not serve as a categorical rule prohibiting employers from providing additional compensation to employees paid on a day rate basis.
29 C.F.R. § 778.115 (section titled “Employees working at two or more rates”). Further, section 778.112, upon which Defendants rely, appears to directly contradict the notion that an employee may be compensated on the basis of both a day and hourly rate. Rather, section 778.112 states that it covers employees that are paid a day rate and who also receive “no other form of compensation for services.” Id. at § 778.112.
[I]f the employee has worked 50 hours and has earned $ 491 at piece rates for 46 hours of productive work and in addition has been compensated at $ 8.00 an hour for 4 hours of waiting time, the total compensation, $ 523.00, must be divided by the total hours of work, 50, to arrive at the regular hourly rate of pay—$ 10.46.
The Court is not persuaded by Defendants’ analogy between BFI’s hybrid compensation plan and the arrangement described in the piece rate regulation. Rather, the Court finds that it is more appropriate to compare this example, which involves payment based upon both a flat piece rate as well as an hourly rate to compensate the employee for waiting time, to the scenario in which hospital personnel are compensated for being on-site and on-call. This latter scenario was at issue in Townsend v. Mercy Hospital of Pittsburgh, a Third Circuit case involving hospital personnel that received one wage for their performance of active duties, and another for working “on-premises-on-call” shifts. 862 F.2d at 1010–11. During these “on-premises-on-call” shifts, the hospital personnel were required to stay on the hospital’s premises, but had no assigned duties and were free to eat, sleep, read, and watch television. Id. at 1011. Given the substantive difference in duties, the Third Circuit determined that the personnel’s active periods constituted a different kind of work from the on-call shift when the only responsibility was to be present. Id. at 1011–12.
Viewing the section 778.111 example in light of such authority, the Court finds that the “waiting time” compensation described therein is easily analogous to the “on-premises-on-call” compensation received by the hospital personnel in Townsend. Thus, the employee’s “waiting time” in the example is best viewed as a different kind of work from the active duties being compensated under a piece rate. As noted above, however, the work being performed by BFI’s Residential Route Drivers remains the same throughout the entirety of the workweek, including the occasional Sixth Day. Consequently, rather than endorsing a hybrid compensation arrangement like the one employed by BFI, the example provided in the piece rate regulation and cited by Defendants is distinguishable.
In light of the foregoing, the court denied the defendants’ motion for summary judgment, and held the plaintiffs’ motion in abeyance.
In this case the parties appear to agree that if Plaintiffs only worked Monday through Friday and Defendants had merely paid the Plaintiffs their day rate, section 778.112 would apply. In this scenario, rather than receiving overtime at one and one-half times the regular rate, Plaintiffs would only receive overtime at half-time the regular rate. For whatever business reasons, the employer here employed two additional compensation methods in the payroll system. To acquiesce to this system, however, the court would have to rewrite section 778.112 as follows: If the employee is paid a flat sum for a day’s work … without regard to the number of hours worked in the day …, and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at such day rates … in the workweek and dividing by the total hours actually worked. See Rodriguez v. Carey Intern., Inc., 2004 WL 5582173 (S.D.Fla. Sept.15, 2004) (“[Section 778.112] does not provide definitional contours, nor is there case law to explain the clause. But the most logical and likely reasoning is that the regulation does not apply if one of the other forms of compensation delineated in the surrounding regulations is also utilized, or if the employee is given some other form of compensation separate and apart from the job rate. For example, if besides a job rate, an employee also receives an hourly rate, salary, or commission, for some of his work, the job rate regulation would not apply.”).
While these 2 decisions should seem to be “no-brainers” based on the clear statutory language of 778.112, surprisingly not all courts have agreed the language in 778.112 means what it says. For this reason, these decisions are noteworthy.
Click Rodriguez v Republic Services, Inc. to read the initial Order denying the defendants’ motion for summary judgment and Order on Reconsideration for the Order denying the motion for reconsideration.
By Andrew Frisch in Day Rates on November 4, 2013 .


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COMEDY CLUB INC v. IMPROV WEST ASSOCIATES January 29, 2009 Nos. 05-55739, 05-56100.
UNITED STATES v. SDI FUTURE HEALTH INC January 27, 2009 No. 07-10261.
UNITED STATES v. 40 955 00 IN UNITED STATES CURRENCY January 27, 2009 No. 07-55860.
MOORE THOMAS v. ALASKA AIRLINES INC January 27, 2009 No. 06-35923.
GIBSON v. OFFICE OF ATTORNEY GENERAL January 27, 2009 No. 07-56124.
ANAYA ORTIZ v. MUKASEY January 27, 2009 No. 03–74666.
GIBSON v. OFFICE OF ATTORNEY GENERAL STATE OF CALIFORNIA January 27, 2009 No. 07-56124.
TACO BELL CORPORATION v. TBWA CHIAT DAY INC TBWA January 23, 2009 Nos. 07-56532, 08-55441.
HAUK v. JP MORGAN CHASE BANK USA January 23, 2009 No. 06-56846.
BLAUSEY v. TRUSTEE January 23, 2009 No. 07-15955.
UNITED STATES v. ORLANDO January 23, 2009 No. 07–50473.
BROWN v. CALIFORNIA DEPARTMENT OF CORRECTIONS January 22, 2009 No. 07-55409.
UNITED STATES v. AGUILA MONTES OCA January 20, 2009 No. 05-50170.
UNITED STATES v. BOND January 20, 2009 No. 06-50628.
PHILIP MORRIS USA INC v. KING MOUNTAIN TOBACCO COMPANY INC January 20, 2009 No. 06-36066.
UNITED STATES v. ESPARZA January 20, 2009 No. 07-50293.
MINASYAN v. MUKASEY January 20, 2009 No. 06-73192.
DOE v. AOL LLC January 16, 2009 No. 07-15323.
DONCHEV v. MUKASEY January 16, 2009 No. 05–74709.
ENG v. COOLEY January 14, 2009 No. 07-56055.
RUBKE 1986 v. CAPITOL BANCORP LTD January 13, 2009 No. 07-15083.
UNITED STATES v. McCALEB January 13, 2009 No. 06-50387.
KAISER FOUNDATION HEALTH PLAN INC v. ABBOTT LABORATORIES INC January 13, 2009 Nos. 06-55687, 06-55748.
NOLAN v. HEALD COLLEGE January 13, 2009 No. 07-15679.
UNITED STATES v. AWAD January 12, 2009 No. 06-50578.
ZUCCO PARTNERS LLC v. DIGIMARC CORPORATION January 12, 2009 No. 06-35758.
MENDEZ CASTRO v. MUKASEY January 12, 2009 No. 06-70362.
GORMAN v. WOLPOFF ABRAMSON LLP MBNA AMERICA BANK January 12, 2009 No. 06-17226.
GORMAN v. WOLPOFF ABRAMSON LLP MBNA January 12, 2009 No. 06-17226.
OWENS v. AUTOMOTIVE MACHINISTS PENSION TRUST January 12, 2009 No. 07-35253.
UNITED STATES v. KACZYNSKI FC January 9, 2009 No. 06-10514.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. BRENNEKE January 9, 2009 No. 06-36077.
DIAZ COVARRUBIAS v. MUKASEY January 9, 2009 No. 06-70447.
UNITED STATES v. HELLER January 8, 2009 No. 07-30452.
UNITED STATES v. GONZALEZ ZOTELO January 8, 2009 No. 08-50010.
OREGON v. LEGAL SERVICES CORPORATION January 8, 2009 No. 06-36012.
ENGLERT v. MACDONELL January 7, 2009 Nos. 06-35465, 06-35531.
UNITED STATES v. COLLINS January 7, 2009 No. 06-50339.
METRO LIGHTS v. CITY OF LOS ANGELES January 6, 2009 Nos. 07-55179, 07-55207.
ABEBE v. MUKASEY January 5, 2009 No. 05-76201.
UNITED STATES v. MIKHEL January 5, 2009 No. 07-99008.

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California Vehicle Code §23612(a)(1)(D) speaks in mandatory, not discretionary, terms of the requirement that a licensee be informed of his duty to take a test and the consequences for failing to take a test. It thus follows that if a person is not informed of his rights and duties that no suspension can stand. “Proper warning of the consequences of refusal of a motorist arrested for drunk driving to take one of the three tests required by CVC §13353, is one of the elements essential to suspension of license under the implied consent law.” (Giomi v. Department of Motor Vehicles, 15 Cal. App. 3d 905 at 906 (1971) See also, Decker v. Department of Motor Vehicles (1972) 6 Cal. 3d 903 and Scott v. Meese, (1985) 174 Cal.App.3d 249. Further, “noncomprehension of warning did not have to be communicated to officer in order to preclude driver’s license suspension for refusal to undergo chemical tests for intoxication.” (Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354). Lack of sufficient advisement is all that is required.
To ensure proper advisement, the backside of the officer’s sworn statement (DS367 Form) specifically delineates the requirement of CVC §23612 by the chemical test admonitions, which has spaces for the officer to place information like the date, time and location that the admonishment was read. It also has boxes that an officer must check to show that he/she read to the licensee the proper admonition under CVC §23612. It further requires that if the admonition was read by another officer, that that officer must place his/her name, badge/identification number, agency, and phone number in the spaces provided. This shows that someone must read this admonition to the licensee and the officer reading the licensee the admonition must be known by name.
The chemical test admonition on the DS367 provides the licensee important information that must be made known to the licensee. The licensee must be informed of his required duties and his constitutional rights before he can act. Obviously, without this information it is impossible for the licensee to make an informed decision.
However, silence alone does not always amount to a refusal because it should not be viewed in a vacuum. As the Carrey Court [183 Cal.App.3d 1265] held, the test is the “objective, fair meaning to be distilled from [the arrestee’s] words and conduct.” Thus, in Hart v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1523, 240 Cal.Rptr. 373, no refusal was found where the subject remained silent but was fully cooperative with a blood draw. While the law is clear that the police have no duty to proceed with a chemical test attempt in the face of silence (see Lampman), Hart held that where they choose to proceed with a blood draw, obtain a sample without any appreciable loss of time, and the arrestee is entirely cooperative with the process, there is no refusal.
If you are arrested and charged with a DUI, you must immediately contact one of our experienced DUI attorneys at Wallin and Klarich. Wallin & Klarich has been helping individuals charged with a DUI for over 30 years. Wallin & Klarich has the experience to defend our clients and do all we can to prevent their driving privileges from being suspended. Please call us at (877) 4-NO-JAIL or (877) 466-5245. You can also fill out our contact form and one of our attorneys will contact you immediately. We will be there when you call.


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In Wi-LAN Inc. v. Sharp Electronics Corp., No. 15-379-LPS (D. Del. May 14, 2018), Chief Judge Stark denied the requests of the plaintiff, Wi-LAN Inc., to compel defendant Sharp Electronics Corp. to produce documents from a subsidiary and a parent corporation.
In Interface Linx, LLC v. Haier America Co., No. 17-1098-LPS (D. Del. Apr. 26, 2018), and related cases, Chief Judge Stark, ruling from the bench, granted in part the defendants’ motion to dismiss the direct, indirect, and willful infringement claims of the plaintiff, Interface Linx, LLC. The asserted patent covered, inter alia, an HDMI plug and receptacle.
In Princeton Digital Image Corp. v. Ubisoft Entertainment SA, No. 13-335-LPS-CJB (D. Del. Apr. 20, 2018), Magistrate Judge Burke granted the plaintiff’s request to compel defendant Ubisoft Inc. to produce summary sales, licensing, costs, and profit information relating to the accused video games and make available a Rule 30(b)(6) witness to testify regarding the requested information.
In Boston Scientific Corp. v. Edwards Lifesciences Corp., No. 16-275-JFB-SRF (Apr. 20, 2018), Magistrate Judge Fallon denied without prejudice the defendants’ motion to stay the plaintiff’s patent infringement claim pending the final resolution of IPR proceedings.
In MorphoSys AG v. Janssen Biotech, Inc., No. 16-221-LPS (D. Del. Apr. 19, 2018), Chief Judge Stark granted the defendants’ motion to amend their pleadings to assert inequitable conduct.
In Genentech, Inc. v. Amgen Inc., No. 17-1407-GMS (D. Del. Apr. 17, 2018), and related action, Judge Sleet granted Amgen Inc.’s motions to dismiss the plaintiffs’ declaratory judgment claim for failure to state a claim and for lack of subject matter jurisdiction.
In Interface Linx, LLC v. Onkyo USA Corp., No. 17-1099-LPS (D. Del. April 13, 2018), and related actions, Chief Judge Stark ordered the defendants to produce sales data for the accused products dating back to six years before the date of the suit.
In Takeda Pharmaceuticals U.S.A. Inc. v. West-Ward Pharmaceutical Corp., No. 14-1268-RGA-SRF (D. Del. Apr. 12, 2018), Magistrate Judge Fallon denied the defendants’ motion to quash a subpoena noticed by the plaintiff, Takeda Pharmaceuticals U.S.A., Inc.
In SZ DJI Technology Co. v. Autel Robotics USA LLC, No. 16-706-LPS (D. Del. Mar. 14, 2018), Chief Judge Stark granted the defendants’ motion to consolidate this action with a case transferred from the Western District of Washington.

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Q: What is McCarley v. KFC and why is it important?
This court reaffirmed Byrd, but then say that since the movant failed to prove that the chicken was not contaminated, no summary judgment granted. The Supreme court allowed a lay person’s testimony to prove causation. This is not true in medical malpractice cases – there, it must be an expert testimony. The opinion actually stated that this would not be the case in med malpractice cases; this made the medical malpractice community angry, so they had to remove it from the opinion.
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STATE of Washington, Respondent, v. Thaddius X. ANDERSON, Petitioner.
*1248 Kira McCrae, Michael Mittlestat, Seattle, for Petitioner.
*1249 Norm Maleng, King County Prosecutor, Ann Summers, Deputy, Seattle, for Respondent.
The sole issue before us is whether "knowing possession" is an element of the crime of second degree unlawful possession of a firearm. We hold that "knowledge" is an element of the offense and, therefore, reverse the decision of the Court of Appeals, Division One, which affirmed the trial court's determination that second degree unlawful possession of a firearm is a strict liability offense.
A vehicle driven by Thaddius X. Anderson was stopped by Seattle police officers for a traffic violation. During the traffic stop the officers learned that there was an outstanding warrant for Anderson's arrest. Consequently, the officers arrested Anderson and searched the vehicle incident to his arrest. During the search the officers found a handgun under the driver's seat of the car. Because Anderson had a prior felony conviction he was charged with second degree unlawful possession of a firearm.
At trial, Anderson contended that the handgun, as well as the vehicle, belonged to his cousin. Anderson said that he was unaware of the existence of the handgun until he was pulled over by the police officers. At the close of the presentation of evidence, the trial court instructed the jury that knowledge of the existence of the handgun was not an element of the offense, but that Anderson was entitled to an instruction that unwitting possession is a defense on which he had the burden of proof. The jury found Anderson guilty of the offense charged.
Anderson appealed his conviction to the Court of Appeals, Division One, which affirmed. State v. Anderson, 94 Wash. App. 151, 971 P.2d 585, review granted, 138 Wash. 2d 1007, 989 P.2d 1138 (1999). We thereafter granted Anderson's petition for review.
A person commits the crime of second degree unlawful possession of a firearm if he or she "owns, has in his or her possession, or has in his or her control any firearm" and the person has previously been convicted of any felony, other than a "serious offense," or certain specified gross misdemeanors. RCW 9.41.040(1)(a), (b), and (b)(i). Anderson asserts here, as he did at the trial court and at the Court of Appeals, that an implicit element of this crime is knowledge of the possession or presence of the firearm. He does not assert "that the State must prove `guilty knowledge'" on his part, but only that he had "`general intent'" to commit the crime, i.e. that he "`knew facts that would make his conduct illegal.'" Appellant's Opening Br. at 15 (quoting Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 1797, 128 L. Ed. 2d 608 (1994)). The Court of Appeals disagreed with Anderson's argument holding that the crime is a strict liability offense and that, as a consequence, the State did not have to show that he knew the car he was driving contained a gun. It went on to say that any danger that "entirely innocent conduct" may be encompassed by the statute is eliminated by virtue of fact that a person who claims lack of knowledge may assert and prove the defense of unwitting possession. Anderson, 94 Wash. App. at 157-58, 971 P.2d 585.
The question before uswhether second degree unlawful possession of a firearm is a strict liability offenseis one of first impression in this court. The appellate decision from this state that has come closest to addressing this question, prior to the Court of Appeals' decision here, is State v. Semakula, 88 Wash. App. 719, 946 P.2d 795 (1997), review denied, 134 Wash. 2d 1022, 958 P.2d 317 (1998). In that case, which also emanated from Division One of the Court of Appeals, the court concluded that knowledge that the possession is unlawful is not an element of the offense. Semakula, 88 Wash. App. at 726, 946 P.2d 795; see also State v. Reed, 84 Wash. App. 379, 383, 928 P.2d 469 (1997) (citing approvingly a decision of the federal court, United States v. Smith, 940 F.2d 710, 714 (1st Cir.1991), that said a similar statute did not require the government to *1250 prove the defendant knew his possession was illegal, but only that he "knew he possessed the firearms"). The Semakula court went on to say that while unwitting possession is a defense to the crime, the State had to "prove that the defendant knew the facts that constitute the criminal conduct." Semakula, 88 Wash. App. at 726, 946 P.2d 795.
The Legislature may create strict liability crimes. State v. Rivas, 126 Wash. 2d 443, 452, 896 P.2d 57 (1995). Our task is to determine if the Legislature did so in enacting RCW 9.41.040(1)(b). Any such inquiry must begin with a review of the language of the statute and any legislative history. State v. Bash, 130 Wash. 2d 594, 605, 925 P.2d 978 (1996). The statute, unfortunately, is silent on the mental intent element. Its failure to be explicit regarding a mental element is not, however, dispositive of legislative intent.
The Court of Appeals concluded that the legislative history weighed in favor of a holding that the offense of second degree unlawful possession of a firearm is a strict liability offense. In doing so, it observed that the Legislature took note of the health and safety hazards associated with increasing violence in society and determined that efforts to reduce violence must include inhibiting the unlawful use of and access to firearms and implementation of "`many of the same approaches that public health programs have used to control other problems such as infectious disease, tobacco use, and traffic fatalities.'" Anderson, 94 Wash. App. at 157, 971 P.2d 585 (quoting LAWS OF 1994, 1st Spec. Sess., ch. 7, § 101). This is indicative, the court concluded, of the Legislature's intent to characterize the offense as a "public welfare offense," which can be regulated merely because it creates "danger or probability of it." Anderson, 94 Wash. App. at 157, 971 P.2d 585 (quoting Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 (1952)).
Anderson suggests that the legislative history favors his position. He points out that the Legislature did not employ the measures it could easily have used to evidence an intent to make the offense a strict liability crime. He notes, for instance, that it did not, in passing the statute, remove an existing intent element. See State v. Cleppe, 96 Wash. 2d 373, 378-79, 635 P.2d 435 (1981) (prior drug possession statute contained an intent element and its removal indicates strict liability intended). Anderson also observes that the statute did not establish any affirmative defenses or expressly state that lack of knowledge is not a defense. See State v. Dana, 84 Wash. App. 166, 176-77, 926 P.2d 344 (1996) (including affirmative defense indicates strict liability crime), review denied, 133 Wash. 2d 1021, 948 P.2d 389 (1997); State v. Graham, 68 Wash. App. 878, 880, 846 P.2d 578 (explicitly eliminating lack of knowledge defense indicates strict liability intended), review denied, 121 Wash. 2d 1031, 856 P.2d 382 (1993), abrogated by State v. Silva-Baltazar, 125 Wash. 2d 472, 886 P.2d 138 (1994).
Although we are of the view that the legislative history is not conclusive on the issue of the Legislature's intent, we believe it tends to favor Anderson's argument. While we agree with the State that the Legislature revealed its intention to address the problem of increasing violence in our society, it did not indicate that the problem should be addressed by sweeping entirely innocent conduct within this statute relating to the possession and control of firearms. Its failure to do so is significant, we believe, because the Legislature has on many occasions shown an ability to make knowledge an element of an offense. Its additional failure to provide in the statute for the affirmative defense of unwitting conduct or to expressly eliminate lack of knowledge as a defense are, in our view, other indicators of its intent to make knowledge an element of the offense.
(1) ... the statute must be construed in light of the background rules of the common law, and its conventional mens rea element; (2) whether the crime can be characterized as a "public welfare offense" created by the Legislature; (3) the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct; (4) ... the harshness of the penalty[;] ... (5) the seriousness of the harm to the public; (6) the ease or difficulty of the defendant ascertaining the true facts; (7) relieving the prosecution of difficult and time-consuming proof of fault where the Legislature thinks it important to stamp out harmful conduct at all costs, "even at the cost of convicting innocent-minded and blameless people"; and (8) the number of prosecutions to be expected.
Bash, 130 Wash. 2d at 605-06, 925 P.2d 978. All of these factors are to be read in light of the principle that offenses with no mental element are generally disfavored. Bash, 130 Wash. 2d at 606, 925 P.2d 978.
As we noted above, the Court of Appeals determined that second degree unlawful possession of a firearm is a "public welfare" or "regulatory" offense that is frequently categorized as merely "malum prohibitum." Anderson, 94 Wash. App. at 157, 971 P.2d 585. Despite what it conceded was the common law preference for mental elements in crime, the court was persuaded that the seriousness of the harm to the public that this statute was designed to address suggested that the Legislature meant it to be a strict liability crime.
While we do not disagree with the Court of Appeals' determination that firearms are potentially dangerous items, we are mindful that a statute will not be deemed to be one of strict liability where such construction would criminalize a broad range of apparently innocent behavior. Thus, in Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), the Court held that a person could not be convicted of unlawful possession of an unregistered machine gun unless the government proved that the defendant knew that the gun fell within the statutory definition of machine gun, since such items can be owned and possessed perfectly innocently. It seems clear to us that if the State is not required to prove knowing possession of a firearm there is a distinct possibility that entirely innocent behavior would fall within the sweep of this statute. In a free society we should be slow to conclude that such a result is intended by legislators.
Although the Court of Appeals made passing reference here to the harshness of the penalty for second degree unlawful possession of a firearm, it concluded that this factor was of little moment in light of its characterization of the offense as a public welfare offense. In our view, the Court of Appeals placed too little emphasis on the principle that "`the greater the possible punishment, the more likely some fault is required.'" Bash, 130 Wash. 2d at 608-09, 925 P.2d 978 (quoting 1 LAFAVE & SCOTT § 3.8, at 343). The offense of second degree unlawful possession of a firearm is after all a class C felony. RCW 9.41.040(2)(b). While we have not always adhered to the suggestion from the United States Supreme Court in Staples, 511 U.S. at 618, 114 S. Ct. 1793, that a mental element should be required in statutes defining felony offenses (see State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923)), the fact that the offense carries with it a *1252 maximum term of five years' imprisonment (see RCW 9 A. 20.021) is clearly a factor that weighs in favor of a holding that this offense is not one of strict liability. It is worth noting in this regard that the elements of the greater degree offense of first degree unlawful possession of a firearm are almost identical to those of the offense with which Anderson was charged. The only difference is that an element of the higher degree is that the defendant must have a "serious offense" in his past. RCW 9.41.040(1)(a). First degree unlawful possession of a firearm is a class B felony, and it is punishable by a maximum sentence that is twice that of the offense charged here. RCW 9.41.040(2)(a); RCW 9 A. 20.021. We can only assume that the State would make the same argument it makes here if the question before us were whether or not the greater offense was a strict liability crime.
The factor of seriousness of harm to the public also weighs in favor of Anderson. While one can easily argue that there is danger to the society if persons who have been convicted of certain crimes knowingly possess firearms, we fail to see how their unwitting possession of a firearm poses a significant danger to the public. Neither does the punishment of such persons further a goal of deterrence.
Some of the other factors we identified in Bash are not very helpful to us. LaFave and Scott tell us that while generally the fewer expected prosecutions, the more likely intent is required, the record tells us nothing about the number of persons who are prosecuted for the offense. 1 LAFAVE & SCOTT § 3.8, at 344. Furthermore, while we recognize that the State would find it helpful to be relieved of difficulties attendant to any criminal prosecution, we are reluctant to conclude that the State would generally find it burdensome to convince a jury that a person found in possession of a firearm was not aware of its presence. Contributing to our skepticism about the difficulties the State might face in such cases is the fact that since the statute in question was passed in 1935, no reported case has dealt with the issue of knowing possession. Indeed, if the State had charged Anderson with knowingly possessing the firearm, it probably would have encountered few problems in showing that the vehicle Anderson was driving belonged to him, rather than his cousin, and that, in any case, he was aware of the fact that the gun was in the car. We reach that conclusion because one of the arresting officers testified that Anderson initially stated that the handgun was his. Furthermore, another witness testified for the State that Anderson usually went by a name very similar to that which Anderson attributed to his cousin. Finally, there was testimony from one of the police officers that Anderson was twice seen reaching under the driver's seat.
After considering all of the factors that are to assist us in determining if the Legislature intended to place the burden on the State to prove a culpable mental state, we conclude that it did. Our decision is influenced greatly by the harshness of the statutory penalty, the legislative history, and the absence of a showing of sufficient danger to the public to overcome the general rule favoring a mental element in felony statutes. Most compelling, though, is the fact that entirely innocent conduct may fall within the net cast by the statute in question. The danger of this is not, in our view, mitigated by the existence of an affirmative defense of unwitting conduct that the Court of Appeals has recognized. The burden of proof to establish such a defense resides with the defendant thus relieving the State of its traditional burden to prove each element of the crime by evidence, which is convincing beyond a reasonable doubt.
"The contention that an injury can amount to a crime only when inflicted by intention *1253 is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
Staples, 511 U.S. at 605, 114 S. Ct. 1793 (quoting Morissette, 342 U.S. at 250, 72 S.Ct. 240); Bash, 130 Wash. 2d at 606, 925 P.2d 978 (quoting Morissette, 342 U.S. at 250, 72 S.Ct. 240). We are loath, in short, to conclude that the Legislature intended to jettison the normal requirement that mens rea be proved.
In sum, we hold that the trial court's jury instruction omitted an essential element of the offense charged. The Court of Appeals is, therefore, reversed and the case is remanded to the trial court for proceedings consistent with this opinion.
GUY, C.J., JOHNSON, MADSEN, and SANDERS, JJ., concur.
"[W]hether a statute defines a strict liability crime is a question of statutory construction focusing on legislative intent." State v. Groom, 133 Wash. 2d 679, 688, 947 P.2d 240 (1997). Here, the majority ignores the Legislature's clear intent to impose strict liability. Thus, I respectfully dissent.
While I do not fault the majority's reliance on the eight, nonexclusive factors cited in State v. Bash, 130 Wash. 2d 594, 925 P.2d 978 (1996), I take issue with the majority's application thereof. To begin with, there are at least three defects in the majority's analysis of RCW 9.41.040's legislative history. First, in support of its conclusion that we should insert a mental element within RCW 9.41.040, the majority relies heavily upon the fact that "the Legislature did not employ ... measures it could easily have used to evidence an intent to make the offense a strict liability crime [, such as removing an existing intent element.]" Majority at 1250 (citing State v. Cleppe, 96 Wash. 2d 373, 378, 635 P.2d 435 (1981)). The majority overemphasizes the absence of these "measures"; these "measures" are merely indicators of strict liability and not requirements to a finding thereof. See Cleppe, 96 Wash. 2d at 378, 635 P.2d 435 (subsequently removing intent element indicates strict liability intended).
The second problem with the majority's historical analysis is its view that the Legislature's silence regarding intent is "significant,... because the Legislature has on many occasions shown an ability to make knowledge an element of an offense." Majority at 1250. The problem with this argument is that it can so easily be reversed to support precisely the opposite proposition. The Legislature's failure to include a mental element, in light of its demonstrated ability to include a mental element where it wants one, could just as reasonably indicate its intent to impose strict liability. Consequently, legislative silence is not as "significant" as the majority would have us believe.
Ironically, the third defect in the majority's analysis also involves the inferences that can or should be drawn from legislative silence. In its opinion, the Majority makes no mention of the fact that in a similar weapons possession statute, RCW 9.41.300, the Legislature explicitly included a mental element. This statute, which prohibits the possession of a firearm in certain restricted areas, specifically requires that the person "knowingly [possess] or knowingly [have] under his or her control a weapon." RCW 9.41.300(1) (emphasis added). As this statute clearly demonstrates, the Legislature knows how to require "knowing possession." Thus, omitting the same mental element in a similar weapons possession statute, such as RCW 9.41.040, strongly indicates that the omission was purposeful and that strict liability was intended. See generally State v. Alvarez, 74 Wash. App. 250, 260, 872 P.2d 1123 (1994) (omission of "course of conduct" language in criminal counterpart to civil antiharassment act indicated "Legislature consciously chose to criminalize a single act rather than a course of conduct.") aff'd, 128 Wash. 2d 1, 904 P.2d 754 (1995); see also State v. Roberts, 117 Wash. 2d 576, 586, 817 P.2d 855 (1991) *1254 (use of certain statutory language in one instance, and different language in another, evinces different legislative intent) (citing cases).
Moving to the other factors cited in Bash, they either support the presumption in favor of strict liability created by the statute's legislative history or fail to overcome it. Beginning with the second Bash factor, the majority completely ignores the Legislature's intent to address the crime of unlawful possession of a firearm as a "public welfare," and thus a strict liability, offense.
"Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often "`result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.'" Bash, 130 Wash. 2d at 607, 925 P.2d 978 (quoting Morissette v. United States, 342 U.S. 246, 255-56, 72 S. Ct. 240, 96 L. Ed. 288 (1952)); see also State v. Carty, 27 Wash. App. 715, 717, 620 P.2d 137 (1980). In Washington, public welfare offenses relate to public health and safety, including highway safety. See State v. Turner, 78 Wash. 2d 276, 280, 474 P.2d 91, 41 A.L.R.3d 493 (1970).
It hardly seems helpful to say that a crime which requires no bad intent is malum prohibitum, and that therefore no bad intent is required to commit the crime.
1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, Criminal Law § 1.6, at 33 n. 24 (2d ed.1986).
Our decision in Bash marked a change in that approach. With that case, the malum in se/prohibitum distinction was relegated to only one of eight, nonexclusive factors for determining the Legislature's intent to impose strict liability.
The majority opinion attempts to take this relegation one step further. Through its cursory examination, the majority essentially removes this factor from the analysis without ever discussing its rationale for doing so. The Legislature's intent to treat a crime as a public welfare offense, however, remains an important indicator of strict liability. See Bash, 130 Wash. 2d at 606-08, 925 P.2d 978; Groom, 133 Wash. 2d at 688, 947 P.2d 240.
Applying the second factor to the instant case, it becomes even more clear that strict liability should be imposed. In its 1994 amendments to chapter 9.41 RCW, the Legislature noted that "the increasing violence in our society causes great concern for the immediate health and safety of our citizens." Laws of 1994, 1st Sp. Sess., ch. 7, § 101 (emphasis added). The Legislature further stated: "State efforts at reducing violence must include changes in criminal penalties, reducing the unlawful use of and access to firearms." Id. By noting its concerns for the public's "immediate health and safety" created by the "unlawful use of and access to firearms," the Legislature clearly indicated its intent to treat unlawful gun possession as a public welfare offense. See Turner, 78 Wash. 2d at 280, 474 P.2d 91. This fact is reinforced by the Legislature's subsequent statement that "the problem of violence can be addressed with many of the same approaches" as used with other public welfare offenses. Laws of 1994, 1st Sp. Sess., ch. 7, § 101 (emphasis added); see also Turner, 78 Wash. 2d at 280, 474 P.2d 91.
Turning to the third Bash factor, I find the majority's concern that imposing strict liability would lead to criminalizing apparently innocent conduct misplaced and unwarranted. See Majority at 1251. First, felons do not lose their right to possess firearms accidentally. As the Legislature itself recognized in enacting RCW 9.41.040, felons have demonstrated *1255 that they present an ongoing threat to society. Consequently, it does not seem unduly burdensome to require felons to take extra precautions to ensure that they are not in possession of firearms.
Second, in its haste to rewrite legislation, the majority ignores the fact that all strict liability crimes have the potential of sweeping in apparently innocent actors, at least initially. If we were to impute a mental element whenever it becomes a possibility, we would be forever frustrating the Legislature's intent to impose strict liability.
Finally, even if we were to assume that imposing strict liability would unfairly criminalize apparently innocent behavior, any unfairness is ameliorated by the availability of unwitting possession as an affirmative defense. See State v. Cleppe, 96 Wash. 2d 373, 380-81, 635 P.2d 435 (1981) (availability of unwitting possession defense is justification for imposing strict liability for crime of drug possession). Consequently, the risk of overburdening felons is significantly diminished and should not prevent this court from carrying out the Legislature's intent.
Regarding the harshness of the penalty imposed for violating RCW 9.41.040, the fourth Bash factor, the majority makes much of the fact that those found guilty of violating RCW 9.41.040 face up to five years' imprisonment. Majority at 1251-1252. As the majority correctly points out, however, there remains no per se rule in Washington requiring a mental element for all felony offenses. Id. In fact, in the very case the majority cites for this proposition, State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923), this court found a statute stated a strict liability offense even though violation of that statute warranted five years' imprisonmentthe same maximum length of imprisonment involved here. Bash, 130 Wash. 2d at 609, 925 P.2d 978 (discussing Lindberg). Therefore, there is precedent for the proposition that strict liability may be imposed where lengthy terms of imprisonment are involved.
In applying the fifth Bash factor, the majority "fail[s] to see how [a felon's] unwitting possession of a firearm poses a significant danger to the public." Majority at 1252. The problem with the majority's position is a problem that plagues the majority's entire opinion-its failure to acknowledge that the Legislature, not this court, decides matters of legislative policy. See Duke v. Boyd, 133 Wash. 2d 80, 87, 942 P.2d 351 (1997) (this court refused to question the "wisdom" of legislative policy, enforcing statute as written) (citing case). Consequently, the Legislature is entitled to weigh, and in fact has weighed, the seriousness of harm to the public against the interests of felons and determined that the risk of harm to the public was both serious and high. See Laws of 1994, 1st Sp. Sess., ch. 7, § 101; see also Laws of 1995, ch. 129, § 1(a) ("Armed criminals pose an increasing and major threat to public safety[.]"). These findings are binding upon this court and, contrary to the majority's position, strongly favor imposing strict liability. See Groom, 133 Wash. 2d at 689, 947 P.2d 240.
In its "seriousness of harm" discussion, the majority also asserts that imposing strict liability under the statute would not "further a goal of deterrence." Majority at 1252. The majority's view of deterrence, however, is too narrow. A comparison between this case and Bash illustrates this point.
In Bash, the court found that imposing strict liability under the dangerous dog statute would not accomplish the goal of deterrence "because unless the owner knows or reasonably should know of the dog's dangerous propensities, it is unlikely that the owner would think it necessary to use extraordinary care in controlling the dog." Bash, 130 Wash. 2d at 610, 925 P.2d 978. Here, however, felons should always be on alert regarding the presence of firearms. As even the majority acknowledges, at page 1249, knowledge that the possession is unlawful is imputed to all felons. Thus, imposing strict liability simply gives felons an additional incentive to take extra precautions to avoid firearms and, in turn, creates an even greater deterrent effect.
Regarding the remaining Bash factors, the majority is correct that they add little to the determination in this case. Majority at 1252. Consequently, based on the factors discussed above, it appears that the majority attempts to contradict the Legislature's clear intent to *1256 impose strict liability and rewrites a statute it deems unduly harsh. The Court of Appeals should be affirmed.
SMITH, TALMADGE, and BRIDGE, JJ., concur.
 Anderson also observes that the unlawful possession statute is based on the uniform firearms act, and that some other states that have adopted that act have said that knowledge is an element. See, e.g., People v. Snyder, 32 Cal. 3d 590, 652 P.2d 42, 44, 186 Cal. Rptr. 485 (1982); Creamer v. State, 605 So. 2d 541, 542 (Fla.App.1992); State v. Pinero, 70 Haw. 509, 778 P.2d 704, 715 (1989); State v. Stratton, 132 N.H. 451, 567 A.2d 986, 990 (1989). These decisions do so hold, but not all of them are persuasive with respect to Washington law. In Hawaii, for instance, statutes provide that all felonies must have some mental element unless the Legislature clearly provides that an offense is one of absolute liability. Pinero, 778 P.2d at 715. And in New Hampshire, a statute similarly says that one may not be convicted of a felony without some culpable mental state, and another statute specifically defines "possession" as "knowingly" possessing an item. Stratton, 567 A.2d at 990. Nonetheless, while the State notes the weaknesses in Anderson's reliance on out-of-state decisions, it points to no case that holds that a statute similar to Washington's defines a strict liability offense.
 We adopted these factors in Bash, 130 Wash. 2d at 605-06, 925 P.2d 978. Factors (1)-(4) are from the United States Supreme Court decision in Staples, 511 U.S. at 615-19, 114 S. Ct. 1793. Factors (5)-(8) are from 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, SUBSTANTIVE CRIMINAL LAW § 3.8, at 341-44 (1986).
 The State originally charged Anderson with "knowingly" possessing the firearm. For some reason it moved to amend the information on the first day of trial to delete the "knowingly" element. Its motion was granted.
 Cf. RCW 9.41.080 ("No person may deliver a firearm to any person whom he or she has reasonable cause to believe is ineligible under RCW 9.41.040 to possess a firearm." (Emphasis added.)).


National Park Service; Does, 1-10, Defendants-Appellees.
Timothy M. Bechtold (argued), Bechtold Law Firm PLLC, Missoula, Montana, for Plaintiff-Appellant.
Staff; Michael W. Cotter, United States Attorney; Chad A. Readier, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.
The panel affirmed the district court's dismissal of a suit brought pursuant to the Fair Credit Reporting Act, 15 U.S.C. § l68lc(g), against the National Park Service alleging that the Service violated the Act by failing to redact plaintiff's debit card expiration date from her purchase receipt.
Plaintiff alleged that when she purchased an entrance pass to Yellowstone National Park, the Park Service printed a receipt bearing her full debit card expiration date. According to plaintiff, the Park Service violated the Act's prohibition that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 U.S.C. § l68lc(g) (emphases added). Plaintiff alleged that after the Yellowstone transaction, her debit card was used fraudulently and she suffered damages from her stolen identity. She also alleged that the fraudulent use of her debit card was caused in part by the inclusion of the card's expiration date on her Yellowstone receipt.
The panel held as an initial matter, that plaintiff lacked standing because her complaint made only conclusory allegations that her stolen identity was traceable to the Park Service's alleged violation of the Act. The panel further held that giving plaintiff leave to amend the complaint would be futile because the Act does not waive the federal government's sovereign immunity from plaintiffs suit.
This appeal is one of many in which plaintiffs seek redress for violation of a federal law that requires redaction of certain credit and debit card information on printed receipts. Stephanie Daniel alleges that identity thieves made fraudulent charges on her debit card at some unspecified time after she visited Yellowstone National Park. Daniel sued the National Park Service for issuing a receipt showing her debit card's expiration date, a violation of the Fair Credit Reporting Act ("FCRA"). 15 U.S.C. § 1681 c(g).
We affirm the district court's dismissal of Daniel's suit. As an initial matter, Daniel lacks standing because her complaint makes only conclusory allegations that her stolen identity was traceable to the Park Service's alleged FCRA violation. Nonetheless, giving Daniel leave to amend the complaint would be futile because the FCRA does not waive the federal government's sovereign immunity from Daniel's suit.
When Daniel purchased an entrance pass to Yellowstone National Park, the National Park Service (the "Park Service") printed a receipt bearing her full debit card expiration date. According to Daniel, the Park Service violated the FCRA's prohibition that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 U.S.C. § l68lc(g) (emphases added). The receipt otherwise complied with the FCRA's card-number redaction requirements-it did not print more than the last five digits of the debit card number.
Daniel sued the Park Service, on behalf of herself and a putative class, under one of the FCRA's enforcement provisions: "Any person who willfully fails to comply with [the FCRA] with respect to any consumer is liable to that consumer" for statutory damages of between $100 and $1, 000 per violation or "any actual damages sustained by the consumer, " costs and attorneys' fees, and potential punitive damages. Id. § 168In. Daniel claimed that after the Yellowstone transaction, her debit card was used fraudulently and she suffered damages from her stolen identity. She also alleged that the fraudulent use of her debit card was caused in part by the inclusion of the card's expiration date on her Yellowstone receipt.
The district court granted the Park Service's motion to dismiss on the grounds that the FCRA does not waive the U.S. government's sovereign immunity. The court concluded that "including the United States as a 'person' every time the term is used in the FCRA would lead to inconsistent usage and potentially absurd results." Accordingly, Congress did not "speak unequivocally" as is required to waive sovereign immunity.
Both Article III standing and sovereign immunity are threshold jurisdictional issues that we review de novo. See Raines v. Byrd, 521 U.S. 811, 818 (1997); FDIC v. Meyer, 510 U.S. 471, 475 (1994). In this instance, we analyze both issues because dismissal of the case on standing grounds leaves open whether Daniel could amend her complaint to satisfy standing requirements. That route is foreclosed, however, because a suit dismissed on sovereign immunity grounds cannot be salvaged. See United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). Daniel's complaint fails on both fronts.
To meet the constitutional threshold of Article in standing, Daniel must allege that she "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of [the Park Service], and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). Although Daniel alleged a sufficient injury of identity theft, she failed to allege that her injury was "fairly traceable" to the Park Service's issuance of the receipt. Without this link, Daniel's suit must be dismissed.
We recently considered whether "receiving an overly revealing credit card receipt-unseen by others and unused by identity thieves-[is] a sufficient injury to confer Article in standing." See Bassett v. ABM Parking Servs., Inc., 883 F.3d 776, 777 (9th Cir. 2018). Bassett's theory of injury-an "exposure" to identity theft "caused by [the issuer's] printing of his credit card expiration date on a receipt that he alone viewed"-did not "have 'a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.'" Id. (quoting Spokeo, 136 S.Ct. at 1549). Nor did Congress "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Id. at 781-82 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992)). It was no stretch to conclude that a receipt showing the credit card expiration date, by itself, was not a concrete injury. Id. at 780.
In contrast to Bassett, Daniel alleged a concrete, particularized injury by claiming that after the Yellowstone transaction, her debit card was used fraudulently and she suffered damages from her stolen identity. Identity theft and fraudulent charges are concrete harms particularized to Daniel and establish a sufficient injury at the pleading stage. See generally Spokeo, 136 S.Ct. at 1548-50; In re Zappos.com, Inc., 888 F.3d 1020, 1028 (9th Cir. 2018) (holding that specific allegations of hackers accessing a plaintiffs personal information that "could be used to help commit identity fraud or identity theft" are a sufficient injury).
The trickier question is whether the fraudulent charges on Daniel's debit card and her stolen identity are "fairly traceable" to the Park Service's printing of a receipt showing the expiration date of that debit card. At the pleading stage, Daniel does not need to prove proximate causation. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1391 n.6 (2014). But she still bears the burden of "demonstrating that her injury-in-fact is . . . fairly traceable to the challenged action"-here, the Park Service's issuance of the receipt. Davidson v. Kimberly-Clark Corp., - F.3d -, 2018 WL 2169784, at *7 (9th Cir. May 9, 2018) (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). Daniel's threadbare allegations fall short of demonstrating that link.


← Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.
Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva, a minor, Plaintiffs, vs. Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff, vs. Jeffrey Wilkerson, Third-Party Defendant.
COUNSEL: [*1] For Ronald Tassinari, an individual, Sheila Silva, an individual and next best friend of Ashley Silva, Ashley Silva, a minor, Plaintiffs: Domingo Carlos Rodriguez, LEAD ATTORNEY, Rodriguez Aronson & Essington, Miami, FL; Patricia Leigh McMillan Minoux, LEAD ATTORNEY, Rodriguez, Aronson & Essington, P.A., Coral Gables, FL.
For Key West Water Tours, L.C., a Florida Corporation, Defendant: Bruce Michael Trybus, Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.
For Key West Water Tours, L.C., a Florida Corporation, ThirdParty Plaintiff: Joshua William Brankamp, Cooney Mattson Lance Blackburn Richards & O’Connor, Fort Lauderdale, FL.
JUDGES: K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.
THIS CAUSE came before the Court upon Defendant Key West Water Tours, L.C.’s Motion for Summary Judgment (DE # 44) and Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46).
UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
Plaintiffs are residents [*2] of Massachusetts. Defendant Key West Water Tours, L.C. (“Defendant” or “Water Tours”) is a Florida corporation doing business in Monroe County, Florida, as a personal watercraft (jet skis and/or waverunners) rental agency and provider of guided personal watercraft tours to the public. On or about July 9, 2004, Defendant rented personal watercraft to Plaintiffs at or near Key West, Monroe County, Florida. Defendant then took a group of personal watercraft renters, including Plaintiffs and Third-Party Defendant Jeffrey Wilkerson, on a guided tour from its marina out to the area’s surrounding waters.
During the tour, the watercraft operated by Third-Party Defendant Jeffrey Wilkerson collided with the watercraft operated by Plaintiffs Ronald Tassinari and Ashley Silva, injuring Plaintiffs Ronald Tassinari and Ashley Silva.
Defendant argues that it is entitled to summary judgment on the following issues: (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence [*3] or unseaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement. Plaintiffs argue that they are entitled to summary judgment because Defendant violated certain Florida State statutes making Defendant negligent per se. Plaintiffs further argue that if Defendant is negligent per se, then Defendant is not entitled to have its liability limited to the value of the watercraft.
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir. 1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). [*4] An issue of fact is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). It is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.
may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e). “The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Plaintiffs argue that Defendant is negligent per se because Defendant violated [*5] Florida State statutes enacted to protect the safety of personal watercraft renters. Pl. Mot. at 9-14. Federal maritime law’s unique version of negligence per se is embodied in what is called the “Pennsylvania Rule.” In re Superior Constr. Co., 445 F.3d 1334, 1340 (11th Cir. 2006). “Under the Pennsylvania Rule, when a ship at the time of an allision is in actual violation of a statutory rule intended to prevent allisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Id. (citing The Pennsylvania, 86 U.S. 125, 136, 22 L. Ed. 148 (1873)).
Defendant argues that State law does not apply in a case brought under federal maritime law; therefore, the Pennsylvania rule does not apply to violations of Florida statutes. Def. Resp. at 6-8. However, the Seventh Circuit recognized that “[s]everal courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances.” Complaint of Wasson, 495 F.2d 571, 583 (7th Cir. 1974) [*6] (citations omitted); see also Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1382-83 (9th Cir. 1985) (violation of Washington State statute would support negligence per se).
Further, State law has been applied in admiralty cases where there is no direct conflict with established federal maritime law. Wilburn Boat Co. v. Fireman’s Fund Insur. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1955); 1 T. Schoenbaum, Admiralty and Maritime Law § 4-2 (4th ed.); see also Smith v. Haggerty, 169 F. Supp. 2d 376 (E.D. Pa. 2001) (applying State law regulations to negligence claims arising from a boating accident) (vacated on other grounds). The Supreme Court has recognized that “[i]n the field of maritime contracts, as in that of maritime torts, the National Government has left much regulatory power in the States.” Wilburn Boat, 348 U.S. at 313 (the Supreme Court ultimately declined to adopt a federal admiralty rule governing insurance policy provisions and decided to leave that area up to State regulation).
In the present case, Plaintiffs cite to several Florida statutes that were enacted, in part, in response to an act of Congress intended to “encourage greater State participation and [*7] uniformity in boating safety efforts, and particularly to permit the States to assume the greater share of boating safety education, assistance, and enforcement activities.” 46 U.S.C. § 13102 (2007). The Court is not persuaded that statutes enacted in response to Congress’s stated purpose of permitting the states to assume more responsibility in regulation of recreational boat safety are inapplicable merely because they were enacted by a state government.
Further, Defendant has not pointed to any established federal maritime law directly conflicting with and preempting these State statutes. In cases where a State statute conflicts with established federal maritime law or would materially frustrate a tenant of admiralty law, the State statutes should generally not be applied. Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986); Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971); Miami Valley Broadcasting Corp. v. Lang, 429 So. 2d 1333 (Fla. 4th DCA 1983). Defendant overstates the holdings in Branch and Lang, arguing that State law can never be used in maritime negligence cases. Branch and Lang merely stand for the principle that State law cannot change established [*8] substantive maritime law. In Branch and Lang, the State law would have imposed a stricter burden than that established by federal maritime law; because it conflicted with federal maritime law and would have effectively changed the accepted maritime standard of care, the State law could not be applied. The Florida statutes at issue were not designed to circumvent federal maritime law or substitute a stricter standard of care in negligence cases; rather, they were designed to help regulate recreational boating safety. The Pennsylvania rule is an established principle of federal maritime law, which may be applied to violations of Florida State statutes; this application does not, in and of itself, conflict with federal maritime law.
Florida Statute § 327.39 makes it unlawful for the owner of a personal watercraft to “authorize or knowingly permit the [watercraft] to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.” Florida Statute § 327.54 requires that the instruction in the safe handling of personal watercraft with a motor of 10 horsepower or greater be delivered by a person [*9] who has “successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.” These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.
In this case, Defendant owned or had control over the personal watercraft involved in the collision. At the time of the collision, Defendant employed Chris Betz (“Betz”) as a personal watercraft tour guide and allowed Betz to provide the safety instruction to persons operating the personal watercraft on the tour, including Jeffrey Wilkerson. Def. Mot. at 4-6. Betz admitted in his deposition that he had never completed a boater’s safety course approved by the National Association of State Boating Law Administrators. Betz Depo. at 12. Co-owner Gerald Grogan admitted that Key West Water Tours does not require its tour guides to have passed a safe boating course. Grogan Depo. at 19. Therefore, Defendant violated Florida [*10] statutes designed to protect boater safety and prevent collisions, by entrusting personal watercraft to persons who were not instructed in the safe handling of the personal watercraft as the law requires. Co-owner Jeremy Ray indicated that he was not very familiar with the Florida statutes at issue. Ray Depo. at 9, 20-21. However, ignorance of the law is not a defense.
Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident. Defendant argues that “[t]he sole cause of the subject accident was the negligent operation of a personal watercraft by Third-Party Defendant Jeffrey Wilkerson.” Def. Mot. at 11. Defendant asserts that “[t]here is not a single additional instruction that would have prevented the subject accident.” Id. Betz gave safety instructions. Betz Depo. at 32-33. According to Betz, Jeffrey Wilkerson “was coming in way too fast . . . just like an old lady in a car, panicked, eyes wide open, completely wide open, staring straight at the group and a panic in his face [*11] because he’s going too fast, and never let off the throttle until he hit.” Def. Mot. at 7. Defendant further asserts that Defendant had never had an accident previously and that Jeffrey Wilkerson had operated the watercraft without problem for about two hours before the accident. It is undisputed that Jeffrey Wilkerson panicked and that the watercraft was at full throttle until impact. However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.
“An owner will be exonerated from liability when he, his vessel, and crew are found to be completely free of fault.” In re Complaint of Caribbean Sea Transport, 748 F.2d 622, 626 (11th Cir. 1984) (citing Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir. 1977)). As discussed above, Defendant cannot be said to be completely free of fault; therefore, Defendant is not entitled to exoneration.
The Eleventh Circuit has held that the determination of whether the owner of a vessel is entitled to limitation of liability requires a two-step analysis: (1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.” Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (citing Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976)). “Privity and knowledge are deemed to exist where the owner had the means of knowledge or, as otherwise stated, where knowledge would have been obtained from reasonable inspection.” China Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 792-93 (5th Cir. 1966). Under the Pennsylvania rule, as discussed above, Defendant’s violation of Florida statutes regarding proper instruction in safely operating the personal watercraft is presumed to have caused the collision. The owners of Key West Water Tours, L.C. knew, should have known, and could have discovered upon minimal investigation whether its tour guides, who they hired, had completed [*13] approved boater safety courses and whether the requirements of Florida law regarding proper safety and instruction were being met. Therefore, Defendant is not entitled to limitation of liability to the value of the watercraft.
“[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.” Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 631 (S.D.W. Va 2004) (citations omitted); Restatement (Second) of Contracts § 195 comment a (1981) (“If, for example, a statute imposes a standard of conduct, a court may decide on the basis of an analysis of the statute, that a term exempting a party from liability for failure to conform to that standard is unenforceable.”). In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on [*14] owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.
ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Defendant’s Liability (DE # 46) is GRANTED. The pretrial conference to discuss remaining issues will be held as scheduled, on June 28, 2007.
DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2007.


text:
Teresa Tracy quoted in Los Angeles Times article, “Hiring Part-Time Workers Can Have Downsides Too"
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Balatresi v. Consulate General of Italy in Los Angeles, Case No. cv 14-990 DMG (JEMx) (C.D. Cal., December 5, 2014) – Successfully argued that the Consulate General had sovereign immunity under state and federal employment laws.
BBA Aviation v. Superior Court (Engen), 190 Cal.App.4th 421 (2010) – Sccessfully argued that a foreign holding company was not subject to state jurisdiction in an employment action.
Palacio v. Progressive Insurance Co., 244 F. Supp. 2d 1040 (C.D. Cal. 2002) – The first case in which summary judgment was granted in favor of overtime exempt status of insurance claims adjusters under federal law, which was cited in the revisions to the regulations regarding exempt status and picked up by the United States Department of Labor, which again concluded that claims adjusters should be treated as exempt.
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Pike v. Public Storage Companies, Inc. ARB No. 00-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999) – Successfully defended claim brought under the Surface Transportation Assistance Act.
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