§ 144-1 Findings; legislative authority.
§ 144-5 Police authorized to seize evidence.
§ 144-6 Penalties for offenses.
§ 144-8 Purpose and authority.
§ 144-10 Operation of nuisance vehicles prohibited.
§ 144-11 Use of property for operation of nuisance vehicles prohibited.
§ 144-14 Penalties for offenses.
Public urination and defecation — See Ch. 192.
The proliferation of unreasonably loud and disruptive parties in the Town of Poughkeepsie, which are of such character, intensity, duration and repetition as to be detrimental to the life, health, repose and safety of the public, has reached such proportions that the Town Board, pursuant to the authority of § 10 of the Municipal Home Rule Law of the State of New York and New York Constitution, Article IX, in order to preserve, protect and promote the public health, safety and welfare, has adopted a Nuisance Party Law.
Unlawful possession of an open container of alcoholic beverage.
Unlawful sale, furnishing, dispensing or consumption of an alcoholic beverage.
Sale or furnishing of an alcoholic beverage to an underage person.
Unlawful sale or possession or use of a controlled substance.
Unlawful deposit of litter or refuse.
The damage or destruction of real or personal property.
Unlawful pedestrian or vehicle traffic.
Standing or parking of vehicles that obstruct the free flow of traffic on the public streets or sidewalks, or that impedes the ability to render emergency services.
Violation of any section of Chapter 139. Noise, of the Town of Poughkeepsie Code.
Exposure of a person or public lewdness.
Any person in attendance at a nuisance party, whether or not such person has any possessory control of the property or premises where it occurs.
Any person or legal entity which is an owner, lessor or licensor of property or premises in the Town of Poughkeepsie who allows another individual(s) or legal entity to reside at or occupy said property or premises.
Any person who is an owner, occupant, tenant, or otherwise has rightful possession or possessory control, individually or jointly with others, of any property or premises, who either sponsors, conducts, hosts, invites or permits a gathering on said property or premises.
A property owner who has been notified by the Town of Poughkeepsie Police Department of two prior convictions for violation of this article occurring within two years at a property or premises shall be considered a responsible person for purposes of future violations of this article occurring at that property or premises. Alternative proof of a property owner's responsible person status maybe offered.
No responsible person shall sponsor, conduct, host, invite, allow or permit a nuisance party.
No person attending a nuisance party who has been ordered to leave such nuisance party by a competent authority shall stay at the nuisance party property or premises unless he or she is an owner or tenant residing at that property or premises.
No person attending a nuisance party who has been ordered to leave a nuisance party by a competent authority shall leave a nuisance party and attend another nuisance party within 72 hours.
Any police officer, peace officer, or code enforcement officer who observes a nuisance party occurring may order that the nuisance party be ceased and order all nonowners and nonresidents on the property or premises where the nuisance party has occurred to leave the property or premises immediately.
Any police officer who observes a nuisance party occurring and who finds a violation of any provision of § 144-3 above may seize any and all evidence of such violation and any and all evidence of the conditions or events listed at § 144-2, "nuisance party," above, including, where appropriate, alcoholic beverages at the property or premises which are available to persons attending the nuisance party.
Any person violating any provision of this article shall be guilty of an offense punishable by a fine of not less than $250 but not to exceed $1,000 in amount or imprisonment not to exceed seven days, or any combination of such fine and imprisonment.
Any person violating any provision of this article for a second time within one calendar year from the date of his or her first offense shall be guilty of an offense punishable by a fine not less than $1,000 nor more than $2,500 in amount or imprisonment not to exceed 15 days, or any combination of such fine and imprisonment.
Any person violating any provision of this article for a third time within one calendar year from the date of his or her first offense shall be guilty of an offense punishable by a fine not less than $2,500 nor more than $5,000 in amount or imprisonment not to exceed 15 days, or any combination of such fine and imprisonment.
Nothing herein contained shall prevent the Town of Poughkeepsie from taking such other lawful action as is necessary to prevent or remedy a violation of this article.
In the event that any section, paragraph, sentence, clause or phrase of this article is held invalid or unconstitutional by any court of competent jurisdiction, the invalid or unconstitutional portions of this article shall be deemed severed from the article and shall in no way affect the validity of the rest of this article.
The proliferation of the unreasonably loud and disruptive recreational operation of ATVs, motorcycles, limited-use motorcycles, and off-highway motorcycles in the residential areas of the Town of Poughkeepsie, which operation is now of such nature, intensity, duration and repetition as to be detrimental to the life, health, repose and safety of the public, has reached such proportions that the Town Board, pursuant to the authority of § 10 of the Municipal Home Rule Law, Vehicle and Traffic Law § 2404(6), and the New York Constitution, Article IX, in order to preserve, protect and promote the public health, safety and welfare has adopted restrictions on the use of ATVs, motorcycles, limited-use motorcycles and off-highway motorcycles (''nuisance vehicles") on private property near residences in the Town of Poughkeepsie.
Whereas, the purpose of this article is to prohibit all recreational operation of nuisance vehicles on private property in close proximity to residences in the Town of Poughkeepsie.
Any all-terrain vehicle as defined in § 2281 of the Vehicle and Traffic Law of the State of New York.
Any limited-use motorcycle as defined in § 121- b of the Vehicle and Traffic Law of the State of New York.
Any non-exempt AVT, motorcycle, limited-use motorcycle or off-highway motorcycle as defined in this section.
Any off-highway motorcycle as defined in § 125-a of the Vehicle and Traffic Law of the State of New York.
Any residence, dwelling or dwelling unit located in the Town of Poughkeepsie as defined in § 210-9, Definitions of the Zoning Law of the Town Poughkeepsie.
No person shall operate any nuisance vehicle in the Town of Poughkeepsie upon private real property within 700 feet of a residence at any time, regardless of whether such vehicle is licensed, unlicensed, registered or unregistered by the New York State Department of Motor Vehicles, unless such use is exempt.
No owner, resident or person in control of private real property within the Town of Poughkeepsie shall use or permit the use of any nuisance vehicle on such real property unless such use is exempt.
No person shall operate any nuisance vehicle within the Town of Poughkeepsie on private property without a properly functioning muffler system which meets with standards for an ATV muffler as specified in New York Vehicle and Traffic Law § 2406(1)(b).
The operation of publically owned and emergency vehicles, ATVs, motorcycles, limited-use motorcycles, and off-highway motorcycles by public officers, public officials or emergency personnel in the course and scope of their duties.
The operation of any ATV, motorcycle, limited-use motorcycle or off highway motorcycle for the purpose of repairing or servicing it, or for the otherwise lawful maintenance, construction, repair, remodeling or grading of any structure or real property.
Any person convicted of a violation of this article shall be liable for a penalty of up to $250 for a first violation; of not less than $250 nor more than $500 for a second violation committed within one year of the date of the commission of the first violation, and not less than $500 nor more than $1,000 for a third violation committed within one year of the date of the commission of the first violation. Each incident is considered a separate violation.
Any person convicted of a fourth or subsequent violation of this article within one year of the date of the commission of the first violation shall be guilty of an unclassified misdemeanor and subject to a penalty of a fine of $1,000 or 15 days in jail or both.


WILLIAM J. MUSZYNSKI[*], ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION II, CHRISTINE TODD WHITMAN[**], ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY & UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS-APPELLEES.
Appeal from that part of a judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge) dismissing plaintiffs' claims alleging violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 500, et seq., resulting from defendants' approval of the State of New York's total maximum daily loads for phosphorus in eight New York reservoirs. Affirmed in part, vacated and remanded in part.
Alan G. Hevesi, pro se, New York, New York.
Andrew W. Schilling (jeffrey Oestericher) Assistant United States Attorneys, of Counsel, New York, New York, for Defendants-Appellees.
33 U.S.C. § 1313. We affirm the district court's holding that the CWA does not require TMDLs to be expressed in terms of daily loads, but remand to the district court for remand to EPA for further explanation of why annual loads are appropriate in the case of New York's phosphorus TMDLs.
We presume familiarity with the district court's thorough decisions leading up to this appeal. See Natural Resources Defense Council, Inc. v. Fox, 909 F.Supp. 153 (S.D.N.Y. 1995) ("Fox I"); Natural Resources Defense Council, Inc. v. Fox, 30 F.Supp.2d 369 (S.D.N.Y. 1998) ("Fox II"); and Natural Resources Defense Council, Inc. v. Fox, 93 F.Supp.2d 531 (S.D.N.Y. 2000) ("Fox III").
In general, the Clean Water Act protects waterbodies by limiting discharges of pollutants into them through technology based controls. See 33 U.S.C. § 1311(b)(2)(A). As the district court noted, this "effluent limitation approach focuses on regulating, through the issuance of permits and required technology-based abatement methods, the amount of pollutants discharged by a pollution source." Fox I, 909 F.Supp. at 156. The Act also requires states to adopt water quality standards for their waterbodies based upon the uses of the waterbodies. See 33 U.S.C. § 1313(a)-(c). Where effluent limitations are not "stringent enough to implement any water quality standard applicable" to a waterbody, the CWA requires that the "State shall establish a priority ranking for such waters." 33 U.S.C. § 1313(d)(1)(A). For such waterbodies, the state is required to establish a "total maximum daily load, for those pollutants which the [EPA] Administrator identifies." Id. at § 1313(d)(1)(C). Each total maximum daily load ("TMDL") "shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." Id. In effect, a TMDL posts a limit on the total amount of a pollutant a waterbody may receive over a period of time. See 40 C.F.R. § 130.2(i). The TMDL encompasses discharges into the water from specific sites (like factories located along a river) known as point sources, as well as from nonpoint sources, which can consist of, for example, runoff due to the agricultural use of land adjoining a river, as well as, finally, the natural occurrence of the pollutant in the waterbody (i.e., "natural background"). See id.; 33 U.S.C. § 1362(14) (defining "point source"); Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (defining "nonpoint source"). The TMDLs the state establishes to limit the loading (or release) of pollutants into a waterbody must in turn be approved by the EPA. See 33 U.S.C. § 1313(2).
organic material which, after disinfection, leads to by- products."
In 1994, NRDC filed an environmental citizen suit in the United States District Court for the Southern District of New York, claiming, in pertinent part, that the State of New York had a non-discretionary duty under the CWA to promulgate TMDLs for the nineteen reservoirs providing New York City drinking water, and that its failure to do so amounted to a constructive submission of no TMDLs, leaving EPA with the non-discretionary duty to promulgate the TMDLs itself. See Fox I, 909 F.Supp. at 155. The district court refused NRDC summary judgment on this claim, holding there was a genuine issue of fact concerning whether New York had submitted TMDLs for the reservoirs. See id. at 158.
In January 1995, New York placed the nineteen reservoirs on a list submitted to EPA naming waterbodies for which technology-based pollution controls were "not stringent enough to attain or maintain compliance with applicable state water quality standards," which, for the reservoirs, is "water supply." The waterbodies on the list were given priority in the development of TMDLs for pollutants impairing water quality. In 1996, New York published a report explaining the methodology for calculating the phosphorus TMDLs for the reservoirs. The report explained that developing TMDLs "for a large watershed can be data intensive and a phased approach is often used to protect the water body while additional information is collected," and noted that initial phosphorus TMDLs (the "Phase I TMDLs") would be "based on the best available data and utilize simplified models." The Phase I TMDLs were to be supplemented in 1998 by a second set of TMDLS ("Phase II TMDLs") taking into account "improved data."1 The Phase I TMDLs were established, and after a public comment period during which NRDC offered criticisms, the TMDLs were submitted to EPA for eighteen of the nineteen reservoirs on January 31, 1997. On April 2, 1997, EPA approved the submission for eight of the reservoirs. It also declined to approve the submitted TMDLs for the remaining ten reservoirs because it concluded that pollution levels in those reservoirs did not exceed the level that required resort to TMDLs under the CWA.


§ 246-1 General authority and purpose.
§ 246-3 Placement of boats, floats, moorings and anchorings.
§ 246-4 Removal of disabled boats and beached vessels.
§ 246-5 Wharfage fees at certain public docks.
§ 246-6 Operating boats near bathers.
§ 246-7 Speed of boats.
§ 246-8 Use of Town launching ramps.
§ 246-10 Waterskiing, surfboarding; water scooters.
§ 246-11 Skin diving or swimming in channels.
§ 246-12 Marking of diving areas.
§ 246-14 Power boats excluded from certain waters.
§ 246-15 Placement of fish traps.
§ 246-16 Floating homes prohibited.
§ 246-17 Special permits for aquatic events.
§ 246-20 Diving or swimming from Town docks prohibited.
§ 246-24 Penalties for offenses.
§ 246-26 Authority and purpose.
§ 246-28 Designated Vessel Waste No-Discharge Zones.
§ 246-29 Securing of marine sanitation devices; use of pump-out station.
§ 246-32 Penalties for violations.
§ 246-35 Penalties for offenses.
Beaches and parks — See Ch. 91.
Docks — See Ch. 120.
Shellfish — See Ch. 213.


Naturalization acts of the United States have limited admission to citizenship to those within its limits, and under its jurisdiction.
An alien's right to acquire citizenship is purely statutory, and extension of the effect of naturalization to minor children of the person naturalized not included in the statute must come from Congressional legislation, and not judicial decision.
Section 2172, Rev.Stat., and the naturalization laws of the United States, do not confer citizenship on the minor children of a naturalized alien who were born abroad and remain abroad until after their parent's naturalization; such children are aliens, subject as to their entrance to the United States to the provisions of the Alien Immigration Act of March 3, 1903, 32 Stat. 1213, and may be excluded if afflicted with contagious disease.
for a writ of habeas corpus filed by Charles Zartarian in behalf of Mariam Zartarian, his daughter, who, it was alleged, was unlawfully imprisoned, detained, and restrained of her liberty at Boston by the United States Commissioner of Immigration, which imprisonment was alleged to have been in violation of the constitutional rights of the said Mariam Zartarian without due process of law, and contrary to the provisions of § 2172 of the Revised Statutes of the United States, which section, it is alleged, made said Mariam a citizen of the United States by virtue of the citizenship of her father, the petitioner.
"The petitioner, Charles Zartarian, formerly a subject of the Sultan of Turkey, became a naturalized citizen of the United States on September 12, 1896 at the Circuit Court of Cook County, in the State of Illinois. That his daughter Mariam, on whose behalf this petition is brought, is a girl between fifteen and sixteen years of age, and was born just prior to the petitioner's leaving Turkey. That, in the latter part of the year 1904, the Turkish government, at the request of the United States minister at Constantinople, granted permission to the petitioner's wife, minor son, and his said daughter Mariam to emigrate to the United States, it being stipulated in the passport issued to them that they could never return to Turkey. That on March 22, 1905, the Hon. G. V. L. Meyer, then United States Ambassador at Rome, Italy, issued a United States passport to your petitioner's said wife and daughter. That said Mariam arrived at Boston from Naples, Italy, on April 18, 1905, and that, on April 18, 1905, she was found to have trachoma, and was debarred from landing by a board of special inquiry appointed by the United States Commissioner of Immigration for the port of Boston."
The petitioner's child, Mariam Zartarian, was debarred from landing at the port of Boston under the provisions of the Act of March 3, 1903, c. 1012, 32 Stat. 1213, U.S.Comp.Stat.Supp.
1903, p. 170, entitled "An Act to Regulate the Immigration of Aliens into the United States."
Section 2 of that act, among other things, provides that certain classes of aliens shall be excluded from admission to the United States, including "persons afflicted with a loathsome or with a dangerous contagious disease." Upon the finding of the board of inquiry that said Mariam had trachoma, she was debarred from landing.
"The children of persons who have been duly naturalized under any law of the United States . . . being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof."
As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of Congress, for, wanting native birth, she cannot otherwise become a citizen of the United States. Her right to citizenship, if any she has, is the creation of Congress, exercising the power over this subject conferred by the Constitution. United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 702.
or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States."
In Campbell v. Gordon, 6 Cranch 176, it was held that this act conferred citizenship upon the daughter of an alien naturalized under the Act of January 29, 1795, she being in this country at the time of the passage of the Act of April 14, 1802, and then "dwelling in the United States."
The act has also been held to be prospective in its operation, and to include children of aliens naturalized after its passage, when "dwelling in the United States." Boyd v. Nebraska, 143 U. S. 135, 143 U. S. 177.
The construction of this law and the meaning of the phrase "dwelling in the United States" have been the subject of much consideration in the executive department of the government having to do with the admission of foreigners and the rights of alleged naturalized citizens of the United States. The rulings of the State Department are collected in Prof. Moore's Digest of International Law, Vol. 3, pp. 467 et seq.
The Department seems to have followed a rule established at an early period, and formulated with fullness in Foreign Relations for 1890, p. 301, in an instruction from Mr. Blaine to Minister Phelps at Berlin, in which it was laid down that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child if at the time of the father's naturalization dwelling within the jurisdiction of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority.
Whether in the latter case a child not within the jurisdiction of the United States at the time of the parent's naturalization, but coming therein during minority, acquires citizenship is not a question now before us.
and is also in deference to the right of independent sovereignties to fix the allegiance of those born within their dominions, having regard to the principle of the common law which permits a sovereignty to claim, with certain exceptions, the citizenship of those born within its territory.
It is pointed out by Mr. Justice Gray, delivering the opinion in United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 686, that the naturalization acts of the United States have been careful to limit admission to citizenship to those "within the limits and under the jurisdiction of the United States."
The right of aliens to acquire citizenship is purely statutory, and the petitioner's child, having been born and remained abroad, clearly does not come within the terms of the statute. She was debarred from entering the United States by the action of the authorized officials, and, never having legally landed, of course, could not have dwelt within the United States. Nishimura Ekiu v. United States, 142 U. S. 651.
It is urged that this seems a harsh application of the law; but if the terms of the statute are to be extended to include children of a naturalized citizen who have never dwelt in the United States, such action must come from legislation of Congress, and not judicial decision. Congress has made provision concerning an alien's wife or minor child suffering from contagious disease, when such alien has made a declaration of his intention to become a citizen, and when such disease was contracted on board the ship in which they came, holding them under regulations of the Secretary of the Treasury until it shall be determined whether the disorder will be easily curable, or whether such wife or child can be permitted to land without danger to other persons, requiring that they shall not be deported until such facts are ascertained (32 Stat. 1221, U.S.Comp.Stat. Supp. of 1903, p. 185). But Congress has not said that an alien child who has never dwelt in the United States, coming to join a naturalized parent, may land when afflicted with a dangerous contagious disease.
matter must rest there; it is only for the courts to apply the law as they find it.
It is suggested that the agreed finding of facts contains no stipulation as to the dangerous or contagious quality of trachoma, but the petition shows that the petitioner's daughter was debarred from landing because it was found that she had a dangerous contagious disease -- to-wit, trachoma. Furthermore, the statute makes the finding of the board of inquiry final so far as review by the courts is concerned, the only appeal being to certain officers of the Department. 32 Stat. 1213; Nishimura Ekiu v. United States, 142 U. S. 651.


(2) the employer offers its full-time employees (and their dependents) the opportunity to enroll in MEC under an eligible employer-sponsored plan that, with respect to a full-time employee who has been certified for a premium tax credit or cost-sharing reduction, either is unaffordable within the meaning of § 36(B)(c)(2)(C)(i) or does not provide minimum value within the meaning of § 36(B)(c)(2)(C)(ii) (§ 4980H(b) liability).
The annual assessable payment under § 4980H(a) is based on all (excluding the first 30) full-time employees, while the annual assessable payment under § 4980H(b) is based on the number of full-time employees who purchase coverage on an exchange and receive a premium tax credit in connection with the exchange-based coverage.
Substantially all means that the employer offers coverage to all but 5% or, if greater, five of its full-time employees. The term dependents does not include spouses.
An employee is an individual who is an employee under the common law standard, and an employer is the person that is the employer of an employee under the common law standard. The common law standard is a facts and circumstances analysis but essentially an employment relationship exists when the person for whom the services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. In other words, an employment relationship exists if an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The guidance further provides that “leased employees” (under the rules prescribed by Code § 414(n)(2)) would not be “employees” for this purpose, because § 4980H makes no reference to leased employees and accordingly would not apply to § 4980H.
§ 4980H treats, with respect to a month, an employee who has an average of at least 30 hours of service per week as a full-time employee (130 hours of service in a calendar month treated as the monthly equivalent of at least 30 hours of service per week).
Each hour for which an employee is paid, or entitled to payment by the employer on account of a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence (29 C.F.R. § 2530.200b-2(a)). There is no limit to the hours that may be credited for paid leave.
For employees paid on an hourly basis (hourly employees), the employer would be required to calculate actual hours of service from records of hours worked and hours for which payment is made or due (payment is made or due for vacation, holiday, illness, incapacity, etc.).
Although an employer would be required to use one of these three methods for counting hours of service for all non-hourly employees, an employer need not use the same method for all non-hourly employees, but may apply different methods for different classifications of non-hourly employees, if the classifications are reasonable and consistently applied. In addition, an employer may change the method of calculating non-hourly employees’ hours of service for each calendar year. For example, for all non-hourly employees, an employer may use the actual hours worked method for the calendar year 2014, but may use the days-worked equivalency method for counting hours of service for the calendar year 2015.
The number of hours of service calculated using the days-worked or weeks worked equivalency method would be required to reflect generally the hours actually worked and the hours for which payment is made or due. An employer would not be permitted to use the days-worked or weeks-worked equivalency method if the result would be to substantially understate an employee’s hours of service in a manner that would cause that employee not to be treated as full-time.
All hours of service an employee performs for members of the controlled group are counted.
Services performed outside of the United States: hours of service do not include hours of service to the extent the compensation for those hours of service is “foreign source income.” This means that hours of service generally will not include hours of service worked outside of the U.S. Residency or citizenship is not considered for these purposes.
Commission Employees, Adjunct Faculty, Transportation Employees (e.g., Airline Pilots) and Similar Positions: until further guidance is issued, employers with employees in these types of positions must use a reasonable method of crediting hours of service consistent with the purpose of 4980H. Methods that result in counting only some of an employee’s hours, or that would characterize a “full-time” employee as part-time would not be considered reasonable.
The following was created to illustrate the full-time safe harbor as explained in Notice 2012-58 and the proposed regulations. The safe harbor (the guidance is not mandatory but optional) is for purposes of determining whether someone is a full-time employee for purposes of the employer pay-or-play mandate under the health care reform law. If the employee determines that an employee averaged at least 30 hours per week during the measurement period, then the employer must treat the employee as a full-time employee during the subsequent stability period.
Please note that the examples provided below are used for illustration purposes only; the specific dates used in the examples are only to illustrate application of the safe harbor guidance.
Notice 2012-58 provided that the guidance could be relied on through at least the end of 2014 (for measurement periods that begin in 2013/2014 and the associated stability periods, including stability periods ending after 2014). Employers may rely on the proposed regulations pending the issuance of final regulations or other guidance.
The safe harbor distinguishes between new employees and ongoing employees. For purposes of the guidance, calendar month means one of the full months named in the calendar (e.g., January, February March) and the terms month means the period from a day in one month to the prior day of the following month (e.g., January 15 to February 14).
Ongoing employee: An employee who has been employed by the employer for at least one complete standard measurement period. Only an ongoing employee who works full-time during the standard measurement period is offered coverage during the stability period associated with that measurement period.
The proposed regulations employers to adjust the starting and ending dates of their measurement periods. They can correspond with the beginning and ending of regular payroll periods if each of the payroll periods is one week, two weeks or semi-monthly in duration.
An employer may change the standard measurement period or standard stability period from year to year, but cannot change either period once the standard measurement period has begun. Solely for purposes of stability periods beginning in 2014, employers may adopt a transition measurement period that is shorter than 12 months but that is no less than 6 months long and that begins no later than July 1, 2013 and ends no earlier than 90 days before the first day of the plan year beginning on or after January 1, 2014.
Administrative period: A time period of no longer than 90 days following the end of a standard measurement period and ending before the associated stability period. Any administrative period between the standard measurement period and the stability period may neither reduce nor lengthen the measurement period of the stability period. The administrative period will overlap with the prior stability period, so that, during any such administrative period applicable to ongoing employees following a standard measurement period, ongoing employees who are eligible for coverage because of their status as full-time employees based on a prior measurement period would continue to be offered coverage.
Stability period: For those deemed to be full-time employees it is a period of at least 6 consecutive calendar months that is no shorter in duration than the standard measurement period and that begins after the standard measurement period and any applicable administrative period. If the employer determines that the employee did not work full-time during the standard measurement period, the employer would be permitted to treat the employee as not full-time employee during the stability period that follows, but is not longer than, the standard measurement period.
To reduce administrative burden, the employer should consider choosing a stability period that aligns with the schedule on which the employer intends to administer the plan (e.g., election year)should match the employer’s plan year (the period of time for which participant elections are effective).
Nonpayment of Premium: The proposed regulations provide that, if an employee enrolls in coverage but fails to pay the employee’s share of the premium on a timely basis, the employer is not required to provide coverage for the period for which the premium is not timely paid, and that employer is treated as having offered that employee coverage for the remainder of the coverage period (typically the remainder of the plan year) for purposes of section the pay-or-play penalty. The regulations generally adopt the provisions applicable for purposes of payment for COBRA continuation coverage, which generally provides a 30-day grace period for payment and also provides rules with respect to timely payments that are not significantly less than the amount required to be paid and for responding to requests by health care providers for confirmation of coverage during the grace period.
Employee A worked full-time during standard measurement period, 10/15/13-10/14/14, Employee A must be treated as a full-time employee for the entire stability period, 1/1/15 – 12/31/15.
Employee B did not work full-time during standard measurement period, 10/15/13-10/14/14, Employee B is not a full-time employee during the stability period, 1/1/15-12/31/15. If Employee B had coverage under the plan during the preceding stability period, Employee B’s last day of coverage would be 12/31/14 (end of current stability period, 1/1/14 – 12/31/14).
Employee A worked full-time during the standard measurement period (8/1/13 – 10/31/13), Employee A must be treated as a full-time employee for the entire stability period (1/1/14 – 6/30/14).
Employee B did not work full-time during standard measurement period (8/1/13 – 10/31/13), Employee B is not a full-time employee for following stability period (1/1/14 – 3/31/14). If B had coverage under the plan during the preceding stability period, last day of coverage would be 12/31/13 (end of prior stability period, 7/1/13 – 12/31/13).
Are measurement and stability periods longer than 12 months?
Is the stability period for ongoing employees who work full-time during the standard measurement period shorter than the standard measurement period?
Is the stability period for ongoing employees who do not work full-time during the standard measurement period longer than the standard measurement period?
Is the administrative period longer than 90 days?
Employee A worked full-time during the standard measurement period (8/1/13 – 1/31/14), Employee A must be offered coverage for the entire stability period (4/1/14 – 9/30/14).
Employee B did not work full-time during standard measurement period (8/1/13 – 1/31/14), Employee B is not required to be offered coverage for following stability period (4/1/14 – 9/30/14 ). If Employee B had coverage under the plan during the preceding stability period, last day of coverage would be 3/31/14 (end of prior stability period (10/1/13 – 3/31/14)).
If an employee is reasonably expected at his or her start date to work full-time, an employer that sponsors a group health plan that offers coverage to the employee at or before the conclusion of the employee’s initial three calendar months of employment will not be subject to the employer responsibility payment under § 4980H by reason of its failure to offer coverage to the employee for up to the initial three calendar months of employment.
ABC Company’s eligibility for its group health plan is first of the month following 60 days. Employee A starts work on June 17, 2013 and he is expected to work full-time. He is not a variable hour or seasonal employee. Employee A will be eligible for coverage on September 1, 2013.
If an employer maintains a group health plan that would offer coverage to the employee only if the employee were determined to be a full-time employee, the employer may use both a measurement period of between three and 12 months (the same as allowed for ongoing employees) and an administrative period of up to 90 days for variable hour and seasonal employees. However, the measurement period and the administrative period combined may not extend beyond the last day of the first calendar month beginning on or after the one-year anniversary of the employee’s start date (totaling, at most, 13 months and a fraction of a month).
Variable Hour Employee: If, based on the facts and circumstances at the employee’s start date, it cannot be determined that the employee is reasonably expected to work on average at least 30 hours per week during the initial measurement period.
Seasonal Employee: Through at least 2014, employers are permitted to use a reasonable, good faith interpretation of the term seasonal employee for purposes of the full-time employee determination.
The initial measurement period must be between 3 and 12 months (as selected by the employer).
An administrative period of up to 90 days is permissible.
The stability period for such employees must be the same length as the stability period for ongoing employees.
If an employee is determined to be a full-time employee during the initial measurement period, the stability period must be a period of at least 6 consecutive calendar months that is no shorter in duration than the initial measurement period and that begins after the initial measurement period (and any associated administrative period).
If a new variable hour/seasonal employee is determined not to be a full-time employee during the initial measurement period, the employer is permitted to treat the employee as not a full-time employee during the stability period that follows the initial measurement period. This stability period for such employees must not be more than 1 month longer than the initial measurement period and must not exceed the remainder of the standard measurement period (plus any associated administrative period) in which the initial measurement period ends. In this situation, allowing the stability period to exceed the initial measurement period by one month is intended to give additional flexibility to employers that wish to use a 12-month stability period for new variable hour /seasonal employees and an administrative period that exceeds one month. To that end, employers could use an 11-month initial measurement period (in lieu of the 12-month initial measurement period that would otherwise be required) and still comply with the general rule that the initial measurement period and administrative period combined may not extend beyond the last day of the first calendar month beginning on or after the one-year anniversary of the employee’s start date.
If a new variable hour or seasonal employee experiences a change in employment status (i.e., a material change in the position of employment or other employment status) during the initial measurement period that, had the employee begun employment in such new status, would have resulted in the employee being reasonably expected to be employed on average at least 30 hours a week, the employee generally will be treated as a full-time employee on the first day of the fourth month following the change in employment status (or, if earlier and the employee averaged more than 30 hours of service during the initial measurement period, the first day of the first month following the end of the initial measurement period and any administrative period). Notably, this rule applies only to new employees, not ongoing employees.
Treat as New Employee: If the period of “no service” was at least 26 consecutive weeks, an employer may treat an employee who returns to work as a new employee for purposes of determining the employee’s status as a full-time employee. For “no service” periods of less than 26 weeks, the employer may apply an optional rule of parity and treat the employee as a new employee if the “no service” period is at least 4 but less than 26 weeks long, and is longer than the period of employment. For example, if the employee works 3 weeks, terminates for 10 weeks, and is rehired, the employee may be treated as new.
Treat as Continuing Employee: If neither of these tests is satisfied, the employer must treat the employee who returns to work as a continuing employee who retains the same measurement and stability period that would have applied if the employee had not had a period of “no service” (e.g., if an employee who was being treated as full-time for a stability period returns during that stability period, he or she must be treated as full-time for the balance of the stability period).
Additional requirements apply to continuing employees of educational organizations for educational breaks. Specifically, for periods of at least 4 consecutive weeks (that are not unpaid special leave) the educational organization must either (1) determine average weekly hours excluding the break, or (2) credit employees with average hours for the break that equal the average during the weeks without the break. Crediting for any employment break period is capped at 501 hours a calendar year (not including special unpaid leave).
The proposed regulations propose a method for averaging hours when applying the look-back measurement method to measurement periods that include special unpaid leave. This method applies only to an employee treated as a continuing employee upon the resumption of services, and not to an employee treated as terminated and rehired. For this purpose, special unpaid leave refers to a period of unpaid leave subject to the Family and Medical Leave Act of 1993 (FMLA), unpaid leave subject to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and unpaid leave on account of jury duty.
Under this proposed averaging method, the employer determines the average hours of service per week for the employee during the measurement period excluding special unpaid leave period and uses that average as the average for the entire measurement period. Alternatively, the employer may choose to treat employees as credited with hours of service for special unpaid leave at a rate equal to the average weekly rate at which the employee was credited with hours of service during the weeks in the measurement period that are not special unpaid leave.
Transition: Once an employee, who has been employed for an initial measurement period, has been employed for an entire standard measurement period, the employee must be tested for full-time status, beginning with that standard measurement period (at the same time and under the same conditions as other ongoing employees).
In this example, the employer uses a six-month standard measurement period, starting each May 15 and November 15, with six-month stability periods associated with those standard measurement periods starting January 1 and July 1.
May 10, 2014 hire date. Initial measurement period runs from May 10, 2014 through November 9, 2014 (6 month initial measurement period). Employee works an average of 30 hours per week. Initial stability period runs from January 1, 2015 through June 30, 2015. The employer must test the employee again based on the employee’s hours during the employer’s first standard measurement period that begins after the employee’s start date, which is from November 15, 2014 through May 14, 2015.
The employer tests the employee again based on the employee’s hours during the period from November 15, 2014 through May 14, 2015 (the employer’s first standard measurement period that begins after the employee’s start date), during which the employee works an average of 28 hours per week. The employer continues to offer coverage to the employee through June 30, 2015 (the end of the initial stability period based on the initial measurement period during which the employee worked an average of 30 hours per week), but does not offer coverage to the employee for the subsequent stability period, from July 1, 2015 through December 31, 2015.
The employer, ABC Company, has chosen to use a 3-month measurement period for ongoing employees (see dates below) and a 3/6 month stability period (see dates below). For new variable hour employees, the employer uses a 3-month initial measurement period that begins on the employee’s start date and applies an administrative period that runs from the end of the initial measurement period through the end of the first full calendar month beginning after the end of the initial measurement period.
Employee A starts on May 10, 2014. The 3 month initial measurement period runs from May 10, 2014 through August 9, 2014. ABC Company uses an administrative period that runs from the end of the initial measurement period through the end of the first full calendar month beginning after the end of the initial measurement period: August 10, 2014 – September 30, 2014. If Employee A is deemed to be a full-time employee, ABC Company must offer Employee A coverage for the stability period that runs from October 1, 2014 – March 31, 2015. If Employee A is not deemed to be a full-time employee, ABC Company does not offer Employee A coverage for the subsequent stability period which runs from October 1, 2014 – December 31, 2014.
For purposes of transitioning from a new variable hour employee to an ongoing employee, ABC Company must test Employee A again based on Employee A’s hours during the first standard measurement period that begins after Employee A’s start date: August 1, 2014 – October 31, 2014 (plus associated administrative period through December 31, 2014). If Employee A is deemed to be a full-time employee during the standard measurement period, Employee A should be offered coverage for the subsequent stability period: January 1, 2015 – June 30, 2015.
Does the initial measurement period exceed 12 months?
Does the administrative period total more than 90 days?
Does the combined initial measurement period and administrative period last longer than the final day of the first calendar month beginning on or after the one-year anniversary of the employee’s start date?
The employer, DEF Company, has chosen to use a 6-month measurement period for ongoing employees (see dates below) and a 6 month stability period (see dates below). For new variable hour employees, the employer uses a 6-month initial measurement period that begins on the employee’s start date and applies a 2-month administrative period.
Employee A starts on May 10, 2014. The 6 month initial measurement period runs from May 10, 2014 through November 9, 2014. DEF Company uses a 2-month administrative period: November 10, 2014 – January 31, 2015. If Employee A is deemed to be a full-time employee, DEF Company must offer Employee A coverage for the stability period that runs from February 1, 2015 – July 31, 2015. If Employee A is not deemed to be a full-time employee, DEF Company does not offer Employee A coverage for the subsequent stability period (February 1, 2015 – July 31, 2015).
For purposes of transitioning from a new variable hour employee to an ongoing employee, DEF Company must test Employee A again based on Employee A’s hours during the first standard measurement period that begins after Employee A’s start date: August 1 , 2014 – January 31, 2015 (plus associated administrative period through March 31). If Employee A is deemed to be a full-time employee during the standard measurement period, Employee A would be offered coverage for the subsequent stability period, April 1, 2015 – September 30, 2015.
The employer, ABC Company, has chosen to use a 6-month measurement period for ongoing employees (see dates below) and a 6 month stability period (see dates below). For new variable hour employees, the employer uses a 6-month initial measurement period that begins on the first of the month following the employee’s start date and applies a 2-month administrative period.
Employee A starts on May 10, 2014. The 6 month initial measurement period runs from June 1, 2014 through November 30, 2014. ABC Company uses a 2-month administrative period: December 1, 2014 – January 31, 2015. If Employee A is deemed to be a full-time employee, ABC Company must offer Employee A coverage for the stability period that runs from February 1, 2015 – July 31, 2015. If Employee A is not deemed to be a full-time employee, ABC Company does not offer Employee A coverage for the subsequent stability period (February 1, 2015 – July 31, 2015).
For purposes of transitioning from a new variable hour employee to an ongoing employee, ABC Company must test Employee A again based on Employee A’s hours during the first standard measurement period that begins after Employee A’s start date: August 1 , 2014 – January 31, 2015 (plus associated administrative period through March 31). If Employee A is deemed to be a full-time employee during the standard measurement period, Employee A would be offered coverage for the subsequent stability period, April 1, 2015 – September 30, 2015.
The employer, DEF Company, has chosen to use a 12-month measurement period for ongoing employees (see dates below) and a 12-month stability period (see dates below). For new variable hour employees, the employer uses a 12-month initial measurement period that begins on the first of the month following the employee’s start date and applies a 1-month administrative period.
Employee A starts on May 10, 2014. The 12 month initial measurement period runs from June 1, 2014 through May 31, 2015. DEF Company uses a 1-month administrative period: June 1, 2015 – June 30, 2015. If Employee A is deemed to be a full-time employee during the initial measurement period (June 1, 2014 – May 31, 2015), DEF Company must offer Employee A coverage for the initial stability period that runs from July 1, 2015 – June 30, 2016. If Employee A is not deemed to be a full-time employee, DEF Company does not offer Employee A coverage for the subsequent stability period (July 1, 2015 – June 30, 2016).
For purposes of transitioning from a new variable hour employee to an ongoing employee, DEF Company must test Employee A again based on Employee A’s hours during the first standard measurement period that begins after Employee A’s start date: November 1 , 2014 – October 31, 2015 (plus associated administrative period through December 31, 2015). If Employee A is deemed to be a full-time employee during the standard measurement period, Employee A would be offered coverage for the subsequent stability period, January 1, 2016 – December 31, 2016.


text:
The California Court of Appeal, in a recent important decision (People v. Keith Chung), has joined a few other jurisdictions in applying to the protection of animals an important exception to the requirement of a search warrant.
In general, both the federal Bill of Rights and comparable constitutional provisions in the states require that before a search (or seizure) can be made by government officials, a search warrant must be obtained from a judicial officer. It takes “probable cause” that a crime has been, or is being, committed to support the issuance of a warrant.
As with most legal doctrines, there are exceptions. For example, if a weapon reasonably believed to have been used in a bank robbery is seen lying on the sidewalk–that is, “in plain view”–the police don’t need a warrant to seize it.
Thus, the question for the California Court of Appeal in the Chung case was whether there were “exigent circumstances” presented to the responding police officers.
Chung’s neighbor, Jennifer Lee, testified she called the police in the early morning hours of July 13, 2007, and reported hearing the high pitched crying of a dog in pain in the unit above hers. Lee told the officers who responded to her call that she had heard similar sounds in the past, but this time it sounded more serious. The officers went to Chung’s door but he said he did not own any dogs. While the officers spoke to Chung, one of them heard the faint sound of a dog whimpering inside Chung’s condominium. Believing there was an animal in distress, the officers entered without a warrant after Chung refused the officers permission to enter.
The officers found an injured dog on the patio and a dead dog in the freezer section of the refrigerator. Both dogs had suffered head trauma. The live dog on the patio was euthanized by a veterinarian later that morning.
Given these facts, the Court of Appeal ruled that the requisite exigent circumstances were present, that the officers had a right to enter without first securing a warrant, and that Chung’s conviction for cruelty to animals was valid.
According to the court, criminalizing the abuse of animals had deep historical roots (as the Supreme Court of the United States recently recognized in United States v. Stevens), and California has the constitutional power to punish conduct such as Chung’s.
[O]fficers conducted a warrantless entry into business premises, a pet shop, based on exigent circumstances. The officers entered the premises following reports of stench and flies at the store and found animals in distress.
Broden concluded [that] the exigent circumstances exception permits officers to make a warrantless entry when there are reasonable grounds to believe there are animals in need of immediate aid.
People v. Thornton an Illinois case, is directly on point. There, a police officer responded to a report of a dog barking for several days inside an apartment. The apartment manager informed the officer she previously had entered the apartment using a key after being unable to contact the resident and found a thin dog shaking and continuously whimpering and yelping in a small cage. The tenant who lived above the apartment told the officer the dog had been yelping continuously for two or three days. The officer entered the apartment to check on the well-being of the dog and found it in conditions matching those described by the manager.
Thornton found the totality of the circumstances known to the officers at the time of the entry into the apartment was sufficient to permit the officers reasonably to believe that an emergency requiring their immediate assistance was at hand. Thornton concluded the officers reasonably could have believed the dog was not merely “uncomfortable,” but was in need of immediate assistance to avoid serious injury or, possibly, death.
Thornton noted other jurisdictions also had applied the exigency exception to prevent harm to animals, citing Suss v. American Society for Prevention of Cruelty to Animals . . . [cat trapped between walls of two buildings]; Tuck v. United States . . . [rabbits in unventilated display window of a pet store suffering from extreme heat], and State v. Bauer, [distressed horses in barn].
Thus, the net result of the Chung decision is a strong plus for animal protection.
ISAR anticipates that this issue will arise in other states, which will reach the same conclusion. Serious apparent danger to animals will suffice for a warrantless entry.
Keith Chung has the right to seek review in the Supreme Court of California. If he does, ISAR will be there to oppose him.

matches: v. v. v. v. v. v.


SHAWN C. WETZEL, et al., Respondents.
On May 28, 2013, the pro se petitioner, David Clarence Schroll,  filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1, Pet.) For the reasons set forth below, the Petition will be dismissed.
On April 29, 2013, Mr. Schroll refused to leave the premises and was subsequently arrested by the Adams County Sheriff and charged with criminal trespass, defiant trespass and disorderly conduct. ( Id. ) Following a May 8, 2013, preliminary hearing, all charges were held for court. On June 20, 2013, Mr. Schroll appeared before the Adams County Court of Common Pleas for arraignment. ( Id., ECF p. 21.) On October 7, 2013, Mr. Schroll entered a guilty plea to defiant trespass while the other charges were withdrawn.
As relief, Mr. Schroll seeks the court to terminate the then pending criminal action against him and to restore his title to the subject property.
Typically, a federal court will entertain a request for habeas relief after the state-court judgment is entered, and do so under 28 U.S.C. § 2254, but the court also has authority under 28 U.S.C. § 2241(c)(3) to grant habeas relief before a judgment is entered in the state-court criminal proceedings. See Moore v. DeYoung, 515 F.3d 437, 441-42 (3d Cir. 1975); see also Duran v. Thomas, 393 F.Appx. 3 (3d Cir. 2010) (nonprecedential) (quoting Moore ) (summarily affirming dismissal of § 2241 petition alleging improper warrantless arrest and excessive bail because of failure to exhaust); Chambers v. DeRose, No. 10-2070, 2010 WL 4623897, at *2 (M.D. Pa. Nov. 5, 2010).
A section 2241 petitioner seeking to invoke our "pretrial" habeas jurisdiction must have exhausted state-court remedies and must also make "a special showing of the need" for us to adjudicate his petition at such an early juncture. Moore, 515 F.2d at 443. If he has not exhausted his remedies, we may still adjudicate his petition if there are "extraordinary circumstances." Id.
While the court has jurisdiction under § 2241 to entertain Mr. Schroll's pretrial habeas corpus petition, it is clear that he is not entitled to habeas relief at the time he filed his petition. First, to the extent that he has raised any federal constitutional claims in his petition, he has failed to exhaust them. In order to exhaust a claim, a petitioner must "fairly present" it to each level of the state courts. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000). As Mr. Schroll wad not even been formally arraigned in the Adams County Court of Common Pleas at the time he filed his petition, the trial court had not yet been given the opportunity to rule on his claims. Clearly, the claim presented in his petition that the Commonwealth lacked jurisdiction to prosecute him because he was a "foreign central bank, " his claims are unexhausted.