Appellee, Board of Education, dismissed appellant, a teacher, for writing and publishing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs and the Board's and superintendent's methods of informing, or preventing the informing of, the school district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. At a hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged, and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [appellant's dismissal]" under the applicable statute. There was no evidence at the hearing as to the effect of appellant's statements on the community or school administration. The Illinois courts, reviewing the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether the Board could reasonably conclude that the publication was "detrimental to the best interests of the schools," upheld the dismissal, rejecting appellant's claim that the letter was protected by the First and Fourteenth Amendments, on the ground that, as a teacher, he had to refrain from making statements about the schools' operation "which, in the absence of such position, he would have an undoubted right to engage in."
"[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected."
Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967). The teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services. P. 391 U. S. 568.
of faculty discipline or harmony; hence those statements afforded no proper basis for the Board's action in dismissing appellant. Pp. 391 U. S. 569-570.
3. Appellant's statements which were false likewise concerned issues then currently the subject of public attention and were neither shown nor could be presumed to have interfered with appellant's performance of his teaching duties or the schools' general operation. They were thus entitled to the same protection as if they had been made by a member of the general public, and, absent proof that those false statements were knowingly or recklessly made, did not justify the Board in dismissing appellant from public employment. New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Pp. 391 U. S. 570-575.
36 Ill.2d 568, 225 N.E.2d 1, reversed and remanded.
Illinois statute, Ill.Rev.Stat. c. 122, § 10-22.4 (1963), that "interests of the school require[d] [his dismissal]."
Appellant's claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board's action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant's letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant's First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill.2d 568, 225 N.E.2d 1 (1967). We noted probable jurisdiction of appellant's claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments. [Footnote 1] 389 U.S. 925 (1967). For the reasons detailed below, we agree that appellant's rights to freedom of speech were violated, and we reverse.
sales. In May of 1964, a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an Appendix to this opinion) that resulted in his dismissal.
Prior to the vote on the second tax increase proposal, a variety of articles attributed to the District 205 Teachers' Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district's schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper.
The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.
of the statements unjustifiably impugned the "motives, honesty, integrity, truthfulness, responsibility and competence" of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment "controversy, conflict and dissension" among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.
The Illinois courts reviewed the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant's publication of the letter was "detrimental to the best interests of the schools." Pickering's claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools "which in the absence of such position he would have an undoubted right to engage in." It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant's dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection.
In any event, it clearly rejected Pickering's claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.
To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).
Keyishian v. Board of Regents, supra, at 385 U. S. 605-606. At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made "with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not," New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.
have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.
However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant's letter containing the statements that we have found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.
In addition, the fact that particular illustrations of the Board's claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering's letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.
debate is vital to informed decisionmaking by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.
the classroom [Footnote 5] or to have interfered with the regular operation of the schools generally. In these circumstances, we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.
The public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a "matter of public interest" is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State's power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times.
This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared.
While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.
such showing has been made in this case regarding appellant's letter, see Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurs in the judgment of the Court for the reasons set out in his concurring opinions in Time, Inc. v. Hill, 35 U. S. 374, 35 U. S. 401, Rosenblatt v. Baer, 383 U. S. 75, 383 U. S. 88, and Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 80, and in the separate opinions of MR. JUSTICE BLACK in Curtis Publishing Co. v. Butts, 388 U. S. 130, 388 U. S. 170, and New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293.
Appellant also challenged the statutory standard on which the Board based his dismissal as vague and overbroad. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). Because of our disposition of this case, we do not reach appellant's challenge to the statute on its face.
We have set out in the Appendix our detailed analysis of the specific statements in appellant's letter which the Board found to be false, together with our reasons for concluding that several of the statements were, contrary to the findings of the Board, substantially correct.
It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.
There is likewise no occasion furnished by this case for consideration of the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public.
We also note that this case does not present a situation in which a teacher's public statements are so without foundation as to call into question his fitness to perform his duties in the classroom. In such a case, of course, the statements would merely be evidence of the teacher's general competence, or lack thereof, and not an independent basis for dismissal.
Because we conclude that appellant's statements were not knowingly or recklessly false, we have no occasion to pass upon the additional question whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment. See also n 5, supra.
I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru November, 1961 issues of your paper, so that it can be checked.
though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn't supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems one just can't help noticing it. I am not saying the school shouldn't have these facilities, because I think they should, but promises are promises, or are they?
Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers' salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn't the case. However, this shows their "stop at nothing" attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, "Any teacher that opposes the referendum should be prepared for the consequences." I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.
live in at the high school, and your children go to school in.
In last week's paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous, and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer's child should only have to pay about 30¢ for his lunch instead of 35¢ to pay for free lunches for the athletes.
In a reply to this letter, your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn't pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.
You see we don't need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches' salaries, athletic directors' salaries, baseball pitching machines, sodded football fields, and thousands of dollars for other sports equipment.
These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse.
If these things aren't enough for you, look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also.
Once again, the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.
As I see it, the bond issue is a fight between the Board of Education that is trying to push tax supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don't know whom to trust with any more tax money.
I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?
athletic fields, although a general reference to "state required physical education" facilities was included that was similar to a reference made in the material issued by the Board during the first campaign.
In sum, the Board first stated that certain facilities were not to be included in the new high schools as an economy measure, changed its mind after the defeat of the first bond issue and decided to include some of the facilities previously omitted, and never specifically or even generally indicated to the taxpayers the change. Appellant's claim that the original plans, as disclosed to the public, deviated from the buildings actually constructed is thus substantially correct and his characterization of the Board's prior statement as a "promise" is fair as a matter of opinion. The Board's conclusion to the contrary based on its determination that appellant's statement referred only to the literature distributed during the second bond issue campaign is unreasonable in that it ignores the word "original" that modifies "promises" in appellant's letter.
(2) Appellant stated that the Board incorrectly informed the public that "teachers' salaries" total $1,297,746 per year. The Board found that statement false. However, the superintendent of schools admitted that the only way the Board's figure could be regarded as accurate was to change the word "teachers" to "instructional" whereby the salaries of deans, principals, librarians, counselors, and four secretaries at each of the district's three high schools would be included in the total. Appellant's characterization of the Board's figure as incorrect is thus clearly accurate.
remark attributed to him. The Illinois Supreme Court appears to have agreed that something along the lines stated by appellant was said, since it relied, in upholding the Board's finding that appellant's version of the remark was false, on testimony by one of the two teachers that he interpreted the remark to be a prediction about the adverse consequences for the schools should the referendum not pass, rather than a threat against noncooperation by teachers. However, the other teacher testified that he didn't know how to interpret the remark. Accordingly, while appellant may have misinterpreted the meaning of the remark, he did not misreport it.
(4) Appellant's letter stated that letters from teachers to newspapers had to have the approval of the superintendent before they could be submitted for publication. The Board relied in finding this statement false on the testimony by the superintendent that no approval was required by him. However, the Handbook for Teachers of the district specifically stated at that time that material submitted to local papers should be checked with the building principal and submitted in triplicate to the publicity coordinator. In particular, the teachers' letters to which appellant was specifically referring in his own letter had, in fact, been submitted to the superintendent prior to their publication. Thus, this statement is substantially correct.
of teachers. This claim is incorrect in that the $200,000 per year figure included over $130,000 of nonrecurring capital expenditures. (7) Appellant also claimed that the Board had been spending $50,000 a year on transportation for athletes. This claim is completely false, in that the expenditures on travel for athletes per year were about $10,000. (8) Finally, appellant stated that football fields had been sodded on borrowed money, while the Board had been unable to pay teachers' salaries. This statement is substantially correct as to the football fields being sodded with borrowed money, because the money spent was the proceeds of part of the bond issue, which can fairly be characterized as borrowed. It is incorrect insofar as it suggests that the district's teachers had actually not been paid upon occasion, but correct if taken to mean that the Board had at times some difficulty in obtaining the funds with which to pay teachers. The manner in which the last four statements are false is perfectly consistent with good faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made.
We shall not bother to enumerate some of the statements which the Board found to be false because their triviality is so readily apparent that the Board could not rationally have considered them as detrimental to the interests of the schools regardless of their truth or falsity.
This Court has regularly held that, where constitutional rights are in issue an independent examination of the record will be made in order that the controlling legal principles may be applied to the actual facts of the case. E.g., Norris v. Alabama, 294 U. S. 587 (1935); Pennekamp v. Florida, 328 U. S. 331 (1946); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 285 (1964). However, even in cases where the upholding or rejection of a constitutional claim turns on the resolution of factual questions, we also consistently give great, if not controlling, weight to the findings of the state courts. In the present case, the trier of fact was the same body that was also both the victim of appellant's statements and the prosecutor that brought the charges aimed at securing his dismissal. The state courts made no independent review of the record, but simply contented themselves with ascertaining, in accordance with statute, whether there was substantial evidence to support the Board's findings.
Appellant requests us to reverse the state courts' decisions upholding his dismissal on the independent ground that the procedure followed above deprived him of due process in that he was not afforded an impartial tribunal. However, appellant makes this contention for the first time in this Court, not having raised it at any point in the state proceedings. Because of this, we decline to treat appellant's claim as an independent ground for our decision in this case. On the other hand, we do not propose to blind ourselves to the obvious defects in the factfinding process occasioned by the Board's multiple functioning vis-a-vis appellant. Compare Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955). Accordingly, since the state courts have at no time given de novo consideration to the statements in the letter, we feel free to examine the evidence in this case completely independently and to afford little weight to the factual determinations made by the Board.
MR. JUSTICE WHITE, concurring in part and dissenting in part.
The core of today's decision is the holding that Pickering's discharge must be tested by the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964). To this extent I am in agreement.
explains nor justifies its withdrawal from the firm stand taken in Garrison. As I see it, a teacher may be fired without violation of the First Amendment for knowingly or recklessly making false statements regardless of their harmful impact on the schools. As the Court holds, however, in the absence of special circumstances he may not be fired if his statements were true or only negligently false, even if there is some harm to the school system. I therefore see no basis or necessity for the Court's foray into factfinding with respect to whether the record supports a finding as to injury. [Footnote 3/2] If Pickering's false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required.
Nor can I join the Court in its findings with regard to whether Pickering knowingly or recklessly published false statements. Neither the State in presenting its evidence nor the state tribunals in arriving at their findings and conclusions of law addressed themselves to the elements of the new standard which the Court holds the First Amendment to require in the circumstances of this case. Indeed, the state courts expressly rejected the applicability of both New York Times and Garrison. I find it wholly unsatisfactory for this Court to make the initial determination of knowing or reckless falsehood from the cold record now before us. It would be far more appropriate to remand this case to the state courts for further proceedings in light of the constitutional standard which the Court deems applicable to this case, once the relevant facts have been ascertained in appropriate proceedings.
See ante at 391 U. S. 569-570, 391 U. S. 572 and nn. 3, 4. The Court does not elaborate upon its suggestion that there may be situations in which, with reference to certain areas of public comment, a teacher may have special obligations to his superiors. It simply holds that, in this case, with respect to the particular public comment made by Pickering, he is more like a member of the general public and, apparently, too remote from the school board to require placing him into any special category. Further, as I read the Court's opinion, it does not foreclose the possibility that, under the First Amendment a school system may have an enforceable rule, applicable to teachers, that public statements about school business must first be submitted to the authorities to check for accuracy.
Even if consideration of harm were necessary in this case, I could not join the Court in concluding on this record that harm to the school administration was not proved and could not be presumed.


D.C. Law Library - Subchapter III. Compulsory Recordation of Transfers of Real Property.
↪ Subchapter III. Compulsory Recordation of Transfers of Real Property.
§ 47–1432. Presumptions and burden of proof.
(a) Within 30 days after the execution of a deed or other document by which legal title to real property, an estate for life or a lease or ground rent (including renewals) for a term that is at least 30 years, or an economic interest in real property is transferred, or after a security interest in a real property is given pursuant to a construction loan deed of trust or mortgage or a permanent loan deed of trust or mortgage, or by which a security interest in the real property is conveyed, all transferees of, and all holders of the security interest in, real property shall record a fully acknowledged copy of the deed or other document, including the lot and square number of the real property transferred or encumbered, with the Recorder of Deeds of the District of Columbia. If the 30th day is a Saturday, Sunday, or legal holiday, the time limitation for recording shall be extended to include the first day after the 30th day which is not a Saturday, Sunday, or legal holiday.
(b) Whenever any portion of an instrument, which conveys or provides for the conveyance of equitable title to a real property, is transferred by or on behalf of a party to such instrument to a 3rd party, then the party so transferring shall record, at the same time as provided by subsection (a) of this section, a fully-acknowledged copy of said instrument, including the lot and square number of the real property transferred, with the Recorder of Deeds of the District of Columbia, and the 3rd party shall record, at the same time as provided by subsection (a) of this section, with the Recorder of Deeds of the District of Columbia a fully-acknowledged instrument, including the lot and square number of the property transferred, evidencing the transfer to himself (or herself or itself as the case may be). All subsequent transfers of equitable title made prior to the transfer of legal title shall be recorded by each subsequent transferee thereto, in the same manner and at the same time as provided in subsection (a) of this section.
This section is referenced in § 42-1103, § 47-813, § 47-845.03, § 47-850.02, § 47-863, § 47-903, § 47-1401, § 47-1432, and § 47-1433.
D.C. Law 13-305, in subsec. (a), inserted “, or an estate for life or a lease or ground rent (including renewals) for a term that is at least 30 years” and substituted “all transferees of, and all holders of the security interest in,” for “all transferees of the legal or economic interest in the real estate and all holders of the security interest in”.
D.C. Law 14-282, in subsec. (a), substituted “, an estate for life” for “or an estate for life.
Deed recordation tax, recordation procedures, see § 42-1106.
Deed recordation tax, required records, power to investigate, see § 42-1105.
For temporary (90 day) amendment of section, see § 5(f) of Real Property Tax Clarity and Litter Control Administration Emergency Act of 2001 (D.C. Act 14-22, March 16, 2001, 48 DCR 2706).
For temporary (90 day) amendment of section, see § 12(rr) of Tax Clarity and Recorder of Deeds Emergency Act of 2002 (D.C. Act 14-381, June 6, 2002, 49 DCR 5674).
For temporary (90 day) amendment of section, see § 12(ss) of Tax Clarity and Related Amendments Emergency Act of 2002 (D.C. Act 14-456, July 23, 2002, 49 DCR 8107).
For temporary (90 day) amendment of section, see § 12(ss) of Tax Clarity and Related Amendments Congressional Review Emergency Act of 2002 (D.C. Act 14-510, October 23, 2002, 49 DCR 10247).
For temporary (225 day) amendment of section, see § 5(g) of Real Property Tax Clarity and Litter Control Administration Temporary Amendment Act of 2001 (D.C. Law 14-8, June 13, 2001, law notification 48 DCR 5916).
For temporary (225 day) amendment of section, see § 12(ss) of Tax Clarity and Recorder of Deeds Temporary Act of 2002 (D.C. Law 14-191, October 5, 2002, law notification 49 DCR 9549).
For temporary (225 day) amendment of section, see § 12(ss) of Tax Clarity and Related Amendments Temporary Act of 2003 (D.C. Law 14-228, March 23, 2003, law notification 50 DCR 2741).
For the purpose of proper administration of this subchapter and to prevent evasion of the recordation requirements, the Mayor shall presume that all transfers, as described in § 47-1431, are required to be recorded. The burden shall be upon the person required to record to prove that a deed or any other document is exempt from the recordation requirement.
(a) Where a dealer fails to record, as required by § 47-1431, and such failure is due to negligence, there shall be imposed on said dealer, a penalty of $25 for each month or portion thereof that such failure continues, not to exceed $250.
(c) If a person fails to record the deed or other document, as required by § 47-1431, there shall be imposed on the person an additional penalty in the amount of $250. The penalty provided herein shall not be imposed if the deed or other document is a security instrument. The Mayor may waive the penalty in accordance with § 47-4221.
(e) The penalty fees provided under this section shall be collected at the same time and in the same manner and as a part of the deed recordation tax. If the transaction is exempt from the deed recordation tax, then the Mayor shall collect the fees in a manner prescribed by the Mayor.
(f) If the Mayor determines that a person has failed to record or has failed to pay any fee as required by this chapter, the procedures set forth in § 42-1108 [repealed] shall apply.
(g) Nothing in this chapter shall authorize the imposition of a penalty for the failure to record a deed or any instrument that conveys legal title to real property, if failure to record is due solely to the refusal of the Recorder of Deeds to record the deed or other instrument based on the existence of a lien against the property for unpaid water, sanitary sewer, or meter service charges.
For temporary (90 day) amendment of section, see § 5(g) of Real Property Tax Clarity and Litter Control Administration Emergency Act of 2001 (D.C. Act 14-22, March 16, 2001, 48 DCR 2706).
For temporary (90 day) amendment of section, see § 12§§ of Tax Clarity and Recorder of Deeds Emergency Act of 2002 (D.C. Act 14-381, June 6, 2002, 49 DCR 5674).
For temporary (90 day) amendment of section, see § 12(tt) of Tax Clarity and Related Amendments Emergency Act of 2002 (D.C. Act 14-456, July 23, 2002, 49 DCR 8107).
For temporary (90 day) amendment of section, see § 12(tt) of Tax Clarity and Related Amendments Congressional Review Emergency Act of 2002 (D.C. Act 14-510, October 23, 2002, 49 DCR 10247).
For temporary (225 day) amendment of section, see § 5(h) of Real Property Tax Clarity and Litter Control Administration Temporary Amendment Act of 2001 (D.C. Law 14-8, June 13, 2001, law notification 48 DCR 5916).
For temporary (225 day) amendment of section, see § 12(tt) of Tax Clarity and Recorder of Deeds Temporary Act of 2002 (D.C. Law 14-191, October 5, 2002, law notification 49 DCR 9549).
For temporary (225 day) amendment of section, see § 12(tt) of Tax Clarity and Related Amendments Temporary Act of 2003 (D.C. Law 14-228, March 23, 2003, law notification 50 DCR 2741).
Mayor authorized to issue rules: Section 8 of D.C. Law 8-136 provided that within 60 days of June 13, 1990, the Mayor shall, pursuant to subchapter I of Chapter 5 of Title 2, issue proposed rules to implement the provisions of this act including rules regarding deposits, meters, liens, the sale and redemption of real property, the amnesty program, receivership, termination of water and sewer services, and administrative review; that the proposed rules shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess, and, if the Council does not approve or disapprove the proposed rules, in whole or in part, by resolution within this 45-day period, the proposed rules shall be deemed approved; and that if after 90 days from June 13, 1990 the Mayor has failed to issue proposed rules to implement the provisions of this act as provided in subsection (a) of this section, the Council may adopt any legislation necessary to accomplish the purposes of this act.
Delegation of authority under D.C. Law 8-136, the “D.C. Water and Sewer Operations Act of 1990.”, see Mayor’s Order 91-176, Oct. 24, 1991.


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Our Results | Schlesinger Law Offices, P.A.
Schlesinger Law Offices, P.A. is a firm steeped in tradition. For more than 60 years, we have continuously yielded important verdicts and winning results for our clients. View some of our multi-million dollar results below.
Shane McGee was a passenger when the family car was rear-ended. The impact of the collision punctured the fuel tank causing their Oldsmobile to burst into flames. Shane McGee was killed in the fire. The jury found that General Motors placed the vehicle on the market knowing of the potential fuel tank hazard.
Note: After being retained by the McGee family, our firm obtained secret documents that revealed that GM knew it could prevent fuel fed fires with a fuel tank shield that would have cost $4.50 per vehicle. Details of the case were reported in a feature story on 60 Minutes.
Attorneys at the Schlesinger Law Offices convinced a Broward County jury to award $25 million in punitive and $12 million in compensatory damages to the family of Rita Mahfuz, who died of lung cancer after a lifetime of smoking R.J. Reynolds and Philip Morris cigarettes.
30 Million Dollar Verdict Tomlian v. Mark S. Grenitz M.D., and Westside Regional Medical Center An unborn baby was in distress with his umbilical cord wrapped around his neck. His doctor and hospital medical team ignored signals and tests, which ultimately resulted in severe brain damage including cerebral palsy, spastic legs and arms, mental retardation, kidney failure and other conditions. The doctor and hospital were both found to be negligent.
An unborn baby was in distress with his umbilical cord wrapped around his neck. His doctor and hospital medical team ignored signals and tests, which ultimately resulted in severe brain damage including cerebral palsy, spastic legs and arms, mental retardation, kidney failure and other conditions. The doctor and hospital were both found to be negligent.
A Broward County jury awarded $15.9 million in damages to South Florida resident in a medical malpractice case against rheumatologist.
A 26 years old was forced to undergo amputations of parts of her hands and feet following one week of care under of a physician and a South Florida hospital. The Schlesinger legal team successfully argued that the doctor was negligence caused injuries.
Francis Ziadie v. Dr. Hoang Dinh Doung ?
A Miami-Dade jury has awarded $14.5 million against Geico to a former chiropractor who was severely injured in a highway collision with an uninsured motorist.
Jurors sided with Dr. David Zucker and his wife on Monday in awarding $14.5 million for past and future lost earnings, medical expenses, pain and suffering. Zucker suffered permanent spinal and urologic injuries in the collision near the Golden Glades interchange in December 2004. The award included $2.5 million to his wife and passenger, Carrie Zucker, for loss of consortium. She was pregnant at the time.
The Zuckers were represented by Crane Johnstone and Charles Patrick of the Schlesinger Law Offices in Fort Lauderdale in the trial before Judge John Schlesinger.
Miguel Gonzalez collided with Juan Chirino, who was driving an 18-wheel tanker. The impact sent Gonzalez’s vehicle careening across three lanes of traffic before crashing head on into Zucker’s car.
Gonzalez was uninsured, while Chirino was underinsured. Carrying uninsured motorist benefits, the Zuckers filed a claim against Geico, their insurer. The couple sued after Geico refused to pay.
The jury found Gonzalez fully responsible for the accident, which put Geico on the hook for the award.
A Miramar teen who lost all four limbs as a result of a vaccination error 13 years ago won a $12.6 million medical malpractice award Friday against the University of Miami's Miller School of Medicine.
A woman who was admitted to the hospital following a car accident, was left with permanent brain damage after it took staff more than 30 minutes to notice that her respirator had malfunctioned. While in the hospital, she also contracted an eye infection which left her blind in one eye.
$12 million compensatory damage award for one of our clients after we filed a lawsuit against Philip Morris and R.J. Reynolds for causing our client’s spouse’s cigarette addiction and fatal lung cancer.
Fort Lauderdale, FL—Jurors awarded more than $9.1 million, including $3 million in punitive damages, to a Florida widow for the role they concluded the nation’s two largest tobacco companies played in a smoker’s cancer and death. Oshinsky-Blacker v. R.J. Reynolds, et al., 2008-CV-025841.
Friday’s punitive award came a day after jurors handed down a $6.1 million compensatory verdict finding R.J. Reynolds and Philip Morris liable for the 2000 death of Dennis Oshinsky, 60. Notably, the decision included a finding that both companies were liable on conspiracy grounds, despite the parties’ stipulation there was no direct link between Reynolds cigarettes and Oshinsky’s alleged nicotine addiction, smoking-related cancer, or death.
Oshinsky, a Florida merchant who allegedly smoked Philip Morris’ Marlboro cigarettes for 37 years, died 7 years after being diagnosed with smoking-related lung cancer that spread to his brain, and a month after being diagnosed with a second type of lung cancer not usually associated with cigarettes. His wife, Marilyn Oshinsky-Blacker, sued Reynolds and Philip Morris, claiming they conspired to hide the dangers of smoking she says ultimately hooked her husband and led to his death.
The case is one of thousands of similar Florida lawsuits against U.S. tobacco companies. They arise from a 2006 Florida Supreme Court decision decertifying Engle v. Liggett Group Inc., a class-action tobacco case originally filed in 1994. Although the state’s high court ruled Engle cases must be tried individually, it found plaintiffs could rely on certain jury findings in the original verdict, including the determination that tobacco companies had placed a dangerous, addictive product on the market and had hidden the dangers of smoking. To rely on those findings, individual Engle progeny plaintiffs must establish a causal link between nicotine addiction and smoking-related disease. To establish liability on conspiracy grounds, a plaintiff must prove the smoker relied on fraudulent statements made in furtherance of the conspiracy.
Friday’s decision caps a 14-day, two-part trial involving issues ranging from the circumstances surrounding Oshinky’s death to the tobacco companies’ modern-day conduct.
After the trial, one of Oshinsky-Blacker’s attorneys, Scott Schlesinger, of The Law Offices of Sheldon J. Schlesinger, P.A., told CVN he was generally happy with the outcome. “We were able to show that lies costs lives, that the truth matters, and that the reason they were lying was that it sustained sales,” Schlesinger said.
Neither attorneys for the defense nor tobacco company representatives could be reached for comment.
Central to the week-long trial on Engle class membership were the role Oshinsky’s smoking-related lung cancer played in his death and Reynolds’ responsibility in the case. Although both sides acknowledged smoking caused Oshinky’s 1993 lung cancer, which spread to his brain and was treated with radiation and lung-removal surgery, the sides disputed what caused his death in 2000. Meanwhile, plaintiffs claimed “Marlboro Man” ads touting the safety of filtered cigarettes led Oshinsky to smoke the brand for decades, ultimately causing his first bout of cancer.
During Tuesday’s closings, Womble Carlyle’s Geoffrey Beach, representing Reynolds, reminded jurors the company’s cigarettes were not directly linked to Oshinsky’s alleged nicotine addiction or death. He also challenged the conspiracy charge by noting the Philip Morris “Marlboro Man” ad Oshinsky described never existed. “Plaintiff’s own experts confirmed companies weren’t making health claims on filters,” Beach said.
As to the cause of Oshinsky’s death, Shook Hardy’s Kenneth Reilly, representing Philip Morris, said evidence established Oshinsky’s 1993 bout with smoking-related lung cancer was successfully treated, while physicians diagnosed his 2000 lung tumor as bronchioalveolar carcinoma, or BAC, a type of lung cancer not typically associated with smoking.
However, plaintiff’s attorneys contended Oshinsky’s prior bout with smoking-related cancer rendered it harder to treat his subsequent lung cancer and fatally weakened his immune system. During Tuesday’s closings, Schlesinger highlighted medical records painting a poor prognosis for Oshinsky following the 2000 cancer diagnosis. “His overall sickened condition from smoking-related disease rendered him a very poor candidate for any sort of treatment to fix him,” Schlesinger said.
Schlesinger also reminded jurors of expert testimony concluding Oshinsky died largely because his earlier treatment for smoking-related cancer permanently weakened his immune system.
Jurors deliberated for more than a day before reaching their verdict. The compensatory award was more than half of the $10 million Oshinsky-Blacker’s attorneys requested for her wrongful death claim during closings.
The Punitive Phase: Are Tobacco Industry Changes Enough to Mitigate Damages?
The trial’s two-day punitive phase focused largely on whether the companies had done enough over the last two decades to mitigate against the damage they allegedly caused by concealing the dangers of smoking for much of the 20th century.
But the defense argued a myriad of regulatory and corporate changes over the last two decades ended tobacco’s concealment of smoking’s health risks, helped further youth anti-smoking education, and mitigated against a large punitive award.
Jurors needed about three hours to hand down the $3 million punitive verdict. Notably, the jury’s $2 million award against Reynolds was twice the $1 million in punitives it imposed on Philip Morris, despite the direct link between Morris’ Marlboros and Oshinsky’s cancer.
Garner v. Southern Group Indemnity and Statewide Adjusters ?
While waiting to make a turn, an expectant mother was struck by a careless driver. The victim survived the accident but was in a coma for more than three months of her pregnancy. She suffered severe brain damage, paralysis of her left side and now requires twenty-four-hour care.
At thirty-two weeks gestation, an expectant mother went into the hospital with complications. Attending physicians did not properly communicate with each other over the next critical days with regard to the specifics of her pregnancy. At thirty-three weeks, physicians failed to recognize that she was in labor and the baby was born under duress with a diagnosis of Cerebral Palsy.
A rear seat passenger sustained severe injury when the rental car in which he was being transported could not avoid colliding with a car cutting in front. Cervical injury required fusion at C5-C6 and C6-C7, and the victim can no longer participate in the sports activities that were the joy of his life. The jury found in favor of the victim based on driver negligence.
Michael & Michele Gamsen v. State Farm Fire and Casualty Co.
Michael Gamsen, a Pembroke Pines respiratory therapist, was driving his company’s Dodge van west on Hollywood Boulevard when he was rear-ended on March 11, 2003. The other driver, Murray Kasten, was underinsured. Gamsen’s company, Hollywood Medical Supply, had uninsured motorist coverage with State Farm Fire and Casualty. However, the insurance company did not pay.
Gamsen underwent back surgery in hopes of alleviating pain from the accident in 2004, but the operation made it worse. He stopped working about nine months after the collision. His attorney, Steven J. Hammer, said Gamsen has pain that resonates throughout his body and takes time-released morphine to cope with the pain.
That court reinstated a $4.7 million damage award to Susan Kalitan, who sued North Broward Hospital District and others over complications from surgery, namely that her esophagus was punctured during the administering of anesthesia.
FORT LAUDERDALE, FL, Sep 11, 2015 (Marketwired via COMTEX) — A team of attorneys at Schlesinger Law Offices P.A. secured a $4.5 million jury verdict for Mary Cooper in a Broward Circuit Court trial against tobacco giants Philip Morris USA Inc. and R.J. Reynolds Tobacco Co.
In the Sept. 8 verdict, a six-person jury awarded Cooper a total of $4.5 million for past and future pain and suffering, lost earnings, reduced future earning capacity and medical expenses incurred from an ongoing battle with cancer that began nearly 20 years ago. Born in 1951, Cooper began smoking cigarettes in the early 1960s and remained addicted to nicotine for almost 40 years despite numerous attempts to quit. In 1996, Cooper discovered a lump in her throat that was later diagnosed as laryngeal cancer and resulted in a 2001 surgery to remove her larynx.
The attorney’s Scott Schlesinger, Steven J. Hammer, Jonathan Gdanski and Crane Johnstone represented Cooper in the lawsuit. The case stems from the landmark Engle class-action suit against the major tobacco companies, which were found to have conspired to conceal information about the harmful impact and addictive nature of cigarettes. The Florida Supreme Court decertified the class in 2006, opening the door for the findings in the Engle case to be used by individual plaintiffs like Cooper.
Cooper’s case was originally tried in Broward Circuit Court last year, but that jury was unable to reach a verdict. The retrial commenced last month.
For Cooper, the timing of the $4.5 million jury award is critical. Since the original trial, she found out that the cancer had returned and spread to her liver. Since 2001 Cooper has spoken through the use of an electrolarynx. In 2004 cancer was found in her lungs which required the removal of one lobe.
Sheldon J. Schlesinger P.A., won a $4.34 million jury verdict against two neonatalogists on behalf of a young girl left permanently injured - the result of a viral infection misdiagnosed at birth.
Stephanie Preshong Brown v. Good Samaritan Hospital Inc.
A Palm Beach County jury has awarded $4 million on behalf of a child suffering from severe mental retardation that the family blamed on a delayed delivery in a West Palm Beach hospital more than 11 years ago.
Alvarez v. Nissan Motor Co.
A 35-year-old teacher jerked the steering wheel of her Nissan Pathfinder to avoid going onto the median after coming off a dangerous curve in the road. The vehicle flipped onto the driver's side, resulting in a partial amputation of one arm. The jury found the Nissan could have and should have designed their vehicle so as not to roll over in situations such as this.
Note: Nissan documents from the 1970's were found that discussed how the company could design a car so that it would not roll over as a result of extreme steering. In these documents Nissan called this "Overturning Immunity."
A husband and wife were severely injured in a head-on car collision in Coconut Creek. The 18-year old driver of the other car admitted liability in the accident.?
A 48-year-old baseball fan was watching a baseball game at Joe Robbie Stadium when she was hit between the eyes by a wild pitch coming out of the bullpen. The jury found that the protective screen was too low to prevent the injury, which resulted in a broken nose, chronic migraine headaches, and the necessity for continued cognitive retraining. All the defendants settled confidentially after jury selection, except the Philadelphia Phillies and Robbie Stadium Corp. The trial lasted nine weeks.
Doctors left a 12"x12" sponge inside a woman's abdomen after she underwent a cesarean section and was left for days, causing irreparable damage. She is now unable to have more children.
Seventeen-year-old ballet dancer needed arthroscopic surgery. Surgeon broke two bone shaver instruments inside the patient's hip. Patient now walks with a crutch and is in constant pain. Both hospital and orthopedic surgeon were found to be negligent.
Note: This law firm refused to be pressured into a settlement that threatened a $10,000 decrease in the offer for every day it was not accepted.
Lee v. Bret Whipple, M.D.
A 25-year old Ft. Lauderdale man was left paralyzed after a motorcycle accident. He was rushed to the hospital after the accident, but was then left unattended for 40 minutes. By the time a doctor saw him, he was paralyzed from the waist down. Hospital records indicated he was moving his arms and legs when he was brought into the emergency room.
In a high-stakes case, our firm won a $1.59 million verdict for our 65-year-old client, who spent nearly 6 years suffering from lasting injuries without a cent of compensation. Our client was sitting in a restaurant in an area known for high levels of criminal activity and the shopping center owners in which the restaurant was located took no steps to protect their patrons. Outside the restaurant, a woman was sitting in her car when two men attempted to rob her. In a moment of panic, she drove the car into the restaurant and broke our client’s back and ribs, gave him a head injury, and fractured his leg in multiple places. The property owners previously had a chance to prevent issues like this; either by hiring security guards or installing pipe bollards to keep the front of the restaurant safe from cars. They did neither, and our client paid the price. We are happy he has now received the financial security he needs to support himself, pay for the past and future medical expenses, and enjoy a better quality of life.
Our client was the owner of a 30-unit condo who hired a termite company that promised to get rid of the termites without requiring tent fumigation. The defendant would drill into the wood and inject it with a pesticide allegedly designed to kill termites. However, their methods were ineffective and led to a termite infestation across all 3 floors of the structure—even spreading to the condo units themselves. Our client hired a second termite company to do tent fumigation, but the damage had been done: there was over $450,000 of structural damage to the attic and trusses of the building. Because our client had to take a loan out to repair the damage, the total costs associated with the defendant’s negligence and false promises were over $550,000. The defendant argued that a.) the damage was preexisting, and b.) they had a contract that limited their liability. The jury rejected both defenses and awarded our client $551, 881 in damages, most of which will go toward reimbursing them for the cost of repairs.
Our firm won a verdict of $481,500 for a Fort Lauderdale client who suffered a concussion and orthopedic injuries when he was hurt by a negligent driver. Our client, a former public school construction supervisor, was riding a motorcycle on a clear day when the defendant crossed his path without giving our client enough time to stop. As a result, he struck the driver’s fender and launched into the street. His orthopedic injuries included a separated AC joint (a deeply painful shoulder injury that requires surgery) and a torn rotator cuff. His neurological injuries, however, are far worse. As a result of the concussion, our client has experienced distressing personality changes, vertigo, and memory issues. His jury award will go toward providing him with corrective surgery to his shoulder, ongoing neurological treatment, and reimbursing his medical expenses over the last several months.
While maneuvering to park her motorcycle, Karen Tarte was struck by a reversing postal service van. The collision resulted in a fractured tibia, fibula, neck sprain/strain and resultant major depressive reaction. The court found the postal worker negligent and awarded our client over $350,000.

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This present paper shows the influence of music used in a retail environment in relation to consumer behavior. For obtaining the information, we based this research on a literature review in national and international journals, by 4 databases including: Proquest, EBSCO Host, CAPES periódicos and Mendeley, in the period of 2008 and 2012, by the keywords: music behavior, music in retail environment, background music, music consumer, environmental music, music and consumer behavior and music in purchase decision. The use of music has been applied in traditional areas such as psychology, trough the discipline of environmental psychology (DONOVAN & ROSSITER, 1982).; marketers use this tool as a motivator in a purchase decision in different shopping environments. This paper shows that there is an influence of background music in purchase decision but it’s still needs an explanations of some variables. At the end this paper will present some suggestions for future research.
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ANDRADE, F. A.; BARBOSA, S. C. (2009) Influência da música ambiente sobre o comportamento de clientes e funcionárias de uma loja de varejo de moda feminina. Psicologia IESB, v. 1, n. 1, p. 11-20.
BAKER, J.; GREWAL, D.; PARASURAMAN, A. (1994) The influence of store enviromenment on quality inferences and store image. Journal of the academy marketing science, v. 22, n.4, p. 328-339.
BROEKEMIER, G.; MARQUARDT, R.; GENTRY, J. W. (2008) An exploration of happy/sad and liked/disliked music effects on shopping intentions in a women’s clothing store service setting. Journal of Services Marketing, v. 22, n. 1, p. 59–67.
CHENG, F.–F.; WU, C.–S.; YEN, D. C. (2009) The effect of online store atmosphere on consumer’s emotional response – an experimental study of music and colour. Behavior & Information technology, v. 28, n.4, p. 323–334.
DONOVAN, R. J.; ROSSITER, J. R. (1982) Store atmosphere: an environmental psychology approach. Journal of retailing v. 58, n. 1, p. 34 – 57.
DONOVAN, R. J.; ROSSITER, J. R.; MARCOOLYN, G.; NESDALE, A. (1994) Store atmosphere and purchasing behavior. Journal of retailing, v. 70, n. 3. P. 283–294.
EROGLU, S. A.; MACHLEIT, K. A. (2008) Theory in consumer – environment research. Handbook of Consumer Psychology, p. 823–835.
FERREIRA, D. C. S. (2007). Efeitos de música ambiente sobre o comportamento do consumidor: análise comportamental do cenário de consumo. Tese (Instituto de Psicologia) – Universidade de Brasília, Brasília.
GUÉGUEN, N.; JACOB, C. (2010) Music congruency and consumer behavior: an experimental field study. International Bulletin of Business Administration, ISSN: 1451-243X, n. 9, EuroJournals.
GUÉGUEN, N.; JACOB, C.; GUELLEC, LE, H.; MORINEAU, T.; LOUREL, M. (2008) Sound level of environmental music and drinking behavior: a field experiment with beer drinkers. Alcohol Clin Exp Res, v. 32, n. 10, p. 1795 – 1798.
KELLARIS, J. J. (2008) Music and consumers. Handbook of Consumer Psychology. p 837 – 856.
KIM, J.–E.; KIM, J. (2012) Human factors in retail environments: a review. International journal of retail & distribution management, v. 40, n. 11, p. 818–841.
KOTLER, P. (1973) Atmospherics as a Marketing Tool. Journal of Retailing n. 49(winter), p. 48-64.
LAI, C.-J.; CHIANG, C.-C.( 2012) Effects of placement point of background music on shopping website. Work: A journal of prevention, assessment and rehabilitation. v. 41, n. supplement 1, p. 5419–5421.
MACIEL, D. F.; ARRUDA, D. M., O.; LEOCÁDIO, Á.; GELEILATE, J. M. G.; MARCELINO, D. M. N. (2010) A influência de estilos musicais no humor, tempo percebido e decisão de retorno em loja de consumo popular. IV Encontro de Marketing da ANPAD.
MANDILA, M.; GEROGIANNIS, V. (2012) The effects of music on customer behavior and satisfaction in the region of Larissa – the cases of two coffe bars. International conference on contemporary marketing issues (ICCMI).
MARCELINO, D. M. N.; GELEILATE, J. M. G.; ARRUDA, D. M. O.; MACIEL, D. F.; LEOCÁDIO, Á. (2011) A influência da música ambiente no comportamento de aproximação e afastamento do consumidor: um estudo baseado no modelo PAD. Perspectivas Contemporâneas, v. 6, p. 45-79.
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VACCARO, V. L.; YUCETEPE, V.; AHLAWAT, S.; LEE, M.–S. (2011) The relationship of liked music with music emotion dimensions, shopping experience and return patronage intentions in retail and service settings. Journal of academy of business and economics, v. 11, n. 4, p. 94–106.
VACCARO, V. L.; YUCETEPE, V.; TORRES-BAUMGARTEN, G.; LEE, M.–S. (2009). The Impact of atmospheric scent and music-retail consistency on consumers in a retail or service environment. Journal of international business and economics, v. 9, n. 4, p. 185-196.

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Further appellate review granted, 419 Mass. 1105 (1995).
CIVIL ACTION commenced in the Superior Court Department on January 17, 1992.
Motions to dismiss and for summary judgment were heard by Katherine Liacos Izzo, J.
Samuel A. Vitali for Greater Lynn Mental Health and Retardation Association, Inc.
Frank J. Frisoli, Jr., for the plaintiffs.
Scott Harshbarger, Attorney General, Donna L. Palermino & Stanley J. Eichner, Assistant Attorneys General, for the Commonwealth, amicus curiae, submitted a brief.
Miliarases' parcel sits a two-family house and near the rear lot line is a barn, or carriage house, that has been used exclusively for storage since 1962. The use of the house as a two-family residence is a nonconforming use under the Winchester zoning by-law, and the barn constitutes a nonconforming structure because it fails to meet the by-law's minimum setback requirement.
In July, 1991, the Miliarases leased the barn to the Greater Lynn Mental Health and Retardation Association, Inc. (GLMHRA), a private, nonprofit corporation established under G. L. c. 180, which engages in educational activities, for a five-year term at a nominal rent. GLMHRA planned to renovate the barn for use as a group home for three mentally retarded autistic men. [Note 3] As at similar group houses that GLMHRA has implemented elsewhere, the Winchester residents would attend day programs, receive instruction in cooking, personal hygiene and household tasks, and be provided with occupational, speech and physical therapy by GLMHRA staff and assistants.
barn) must "be equally or more appropriate to the neighborhood than the existing nonconforming structure." The board also noted that Section 8.5 of the by-law authorized the board "to grant a special permit only where such conditions and safeguards as required by this By-law have been met and only after a determination that such grant would comply with all other provisions of this By-law and would not adversely affect the public health, safety, welfare, comfort, or convenience of the community."
The board ultimately made all of these required by-law determinations in GLMHRA's favor. In granting the special permit, the board particularly relied on its findings that satisfactory arrangements had been made by GLMHRA for ingress to and egress from the property and the proposed structure, off-street parking, refuse collection and disposal, screening and buffering, signage, and open space; that the number of vehicles allowed to park on site would not increase from the previous limit of nine; and that there was general compatibility of the project with adjacent properties and other property in the district, particularly because the neighborhood already contained numerous similar barns or carriage houses and many nonconforming structures. Additionally, the board found, in support of the permit, that the proposed barn renovations would not alter the "footprint" of the structure; that there would be no external alterations to the building except for new stairs on the front and side; that only limited site work was to be done, including construction of a retaining wall and stone rip-rap on two sides of an existing parking area, erection of a six-foot high fence along the rear and side lot lines, planting of six ten-foot evergreen trees along the rear lot line to screen the building and the parking area, and some walkways on the front and side of the building; that the parking area would remain unpaved; that there would be no external dumpster; no signs would be posted; and that no town officers or boards had commented adversely on the project.
more than three persons could reside in the group home at any time; no more than the current nine lawful parking spaces could be used; and the barn could be used only as a group home and only so long as GLMHRA operated the facility as a nonprofit organization under license by the Department of Mental Health.
The Watroses, alleging ownership of property at 10 Mount Pleasant Street that abutted the Miliarases' lot, appealed the board's decision by unverified complaint against the Miliarases, the board, and GLMHRA, filed in the Superior Court pursuant to G. L. c. 40A, Section 17, in mid-January, 1992. [Note 4] The Watroses challenged the decision on the grounds that no executed lease was in existence when it was rendered; that it violated the zoning by-law by effectively dividing the Miliaras lot into two distinct properties used for two different purposes; that it adversely affected "the comfort and convenience of the community" because "the new use is clearly more intensive than the prior use" [Note 5] and because it was "proximately located" to other dwellings; that the new use was inappropriate to the neighborhood; and that it permitted an increase in on-site parking beyond the nine previously allowed.
exhibits received in connection with that decision (including the zoning by-law), and "other discovery developed during the course of this litigation." The Watroses swiftly responded with a cross motion for summary judgment, which agreed that "there is no dispute as to any material fact" but construed those facts as requiring the "court to determine as a matter of law that the plaintiffs are entitled to judgment on the merits of their appeal." A few days later, GLMHRA filed its "support of [the board's] motion for summary judgment and opposition to [the] plaintiffs' cross motion for summary judgment."
Almost a week later, GLMHRA also filed a "motion to dismiss" the action "for lack of jurisdiction" and failure of the complaint "to meet the [standing] requirements of [G. L. c. 40A, Section 17]." In support of the motion, GLMHRA relied upon "the record of [the] proceedings and pleadings herein." After a consolidated hearing on all of the outstanding motions on June 22, 1992, at which the judge acknowledged that "the material facts are undisputed" and only issues of law remained, the motion judge denied GLMHRA's "motion to dismiss" and the defense motions for summary judgment and allowed the Watroses' cross motion for summary judgment on the ground that the board had exceeded its authority in granting the special permit. GLMHRA has appealed on the ground, among others, that the judge erroneously decided the issue of the Watroses' standing.
before her and should have entered judgment in favor of the defendants because the Watroses did not sustain their burden of establishing their standing as aggrieved persons under G. L. c. 40A, Section 17.
Although erroneously labelled a "motion to dismiss," GLMHRA's motion challenging the Watroses' standing expressly relied upon the board's findings and decision as well as the entire record before the board, which was already before the court on the cross motions for summary judgment. Having presented matters outside the pleadings, GLMHRA should have denominated its motion as one for summary judgment under Mass. R. Civ. P. 56(b), 365 Mass. 824 (1974). See Mass. R. Civ. P. 12(b), 365 Mass. 754 (1974). [Note 7] Not only were such matters "not excluded by the court," id., but the judge announced at the beginning of her memorandum of decision that she was considering the undisputed material facts -- which she then summarized, including the board's key findings supporting the special permit -- "for purposes of both the motion to dismiss and cross motions for summary judgment."
Treating GLMHRA's challenge to the Watroses' standing and the court's jurisdiction under G. L. c. 40A. Section 17, as if it were a disembodied and unsupported motion to dismiss not only was a formality that made little sense in light of the procedural actualities facing the court; it was also erroneous. When matters outside the pleadings were explicitly presented to and not excluded (indeed, were accepted) by the judge, the matter should have been handled as a motion for summary judgment, so that the judge could look beyond the unverified pleading and apply dispositive legal principles to the undisputed facts and avoid unnecessary further proceedings. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974) (in such a procedural posture "the motion [to dismiss] shall be treated as one for summary judgment" [emphasis added]); Cousineau v. Laramee, 388 Mass. 859 , 860 n.2 (1983); Davidson v. Commonwealth, 8 Mass. App. Ct. 541 , 542 n.2 (1979); Carter v. Stanton, 405 U.S. 669, 671 (1972); Gibb v. Scott, 958 F.2d 814, 816 (1st Cir. 1992).
deemed to have "constructive notice" of "conversion"); Moody v. Weymouth, 805 F.2d 30, 31 (1st Cir. 1986). The Watroses have conceded the propriety of deciding standing on the basis of all the documents before the court. They explicitly contended (as the judge had noted) that there was no dispute as to any essential material fact regarding the standing issue; that all evidence needed to adjudicate standing was properly before the motion judge; and that GLMHRA had simply failed to sustain its burden in contesting standing under the standards of rule 56 and Community Natl. Bank v. Dawes, 369 Mass. 550 (1976). Cf. In re G. & A. Brooks, Inc., 770 F.2d 288, 295 (2d Cir. 1985). It was the Watroses, however, who fell short in discharging their burden of establishing their standing to maintain an appeal as aggrieved persons under G. L. c. 40A, Section 17.
"`Aggrieved person' status is a jurisdictional prerequisite. Unless brought by a municipal officer or board, a court has jurisdiction to consider a zoning appeal only if it is taken by an aggrieved person. Although abutters and abutters to abutters enjoy a presumption of aggrieved person status, the presumption is rebuttable. Once a defendant in a Section 17 appeal challenges the plaintiff's standing and offers evidence to support the challenge -- as the defendants did here -- the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption. The plaintiff then has the burden of proof on the issue of standing. Satisfaction of that burden requires proof that the plaintiff is one of the limited class of individuals who are entitled to challenge a zoning board's exercise of discretion.
be, infringed or his property interests adversely affected. Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.
Even when positing legitimate zoning-related concerns, including possible vehicular traffic increases, anticipated parking problems, and the potential for litter, a plaintiff must nonetheless offer more than conjecture and hypothesis. He must provide specific evidence demonstrating a reasonable likelihood that the granting of a special permit will result, if not in a diminution in the value of his property, at least in his property or legal rights being more adversely affected by the activity authorized by the permit than (a) they are by present uses and activities or (b) they would be as a result of the uses and activities permitted as of right on the defendant's locus. Otherwise, a would-be plaintiff lacks the requisite standing and cannot maintain an appeal under G. L. c. 40A, Section 17, even if his property abuts or is very near the property subject to the permit." (Emphasis added).
specific facts showing actual, perceptible harm to the plaintiff in a personal and individual way).
Under these controlling standards, the judge should have allowed GLMHRA's motion attacking the Watroses' standing. Their presumptive standing as abutters receded and their burden of going forward on standing sprang up when their unsworn complaint assertions as to aggrievement were directly challenged by the denials and affirmative defenses in the defendants' answers. See Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624 , 626 (1977). They submitted no affidavits or other material to establish the requisite adversity of impact to their peculiar rights. The unverified allegations of their complaint were entitled to no consideration in evaluating the matter, see Godbout v. Cousens, 396 Mass. 254 , 262-263 (1985), and provided no specific facts as to the impact of the proposed project on them in any event. See 4-5 and note 4, above. The judge made no findings with respect to their standing but erroneously relied solely on those naked allegations. The Watroses point to nothing in the record before the motion judge which even suggests, let alone establishes, that the permitted project will diminish or adversely affect their property or legal rights, or that any effect on them would be more adverse than it would be as a result of continuation of the present use of the Miliarases' property or as a result of additional uses and activities permitted as of right.
On the contrary, to the extent the record discloses relevant and uncontradicted facts, derived from the board's findings, they militate against the Watroses' standing, since they indicate no increase in parking, traffic, or permitted persons resulting from the permitted use on the Miliarases' property, nor any physical changes incompatible with the existing character of the area. Finally, "[e]ven assuming that the anticipated . . . increases [in parking, traffic, and population] . . . will result, there [was] no specific showing [by the Watroses] that [they] will either be injured [thereby] or that such an injury would be special and different from that which others throughout the zone would experience . . . .
Even read generously, the [complaint] does not meet the requisite test of factual substantiality." Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. at 623.
Accordingly, the judgments denying GLMHRA's motion to dismiss and granting summary judgment in favor of the Watroses are reversed; and a new judgment is to be entered dismissing the Watroses' complaint.
[Note 2] John A. Prokos, Nancy M. Dingman, and Matthew H. Lynch, in their capacity as members of the town of Winchester board of appeal, and Emanuel S. and Barbara A. Miliaras.
[Note 3] One of the original three residents was to have been the Miliarases' son. That individual, however, appears to have died sometime prior to the commencement of this litigation.
[Note 4] The Watroses did not allege any facts particularizing their abutting status, such as their proximity to the rear lot line; or their ability to see the barn or the parking area or the two-family residence or anything else on the Miliaras lot; or their susceptibility to noise from the premises; or the impact on them of vehicular traffic in and out of the Miliaras property; or the likely effect on them of any spill-over off-site parking.
[Note 5] The Watroses erroneously asserted that the decision authorized residence by "a minimum of four adults." See above and note 8 below.
[Note 6] We do so, with respect to the issue of standing under G. L. c. 40A, Section 17, on grounds different from that argued by GLMHRA but squarely presented by both the record before the motion judge and that same record before this court. See Mass. R. Civ. P. 12(h)(3), 365 Mass. 757 (1974); Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619 , 622 (1981); Foley v. Lowell Sun Publishing Co., 404 Mass. 9 , 11 (1989); Flynn v. Contributory Retirement Appeal Bd., 17 Mass. App. Ct. 668 , 670 (1984).
[Note 7] It is, of course, the substance of a motion and not its technical name or label that determines its nature and legal effect. Smith & Zobel, Rules Practice Section 7.11 (1974); 2A Moore's Federal Practice Section 7.05 (1994); 5 Wright & Miller, Federal Practice & Procedure Section 1196 (1990).
[Note 8] Not only was the Watroses' complaint wrong in alleging that the special permit allowed a minimum of four persons to live in the group home rather than the board mandated maximum of three; but the judge also erroneously assumed that the three additional persons represented an increase in the number who could live on the premises as of right. Under the zoning by-law, up to four unrelated persons could reside on the property, along with the two families already in residence.

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