Present: Katzmann, Maldonado, & Blake, JJ.
Complaint received and sworn to in the Orleans Division of the District Court Department on August 9, 2013.
The case was heard by H. Gregory Williams, J.
Roderick S. Oreste for the defendant.
Elizabeth Anne Sweeney, Assistant District Attorney, for the Commonwealth.
KATZMANN, J. The defendant was convicted after a jury-waived trial in District Court of two counts of violating a 2012 statute, G. L. c. 140, § 174E(f), which protects dogs from cruel conditions and inhumane chaining or tethering. [Note 1] She now appeals, challenging the sufficiency of the evidence. In this case of first impression, which requires review of the reach of G. L. c. 140, § 174E, we conclude that subjecting a dog to cruel conditions suffices to establish a violation, and we reject the contention that outside confinement or confinement in general is an element required to convict under the statute. Accordingly, we affirm.
into a nursing home, her two Shetland sheepdogs, Zach and Kenji, remained on the property, where they had access to the inside of the condemned house and a fenced-in yard.
"(3) subjecting a dog to dangerous conditions, including attacks by other animals."
G. L. c. 140, § 174E(f).
The statute unambiguously sets out the prohibitions on "cruel conditions," "inhumane chaining," and "the tethering" [Note 3] in the disjunctive as alternative means of violating the statute. See Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267 , 270 (2013) (use of word "or," "presumed to be disjunctive," "sets out two alternative ways of committing the crime").
The plain meaning of the statute does not support the defendant's narrow reading that outside confinement or, indeed, confinement in general, is an element of the subjecting of dogs to cruel conditions that is prohibited by this subsection. See Commonwealth v. Gopaul, 86 Mass. App. Ct. 685 , 687 (2014) ("As with all matters of statutory interpretation, we look first to the plain meaning of the statutory language. Where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent" [quotations omitted]). "[F]ilthy and dirty confinement" under § 174E(f)(1) is but one example of the kind of cruel conditions that are prohibited. In addition, § 174E(f)(3)'s prohibition against subjecting dogs to dangerous conditions is made, in contrast to § 174E(f)(1) and § 174E(f)(2), without any reference to confinement or tethering.
as implicitly incorporating 'complaint' in the first, fourth, and fifth sentences of [G. L. c. 277,] § 63, the two explicit references to 'complaint' in the second sentence would be rendered impermissibly superfluous").
The switch from the disjunctive to a combination of the conjunctive and the disjunctive in the preamble to the nonexhaustive list [Note 4] does not alter our analysis, as it merely reflects § 174E's consistent equation of "chaining" and "tethering." See G. L. c. 140, § 174E(a) (twice referring to "chain or tether"); G. L. c. 140, § 174E(d) ("chained or tethered"). In effect, then, the Legislature is simply providing examples of situations that are violative of the statute as either cruel conditions or inhumane tethering or chaining, a list that includes examples where dogs are confined (§ 174E[f] and ), and examples where they are not (§ 174E[f]).
There is also no merit to the defendant's contention that her construction is supported by reading the statute as a whole. In fact, reading § 174E as a whole suggests that subsection (f) is indeed different from the preceding subsections and that subsection (e), which sets out an exception "to the above restrictions on outdoor confinement," is the dividing line between subsections devoted to outdoor confinement and one addressed more generally to the conditions in which dogs are kept.
Nor is the defendant's construction required by prior case law. General Laws c. 140, § 174E, is relatively new, effective only since October 31, 2012. In fact, only one published opinion in the Commonwealth has discussed it. In Commonwealth v. Duncan, 467 Mass. 746 , 752, cert. denied, 135 S. Ct. 224 (2014), the Supreme Judicial Court included G. L. c. 140, § 174E, in its survey of statutes collectively evincing a "public policy promoting the humane treatment of animals." The court observed that in enacting G. L. c. 140, § 174E, "the Legislature took steps to protect dogs in particular, by prescribing the duration and conditions under which they may be restrained outside," and noted that the statute requires, among other things, "that dogs confined outside be provided with clean water and appropriate shelter." Id. at 751.
treatment of the statute in Duncan indicates that it only applies to those circumstances where a dog is kept exclusively outside. Indeed, in further discussing the role of G. L. c. 140, § 174E, in the "legislative framework for preventing cruelty to animals," the court focused on "the provision regulating the conditions under which dogs may be kept outside." Id. at 752.
But Duncan's references to G. L. c. 140, § 174E, "amount to dicta, because the elements of the crime were not at issue in that case." Rodriguez, 83 Mass. App. Ct. at 271. Moreover, given that the bulk of G. L. c. 140, § 174E, addresses tethered dogs and dogs confined outside, we do not take the Duncan court's focus on that aspect of the section as any indication that the broader prohibitions contained in subsection (f) are limited to situations in which dogs are chained outdoors. Even so, the Duncan court also referenced the statute's authorization of prosecutions against "dog owners" who expose "their dogs to conditions that 'could injure or kill [them]' in ill-equipped yards, G. L. c. 140, § 174E(f)(1)." Duncan, 467 Mass. at 752. The court did not state that the dogs had to be confined to those yards in order to trigger the statute's protection, nor would it be sensible to impose such a requirement where the safety of dogs is imperiled even by an ill-equipped yard to which they have access but in which they are not confined. The defendant's conviction here is fully consistent with the court's citation to subsection (f) and the dangers faced by dogs in "ill-equipped yards."
Moreover, no disharmony or inconsistency automatically arises from overlapping statutory coverage, especially where one statute establishes a felony and another establishes a misdemeanor. [Note 6] As we noted in Erickson, 74 Mass. App. Ct. at 176, a "heightened mental state of 'knowing' and 'willful' conduct was included by the Legislature" in portions of the animal cruelty statute. Even where the animal cruelty statute requires only general intent, id. at 176-177, it is directed at intentional conduct. Cf. Duncan, 467 Mass. at 751 (observing that "[o]ur statutes evince a focus on the prevention of both intentional and neglectful animal cruelty" and citing G. L. c. 272, § 77, and G. L. c. 140, § 174E [emphasis added]). In fact, no mental state is explicitly required under subsection (f), and offenders are not at risk of imprisonment. [Note 7] Cf. Commonwealth v. Belanger, 30 Mass. App. Ct. 31 , 33 (1991) ("When statutes impose punishment out of considerations of public policy, lack of knowledge of the law or of the fact that the law has been violated does not exonerate the person who may have unwittingly violated the statute. . . . Transgressions of that sort of statute have been described as 'public welfare' or 'strict liability' offenses").
Viewing the evidence and the permissible inferences to be drawn therefrom in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671 , 676-677 (1979), we are satisfied that the evidence at trial was more than sufficient to support the judge's finding that the defendant subjected her dogs to cruel conditions in this case. By the time they were removed, a neighbor described the dogs as "ravaged" and "traumatized." They were "incredibly tick-infested" [Note 9] and "matted," and Kenji had contracted Lyme disease and sustained a soft shoulder injury to his leg that left him limping. Although the intervention of animal control led to Kenji's diagnosis and the prescription of antibiotics and pain medication, because the defendant was unable to administer the medication herself and had not found anyone to do it for her, Kenji did not receive any of his prescribed pills. They remained unopened in the condemned home.
water in bowls. Brogden-Burns was specifically concerned about items in the yard that posed a danger to the animals, including wires, shovels, and other items that could fall on or otherwise hurt them.
The judge could have inferred that the condition of the house did not improve between the condemnation and the removal of the dogs nearly a year later. Brogden-Burns's observations of the inside of the house were consistent from her first inspection in December, 2012, through subsequent visits in March, 2013. [Note 10] Although there was testimony that there were temporary improvements to the yard area, Nancy Ellis-Ice, the director of Brewster's health department, testified that the condition of the house was the same in April, 2013, as it had been when it was condemned the previous August.
alone virtually all day every day.
[Note 1] The defendant was acquitted of two counts of animal cruelty in violation of G. L. c. 272, § 77.
[Note 2] We note that the defendant's argument at trial with respect to these charges in support of her motion for a required finding of not guilty appears to have been based in part on the caption of the statute ("Chaining or tethering dog to stationary object; confinement; restrictions; penalty") as opposed to the text of the statute itself. However, "[t]he title to an act cannot control the plain provisions of the statute, although it may be a guide to resolving an ambiguity in the legislation." Breault v. Ford Motor Co., 364 Mass. 352 , 353 n.2 (1973). As shall be discussed infra, here, as in Breault, there is no ambiguity.
[Note 3] The reference to "the" before "tethering" may be an allusion to the first appearance of "tethering" in an earlier paragraph of the statute, G. L. c. 140, § 174E(a).
[Note 4] As set forth supra, § 174E(f) provides, "No person owning or keeping a dog shall subject the dog to cruel conditions or inhumane chaining or the tethering at any time" -- is followed by a nonexhaustive list of what constitutes "cruel conditions and inhumane chaining or tethering" (emphasis added).
[Note 5] The defendant's theory would also deprive animals other than dogs who are confined outdoors of the protections of the animal cruelty statute even though they are ineligible for the dog-specific protections of G. L. c. 140, § 174E.
[Note 6] Neither party has contended that G. L. c. 140, § 174E(f), establishes only a civil infraction, and the judge treated the charges as criminal offenses. We do the same.
"A person who violates this section shall, for a first offense, be issued a written warning or punished by a fine of not more than $50, for a second offense, be punished by a fine of not more than $100 and for a third or subsequent offense, be punished by a fine of not more than $300, and be subject to impoundment of the dog in a local shelter at the owner's or guardian's expense pending compliance with this section, or loss of ownership of the dog."
[Note 8] We express no opinion whether the evidence was sufficient to support the animal cruelty charges, of which defendant was acquitted by the judge.
[Note 9] The defendant's neighbor testified that in July, 2013, she picked more than thirty ticks off the dogs and that the ticks "were the size of [her] fingernails and bigger."
[Note 10] Brogden-Burns documented her December, 2012, inspection and follow-up visits in April and July, 2013, with photographs that were admitted in evidence. At least some of these photographs were transmitted to this court and considered in the resolution of this appeal.


text:
Karen Orr, for the petitioner/respondent by counterpetition.
Kenneth Cole, for the respondent/petitioner by counterpetition.
¶ 1 SHAUGHNESSY, J.: The Reasons for Judgment in this proceeding were released on July 3rd, 1998. Counsel for both parties have attended before me to make submissions concerning the disposition of costs.
The result obtained at trial by Esther Davids was better than the offer to settle dated April 9, 1998, and which was delivered pursuant to Rule 49 of the Rules of Civil Procedure.
¶ 3 Counsel for Esther Davids also requests that the trial judge assess and fix the costs, and that the assessment of costs should be limited to the submissions of counsel.
It is conceded that based on the Offer of Settlement dated April 9, 1998, and the results obtained at trial, that pursuant to Rule 49(10) Esther Davids is entitled to solicitor and client costs from April 9, 1998, but party and party costs prior to that date.
It is submitted on behalf of Marvin Davids that there are no special or unusual circumstances in this case that would warrant the granting of solicitor and client costs throughout. It is further argued that Mr. Davids has been severely reprimanded in the judgment by the award for arrears of support and other payments, which are set off against the entitlement to an equalization payment and accordingly, the imposition of solicitor and client costs would be the equivalent of "additional punishment" for Marvin Davids.
Counsel refers to recent authority for the proposition that the trial judge ought not to fix costs in a case as complex as the present matter.
"... I believe the fixing of costs still requires a critical examination of the work undertaken in order to determine that the costs claimed have been reasonably incurred and reflect what the court considers to be proper and appropriate in the circumstances, given the complexity and significance of the proceedings held up against the backdrop of full indemnification."
"Should the costs be fixed or assessed?
The defendants urge me to fix the costs. My experience with the case would save much time; the process would be less time-consuming than the assessment process; Trench warfare over every motion over 17 years of litigation would be avoided. The plaintiff sought an assessment submitting that although I knew about the trial, I would have no advantage as to the pre-trial period; the process would inevitably resemble an assessment, given the nature of the proceedings; the effective allocation of court resources called for the assignment of the task to the Assessment Officers. I should not force them to a summary fixing over their objections ... The costs will be very large amounts, backed by extensive records. Fixing the costs is meant to be a summary sort of procedure, and I do not think such a procedure is likely to reach a just result unless it evolves into something akin to an assessment, with the Judge reviewing the factors an Assessment Officer would review."
¶ 7 Associate Chief Justice Morden states that in his view Justice Lane provides the correct analysis of what factors ought to be considered in fixing or having costs assessed. Further, Justice Morden states (paragraph 99) that the trial judges' knowledge of the case "would become part of the assessment process through the directions to the assessment officer as provided for in Rule 57.02."
¶ 8 In the Murano case supra, it is stated (paragraph 100) "the total amount to be awarded in a protracted proceeding of some complexity cannot be reasonably determined without some critical examination of the parts which comprise the proceeding." And again it is stated, (paragraph 102) that the "general principle is that like cases should conclude with like substantive results."
¶ 9 Therefore, Justice Morden states in summary (paragraph 105) that "if it be objected that a careful review by a judge is too time consuming, then the proper course is to refer the costs to assessment."
¶ 10 Mr. Cole, counsel for Esther Davids requests that I conduct the assessment of costs because of my knowledge of the trial proceedings, that the costs of the litigation to date have ballooned by reason of the conduct of Mr. Davids, and that an assessment will only prolong the warfare of litigation that has lasted since 1994.
¶ 11 Ms. Orr maintains that Mr. Davids requires an extensive review of the costs and disbursements claimed by the wife. She advises that if and when counsel for Mrs. Davids and the accountant file Affidavits to confirm the work performed and the hours, accounts and disbursements incurred, then they will conduct lengthy cross-examinations on those Affidavits of the solicitor as well as the accountant.
¶ 12 I am advised that the bill of costs as prepared claims solicitor and client costs in the amount of $200,000 plus disbursements (principally the forensic accounting expense) of $90,000.
¶ 13 While there is merit to the argument that judicial involvement may bring an expeditious resolution of the matter, nevertheless, to quote the Murano case supra, expedience "should not be bought at the price of less than reasonable procedure."
¶ 14 Therefore, I find that when the costs reach an amount as suggested by counsel for the wife, it is imperative that the costs be assessed in detail by an Assessment Officer. In the particular circumstances of this case, something more than a summary analysis is required and the effective allocation of court resources calls for the assignment of the task to an Assessment Officer.
¶ 15 I do propose, however, to provide information concerning my knowledge of the case by way of directions to the Assessment Officer, pursuant to Rule 57.02 at the conclusion of my reasons.
¶ 16 While counsel for Marvin Davids has conceded that Esther Davids is entitled to solicitor and client costs from April 9, 1998, as provided under Rule 49(10), the dispute between the parties is whether solicitor and client costs should be awarded from the date of the commencement of the proceedings.
¶ 17 In Ontario, as a general principle, the courts apply the same approach to the issue of costs in family litigation as in all other forms of litigation, which is that costs will usually follow the event.
The conduct of the parties prior to the commencement of the litigation, including such issues as support.
The conduct of the parties during the litigation.
The income and assets of each party, touching upon their ability to bear their own costs and the effect of an award of costs on the ability of the party to meet the obligations imposed by the Judgment.
¶ 19 It is acknowledged that it is often more likely that the court will award costs on a party and party scale. However, in some rare and exceptional cases, solicitor and client costs have been awarded. Examples of such cases are where the husband ceased to pay child support that was ordered against him (Dacey v. Dacey 33 A.C.W.S. (3d) 377 (Ont. Gen. Div.). Likewise, unwarranted delay in proceedings that can be attributed to one party (Shafer v. Shafer, 1996 67 A.C.W.S. (3d) 525 (Ont. Gen. Div.). A refusal to make proper financial disclosure in a timely fashion and being uncooperative throughout the litigation (Kuryliak v. Kuryliak,  O.J. No. 2344 (Ont. Gen. Div.). Solicitor and client costs have been awarded to a successful party after a reasonable offer to settle in accordance with Rule 49 (Hamashuk v. Hamashuk,  O.J. No. 3522 (Q.L.) (Ont. Gen. Div.); Servos v. Servos,  O.J. No. 4131 (Q.L.) (Ont. Gen. Div.).
¶ 21 At paragraph 9 of the Reasons for Judgment, it is mentioned that Mr. Davids took the contracts and clients of Reno-Art Construction (a company held in the name of Esther Davids), and transferred the same to his new company Renart, without the consent or knowledge of Esther Davids. This constituted an obvious breach of fiduciary duty on the part of Marvin Davids. As if that were not sufficient, he proceeded to draw on the line of credit of Reno-Art and used those funds to start-up Renart Construction. Mr. Davids made no payment on the line of credit and, accordingly, the financial institution Royal Trust commenced litigation and obtained a Judgment including costs as against Esther Davids. Perhaps what is more astonishing is that Mr. Davids maintained that if Esther Davids had paid the Judgment off he could have obtained more credit, and thereby met his support obligations.
¶ 22 Mr. Davids also forwarded an invoice to Mrs. Davids for $14,000 as a charge from Renart Construction to complete the Reno-Art contracts, yet he never paid the profit that he made on the same contracts. At trial he sought to deduct from his NFP the $14,000 liability which he suggested was owed by Esther Davids. At paragraph 10 of the Reasons for Judgment, I found that the claim for a deduction of a debt by Mr. Davids was "conceived for the purpose of unfair advantage in the equalization calculation".
¶ 23 At paragraph 11 of the Reasons for Judgment, there is referenced Mr. Marvin Davids execution of a contract with his accountant, Larry Zeifman, which made both he and Esther Davids personally liable for professional fees incurred on behalf of Reno-Art Construction. Once again Mr. Davids acted without the knowledge or consent of Esther Davids. His actions gave rise to further litigation, which involved Esther Davids as a named defendant.
¶ 24 I find that Marvin Davids involved himself in these activities in a determined and deliberate effort to financially embarrass his wife in these proceedings.
¶ 25 On May 25, 1995, Mr. Justice Goodearle made an interim order requiring Marvin Davids to pay $4,000 per month as spousal/child support. In addition, he was ordered to pay all relevant third party expenses with respect to the matrimonial home. He was further ordered to pay all expenses relating to extended health coverage and all educational expenses of the children as they came due. All support payments were made retroactive to March 9, 1995.
"Regretfully, I find that the husband has been substantially in arrears of support as provided in the interim orders since they were made. The documents filed at trial as exhibits establish that as of June 8, 1998, the husband is in arrears of child and spousal support in the amount of $64,313.09. Whatever payments have been made since the first interim order have been by garnishments through the Family Responsibility Office. The husband has paid support primarily by causing his company to remit $625 to the FRO every two weeks on the pretext that this represents one-half of his net salary from the company".
¶ 27 There are other payments, which are detailed in paragraphs 18, 19 and, 20 of the Reasons for Judgment.
¶ 28 The position of Mr. Davids at trial was that the arrears of support were the direct result of "too rich an interim order being in place". (See paragraph 22 of the Reasons for Judgment).
¶ 29 Mr. Davids alleged that his income in the year 1997 was only $14,000, (see paragraph 14 of the Reasons for Judgment).
¶ 30 A very significant amount of time at trial was taken up by the forensic accounting evidence in order to assess the viability of Marvin Davids' position concerning financial incapacity. Numerous financial documents and accounting reports were undertaken to determine Mr. Davids actual income.
¶ 31 As detailed in the Reasons for Judgment, if Mr. Davids had filed accurate and reliable income tax returns and Form 69K Financial Statements, then the need for five extensive forensic accounting reports would have been eliminated. However, the evidence at trial established that the income tax returns filed were not an accurate reflection of income available to Mr. Davids from the date of separation. In nine Form 69K Financial Statements delivered by Marvin Davids in the course of these proceedings he represented his income anywhere from $56,664 to $140,353. Notably, financial statements before the two interim motions for support and the last one delivered before trial indicated significant decreases in his income from previous financial statements. The fact that he delivered a financial statement shortly before trial that significantly decreased his income, made the entire forensic accounting evidence necessary, and this in turn significantly increased the time required for the trial. It also significantly increased the costs of the trial as far as Esther Davids is concerned.
¶ 32 At paragraph 32 of the Reasons for Judgment, the five reports of the forensic accountant are detailed, and the purpose of these reports was to estimate the income over which Marvin Davids had access and control for the years 1993, 1994 and 1996. Suffice to say that this involved a very lengthy and exhaustive investigation, necessitated by the position taken by Marvin Davids that he was financially incapable of making support payments.
¶ 33 The analysis of Mr. Davids income is provided at paragraphs 34-52 of the Reasons for Judgment. There is a specific finding at paragraph 52 of the reasons that Marvin Davids has an imputed income of $168,000 each year for all of the relevant years since the date of separation. Accordingly, there was no merit in his defence that his business was failing, or that he did not have the ability to pay support. Indeed the evidence is to the contrary. His business has flourished since 1994, and he expanded the plant and labour force.
¶ 34 The findings relating to the vacations and lifestyle of Mr. Davids (paragraph 58 of the reasons) at a time when he was significantly in arrears of support, are yet a further factor that I have taken into consideration in assessing conduct during the course of the proceedings.
¶ 35 There is also a specific finding at paragraph 60 of the reasons, that with an imputed income of $168,000 there was no reasonable basis for breaching the terms of the interim orders.
¶ 36 There are other defaults and resulting litigation which occurred during the course of this proceeding. At paragraphs 62 & 65 of the Reasons for Judgment, there is detailed the default in the payment of the mortgage and taxes on the matrimonial home (which was provided for under the order of Justices Goodearle and McLean). As a result of the default, the first mortgagee commenced Power of Sale proceedings. Eventually, Mrs. Davids had to borrow funds and re-finance through a private lender to put the mortgage and taxes into good standing. A summary of all of the arrears and expenses incurred by Esther Davids by reason of the default of Marvin Davids, are detailed at paragraph 100 of the Reasons for Judgment, and which total the sum of $132,211.68.
¶ 37 Mr. Davids transferred the shares and assets of Renart to his parents before the trial. This complicated the calculation of the value of these assets, and it was done with the admitted purpose of defeating any ability of the wife to seize assets to pay arrears of support. (See paragraph 108, 109 & 110 of the Reasons for Judgment). At paragraph 115 of the Reasons for Judgment it is stated that Marvin Davids' transfer of the shares to his parents as well as his automobiles to his father and the employment agreement that he entered into with his parents all were indicative of non arms length transactions which were designed for no other purpose than to defeat the seizure and sale of assets by reason of non payment of support.
¶ 38 The Reasons for Judgment (paragraphs 102 & 114) detail that a further complicating and delaying factor at trial was the attempt by Marvin Davids to introduce what must be described as artificial debts created by the husband for no other purpose than to embarrass his wife in these legal proceedings.
¶ 39 In summary then, (paragraph 135 of the Reasons for Judgment) it is a finding of this court that regretfully Mr. Davids "has unequivocally demonstrated a profound lack of consideration for his family ... he has deliberately diverted assets ... and he has consistently manipulated both his income and assets for no other purpose than to defeat court orders".
¶ 40 It is a finding of this court that Mr. Davids' testimony at trial was replete with fabrications and deception. Often his answers were unresponsive to the questions or deliberately evasive. It was found that Mr. Davids feigned misunderstanding and he purposely attempted to mislead the court concerning his income and assets.
¶ 41 Counsel for Esther Davids produced an extensive brief, which details the various and numerous attempts that were made to settle this action. It appears that as far back of July 13, 1994 (well before the Petition for Divorce was issued), there was a four hour meeting to discuss proposals for settlement. Mr. Davids changed lawyers in August, 1994. The Petition for Divorce was issued by Marvin Davids on February 28, 1995.
¶ 42 There was a further four hour settlement meeting on April 12, 1995, wherein Mrs. Davids provided a list of proposals for settlement. It appeared, at least to Mrs. Davids' counsel that the parties were very close to a settlement at that time. A separation agreement was drafted on May 8, 1995. However, unexpectedly, Mr. Davids had his counsel deliver an Answer to the Counter-petition.
¶ 43 Accordingly, with all settlement negotiations terminated by Mr. Davids, the interim support application proceeded before Justice Goodearle. As previously indicated, Mr. Davids was in arrears on that interim order almost from the date of the commencement of the order.
¶ 44 The forensic accountant, Mr. Neil Maisal, was retained in or about July 14, 1995 by Esther Davids.
¶ 45 The examinations of Marvin Davids were scheduled and cancelled 13 times between August, 1995 and November, 1995, either because Mr. Davids requested an adjournment or he was not disclosing information requested of him by Mr. Maisal. Mrs. Davids was examined for 6 hours on September 19, 1995.
¶ 46 The examination of Mr. Davids was completed on December 7, 1995 and March, 1996.
¶ 47 There was an unsuccessful attempt at mediation with Rabbi Stern, from December, 1995 to February, 1996.
¶ 48 Mr. Davids made a settlement proposal in March, 1996, which inter alia provided for child support of $3,000 per month (tax deductible) and spousal support of $2,000 per month reviewable twice yearly, and time limited to five years from the date of separation. Esther Davids made a counter proposal on April 18, 1996, which inter alia provided for child support of $3,000 per month net of tax and spousal support of $2,500 per month until remarriage, indexed to the cost of living.
¶ 49 On August 6, 1996, Mr. Davids directed his then lawyer to deliver a further offer to settle. This time the proposal was $2,250 per month child support, tax deductible, and spousal support of $2,000 per month reviewable twice yearly and time limited to five years from the date of separation.
¶ 50 There are numerous other details to the various offers exchanged, however, I have chosen to highlight the support issues as they appear to be the most contentious.
¶ 51 This action was pre-tried before Madam Justice Boyko for 5 hours on September 30, 1996, and the matter was placed on the trial list for February, 1997.
¶ 52 It is Mr. Cole's submission, that after the pre-trial counsel met and an outline of essential terms was formulated. At this point in time, Esther Davids had lowered her demands and she was willing to accept $2,500 for child support and $2,500 for spousal support. All support was to be tax deductible by the husband. The parties were to pay tuition and education expenses of the children proportionately. The proceeds of the sale of the home were to be divided equally; however, the arrears of support and outstanding home expenses were to be paid out of the husband's net share of the proceeds of the sale of the home.
¶ 53 In or about October 9, 1996, Mr. Davids again changed solicitors, and on October 18, 1996, the husband's new lawyer was proposing arbitration. As a condition for the arbitration, Mrs. Davids' counsel secured four months of support payments, paid into a trust account by Marvin Davids. A Dispute Resolution Agreement relating to the arbitration was drafted and executed on March 11, 1997. Mr. Stephen Grant was retained by the parties to mediate and arbitrate a settlement, and the first meeting was held in June, 1997. During this period of time, default in the payment of the first mortgage occurred. With the passage of time Mr. Maisal was required to conduct further investigations and provide updated reports. The mediation sessions with Mr. Grant were never completed.
¶ 54 The original trial date was adjourned, pending the arbitration/mediation process. On September 25, 1997, the matter proceeded to an Assignment Court and a trial date was set for May 18, 1998.
¶ 55 Throughout the Fall of 1997, Mr. Maisal sent letters (see Tabs 33-38 inclusive of Petitioners Brief on Costs), which detail the lack of co-operation concerning disclosure and the hindrances that Mr. Davids caused to impede Mr. Maisal in his investigations.
¶ 56 In December, 1987, Marvin Davids had his then solicitor prepare a draft separation agreement. This draft agreement provided inter alia that the parties would equally share the equity in the home. Child support for all four children was to be in the amount of $3,200 or $2,698 for 3 children. Spousal support was to be in the amount of $1,300 per month, with no review until January, 2001. The draft agreement had a provision that there was not to be any arrears of support prior to January 1, 1998. The matrimonial home was to be sold, and until the date of sale the wife was to pay 75% of the household costs. The husband was also to be permitted to use the home as collateral for any loans that he wished to secure, pending the sale of the home.
¶ 57 Once again, I am not attempting to detail every term of that draft agreement.
¶ 58 Counsel produced a plethora of documents and letters, and I have only commented on a few of the items. What emerges is a view of how Mr. Davids instructed his various legal counsel to conduct this litigation. Whenever this matter got close to settlement, and Esther Davids reduced her demands, Mr. Davids backed away and delivered pleadings or changed counsel. His proposals for settlement became less as time went on, and I cannot help but conclude that he had no intention of settling the proceeding until Esther Davids had accepted every one of his positions on his terms. His actions and the positions taken then suggest a complete lack of appreciation for what is reasonable and necessary in the particular circumstances of his family.
¶ 59 In summary, I find as yet another factor in determining whether to assess solicitor and client costs, that meaningful steps to settle the case were not taken by Marvin Davids in a timely fashion.
"The refusal or neglect to make proper financial disclosure in a timely fashion and as required under the Rules of Civil Procedure, has several consequences. It perpetuates and fuels a feeling of mistrust between the parties, and from a psychological perspective makes settlement discussions very difficult. From a practical perspective, it precludes meaningful settlement negotiations from occurring prior to trial. Certainly, the party who has not received proper financial disclosure is not in a position to make timely settlement offers. Costs are incurred because various interim motions may have to be brought for the purpose of requiring better disclosure. The trial is lengthened as disclosure occurs on the spot for the first time. Litigants arrive in court not knowing what to expect, and what issues, if any, may be capable of resolution."
¶ 61 Accordingly, I find that Marvin Davids has, throughout these proceedings, failed to make adequate and timely disclosure which has resulted in significant forensic accounting expenses incurred by Mrs. Esther Davids.
¶ 62 Notwithstanding the conduct of Mr. Davids as noted, and the lack of good faith in terms of settlement negotiations, it is still necessary to assess the income and assets of each party, the relative means of each party to bear his or her own costs, and the effect of an award of costs on the ability of Mr. Davids to meet the obligations imposed by the judgment (see Andrews v. Andrews supra at page 36).
¶ 63 In exercising my discretion as to costs, it is apparent that there are a number of factors and competing policy considerations in determining the effect of a cost order. However, the costs that Mrs. Davids is facing are enormous, and I find that the actions and positions taken by Marvin Davids was the direct cause of those costs being incurred. Mr. Davids was provided several opportunities to settle this proceeding through meetings, and/or by mediation, and/or arbitration. In the circumstances, it would be unreasonable to burden Mrs. Davids with the costs of proceedings necessitated by the conduct and positions taken by Mr. Davids.
¶ 64 I have made findings that Mr. Davids had access and control of an imputed income of at least $168,000 per year. His business is growing and flourishing and therefore I conclude that he has the necessary resources available to pay the solicitor and client costs without affecting in any significant way the obligations imposed by the Judgment.
¶ 65 It is therefore ordered that Marvin Davids will pay Esther Davids solicitor and client costs from May 25, 1995, and party and party costs prior to that date.
¶ 66 The Reasons for Judgment detailed that I would comment further on the issue of the amount of time spent at trial concerning spousal and child support issues.
¶ 67 The history of the proceedings prior to trial as detailed above, substantiates that a very significant portion of the time and expense in the litigation and settlement negotiations as well as arbitrations were directed to the issue of spousal and child support. Almost all of Mr. Maisal's reports and evidence at trial related to that issue.
¶ 68 Therefore, I find that 70% of the costs to be awarded in this proceeding are attributable to Esther Davids efforts to secure child and spousal support.
¶ 69 It has been suggested by counsel for Marvin Davids that they propose to cross-examine on the Affidavits filed by the solicitor and the accountant in respect of accounts and disbursements incurred in these proceedings.
The solicitor and accountant will deliver an Affidavit which details the work and services performed, as well as the dates and times involved. Attached to the Affidavits will be all documentation in the nature of accounts rendered, work performed, as well as time dockets. The Affidavits should also detail the hourly rate being charged.
The solicitors for Marvin Davids will then be permitted 30 days from the receipt of the Affidavit and documentation referred to in paragraph 1, to provide written inquiries and requests for further information and documentation that they consider necessary.
Counsel for Esther Davids will respond to the inquiries referred to in paragraph 2, in writing, within 30 days of the receipt of the letter requesting further information.
It is anticipated that there will be one request for further details and information, and one response to those inquiries as provided under paragraphs 2 & 3 above.
After compliance with paragraphs 2 & 3 above, and in the event that counsel for Marvin Davids determines that it is necessary to cross-examine either the solicitor or the accountant or both on their Affidavits, then a formal motion is to be brought before me on a date to be arranged with the Trial Co-ordinator at Whitby.
¶ 71 As a further direction to the Assessment Officer, I wish to advise that all of the accounting reports prepared by the Accountant, Neil Maisal, were served and the information contained therein was introduced at trial. All of the accounting evidence and reports were necessary at trial. Further, there was an attendance before me on March 31, 1999, which related to settling the form of the Judgment, as well as extensive submissions concerning costs. The attendance on March 31, 1999, took almost the entire day.
¶ 72 If further directions are required, the parties may contact me.

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1. Statutes — Construction and Application — Permissive Language Where provision of temporary regulations pertaining to home education programs stated that a manifest educational hardship "may" be considered to exist when one or more quality indicators are present, the use of the word "may" was intended to make the finding of a "manifest educational hardship" permissive, rather than mandatory. Regulations and Procedures Pertaining to Home Education Programs in New Hampshire pt. 2, 2 (1980).
2. Statutes — Construction and Application — Permissive Language Provision of temporary regulations pertaining to home education programs, which listed nine factors as quality indicators and stated that the indicators were merely factors which "[might] be considered" in determining whether a child could derive special benefits from a home-education program, supported a conclusion that the regulations provided the state board of education with a certain degree of discretion in determining whether special benefits or a "manifest educational hardship" existed. Regulations and Procedures Pertaining to Home Education Programs in New Hampshire pt. 2 2.2 (1980).
3. Statutes — Construction and Application — Particular Words and Phrases The phrase "special benefits" as used in the regulations pertaining to home education programs was to be interpreted according to its common usage to mean benefits which were distinct or noteworthy. Regulations and Procedures Pertaining to Home Education Programs in New Hampshire pt. 2, 2.2 (1980); RSA 21:2.
4. Administrative Law — Judicial Review — Standards The supreme court must uphold the decision of an administrative agency, in the absence of an erroneous ruling of law, unless the court finds by a preponderance of the evidence that the decision was unjust or unreasonable. RSA 541:13.
5. Administrative Law — Judicial Review — Standards In reviewing an administrative decision, the supreme court will treat the agency's findings of fact as prima facie lawful and reasonable. RSA 541:13.
6. Administrative Law — Judicial Review — Standards The supreme court will not substitute its judgment for that of an administrative agency.
7. Administrative Law — Judicial Review — Discretionary Rulings State board of education's finding that plaintiffs, who applied for a home-education program for a six-year-old boy, had failed to demonstrate special benefits or a manifest educational hardship was not unreasonable or unjust where the record revealed that neither plaintiff had a college degree or any special expertise, and further, where the record indicated that the proposed home-education curriculum involved limited and irregular hours of organized instruction. Regulations and Procedures Pertaining to Home Education Programs in New Hampshire pt. 2, 2.2 (1980).
8. Administrative Law — Orders and Regulations — Execution Administrative boards must enforce their own rules and regulations.
9. Schools and School Districts — School Board's Powers and Duties — Particular Cases Where plaintiffs filed an application with local school board seeking permission to provide home education for a six-year-old boy which the board denied without providing the plaintiffs with written recommendations for correcting the deficiencies in their application, the case was to be remanded since the state board of education erred in finding that the local board had complied with the due process procedures of the regulations governing home education programs. Regulations and Procedures Pertaining to Home Education Programs in New Hampshire pt. 3, 2 (1980).
New Hampshire Civil Liberties Union (Robert M. Larsen on the brief and orally), for the plaintiffs.
Buckley Zopf, of Claremont (Robert B. Buckley, Jr., on the brief and orally), for the Claremont School District.
The plaintiffs appeal from a decision of the State Board of Education (State board) denying their application to provide home education for six-year-old Justin Peirce. They claim that the State board made erroneous evidentiary findings and failed to enforce certain due process procedures. We affirm in part, reverse in part, and remand.
On May 1, 1980, the plaintiffs, Denise Peirce and Christopher Rice, filed an application, pursuant to RSA 193:3, with the Claremont School Board, seeking permission to provide home education for Denise's son, Justin. The plaintiffs subsequently revised the application on two occasions. After a hearing on July 29, 1980, however, the Claremont School Board (the local board) voted to deny the plaintiffs' request.
In June 1980, the State Board of Education adopted "Regulations and Procedures Pertaining to Home Education Programs in New Hampshire." The regulations, which were promulgated on a trial basis, became effective on July 2, 1980, and recently expired on July 2, 1982. They established several prerequisites to the granting of a home-education program, including a requirement that the applicant prove the existence of a "manifest educational hardship." See Regulations pt. I, 2 (1980). In addition, the regulations contained a section, entitled "Due Process Procedures," which stated that upon the denial of a home-education application, the local school authority had to provide a written description of any deficiencies in the application as well as written recommendations for correcting these deficiencies. See id. pt. III, 2.
Because the plaintiffs had filed their application prior to the adoption of the State regulations, the Claremont School Board did not fully comply with the regulations while processing the May 1, 1980, application. As a result, the local board permitted the plaintiffs, on October 3, 1980, to submit a supplemental application which was to be evaluated in light of the newly adopted regulations. Following a hearing on the supplemental application, the local board found that the plaintiffs had not proven the existence of a "manifest educational hardship" as defined under the State regulations. The local board therefore denied the plaintiffs' supplemental application.
In December 1980, the plaintiffs filed a timely appeal with the State Board of Education under RSA 193:3. Shortly thereafter, the State board conducted a hearing and determined that the plaintiffs had failed to demonstrate a "manifest educational hardship." The State board also ruled that the local board had sufficiently complied with the due process procedures of the State regulations. The State board affirmed the decision of the Claremont School Board and denied the plaintiffs' request for reconsideration. The plaintiffs then initiated this appeal. See RSA 541:6.
The plaintiffs argue that the State board erred when it found that they had not demonstrated a "manifest educational hardship" within the meaning of the home-education regulations.
Because the plaintiffs' argument revolves around the alleged existence of a "manifest educational hardship," we must examine the meaning of this term under the applicable regulations. Part II, section 2.2 of the regulations stated that a "manifest educational hardship" would be considered to exist upon an objective showing that the applicant's child would derive "special benefits" from a "quality home education program." Part II, section 2.2 also set forth nine factors which were designated as "quality indicators." These indicators included criteria such as the competency of the parents, the scope of the subject matter to be studied at home, the child's potential for interaction with peers and adults, and the teaching methods to be employed.
The introduction to part II, section 2 of the regulations stated that a "manifest educational hardship may be considered to exist when one or more [quality] indicators are present." (Emphasis added.) The plaintiffs argue that this section required the State board to find a "manifest educational hardship" upon proof of any one of the nine indicators.
[1-3] We disagree with the plaintiffs' interpretation. We hold that the use of the word "may" in the introduction to part II, section 2 was intended to make the finding of a "manifest educational hardship" permissive, rather than mandatory. See Town of Nottingham v. Harvey, 120 N.H. 889, 895, 424 A.2d 1125, 1129 (1980). See generally 2A C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION 57.03, at 415-16 (4th ed. 1973). The language in part II, section 2.2, moveover, supports our construction. This section stated that the quality indicators were merely factors which "[might] be considered" in determining whether a child would derive special benefits from a home-education program. As a result, we conclude, contrary to the plaintiffs' argument, that the regulations provided the State board with a certain degree of discretion in determining whether special benefits or a "manifest educational hardship" existed. Furthermore, we interpret the phrase "special benefits" (emphasis added) according to its common usage, see RSA 21:2, to mean benefits which are distinct or noteworthy.
[4-6] Having examined the general requirements for a "manifest educational hardship" under part II, section 2.2 of the regulations, we turn briefly to the applicable standard of review on this appeal. We must uphold an agency's decision, in the absence of an erroneous ruling of law, unless we find by a preponderance of the evidence that the decision was unjust or unreasonable. RSA 541:13; see Appeal of Society for the Protection of Environ. of S.E. N.H., 122 N.H. 703, 706-07, 449 A.2d 1205, 1207 (1982); Appeal of Town of Goffstown, 121 N.H. 999, 1001, 437 A.2d 291, 293 (1981); Appeal of Gas Service, Inc., 121 N.H. 797, 799, 435 A.2d 126, 128 (1981). In reviewing an administrative decision, we will treat the agency's findings of fact as prima facie lawful and reasonable. RSA 541:13; see Appeal of Gas Service, Inc., 121 N.H. at 799, 435 A.2d at 128. We will not substitute our judgment for that of the agency. Appeal of Concord Natural Gas Corp., 121 N.H. 685, 692, 433 A.2d 1291, 1296 (1981).
In this case, we find that the evidence raised legitimate questions which might reasonably have led the State board, in its discretion under the regulations, to rule that the plaintiffs' proposed home-education program would not have provided Justin with special benefits, the prerequisite to a "manifest educational hardship" under part II, section 2.2. The record reveals that neither Denise Peirce nor Christopher Rice had a college degree or any other special expertise. The record also indicates that the proposed home-education curriculum involved limited and irregular hours of organized instruction. For example, Christopher Rice testified that he intended to instruct Justin for two hours in the morning and for an unidentified period at night but that these hours would be readjusted if Justin preferred to play during the scheduled times. Rice further stated that Justin would be free to play between the hours of noon and 6 p.m., and that on some occasions Justin would be permitted to play all day long. Based on this evidence, we cannot say that the State board's finding, that the plaintiffs had failed to demonstrate special benefits or a "manifest educational hardship," was unreasonable or unjust.
[8, 9] The plaintiffs also argue that the State board erred when it ruled that the Claremont School Board had sufficiently complied with the "Due Process Procedures" of the regulations. As previously mentioned, the regulations, pt. III, 2, required local school authorities to provide all unsuccessful home education applicants with written recommendations for rectifying any deficiencies in their applications. The record before us, however, reveals that the Claremont School Board never provided the plaintiffs with written recommendations for correcting the deficiencies in their application. It is well settled that administrative boards must enforce their own rules and regulations. Appeal of the City of Nashua, 121 N.H. 874, 876, 435 A.2d 1126, 1127-28 (1981). The State board therefore should have required the local board to provide the plaintiffs with the requisite recommendations. For this reason, we reverse the State board's ruling concerning the local board's compliance with the "Due Process Procedures" of the regulations, and we remand for enforcement of the recommendation procedures.
Following the issuance of written recommendations by the Claremont School Board, the plaintiffs should be given an opportunity to correct the deficiencies and to resubmit their application for approval by the local board. If the local board denies the revised application, the plaintiffs may again appeal to the State board. The appeal to the State board would be governed by the regulations discussed in this opinion notwithstanding the expiration of these regulations on July 2, 1982.
In closing, we emphasize that the local board must provide the plaintiffs with clear and constructive written recommendations. Nevertheless, without intending any reference to the instant dispute, we recognize that in some cases the deficiencies in an application may be of such magnitude that there is little or no chance of correcting them. In these cases, the local boards would satisfy their obligations under the regulations by identifying the specific deficiencies and explaining why they consider the deficiencies irreparable.
DOUGLAS and BROCK, JJ., concurred specially; the others concurred.
We concur in the court's holding that due process was denied these plaintiffs but cannot agree with the overly restrictive approach to RSA 193:3 by the majority.
First, some background. Historically the idea of compulsory schooling was conceived in the Protestant Reformation by Martin Luther and fostered throughout Europe as a device to suppress dissent and compel adherence to the dominant religious forces. W. RICKENBACKER, THE TWELVE-YEAR SENTENCE 11-13 (1974). In contrast, the more individualistic and freedom-loving American colonists utilized private and voluntary education as the norm. See id. at 13; City of Concord v. New Testament Baptist Church, 118 N.H. 56, 59-60, 382 A.2d 377, 379-80 (1978). While the first compulsory literacy law was enacted by the Colony of Massachusetts Bay's Puritans in 1642, it was not until 1789 that the Commonwealth of Massachusetts established the first comprehensive, statewide system of compulsory schooling. W. RICKENBACKER, supra, at 14. Such nineteenth century professional educationists as Horace Mann and Calvin Stowe set about to require universal American public education backed up by governmental compulsion through use of truancy laws. Id.; see also N. EDWARDS, THE COURTS AND THE PUBLIC SCHOOL 519 (1971). Indeed, one proponent of such concepts, Newton Bateman, who was heavily influenced by Prussian thought, even wrote that because the government's "right of eminent domain" extends over the "minds of souls and bodies" of individuals, education cannot be entrusted to "the caprices and contingencies" of individual parents. W. RICKENBACKER, supra, at 23.
The ultimate step in the process of standardizing all American education occurred in Oregon in 1922 when all private schools were banned and children were compelled to attend public schools. The implicit intent of this action was to promote uniformity by forbidding ethnic and religious groups to educate their children in a manner they desired. In Pierce v. Society of Sisters, 268 U.S. 510 (1925), however, the United States Supreme Court stated that "the child is not the mere creature of the State" and concluded that Oregon had interfered with the "liberty of parents and guardians to direct the upbringing and education of children under their control. . . ." Id. at 534-35. The Court held that such interference violated the due process clause of the fourteenth amendment.
Similar protection of the parents' substantive due process right to control the upbringing of their children was recognized in Meyer v. Nebraska, 262 U.S. 390 (1923), in which the court invalidated a State statute that prohibited teaching of modern foreign languages.
"The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition . . . ."
Id. at 232. This court specifically cited this quotation in reaffirming the fundamental rights of parents to the custody, care and nurture of their children. State v. Robert H. ______, 118 N.H. 713, 715, 393 A.2d 1387, 1388 (1978). Indeed, at common law the parents' authority over the education of their children was unquestionably a natural right which arose out of those parental responsibilities. See 1 W. BLACKSTONE, COMMENTARIES, 450-53 (1809); People v. Stanley, 81 Colo. 276, 280-81, 255 P. 610, 613 (1927); N. EDWARDS, supra, at 519. Thus, while the State may adopt a policy requiring that children be educated, it does not have the unlimited power to require they be educated in a certain way at a certain place. N. EDWARDS, supra, at 521.
Home education is an enduring American tradition and right having produced such notables as Abraham Lincoln, see A. BEVERIDGE, ABRAHAM LINCOLN 63 (1928) (one year of schooling); Woodrow Wilson, see R. BAKER, WOODROW WILSON: LIFE AND LETTERS, 37 (1927) (little formal schooling prior to college); and Thomas Edison, see M. JOSEPHSON, EDISON at 20-23 (1959) (basically taught at home by his mother). Currently, it is estimated that 10,000 children nationwide are being taught at home. Morton, The Home-Education Controversy, BOSTON MAGAZINE, October 1979, at 213; Teaching Kids at Home, 81 CURRENT EVENTS, March 1, 1982, at 4.
"[T]he state would be hard put to constitutionally justify limiting the right of normal, unhandicapped youngsters to attendance at `approved' institutions."
State v. LaBarge, 134 Vt. 276, 280, 357 A.2d 121, 124 (1976). Thus, approval requirements for non-public school education may not unnecessarily interfere with traditional parental rights. Bristow, Private Schools in Vermont: The "Equivalency Exception" to Compulsory Public School Attendance — State v. LaBarge, 2 VT. L.R. 205, 211 (1977). It is with this discussion and background in mind that the school board must consider the parents' request and apply the State regulations of the 1982-83 school year.

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Nowadays according to employers, pharmacy specialist should be not only competent professional, but versed in the consumer psychology and result oriented, at the same time, i.e. concentrated on the pharmacy competitiveness increase and on maximal income and customer satisfaction.
The aim of the presented work was to investigate the social-psychological characteristics for pharmacy specialist essential in his or her professional activity, and to substantiate the list of these characteristics.
Materials and methods. Analytical, graphical and comparative methods, methods of descriptive and abstract modeling, system analysis and synthesis, taxonomy and cluster analysis were applied in the study.
Results. Social-psychological characteristics for pharmacy specialist methodologically should be selected and substantiated by the main stakeholders: employers, pharmacists, doctors, customers and graduation course students. The research algorithm to define the professionally important social-psychological characteristics for pharmacy specialist was suggested. The professionally important social-psychological characteristics regarding the requirements of employers from different countries to pharmacy specialists include sociability, responsibility, attentiveness, orderliness, and command-orientation. The main social-psychological characteristics for pharmacy specialists based on content analysis are attentiveness, sociability, indulgence, goodwill, responsibility, neatness, sensitivity, patience. Comparison of four research results for pharmacists, doctors, customers and graduation course students form specialty "Pharmacy" allowed to select and to substantiate the social-psychological characteristics for pharmacy specialist essential in his or her professional activity. They are goodwill, stress-stability, honesty, command-orientation, neatness, affability, decency, purposefulness, desire for learn and develop, grammatically correct language, non-conflictedness.
Conclusion. The approaches to define the professionally important social-psychological characteristics for pharmacy specialist were analyzed. The research of the professionally important social-psychological characteristics for pharmacy specialist was conducted with the main stakeholders: employer, pharmacist, doctor, and customer. The list of the professionally important social-psychological characteristics for pharmacy specialist was formed on the base of conducted research.
social-psychological characteristics (SPCs); professional activity; pharmacy specialist.
Tetherich, N. V. (2015). Research of socio-psychological components of professional activity of pharmaceutical workers. Formation of a national medical policy in the context of the implementation of health insurance: education, theory and practice, 170–171.
Kaidalova, L. (2003). Pedagogicheskie tehnologii formirovaniia professional'nyh umenii i navykov studentov vysshego farmacevticheskogo zavedeniia. Kharkiv, 20.
Halii, L. V. (2011). Teoretychni i naukovo-praktychni osnovy vyznachennia kompetentsii v upravlinni personalom farmatsevtychnykh zakladiv. Kharkiv, 42.
Kaidalova, L. G. (2008). Theoretical and methodological aspects of personally oriented learning. Pedagogy, psychology and medical and biological problems of physical education and sports, 3, 74–77.
Harkusha, M. I., Sahaydak-Nikitiuk, R. V. (2016). Doslidzhennia suchasnykh vymoh robotodavtsiv do fakhivtsiv farmatsii v postradianskykh krainakh. Suchasni dosiahnennia farmatsevtychnoi tekhnolohii ta biotekhnolohii. Kharkiv: NPhU, 146–150.
Harkusha, M. I., Sahaydak-Nikitiuk, R. V. (2017). Doslidzhennia suchasnoi normatyvno-pravovoi bazy shchodo vyznachennia kharakteru ta zmistu diialnosti provizora. Menedzhment ta marketynh u skladi suchasnoi ekonomiky, nauky, osvity, praktyky. Kharkiv: NPhU, 140.
Fang, Y., Yang, S., Feng, B., Ni, Y., Zhang, K. (2011). Pharmacists' perception of pharmaceutical care in community pharmacy: a questionnaire survey in Northwest China. Health and Social Care in the Community, 19 (2), 189–197.
Raihorodskyi, D. (2017). Practical psychodiagnostics. Methods and tests. Moscow: Bakhrakh-M, 672.
Altunina, I. R., Nemova, R. S. (2011). Sotsialnaya psikhologiya. Moscow: Yurayt, 427.
Nesterenko, V. O., Sambul, V. A. (2010). Samorehuliatsiia emotsiinykh staniv pratsivnykiv orhaniv vnutrishnikh sprav Ukrainy. Problems of extreme and crisis psychology, 8, 41–52.
Shaihorodskyi, Yu. (2010). Tsinnisni oriientatsii osobystosti: formalizovana model tsilisnoho, bahatoaspektnoho analizu. Social Psychology, 1 (39), 94–106.
Sahaydak-Nikitiuk, R. V., Harkusha, M. I. (2016). Metodolohichne obgruntuvannia systemy sotsialno-psykholohichnykh kharakterystyk profesiinoi diialnosti fakhivtsia farmatsii. Social Pharmacy in Public Health, 17, 44–51.

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You cannot begin a discussion regarding heart attacks without mentioning Twice Over Clean, Inc. v. Industrial Commission 214 Ill. 403, 827 N.E.2d 409, 292 Ill.Dec. 880. But before you discuss Twice Over you must first deal with the prior dialog between the Illinois Supreme Court and the Appellate Court of Illinois, Industrial Commission Division in Sisbro, Inc. v. Industrial Commission 207 Ill. 193, 797 N.E.2d 665, 278 Ill.Dec. 70.
Sisbro involved a truck driver with a degenerative ankle problem. He stepped out of his delivery truck and into a pothole, twisting his ankle. There was conflicting medical testimony. The Petitioner was diabetic and had treatment for the same foot, for preventative reasons, every two to three months up until the time of the accident. The treater testified that the condition of ill-being could be caused by trauma. The respondent's expert testified that the condition of ill-being developed slowly over time as a result of the poorly controlled diabetic condition. The arbitrator found a causal connection between the injury and subsequent condition of ill-being. On review, the Commission affirmed. The respondent filed a review in the circuit court, arguing, among other arguments, that there was no accident. The circuit court affirmed the decision of the Commission. The respondent filed in the Appellate Court, Industrial Commission Division. The Appellate Court reversed the Commission finding that "[a]n employee whose preexisting condition was aggravated by an accident at work is not entitled to [worker's compensation] benefits 'where [his] health has so deteriorated that any normal, daily activity could have caused the injury, or where the activity engaged in presents risks no greater than that to which the general public is exposed.'" The Illinois Supreme Court granted the employee's petition for leave to appeal.
"In the case at bar, the Commission found that claimant's act of twisting his ankle as he stepped down from the 18-wheeler delivery truck was an accidental injury which arose out of and in the course of his employment. Sisbro does not seriously dispute this finding. Rather, Sisbro argues that this accidental injury was not causally-related to claimant's disabling condition, Charcot osteoarthropathy. Sisbro argues that the overwhelming weight of the evidence shows that claimant's condition (Charcot) was the result of a preexisting condition (diabetes) and that his preexisting condition (diabetes) was so "out of control" that it could have been aggravated by normal activities of life. Moreover, Sisbro contends that the appellate court correctly overturned the Commission's decision as against the manifest weight of the evidence because the Commission failed to consider whether the "normal daily activity exception" to compensability applied under the facts of this case."
The Supreme Court stated the mantra of every petitioner's attorney. That is that, "the accident need not be the sole cause or major cause of the condition of ill-being. It only need be a contributing factor and the Commission is the finder of fact". The employer's mantra has been that "if the employee's health has so far deteriorated that any normal daily activity is an overexertion, or the activity engaged in presents no greater risk than that to which the general public is exposed, compensation should be denied". The Supreme Court rejected the argument that there exists a "normal daily activity exception" to the general rule allowing compensation for work-related injuries which aggravate or accelerate a preexisting condition. Sisbro contends that the majority of the appellate court was correct when it held that a claimant is not entitled to compensation, regardless of whether his condition of ill-being was caused by work-related aggravation of a preexisting condition, if his physical condition has so deteriorated that his condition of ill-being could have been produced by normal daily activity. In rejecting this argument the Supreme Court relied upon a series of heart attack cases. (Illinois Bell Telephone Co. v Industrial Commission 35 Ill.2d 474, 220 N.E.2d 435 (1966) and National Malleable & Steel Casting Co. v Industrial Commission, 32 Ill.2d 189, 204 N.E.2d 748) The Supreme Court ruled that even if the employee's condition of ill-being had so far deteriorated that any normal activity of daily living could have caused the problem, it is still compensable if there was a finding by the Commission that the accident was in fact a contributing factor.
While Sisbro was pending before the Supreme Court, not far behind was the Twice Over case. Twice Over dealt with an employee who was working in an unheated building and removing asbestos. It was extremely cold in the building. He began to experience chest pain the afternoon of the alleged accident. That evening he was taken to the hospital by ambulance and was diagnosed as having an acute inferior myocardial infarction. At trial his family doctor testified that the myocardial infarction (MI) was caused by the physical activity at work. The family doctor also testified that the employee's right coronary artery was 90% occluded and that any activity or no activity could put sufficient stress on the heart and result in an MI. He agreed that the employee was a heart attack waiting to happen. The employer's cardiologist testified, on direct examination, that the work activity did not cause the MI and that the enzyme levels did not support the contention that the MI occurred in the afternoon. The cardiologist's testimony on cross examination agreed that the enzymatic studies could be read as being consistent with an MI during working hours. The arbitrator and Commission found that the employee sustained a work related injury when he was removing asbestos from the building and that work activity contributed to the MI. The circuit court affirmed.
The Appellate Court, in citing its first decision in Sisbro, stated that the Twice Over case presented a stronger argument for the proposition that were the evidence establishes that the claimant's condition of ill-being is so far deteriorated that any stress even the most ordinary exertion, will bring on the heart attack, then the injury is not compensable. The Appellate Court reversed the Commission and denied compensability.
"Petition for leave to appeal or appeal as a matter of right denied. In the exercise of this Court's supervisory authority, the Appellate Court, Third District, Industrial Commission Division, is instructed to vacate its judgment in Twice Over Clean v. Haulk, case No. 3-02-0353WC, and to reconsider in light of this Court's opinion in Sisbro, Inc. v. Industrial Comm'n, case No. 93729, 207 Ill.2d 198, 278 Ill. Dec. 70, 797 N.E.2d 665, 2003 WL 21197099 (05/22/03) ."
"But where, as here, the heart has deteriorated so that any exertion becomes an over‑exertion, where the mere circumstance that the employee was engaged in some kind of physical labor is what impels the doctor to testify that his work caused his death, we would have reached a point, if this Award were to be upheld, where all that is necessary to sustain an Award is that the employee shall have died of a heart attack. Here, it is plain that in the opinion of the only physician whose testimony could support the Award, death resulted from the circumstance that the employee had been subjected to any kind of exertion, even the exertion of merely being alive, so that, in this assistant medical examiner's opinion, death might easily have occurred during sleep."
The Court found the particular fact situation in Twice Over to be compelling in that if an individual's heart condition had so far deteriorated that the normal daily activity might have caused the heart attack, then the case is not compensable. "We hold that in light of his susceptibility to a heart attack outside of work, he failed in the first instance to prove a sufficient causal connection between his work and his injury." The Appellate Court basically ruled that even if the workplace contributed to the petitioner's heart attack, if in fact his heart condition had so far deteriorated that any activity or no activity could put sufficient stress on the heart to result in a myocardial infarction, then the employee has the burden of proving that the work accident was a sufficient causal connection. In essence, they ruled that "the normal daily activity" exception became an affirmative defense for the employer.
The Illinois Supreme Court accepted the employee's petition for appeal to the Supreme Court and reversed the Appellate Court. The Illinois Supreme Court took the Appellate Court to task and found that the testimony before the Commission noted that even though the employee's heart attack might have been inevitable, it was in fact caused by his heavy lifting that put extreme stress on his heart. In reversing the Appellate Court, the Supreme Court noted the Appellate Court majority held that the normal daily activity limitation bars compensation based entirely on one isolated statement by the treating doctor that any activity or no activity could have put sufficient stress on the heart to result in the myocardial infarction. In citing the dissent in the Appellate Court, the dissenting Justice noted that the employee's symptoms began during the performance of heavy labor under extreme temperature conditions. The majority of the Appellate Court ignored pertinent facts found by the Commission. The Supreme Court ruled that the Commission did in fact find sufficient causal connection between this work activity and the heart attack. The Court noted that, "The normal daily activity limitation, while relevant to the question of causation, cannot be applied as a matter of law to defeat" the employee's claim. It was error for the Appellate Court to reverse the Commission simply because of the susceptibility of a heart attack outside of work.
In attempting to prove that a heart attack is related to a work injury, the petitioner will always increase the likelihood of a successful award if he can prove that the employee at the time of the injury was in fact engaged in strenuous work and work that was not usual and ordinary. However, the mere fact that the employee was working and there is testimony than that work contributed to his heart attack should not bar compensability.
For an individual's employment to be determined to be a causative factor in development of his heart attack, he must prove by a preponderance or greater weight of the evidence, that the work stress, either mental or physical, precipitated the heart attack. Republic Steel Corp. v. Industrial Commission, 26 Ill. 2d 32, 185 N.E.2d 877 (1962). The employment need not be the "sole" or "principal" causative factor in development of the heart attack, but must be "a causative factor" in same. Sears, Roebuck & Co. v. Industrial Commission, 79 Ill.2d 59, 402 N.E.2d 231 (1980). A pre-existing heart condition does not preclude a finding of compensability as the Industrial Commission may find from the evidence presented that the employee's work duties aggravated or exacerbated his underlying condition and precipitated the heart attack. Generally, even when an employee suffers from heart disease, the employee may recover workers' compensation benefits for a heart attack which brings on the disability or death if the heart attack is work related. When there is work-related stress, either physical or mental, that aggravates an employee's heart disease so as to cause a heart attack, there is an accidental injury or death arising out of and in the course of employment. Wheelan Funeral Home v. Industrial Commission. 208 Ill.App.3d 832, 567 N.E.2d 662, 153 Ill. Dec. 704 (3 rd Dist. 1991).
In 1966, the Supreme Court decided. Illinois Bell Telephone Co. v. Industrial Commission, 35 I11.2d 474, 220 N.E.2d 435 (1966), which consisted of the following facts: The deceased had been a lineman for the company for many years, but in 1959 suffered a heart attack which was unconnected with his work wherein he was hospitalized for approximately two weeks and off of work for several months. When he returned to the company, he was provided with a light clerical job at his previous salary. His clerical job consisted basically of working at a desk where he cross-checked data on punch cards and inventory records. At times he would go on errands with papers or records. On February 19, 1963, he delivered some papers to another office about four (4) blocks away, walking each way, and when he returned, he began to perspire and feel ill. He was taken home where he laid down on the couch and at approximately 11: 45 p.m. he became unconscious. He was transported to the hospital where he was pronounced dead on arrival. The company contended that the heart attack from winch Mr. Stockcr died did not arise from his employment, but from natural risk to which all persons with his disability are exposed.
"... he walked on the streets every day in whatever he might be doing, whether on personal errands or occupational ones. The exertion involved and the risk incurred are nothing more than those to which the general public is equally exposed, the record showed that Stocker regularly engaged in activities around his home which were at least equally as strenuous as the four (4) block walk on the day of his death.
... (claims) to be compensable, must not only be sustained in the course of the employment, but must also arise out of it. It must be of such character that it may be seen to have had its origin in the nature of, or have been incidental to, the employment or it must have been the result of a risk to which by reason of the employment, the injured employee was exposed to a greater degree than if he had not been so employed. The mere fact that he was at work on the day of his heart attack and left early is not sufficient to establish a causal relationship between his employment, and his subsequent death, nor is it enough where one's heart has deteriorated so that any exertion becomes an overexertion, to merely show that he engaged in some type of physical therapy before suffering the attack".
"When workers' physical structures, diseased or not, give way under the stress of even their usual tasks, the law views this as an accident arising out of and in the course of employment. The one exception to this rule is when the heart disease is so far gone, that any stress, even the most ordinary exertion, will bring on the massive symptom of heart attack. In that case the employer is not liable, because it is only coincidence that the attack occurred at work rather than somewhere else ♦ the disability can truly be said to be not work related. Thus, compensation is denied where the employee's disability is brought on under exertion no greater than would be expected by the general public, as where the worker sat at a desk, taking orders, walking toward the first aid station, or where the employee's attack followed a walk around a freight yard."
The Commission implicitly found that Doyle's attack was not caused by work related stress, but that the heart disease had progressed to the point where any stress was too much.
In the case of Esco Corp. v. Industrial Commission, 169 Ill.App.3d 376, 523 N.E.2d 589 (4 th Dist. 1988), the Appellate Court reversed an award entered by the Industrial Commission which had awarded permanent total disability benefits to the employee. The claimant, Mr. Bullias, had sought workers' compensation benefits following a heart attack which he had suffered. The claimant worked for Esco from April 18, 1950 until April 16, 1982. In April of 1978, the claimant was replaced as director of industrial relations, but experienced no cardiac problems. In September of 1978, he was replaced by Mr. Edward Judice, who became his supervisor. In December of 1979, Mr. Judice spoke with the claimant about his possible termination and advised the claimant that he would have to prove that he was valuable to the company and would have 6 months to hold down the cost of workers' compensation and control absenteeism. The claimant felt shocked and nervous and began sending out resumes. After 1981, the business went in to a decline and a number of employees were terminated. From May 1980 to January 1982, claimant's duties and responsibility were reduced. Claimant became nervous and depressed, taking long car rides at night and watching television frequently. On January 15, 1982, the claimant was advised he was being transferred from the personnel department to the production control department due to a lack of work in personnel. The claimant performed these jobs for three months, but felt unqualified, anxious, and nervous during this time. He felt humiliated and embarrassed about his entire situation, he was often unable to sleep, sometimes vomited on the way to work, and considered suicide. On April 8, 1982, it was suggested to the claimant that he retire early because business was not going well. The claimant requested a full pension which was denied and claimant refused to retire early. On April 16, 1982, the Petitioner was terminated. He testified that when this occurred, he was in complete shock, extremely depressed, and upset. On September 9, 1982, after playing 18 holes of golf, claimant suffered a myocardial infarction at lunch. The Petitioner was diagnosed as having an acute interior wall myocardial infarction.
"If there is work related stress, either physical or emotional that aggravates a disease so as to cause the heart attack, then there is an accidental injury arising out of and in the course of the employment. Whether or not an injury occurs in the course of employment, depends upon the time, place, and circumstances under which the accident occurred. The majority of the stress which claimant points to occurred while he was employed. Compensation has been awarded for heart attacks suffered after the employee left his work.
In the present case, the myocardial infarction occurred five months after claimant was terminated. The term "employment" includes a reasonable time before or after actual employment. We find that a heart attack occurring five months after termination of employment falls outside a period of reasonable time after the actual employment as to permit an award of benefits".
The court went on to state that here, we find that, as a matter of law, claimant's disability is not compensable because his myocardial infarction constituted a subjective reaction to normal working conditions. The stress here was not unusual when compared with the stress found in employment life generally. Claimant found himself in a situation which had no greater dimensions than the situations all employees potentially face, causing mental stress and tension. All workers face the possible loss of employment triggered by an economic decline. This is a normal working condition. Transfers, demotions, new responsibilities, and layoffs or terminations are normal and expected conditions of employment life, as is the accompanying insecurity and worry. The stress stemming from the fear of losing a job was not sufficiently greater than that faced by all workers so as to make the heart attack compensable. The stress was directly referable not to employment duties, but to the inevitable transfers, demotions and terminations which are necessarily attendant to economic declines in a business, and which frequently occur during the several years just prior to a manufacturer's shutdown. Compensation is denied where the employee's disability is brought on under stress no greater than that which would be expected by the general public.
"Generally, even when an employee suffers from heart disease, if the heart attack which brings on disability or death is work related, the employee may recover workers' compensation. It is well established that if there is work related stress, either physical or emotional, that aggravates the disease so as to cause the heart attack, then there is an accidental injury or death arising out of and during the course of the employment. Further, while the claimant must prove that some act of employment was a causative factor, the Act need not be the sole, or even the principal causative factor. In addition, a pre-existing heart condition does not preclude the Commission's finding that the heart attack is compensable."
In the case of Baggett v. Industrial Commission, 201 I11.2d 187, 775 N.E.2d 908 (2002), the Supreme Court reversed the judgment of the Appellate Court and affirmed the Circuit Court judgment which adopted the Arbitrator's award finding Mr. Baggett entitled to permanent total disability benefits. Mr. Baggett was a high school industrial arts teacher. He collapsed at work and it was determined that his collapse was caused by upper gastrointestinal tract bleeding and that the resultant loss in blood volume lead to a heart attack, cardiac arrest and brain damage. A number of witnesses testified at arbitration. The record indicated that Baggett was under substantial stress at the time of his injury. The members of Baggett's building trade's class were required to build houses under strict deadline pressures. Furthermore, prior to Baggett's injury, the school district eliminated one-half of the time he could spend with student workers. That change required Baggett to complete the houses while working half days and with only one class instead of two.
The project was then delayed for reasons beyond Baggett's control and it was as much as five weeks behind schedule. The record further indicated that Baggett's students were inclined to horse play and Baggett's disciplinary duties further interfered with completing the home constructions within the deadline. The record indicated that Baggett's young students worked around scaffolding, power tools, and other hazardous construction conditions that intensified his responsibility to supervise them closely. Under the approaching deadlines, Baggett became pale and tired. He confided in his wife that he was under substantial stress and expressed his concerns about completing the project on time. The Court concluded that the stress Baggett was under was different from the stress generally experienced by the public. His stress affected him cumulatively. The school district argued that Baggett must show that his employment presented a greater risk of stress than his co-workers experienced and that such stress reached an unusual and increased level at the time of his injury. The Court rejected this argument stating that the test was whether the working conditions expose the worker to risks greater than those in the general public. The Court stated that the claimant is not required to show stress greater than that of his co-workers, but that his stress was different from the stress generally experienced by the public. The Court went on to state that for purposes of workers' compensation law, a critical distinction exists between the everyday stress of life accumulating to the point that any daily activity would have led to a specific injury and the every day mental stress of a work environment accumulating to the point that any further work related stress would lead to physical injury.
Both a casual and in depth review of the case law leads to different conclusions as to whether a particular set of facts are compensable or not compensable. As a Petitioner, you are well advised to present the facts in a light most favorable to your client, that is, the activity that he employee was engaged in when he suffered the heart attack was stressful to the extent that the general public is not exposed to such physical or mental stress. That must be followed by medical testimony that supports the claim of compensability. Certainly a cardiologist's opinion should carry more weight than the family doctor's opinion. As for defending these cases, testimony that the alleged activity was no different than any other day is helpful. A cardiologist's opinion that there is no causal connection should be placed in evidence. If there is nothing to rebut the Petitioner's claim, settle the case!

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§ 397-3 Determination of areas in need of rehabilitation.
§ 397-5 Exemption for additional improvements.
§ 397-6 Application for exemption required; records.
§ 397-7 Transfer of title.
§ 397-8 Administration pursuant to standards and guidelines.
§ 397-9 Notice to taxpayers.
§ 397-12 Establishment of hotel and motel room occupancy tax.
§ 397-13 Additional taxes and fees.
§ 397-14 Responsibility for payment; violations and penalties.
§ 397-15 Collection of tax.
§ 397-16 Transmittal of regulations.
Editor's Note: This ordinance also repealed former Art. I, Exemption for Improvements to Existing Dwellings, adopted 3-15-1980 by Ord. No. 662-80.
The purpose of this article is to provide realistic incentives to owners of residential dwellings to make improvements to such structures to the benefit of the surrounding neighborhoods in the Borough of Edgewater.
The Assessor of the Borough of Edgewater charged with the duty of assessing real property for the purpose of general taxation.
Substantially ready for the use for which it was intended.
Any building or part of a building used, to be used or held for use as a home or residence, including accessory buildings located on the same premises, together with the land upon which such building or buildings are erected and which may be necessary for the fair enjoyment thereof, but shall not mean any building or part of a building defined as a "multiple dwelling" pursuant to the Hotel and Multiple Dwelling Law, P.L. 1967, c. 76 (N.J.S.A. 55:13A-1 et seq.). A dwelling shall include individual residences within a horizontal property regime or a condominium, but shall not include "general common elements" or "common elements" of such horizontal property regime or condominium, as defined pursuant to the Horizontal Property Act, P.L. 1963, c. 168 (N.J.S.A. 46:8A-1 et seq.), or of a cooperative, if the residential units are owned separately.
The improvement of a dwelling which does not change its permitted use, and shall include the modernization, rehabilitation, renovation, alteration or repair of a dwelling.
The Borough of Edgewater in the County of Bergen, State of New Jersey.
It is hereby determined that all areas within the Borough of Edgewater are in need of rehabilitation.
The municipality shall regard as exempt from taxation the first $15,000 in the Assessor's full and true value of home improvements for each dwelling unit primarily and directly affected by a home improvement in any dwelling more than 20 years old, as not increasing the value of such property for a period of five years, notwithstanding that the value of the dwelling to which such improvements are made is increased thereby; provided, however, that during said period, the assessment on such dwelling shall in no case, except that of damage through action of the elements sufficient to warrant a reduction, be less than the assessment thereon existing immediately prior to such home improvements.
Any additional home improvements completed during a period in which the improved property is subject to previously granted exemption privileges in an amount less than the maximum exemption permissible under this article shall be qualified for an additional exemption under the terms and conditions set forth in this article; provided, however, that in no tax year shall the total exemption for any single property exceed the maximum amount specified in § 397-4 of this article.
No exemption authorized pursuant to this article shall be granted or allowed except upon written application therefor filed with and approved by the Assessor of the Borough of Edgewater. Every such application shall be on a form prescribed by the Division of Taxation, Department of the Treasury, and provided for the use of claimants by the governing body and shall be filed with the Assessor within 30 days, including Saturdays and Sundays, following the completion of the improvement. Every application for exemption of one or more improvements which qualify as improvements, and which is filed within the time specified, shall be approved and allowed by the Assessor. The granting of such exemption shall be recorded and made a permanent part of the official tax records of the Borough of Edgewater, which record shall contain a notice of the termination date of the exemption and the consequences of transfer of title.
Any exemption granted pursuant to this article shall terminate immediately upon transfer of title of property with respect to which such exemption was provided.
The terms and provisions of this article shall be administered pursuant to the standards and guidelines and the promulgation of rules and regulations by the Commissioner of the Department of Community Affairs.
The municipality shall include in the mailing of annual property tax bills to each owner of residential property, including multifamily housing, in the municipality during the first year following the adoption of this article a notice for taxpayers describing the exemption program and application procedure therefor. Such notice shall be in the form provided the municipality by the Department of Community Affairs.
Nothing contained in this article or any requirement of compliance herewith shall be deemed to alter, impair or affect the application of the Zoning Ordinance or zoning laws of the Borough of Edgewater.
It is the purpose of this article to implement the provision of P.L. 2003, c. 114, which authorizes the governing body of a municipality to adopt an ordinance imposing a tax at a uniform percentage rate not to exceed 1% on charges of rent for every occupancy on or after July 1, 2003, but before July 1, 2004, and not to exceed 3% on charges of rent for every occupancy on or after July 1, 2004, of a room or rooms in a hotel subject to taxation pursuant to Subsection (d) of section 3 of P.L. 1966, c. 40 (N.J.S.A. 54:32B-3), which shall be in addition to any other tax or fee imposed pursuant to statute or local ordinance or resolution by any governmental entity upon the occupancy of a hotel room.
There is hereby established a Hotel and Motel Room Occupancy Tax in the Borough of Edgewater which shall be fixed at a uniform percentage rate of 1% on charges of rent for every occupancy of a hotel or motel room in the Borough of Edgewater on or after July 1, 2003, but before July 1, 2004, and 3% on charges of rent for every occupancy of a hotel or motel room in the Borough of Edgewater on or after July 1, 2004, of a room or rooms in a hotel subject to taxation pursuant to Subsection (d) of Section 3 of P.L. 1966, c. 40, N.J.S.A. 54:32B-3 (sales tax).
Each assumption or absorption by a vendor of the tax shall be deemed a separate offense and each representation or advertisement continues shall be deemed a separate offense.
The penalty for violation of the foregoing provisions shall be as set forth in Chapter 1, Article II, General Penalty, of the Code.
The tax imposed by this article shall be collected on behalf of the Borough of Edgewater by the person collecting the rent from the hotel or motel customer. Each person required to collect the tax herein imposed shall be personally liable for the tax imposed, collected or required to be collected hereunder. Any such person shall have the same right in respect to collecting the tax from a customer as if the tax were a part of the rent and payable at the same time, providing the Chief Financial Officer of the Borough of Edgewater shall be joined as a party in any action or proceeding brought to collect the tax.
A copy of this article shall be transmitted to the State Treasurer and to each hotel or motel located within the Borough of Edgewater.