MPCA encourages citizens to sign up and help monitor water quality in Minnesota. See Citizen Water Monitoring, Minn. Pollution Control Agency, https://www.pca.state.mn.us/water/citizen-water-monitoring (last visited Feb. 7, 2019). Interested citizen scientists can find their site here at: https://www.pca.state.mn.us/water/find-site-and-sign (last visited Feb. 7, 2019).
Permits are required to conduct research in state parks and natural areas. See Minn. R. 6136.0550; id. 6212.1400; Research in Minnesota State Parks, Minn. Dep’t of Nat. Resources, https://www.dnr.state.mn.us/parks_trails/research.html (last visited Feb. 7, 2019); Minnesota Scientific and Natural Areas Program Research and Education, Minn. Dep’t of Nat. Resources, https://www.dnr.state.mn.us/snap/research.html (last visited Feb. 7, 2019).
No. In order for a person’s entry upon property to constitute criminal trespass, either (1) the person must “refuse to depart from the premises on demand of the lawful possessor,” Minn. Stat. § 609.605, subd. 1(b)(3), or (2) the property must be “locked or posted,” id. § 609.605, subd. 1(b)(4).
“A person is guilty of a gross misdemeanor if the person enters the posted premises of another on which cattle, bison, sheep, goats, swine, horses, poultry, farmed Cervidae, farmed Ratitae, aquaculture stock, or other species of domestic animals for commercial production are kept, without the consent of the owner or lawful occupant of the land.” Minn. Stat. § 609.605, subd. 5(a).
DNR “discourages use of unmanned aircraft in state parks, state recreation areas, and state waysides because of the impracticality of their operation under existing rule.” Minnesota State Park Rules, Minn. Dep’t of Nat. Resources, https://www.dnr.state.mn.us/state_parks/rules.html (last visited Feb. 7, 2019).
(b) Whoever enters an underground structure that (1) contains a utility line or pipeline and (2) is not open to the public for pedestrian use, without claim of right or consent of one who has the right to give consent to be in the underground structure, is guilty of a gross misdemeanor. The underground structure does not need to be posted for this paragraph to apply.” Minn. Stat. § 609.6055, subd.2.
“‘Critical public service facility’ includes buildings and other physical structures, and fenced in or otherwise enclosed property … oil refineries; and storage areas or facilities for hazardous materials, hazardous substances, or hazardous wastes.” Id. § 609.6055, subd. 1(b).
“‘Pipeline’ includes an aboveground pipeline, a belowground pipeline housed in an underground structure, and any equipment, facility, or building located in this state that is used to transport natural or synthetic gas, crude petroleum or petroleum fuels or oil or their derivatives, or hazardous liquids, to or within a distribution, refining, manufacturing, or storage facility that is located inside or outside of this state. Pipeline does not include service lines.” Id. § 609.6055, subd. 1(c).
“‘Utility’ includes … any local utility or enterprise formed for the purpose of providing electrical or gas heating and power, telephone, water, sewage, wastewater, or other related utility service[.]” Id. § 609.6055, subd. 1(d)(3).
A person is guilty of stalking if he “follows, monitors, or pursues another, whether in person or through any available technological or other means” or “returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent.” Minn. Stat. § 609.749, subd. 2(2)-(3).
“As used in this section, ‘stalking’ means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.” Id. § 609.749, subd. 1.
MPCA should “maximize use of available . . . resources . . . including use of citizen monitoring and citizen monitoring data . . . that meets the requirements . . . of the Volunteer Surface Monitoring Guide” in implementing the state clean water act. Minn. Stat. § 114D.20, subd. 3(2).
MPCA may only consider citizen-collected data that “meets the requirements . . . of the Volunteer Surface Monitoring Guide,” Minn. Stat. § 114D.20, subd. 3(2), or that “adheres to agency quality assurance and quality control protocols.” Minn. Stat. § 115.06, subd. 4(2).
Requires certification that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” Minn. R. Civ. P. 11.02(c).
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Minn. R. Evid. 901(a).
Minnesota Rule of Evidence 702 and Mack-Frye standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 812-14 (Minn. 2000) (reaffirming use of Mack-Frye standard and declining to adopt Daubert standard); see also State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980).


The claimants (L and C) applied for judicial review of a decision of the defendant regulatory body (R) refusing to clear an advertisement for broadcasting on the basis that it offended the prohibition on political advertising.
L ran a national Christian radio station and C was a publisher of Christian magazines. They wished to publish an advertisement on the radio asking about the marginalisation of Christians in the workplace and informing listeners that the advert was "seeking the most accurate data to inform the public debate" and to "help make it a fairer society". R checked the advert to ensure compliance with the appropriate code and stated that it was of the view that the advertiser intended to use the information provided to influence or change government policy. It refused to clear the advertisement for broadcasting as it offended the prohibition on political advertising under the Communications Act 2003 s.319 and s.321. R played no part in the instant proceedings but the secretary of state, as interested party, opposed L and C's application.
L and C contended that broadcasting the advertisement would not contravene s.319 or s.321 but, even if it did, the statutory prohibition was incompatible with their rights under the European Convention on Human Rights 1950 art.10.
(1) The prohibitions on political advertising contained in s.319 and s.321 were justified as being necessary in a democratic society and therefore compatible with art.10, R. (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport  UKHL 15,  1 A.C. 1312 followed. Accordingly, the restrictions set out in s.319(2)(g) constituted restrictions prescribed by law and were necessary in a democratic society, VgT Verein gegen Tierfabriken v Switzerland (24699/94) (2002) 34 E.H.R.R. 4 and TV Vest AS v Norway (21132/05) (2009) 48 E.H.R.R. 51 considered. Radio and television advertising were areas where a degree of control was to be expected, R. (on the application of ProLife Alliance) v BBC  UKHL 23,  1 A.C. 185 applied and R. (on the application of Gaunt) v Office of Communications (OFCOM)  EWCA Civ 692,  1 W.L.R. 2355 considered (see paras 29, 49 of judgment). (2) The purpose of the ban on political advertising was to ensure that the public were protected from that form of advertising, irrespective of the views, or motives, of the advertiser. If the motive of the advertiser was of decisive or crucial importance the mere fact that an advertiser could show that he did not intend to bring about one of the consequences set out in s.321(3) would mean that the advertisement might have to be cleared, even though it would inevitably fall into one of the categories within s.321(3). There was nothing in the wording of the legislation which showed that the intent of the advertiser had any relevance. Applying an objective test, the instant advertisement sought to obtain information which would be used to try to make changes to society and would fall within s.321(3)(b), s.321(3)(c), s.321(3)(d) or s.321(3)(f) (paras 58-59). (3) Whilst the meaning of the statutory provisions were ultimately a question for the court, the appropriate decision maker on whether the advertisement should be cleared was R and its decision to refuse clearance could not be classed as irrational, R. v Monopolies and Mergers Commission Ex p. Ecando Systems Philbeach Events  C.O.D. 89 applied (paras 60-61).
The restriction on advertising that contravened the prohibition on political advertising under the Communications Act 2003 s.319(3)(g)constituted restrictions prescribed by law and were necessary in a democratic society for the purposes of the European Convention on Human Rights 1950 art.10(2). The purpose of the ban on political advertising was to protect the public, and the views of the advertiser, as to whether an advertisement was political, were irrelevant.


The Agricultural Credit Act of 1987 and related federal law allow some distressed farmers to reacquire or lease agricultural property transferred by foreclosure or deed in lieu of foreclosure to Farm Credit System Institutions, the Secretary of Agriculture, Administrator of Small Business Administration, and Farmers Home Administration. State law may create additional rights.
Rights of first refusal and options by the previous owner to purchase and/or lease the land pursuant to 12 U.S.C. § 2219a.
The Company requires a satisfactory affidavit executed by an authorized officer or employee of the institution that the rights of 12 U.S.C. § 2219a are not applicable (such as with rural housing loans). If 12 U.S.C. § 2219a is applicable, the Company must be furnished an affidavit that (1) the notices required by 12 U.S.C. § 2219a were given, (2) the previous owner did not exercise the right to acquire or lease the land and the rights expired, and (3) no third party (including the previous owner) is in possession of the land. The affidavit must recite the dates of mailing of notice and the response of the previous owner. The affidavit must attach copies of the notices. The Company may then make additional requirements or exceptions.
Comment: If a Farm Credit System Institution (e.g., Farm Credit Banks, Production Credit Associations, or some other agricultural lenders) acquires agricultural real estate (not housing financing), the borrower has the right to repurchase or lease after foreclosure or deed in lieu. The Company must be satisfied that these rights expired.
Rights and options to purchase and/or lease the land pursuant to 7 U.S.C. § 1985.
The Company requires a satisfactory affidavit executed by an authorized officer or employee of the Department of Agriculture or related agency or institution that the option to purchase or lease pursuant to 7 U.S.C. § 1985 has expired or that the provisions of that section do not apply. The affidavit also must recite that no third party (including the borrower-owner) is in possession of the land. The Company may then make additional requirements or exceptions.
Comment: If farmland is acquired by the Secretary of Agriculture or Farmers Home Administration, the borrower has the right to reacquire or lease the land.
Rights and options to purchase and/or lease the land pursuant to 7 U.S.C. § 2000.
The Company requires a satisfactory affidavit executed by an authorized officer or employee stating either that the provisions of 7 U.S.C. § 2000 do not apply to the land (such as where Farmers Home Administration made a rural home loan under different laws) or that the rights of the borrower have expired. The affidavit must recite the notices given. The affidavit must attach copies of the notices. The affidavit also must recite that no third party (including the borrower) is in possession of the land. The Company may then make additional requirements or exceptions.
Comment: If the Secretary of Agriculture, Farmers Home Administration, or Administrator of Small Business Administration acquires farmland homestead property (up to 10 acres plus home) by foreclosure or deed in lieu, the borrower may reacquire the land.
Comment: If a Farm Credit System Institution (e.g., Farm Credit Banks, Production Credit Associations, or some other agricultural lenders) acquire agricultural real estate (not housing financing) by foreclosure or deed in lieu, the borrower has the right to repurchase or lease after foreclosure or deed in lieu.
Rights and options to purchase and/or lease the land pursuant to 7 U.S.C. § 1985 or § 2000.
Comment: If farmland or farmland homestead is acquired by the Secretary of Agriculture, Small Business Administration, or Farmers Home Administration, the borrower may have the right to repurchase or lease the land.


text:
1. Section 206(a) of the Transportation Act, providing that actions against the agent designated by the President shall be brought not later than two years from the passage of the act, did not set aside a shorter limitation provided in existing bills of lading. P. 260 U. S. 688.
2. A stipulation in a bill of lading that actions for loss, damage or delay shall be instituted only within two years and one day after delivery of the goods, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed, is reasonable and valid. P. 260 U. S. 689.
3. A decision of the Interstate Commerce Commission that such a stipulation was unreasonable, held not binding in this case. P. 260 U. S. 689.
4. The reasonableness of such a limitation is a matter of law. P. 260 U. S. 689.
5. When not affected by statute, a limitation prescribed by contract like the above applies to the action which is prosecuted to judgment, and is not extended by the bringing of a previous action. P. 260 U. S. 689.
6. An agreement limiting the time for bringing actions against the carrier "for loss, damage or delay" of goods shipped applies to claims that the goods delivered were short of the weight specified in the bills of lading. P. 260 U. S. 689.
transferee of bills of lading for failure to deliver the full weight of cotton covered by them.
"suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed."
They also stated the weight "subject to correction." The district court, after careful consideration, dismissed the petition upon demurrer on the ground that the suit was too late under the quoted words of the contract, and also on the merits. 274 F. 443. The circuit court of appeals affirmed the judgment, adopting the opinion below as to the time within which the suit must be brought. 276 F. 400.
cannot suppose that it was intended to invalidate existing contracts good when made. New York Central R. Co. v. Lazarus, 278 F. 900; William F. Mosser Co. v. Payne, Director General, (W.Va.) 114 S.E. 365; Northern Milling Co. v. Davis, (Wis.) 190 N.W. 351. In our opinion, this contract was good when made. The time allowed was reasonable. Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657, 227 U. S. 672; Texas & Pacific Ry. Co. v. Leatherwood, 250 U. S. 478, 250 U. S. 481. We agree with the district court that Decker & Sons v. Director General, 55 I.C.C. 453, should not be understood or allowed to contravene our conclusion, upon the facts here. The statutes of the states where the goods were shipped and the suit was brought do not affect the contract, and the reasonableness of the limitation is a matter of law; Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657, 227 U. S. 672, so that the bringing of a previous suit, alleged in the declaration, does not save the case. Riddlesbarger v. Hartford Insurance Co., 7 Wall. 386.
The only other argument that seems to us to need notice is that the claim is not within the words of the limitation. But it is of the kind that the clause "suits for loss, damage or delay" manifestly intended to limit, and we see no reason why it should not be included under the head of loss.

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


Ask Not for Whom the Securities Exchange Act’s Statute of Repose Tolls; It Doesn’t.
Posted on Aug 11, 2016 in Class Actions, Securities | Comments Off on Ask Not for Whom the Securities Exchange Act’s Statute of Repose Tolls; It Doesn’t.
Is a statute of repose subject to tolling? Although its holding was limited to the applicability of American Pipe tolling, created by the commencement of a class action, to the five-year statute of repose under Section 20(a) of the Securities Exchange Act of 1934, the Eleventh Circuit discussed the issue in broad terms in its August 10 opinion in Dusek v. JPMorgan Chase & Co., 832 F.3d 1243 (11th Cir. 2016), affirming the district court’s dismissal of two federal claims. The case concerned the liability of JPMorgan Chase & Co. and two of its employees stemming from their banking relationship with Bernie Madoff and his company and the defendants’ access to the company’s accounts. The district court had granted the defendants’ motion to dismiss plaintiffs’ second amended complaint, dismissing with prejudice an alleged violation of Section 20(a) of the Securities Exchange Act as barred by the statute of repose and a federal RICO claim as barred by the Private Securities Litigation Reform Act. The district court then declined to exercise supplementary jurisdiction over the only remaining claims, all based in state law claims, dismissing them without prejudice.
The plaintiffs (“Dusek”) argued that the statute of repose was tolled by the pendency of another class action filed against JPMorgan in the Southern District of New York. Dusek sought to apply the Supreme Court’s decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974) (holding commencement of a class action suspends the applicable statute of limitations as to all asserted members), to the statute of repose in the Securities Exchange Act. To do so though, Dusek needed to distinguish recent Supreme Court precedent in CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014), which differentiated statutes of repose from statutes of limitations based on their “different purposes and objectives” and stated that statutes of repose “generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.” Dusek argued that American Pipe had addressed legal tolling as opposed to equitable tolling and their claims, therefore, were not precluded by CTS, the present case being more analogous to American Pipe because both addressed the effect of Rule 23 on limitations periods applied to later suits brought by members or would-be members in an earlier class action.
The court identified conflicting precedent as to whether the rule in American Pipe relied (1) on a theory of legal tolling, effectively created by Rule 23 because without tolling the principal function of the class suit—to avoid a multiplicity of activity—would be frustrated or (2) on a theory of equitable tolling, whereby courts have the equitable authority to toll statutes of limitations. Dusek assumed that, if American Pipe established a rule of legal tolling, then the same rationale, protecting the principal function of Rule 23, would apply to statutes of repose as much as to statutes of limitations. This conclusion, Dusek argued, was supported by the Tenth Circuit’s holding in Joseph v. Wiles, 223 F.3d 1155, 1166–68 (10th Cir. 2000), that American Pipe tolling applied to the statute of repose in Section 13 of the Securities Act because it was a rule of legal tolling derived from Rule 23.
JPMorgan argued, however, that precedent from the Second Circuit was more persuasive. The Second Circuit, in Police & Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 109 (2d Cir. 2013), held that it did not matter whether the rule in American Pipe was one of legal or equitable tolling because, even if it was a legal tolling rule, the Rules Enabling Act, 28 U.S.C. § 2072(b), bars courts from enlarging or modifying substantive rights, so Rule 23 cannot form the basis for allowing an untimely complaint after the period of repose has run. The Eleventh Circuit also cited “a well-reasoned discussion of why the Rules Enabling Act would prohibit tolling of a statute of repose” in Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 794–95 (6th Cir. 2016). There, the Sixth Circuit found “[t]hat statutes of repose vest a substantive right in defendants to be free of liability is underscored by the Supreme Court’s analogies in CTS between statutes of repose and the ability to discharge debts in bankruptcy or to be free of double jeopardy in criminal proceedings.” Id. at 794. The court here also quoted the Stein court’s remark that the Tenth Circuit’s decision in Joseph pre-dated the Supreme Court’s CTS analysis of the differences between statutes of repose and statutes of limitations.
Despite discussing this conflicting precedent at some length and apparently favoring the Second and Sixth Circuit cases that would not allow any tolling of a statute of repose based on a court-created rule like Rule 23, the court went on to affirm the district court’s narrower rulings that American Pipe created a rule of equitable tolling and that it does not apply to the statute of repose in Section 20(a) of the Securities Exchange Act. Because the statute of repose was never tolled, it expired, at the latest, on December 11, 2013, five years after Madoff was arrested and his company closed. The statute, therefore, ran before Dusek filed their complaint in March of 2014.
The Eleventh Circuit also summarily affirmed the district court’s ruling that the Private Securities Litigation Reform Act barred Dusek’s RICO claim because the alleged conduct was actionable as securities fraud, which is conduct specifically exempted from the RICO Act by PSLRA.


text:
DECIDED JULY 10, 1997 — CERT. APPLIED FOR.
Action for damages. Fulton State Court. Before Judge Wright.
Wheeler Watson, D. Kevin Wheeler, James A. Watson, for appellant.
Gorby Reeves, Michael J. Gorby, Amanda H. Burri, for appellees.
Elizabeth Ann Aggeles brought this action against Theater of the Stars, Inc. and Atlanta Landmarks, Inc. seeking damages for injuries she sustained when she fell while descending a stairway at the Fox Theatre (the theater). The trial court granted summary judgment to the theater, and this appeal ensued. Because the alleged hazard was open and obvious, we affirm.
1. The crux of Aggeles's claim is that the handrail she used as she descended the stairs constituted a hazardous condition about which the theater negligently failed to warn invitees. We conclude that the trial court correctly granted summary judgment to the theater because the alleged hazard was an open, obvious, and static condition, "and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cit.]" MARTA v. Fife, 220 Ga. App. 298, 300 (2) ( 469 S.E.2d 420) (1996). See also Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 ( 440 S.E.2d 545) (1994).
Just prior to her fall, Aggeles had successfully ascended the stairs using the right handrail. She descended the same stairway by traveling down the opposite side of the stairway, again using the handrail on her right. It is undisputed that the handrails on either side of the staircase are identical in their placement on the wall in relation to the stairs. Although Aggeles testified in her affidavit submitted in opposition to summary judgment that the stairway was inadequately lit, this testimony contradicted her earlier deposition testimony that she had no problem seeing as she ascended the stairs and that the lighting as she descended the stairs was no different than the lighting as she walked up the stairs. No explanation appears for this contradictory testimony found within Aggeles's affidavit, and we will therefore not consider it. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 ( 343 S.E.2d 680) (1986). As for the expert affidavit submitted by Aggeles reciting that the stairway was inadequately lit, that conclusory affidavit does not contradict Aggeles's testimony that she personally had no problem seeing, regardless of the expert's opinion of the lighting inside the theater. As the trial court concluded, it is clear that "the ending of the handrail five or six steps before the ending of the . . . staircase is an obvious and patent danger which plaintiff could have observed and avoided by the exercise of ordinary care." Consequently, Aggeles cannot recover. See Fife, Gaydos, supra.
We note Aggeles's reference to her daughter's testimony that the theater manager acknowledged to her that the theater was "very, very dark" and that other people had fallen the same evening on which Aggeles's fall occurred. These alleged statements by an agent of the theater do not create a material issue of fact. Even considering the agent's opinion concerning the lighting, Aggeles herself testified on deposition that the lighting on the staircase was adequate to enable her to see. As for the agent's alleged statement that other people had fallen that evening, no evidence was presented that those people fell on the staircase, that their falls occurred in a similar fashion, or that the theater had knowledge of those falls prior to Aggeles's fall. See Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262-263 ( 427 S.E.2d 547) (1993). Although it is true that the record contains an incident report concerning another individual who fell on the stairway while descending "from the mezzanine on the right hand staircase," the report is silent as to the cause of her fall. And in fact, the manager testified by affidavit that during the more than six years he had been employed as house manager, no falls allegedly caused by defects in the railing had occurred on the stairway where Aggeles fell.
2. Aggeles also attempts to impose liability on the theater by pointing to the theater's alleged failure to comply with certain building code regulations. In response to the theater's motion for summary judgment, Aggeles submitted the affidavit of an expert who testified that in her opinion "there were two causes of the fall. The first cause . . . was probably a misstep which was caused by the irregularity in the measurements of the treads and risers which led to gait abnormalities." The expert went on to state that the treads and risers violated the Standard Building Code. The second cause of the fall, according to the expert, "was the lack of a handrail," also in violation of the Standard Building Code. The expert then stated that "several other factors . . . increased the likelihood of a fall on those stairs at that particular location," including allegedly inadequate lighting, and "lack of a defined nosing on the treads." According to the expert, "[w]ithout a defined nosing it is difficult to detect where one step ends and another begins."
This testimony is not persuasive. First, in response to the affidavit, the theater submitted undisputed evidence that its status as a historic landmark exempts it from such regulations. Second, the expert's testimony that Aggeles "probably" fell due to a combination of certain defects is mere conjecture. "[W]hile this witness may have been in a position to testify that the stairway was defective [she] clearly was in no better position than the plaintiff to form an opinion as to whether her fall was caused by one of these defects. Consequently, [the expert's] opinion in this regard must, under the circumstances, be considered wholly speculative and without probative value." Boyd v. Garden Center, 197 Ga. App. 198, 200 (2) ( 397 S.E.2d 626) (1990).
According to the theater's expert, the staircase "is a character defining feature of the Fox Theater as defined by The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. . . . As such, the standards mandate that all of the features of [the staircase], including the treads, risers and handrails, must be preserved in their original form, in spite of the fact that they do not comply with the Standard Building Code."
We note Aggeles's argument, despite undisputed evidence that the theater is exempt from building code regulations, that the theater should be liable because the lighting and handrails on the stairway could have been improved and warning signs "that would warn invitees of the abruptly ending handrails and the uneven treads and risers," could have been placed on or near the staircase. These arguments are without merit. Even assuming that the stairway could have been improved in the manner suggested by Aggeles without violating Interior Department guidelines, such improvement was not required. Moreover, it is not disputed that Aggeles successfully ascended the stairs only moments before descending them and that she testified the lighting was adequate for her to see as she walked. It is further undisputed, as evidenced by Aggeles's own argument, that another means of descending the stairs was available to her; she could have used the center railing, which did extend to the bottom of the staircase. Nothing in the record suggests that she was precluded by the theater from using this portion of the stairway. Despite her arguments, Aggeles cannot recover.
Judgment affirmed. Andrews, C.J., Birdsong, P.J., Beasley and Ruffin, JJ., concur. McMurray, P.J., and Eldridge, J., dissent.
I respectfully dissent from the affirmance of summary judgment in this case. Plaintiff Elizabeth Ann Aggeles, age 75 years at the time of her injury, brought this tort action against defendants Theatre of the Stars, Inc. and Atlanta Landmarks, Inc., d/b/a The Fox Theatre, seeking to recover for personal injuries she sustained when she "fell down a stairwell located in The Fox Theatre [allegedly] as a result of the hazardous and dangerous condition of said stairwell." Specifically, plaintiff fell while descending The Grand Staircase in the main lobby. She contends the premises were dangerous because the outside handrails end with the wall five steps from the bottom step, and this condition was masked by the dim lighting employed in the theater.
Defendants denied the material allegations and moved for summary judgment, contending the alleged hazard was patent, static, and open and obvious. The evidence, viewed in the light most favorable to plaintiff, reveals that the Grand Staircase is divided into three nearly equal sections approximately 70 inches wide by two center handrails. Consequently, each section has two handrails, one on either side. Plaintiff is "assuming . . . that the rail is what caused [her] to fall[.]" She affirmed she "went up a stairway that was divided by one center rail, and . . . traveled up the right of the same stairway and came down on the left side of the same stairway divided by a center rail. . . ." Plaintiff used the right handrail going up. She "always use[s] the handrail. That's an old habit." She had no problems at all traveling up the steps and did not have any problems seeing. Plaintiff wears glasses but "just need[s] them for reading."
The lighting was not any different on the stairway when plaintiff was going down than it had been when she was going up, although plaintiff deposed that the "stairway and surrounding area . . . was . . . poorly lighted. As [she] descended the stairway, [she] was able to see but, because of the inadequate lighting, it was with some difficulty." Plaintiff kept her "hand on the handrail the entire time [she was] coming down the steps[.]" Plaintiff was "looking ahead of [her]self[; . . .] looking in front of [her]self. That's all. Not right or left or, gee, what's wrong. Just ahead, anticipating to go into the theater." Plaintiff "had it [the handrail] in [her right] hand. [She] didn't see . . . that it [the handrail] ended because [she] assumed that on the other side is from top to bottom. So it would just continue. And [plaintiff] didn't recognize that the wall — because it was [plaintiff's] first time in there — that the wall all would stop there."
Brian Dufries, House Manager of the Fox Theatre, deposed that "for [the] five years [preceding plaintiff's mishap,] no complaints regarding the condition on the stairs where the Plaintiff fell were made." But Brian Dufries also admitted to Melissa Ann Aggeles, plaintiff's daughter, that "the theater was very, very dark. He [also] said other people had fallen. Actually, that evening other people had fallen, but nobody had gotten hurt. . . . [H]e did state very specifically that other people had fallen and that he thought the theater was too dark."
Plaintiff wore rubber-bottom flat shoes. When directly queried: "What about the handrail coming to an end caused [her] to fall," plaintiff replied: "Evidently, I assume I didn't have a grip on it because I don't hold it; I glide my hand. But it wasn't there, and I must have lost balance, I think." Plaintiff "didn't have any footing anymore because there was nothing there that held [her]." She "could not comprehend how [she] could have been so stupid as to not see the rail wasn't continuing. [She] assumed — [she] walked down, and . . . assumed the rail would just continue."
According to the affidavit of Mary Catherine Martin, Restoration Project Manager, the Fox is a registered historic landmark, subject to the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. "Standard #5 . . . as promulgated by the U.S. Department of the Interior, National Park Service, provides that `(d)istinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a[n] historic property shall be preserved.' . . . The features of The Grand Staircase, including the treads, risers and handrails, were preserved in their original form at the time of the plaintiff's fall . . . as required by [federal] Standards."
Concluding that "[d]efendant[s] had no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care," the trial court granted defendants' motion for summary judgment.
1. In two related enumerations, plaintiff contends the trial court erred in granting summary judgment. She contends material issues of fact remain whether the allegedly hazardous condition was open and obvious and whether she exercised ordinary care for her own safety. I agree and would reverse.
"As pointed out in Inglett v. Winn Dixie, Greenville, 168 Ga. App. 192, 193, 194 ( 308 S.E.2d 587) [(physical precedent)]: `(w)e discern a distinction between emergency conditions existent on an owner's premises and static conditions which are not inherently dangerous in and of themselves.' There the court noted where an invitee encounters an unusual or emergency situation which is known to the owner, there may be a substantial question as to the application of the assumption of the risk doctrine. However, the court [continued]: `(w)e perceive a different standard where there is a patent and long standing but static defect. We characterize a "static" defect as one which in and of itself is not dangerous." Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 ( 321 S.E.2d 830). Based on the record before us, a jury would be authorized to conclude that the fact the wall and outside handrail attached to it did not continue down the final five steps to the ground floor (coupled with the darkness of the area and other patrons also falling that night) amounted to a hazardous condition on the premises, and such condition, while static, was not patent due to the very, very dark conditions of the theater. Consequently, defendants have, in my judgement, failed to establish the non-existence of every material fact. Moreover, plaintiff testified she used the rail to guide herself along the dimly lit staircase. "This testimony is some evidence that [plaintiff] exercised reasonable care for [her] own safety [in descending The Grand Staircase]. [Cit.] The evidence thus did not demand a finding that [plaintiff] failed to exercise reasonable care, ([cit.]); OCGA § 9-11-50, and the [trial court] erred [in granting defendants' motion for summary judgment]." Barentine v. Kroger Co., 264 Ga. 224, 225 ( 443 S.E.2d 485).
2. Since I believe the trial court's grant of summary judgment was incorrect under Georgia common law tort principles, it becomes necessary to determine whether the promulgation of federal standards for the preservation of registered historic sites is tantamount to federal preemption of plaintiff's specific allegation in this case that The Grand Staircase of the Fox Theatre is in violation of local building codes. In my view, the federal standards for historic preservation do preempt common law claims of negligence per se for alleged violations of local building codes conflicting with those federal standards. But those federal standards do not preempt a Georgia common law tort action premised upon the circumstance that defendants operated the theater in an environment too dim and darkly illuminated to see and appreciate the risk posed by the foreshortened handrail in it's historically accurate state. See, e.g., Central of Ga. R. Co. v. Markert, 200 Ga. App. 851, 852 (3) ( 410 S.E.2d 437). Since, in my view, a jury — and not this Court — should determine whether plaintiff failed to exercise ordinary care for her own safety in that dimly illuminated theatre, I respectfully dissent from the affirmance of summary judgment.
I am authorized to state that Judge Eldridge joins in this dissent.

matches:
v.
v.
v.
v.
v.
v.
v.
§ 9
v.
v.


626 E 14 St is a coop located at 626 E 14th St, New York, NY 10009, in the area is commonly known as East Village.
Built in 1920, this low rise building is 5 stories tall and contains 18 apartments. It is owned by 14 Bc Apartment Corp and managed by Zohar Halfon, of Spark Properties.
Building permit #121735747 was issued to begin plumbing work on 10/09/2013. The contractor performing the work is Orbit Plbg & Htg Inc , master plumber license #. The permit was issued on 10/09/2013 and expires 10/09/2014.
Status last updated on Apartable at 2014-09-03 16:27:55 UTC.
§ 27-2005 ADM CODE REPAIR THE BROKEN OR DEFECTIVE PLASTERED SURFACES AND PAINT IN A UNIFORM COLOR CEILING AND WALLS THRU OUT 5 STY APT 18. , SECTION " "
Status last updated on Apartable at 2014-08-15 04:38:58 UTC.
§ 27-2013 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT CEILING AND WALLS THRU OUT 5 STY APT 18. , SECTION " "
§ 27-2005 ADM CODE PROVIDE APPLICATION AND LEGALIZATION OF CONDITION OR DISCONTINUE USE OF A MAGNETIC LOCKING DEVICE ON ENTRANCE DOOR TO BLDG.
Status last updated on Apartable at 2014-08-15 04:26:01 UTC.
Status last updated on Apartable at 2014-08-15 04:38:57 UTC.
§ 27-2033 ADM CODE POST NOTICE, IN FORM APPROVED BY THE DEPARTMENT, STATING THE NAME AND LOCATION OF THE PERSON DESIGNATED BY THE OWNER TO HAVE KEY TO BUILDINGS HEATING SYSTEM 1 STY PUBLIC HALL & ON BOILER ROOM DOOR.
D26-20.01 ADM CODE PROVIDE A PEEP HOLE IN ENTRANCE DOOR OF THE DWELLING UNIT SO LOCATED SO AS TO PERMIT A PERSON INSIDE THE DWELLING TO VIEW ANY PERSON OUTSIDE ENTRANCE DOOR 3RD STY REAR WEST APT.
§ 27-2005 ADM CODE REPLACE WITH NEW THE MISSING GLASS WINDOW BULKHEAD 5 STY PUBLIC HALL TO ROOF.
§ 27-2005 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF EXPOSED ELECTRICAL WIRES & CABLES WALLS & CEILING ALL STYS PUBLIC HALLS.
§ 27-2005 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF WIRE ATTACHED TO GOOSENECK SOUTH ROOF.
§ 27-2005 ADM CODE PROPERLY REPAIR WITH SIMILAR MATERIAL THE BROKEN OR DEFECTIVE PLASTER WALLS & CEILING ALL STYS PUBLIC HALL.
§ 27-2005, 2007 ADM CODE ARRANGE AND MAKE SELF-CLOSING THE DOORS BULKHEAD 5 STY PUBLIC HALL TO ROOF.
§ 27-2013 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT CEILINGS ALL STYS PUBLIC HALLS.
D26-13.03 ADM CODE ABATE THE NUISANCE CONSISTING OF VERMIN MICE 4 STY SOUTHWEST APT 15 THROUGHOUT. , SECTION " "
§ 27-2005, 2007 ADM CODE ARRANGE AND MAKE SELF-CLOSING THE DOORS ENTRANCE 4 STY SOUTHWEST APT 15. , SECTION " "
D26-10.01 ADM CODE REPLACE WITH NEW THE MISSING BATHTUB 4 STY SOUTHWEST APT 15 KITCHEN. , SECTION " "
§ 27-2045, 2046 ADM CODE PROVIDE AN APPROVED AND OPERATIONAL SMOKE DETECTING DEVICE, INSTALLED IN ACCORDANCE WITH DEPARTMENT OF BUILDINGS RULES AND REGULATIONS MISSING 4 STY SOUTHWEST APT 15. , SECTION " "
§ 27-2005 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF EXPOSED ELECTRICAL WIRES CEILING CENTER ROOM 4 STY SOUTHWEST APT 15. , SECTION " "
§ 27-2005 ADM CODE REFIT ENTRANCE DOOR 4 STY SOUTHWEST APT 15. , SECTION " "
§ 27-2045 ADM CODE REPAIR OR REPLACE THE SMOKE DETECTOR MISSING 2 STY NORTHEAST APT 6 RUCKMAN. , SECTION " "
§ 27-2005, 2007 ADM CODE ARRANGE AND MAKE SELF-CLOSING THE DOORS ENTRANCE 2 STY NORTHEAST APT 6. , SECTION " "
D26-13.03 ADM CODE ABATE THE NUISANCE CONSISTING OF VERMIN ROACHES THROUGHOUT 2ND STY SOUTHWEST APT 8. , SECTION " "
D26-16.01 ADM CODE REMOVE ALL OBSTRUCTIONS AND REPAIR ALL DEFECTS IN CLOGGED BATHTUB KITCHEN 2ND STY SOUTHWEST APT 8. , SECTION " "
D26-20.05 ADM CODE PROVIDE A LOCK AND KEY TO THE ENTRANCE DOOR OF DWELLING UNIT AND, IF A CL A MULTIPLE DWELLING, ALSO CHAIN DOOR GUARD DOOR ENTRANCE 2ND STY SOUTHWEST APT 8. , SECTION " "
D26-20.08,20.09 ADM CODE PROVIDE AN APPROVED AND OPERATIONAL SMOKE DETECTING DEVICE, INSTALLED IN ACCORDANCE WITH DEPARTMENT OF BUILDINGS RULES AND REGULATIONS 2ND STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE REFIT ENTRANCE 2ND STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE REPLACE WITH NEW THE BROKEN OR DEFECTIVE LOWER SASH GLASS EAST WINDOW REAR ROOM 2ND STY REAR WEST APT 8. , SECTION " "
D26-10.01 ADM CODE REFIT WINDOWS THROUGHOUT 2ND STY REAR WEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF DOUBLE CYLINDER KEY OPERATED LOCK AT ENTRANCE DOOR 2ND STY REAR WEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF DAMPNESS PENETRATING CEILING AT REAR ROOM 2ND STY REAR WEST APT 8. , SECTION " "
D26-12.01 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT CEILING AT REAR ROOM 2ND STY REAR WEST APT 8. , SECTION " "
D26-12.01 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT INTERIOR WINDOW FRAMES THROUGHOUT 2ND STY REAR WEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF DOUBLE CYLINDER KEY OPERATED LOCK INSTALLED AT ENTRANCE DOOR 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01, 10.05 ADM CODE ARRANGE AND MAKE SELF-CLOSING THE DOORS ENTRANCE TO 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE PROPERLY SECURE THE LOOSE LIGHT FIXTURE CEILING REAR ROOM 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE PROPERLY SECURE THE LOOSE LIGHT FIXTURE AT KITCHEN CEILING 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF OBSTRUCTED BATHTUB AT KITCHEN 2 STY SOUTHWEST APT 8. , SECTION " "
D26-12.01 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT CEILING AT KITCHEN 2 STY SOUTHWEST APT 8. , SECTION " "
D26-12.01 ADM CODE PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF THIS DEPARTMENT CEILING AT REAR ROOM 2 STY SOUTHWEST APT 8. , SECTION " "
D26-16.01 ADM CODE REPAIR THE LEAKY AND/OR DEFECTIVE FAUCETS KITCHEN 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF CONCEALED LEAK AT REAR ROOM CEILING OF 2 STY SOUTHWEST APT 8. , SECTION " "
D26-10.01 ADM CODE & 309 M/D LAW ABATE THE NUISANCE CONSISTING OF CONCEALED LEAK AT KITCHEN CEILING OF 2 STY SOUTHWEST APT 8. , SECTION " "
D26-15.01 ADM CODE PROVIDE ADEQUATE SUPPLY OF HOT WATER FOR THE FIXTURES 3 STY NORTHEAST APT 7 KITCHEN AND BATHROOM. , SECTION " "
Write a Review Have you lived at 626 E 14 St? Tell our community about your experience.
No reviews of 626 E 14 St yet. Be the first to write one!


This article concerns police body cameras: what they are, why they are being used, who they impact, and what Florida police departments, their police officers, and unions, have to say about them. The article also reviews the long-awaited decision of the Florida Public Employee Relations Commission, which finally puts to rest the long-running debate between police unions and law enforcement agencies over whether the implementation of body camera programs is a right of management or the subject of mandatory collective bargaining.
The development and reasoning for implementing police body cameras (body cams) is quite clear. It is a technological advancement of devices currently used in standard police work, such as radios, cell phones, computers, social media devices, GPS, and Car Video Cams. They help provide standard public security by identifying suspects, collecting evidence, and detaining suspected law breakers. This technology is simply some of the usual equipment used in police work. There is not, and never has been, any question that police departments have an undeniable right to employ them for police work. Having them and requiring officers to use them is not negotiable. While they may once have been a novelty, they have become standards of public service.
On first impression, the body cam appears to be just a technological advancement for performing police work. Like other devices currently carried by officers, such as radios and Taser guns, they are easily carried and used. They are about the size of a small cigar and are battery operated. They can be clipped onto clothing or eye glasses. What makes them different? Why can’t management just require the officers to use them, like any of the other devices described above?
Police officers are concerned about body cams because they can be used as strong evidence against the officers wearing them, not just the suspects who may also be recorded by them. Therefore, the question turns upon who is the intended subject of the camera: the suspects, bystanders, or the officers? Body cams provide significant evidence in questions and complaints about the appropriate use of physical force. In fact, while not the focus of this article, numerous articles about the pros and cons of body cams extensively address the positive application of body cams for assessing whether an officer was justified in the decision to use force and the degree in which he or she did.
However, body cam usage for collecting evidence against suspects (which is what patrol car cams are regularly used for) is merely alluded to as a minor benefit, or not even mentioned. Starkly stated, it is publicity generated by cable headline news that places video footage, such as from cell-phone cameras immediately and directly in the public mainstream. This includes alleged police beatings and shootings caught on tape, such as the 1991 videotaped beating of Rodney King by L.A.P.D. police and the shooting of a black teenager by a white police officer in Ferguson, Missouri, that prompted weeks of violent protest. The content of body cam videos can be explosive and quite damaging to the police officer.
Therefore, the focus of the propriety of management’s right to implement body cams can be evaluated by considering who is the subject of the video, so that it is viewed by officers as a perpetual invasion of their privacy that can be, or even designed to be, used against them in investigations about citizen complaints and accusations. This is comparable to an employer using hidden surveillance cameras to catch employees stealing the employer’s property. The National Labor Relations Board (NLRB) has held in the private sector that these hidden fixed cameras being placed in the workplace is a mandatory negotiable subject.1 The conclusions in these cases make sense, because they are used to set and control the employees’ working conditions, as opposed to providing entrepreneurial services or directing the enterprise. However, the use of the police body cam as evidence against officers places them directly in the crosshairs of a significant current issue involving alleged police violence, which has resulted in numerous violent riots that have generated profound expressions of public concern and political debate.
This sets the stage for a legal debate in Florida public sector labor law that was recently litigated and finally resolved by the Florida Public Employees Relations Commission (PERC). The issue was whether implementation of body cams is a management right because it is a standard of service, or do they fundamentally affect the officer’s terms and conditions of employment? Put another way, is the purpose for body cams to catch criminal suspects or to monitor police officers? This establishes the division-line for the debate. The former sets a standard of public service and the latter is a term and condition of employment of the police officers. This was a matter of first impression in Florida until October 2017, when PERC issued Jacksonville Consolidated Lodge 5-30, FOP v. City of Jacksonville, 44 FPER ¶129 (Oct. 18, 2017).
I will first discuss the reasoning of the PERC decision in Jacksonville that the implementation of body cams is a management right under Florida law, and then address the position advanced in a 2016 Journal article, “Will Police Body Cameras Be a Mandatory Subject of Bargaining in Florida,”2 which proposed an opposing viewpoint.
The Jacksonville case began in February 2017, when the Fraternal Order of Police (FOP) filed an unfair labor practice charge against the city with PERC, alleging that the city refused to bargain over a program requiring police officers to wear body cameras. A hearing was held, and PERC Hearing Officer Gregg Morton issued a recommended order determining that, under Florida law, the decision to implement body cams is a management right, but that the impact of that decision on terms and conditions of employment is negotiable upon a proper request. The hearing officer concluded that FOP did not effectively request impact bargaining. The parties filed exceptions, and PERC issued a final order that essentially adopted the recommended order on the body cams issue.
The hearing officer acknowledged that the dispute in the case was over the disagreement of the parties as to whether employing body cams is a standard of service or, instead, a term and condition of employment. He recommended that the initial decision to implement body cams involves a public employer setting the standards of service to be offered to the public and exercising control and discretion over its organization and operations. The hearing officer noted that this initial decision did not affect the officers’ terms and conditions of employment, but that it would have effects flowing from it that would have a substantial impact on their terms and conditions of employment. The hearing officer described these standards of service as increasing transparency, enhancing accountability, helping to define proper training, and enhancing professionalism. He noted that it will also identify criminal behavior and collect evidence.
In the 2016 Journal article, the author predicted that, in deciding the negotiability issue, which was a novel question when the article was published, PERC would rule that it is a mandatory subject of bargaining for two reasons. The first was the NLRB’s precedent is that hidden surveillance cameras are a mandatory subject of bargaining. The second was a prior en banc decision of the Third District Court of Appeal in City of Miami v. F.O.P., Miami Lodge 20 and Florida Public Employees Relations Commission, 571 So. 2d 1309 (Fla. 3d DCA 1989), aff’d sub nom, Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d 31 (Fla. 1992). The court ruled that a police officer random drug-testing program was the subject of mandatory collective bargaining absent express legislation, but that such testing was permissible and within the management prerogative, subject only to impact bargaining, when there is some evidence of drug involvement by specific officers.
The hearing officer in Jacksonville rejected the reasoning of the hidden surveillance cameras cases by pointing out that all of the private-sector cases involved private workplaces, whereas the officers in question in the Jacksonville case were public employees, for whom the city had a public responsibility and a statutory right to set standards of service.
The City of Miami decision discussed in the prior Journal article was not addressed by the hearing officer or the PERC. The Journal article argued the “ease and speed” in which the initial three-judge panel of the Third District Court affirmed a PERC ruling that drug testing was not a management right and was, thus, subject to mandatory bargaining, supported a similar PERC ruling on body cams. The Third District Court panel decision referred to in the article reasoned that public employees’ right to collectively bargain is a Florida constitutional right; it is comparable to that of employees in the private sector; and that the National Labor Relations Board has held that the issue of drug testing is negotiable.
“Construing this provision, the supreme court has consistently held that ‘with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.’ If, therefore, private employees have the right to collectively bargain about drug testing, public employees have that same right.
“Federal agencies and courts interpreting the National Labor Relations Act have concluded that the subject of drug testing in private industry must be submitted to collective bargaining. While the National Labor Relations Board — like the Florida courts — has yet to address this issue, its [g]eneral [c]ounsel has ruled that drug testing of private employees is a subject of mandatory bargaining. Likewise, in cases decided under the Railway Labor Act (regulating labor relations in the railway and airline industries) courts have unanimously agreed that drug testing is a subject of mandatory bargaining.
“Where, as here, we are dealing with a subject which is arguably both a managerial prerogative and a “term or condition of employment,” we hold that a balancing test should apply to determine which characteristic predominates.
“Thus, in order to determine whether the subject of drug testing is mandatory or permissive, we must balance the interests of the [c]ity and the public against the interests of the employee police officers. As stated by Justice Blackmun in First National Maintenance Corp ., 452 U.S. at 678, 101 S. Ct. at 2580, 69 L. Ed. 2d at 330, the rationale behind the concept of mandatory collective bargaining is to ensure “decisions that are better for both management and labor and for society as a whole.” See also Pennsylvania Labor Relations Board, 461 Pa. at 337 A.2d at 267 (public interest in collective bargaining is the “effective and efficient operation of public employment”). Will submitting the subject of drug testing to the mandatory bargaining process result in decisions which are ultimately better for society as a whole, and which will result in the more effective and efficient operation of the police force? We think not.
“It must be stressed that this case is not simply one which involves the average “public employee.” Rather, we are dealing with a specific category of public employee — that of police officer — which is entrusted with the public safety and empowered with enforcing the law. Because police officers are responsible for the lives and safety of the citizenry, they occupy a position in which the public has a right to have absolute trust. The credibility of police officers is thus central to the operation of the police force as an enterprise. In the case of Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB , 204 U.S. App. D.C. 278, 636 F.2d 550, 560 (D.C. Cir. 1980), the court held that a newspaper’s unilateral adoption of certain ethics code regulations fell within the newspaper employer’s managerial prerogative and thus was not a mandatory subject of collective bargaining. The court premised its finding upon the fact that credibility and editorial integrity were matters at the “core of publishing control” and “central to [the newspaper’s] ultimate product and to the conduct of the enterprise.” Newspaper Guild of Greater Philadelphia , 636 F.2d at 560 ( footnote omitted).
The court stated that ‘In order to preserve these qualities, a news publication must be free to establish without interference, reasonable rules designed to prevent its employees from engaging in activities which may directly compromise their standing as responsible journalists and that of the publication for which they work as a medium of integrity.’ Certainly it is unquestionable that credibility and integrity are fundamental to the basic operation of a police force, and that the analysis utilized in Newspaper Guild is even more compelling under circumstances involving public employees entrusted with the public safety as compared to private employees working for a newspaper.
Considering the comparable issues and the application of each of them to police officers, the balancing test required by the Florida Supreme Court in City of Miami certainly supports PERC’s decision on body cams in the Jacksonville case. In fact, individual drug testing appears to be more intrusive of the police officers’ expectation of privacy than requiring them to have and use body cams as assigned equipment. After all, employee drug testing has constitutional implications. Therefore, PERC’s decision in Jacksonville is also correct under the City of Miami appellate decisions.
In the final analysis, the answer that you may personally prefer depends upon what you consider to be the actual question. Are body cams to be used for police enforcement or enforcement of the police? The decision to implement the body cams is appropriately characterized as a policy decision setting the standards of service offered to the public when you consider the evidence provided by the employer in Jacksonville, increasing transparency, accountability, identifying training opportunities, and providing procedural justice.
The PERC analysis gives the employer the unilateral right to implement body cams, but collective bargaining must be conducted about the impacts of that decision, such as training, the use of videos for evaluations and discipline, and when and how they can be used in subsequent legal action taken against the officer. Under PERC’s ruling, the unions representing law enforcement officers must demand negotiations on specified negotiable impacts when the employer decides to implement police officer body cameras.
1 See Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 F. 3d 36, 38 (D.C. Cir. 2005); National Steel Corp. v. NLRB, 324 F. 3d 928 (7th Cir. 2003); Colgate-Palmolive Co. v. Local 15, International Chemical Workers Union, AFL-CIO, 323 NLRB 515 (1997).
2 G ary E. Lippman, Will Police Body Cameras be a Mandatory Subject of Bargaining in Florida, 90 Fla. Bar. J. 57 (Dec. 2016).
4 F la. Stat. §447.309 (“Collective Bargaining; approval or rejection. — (1) After an employee organization has been certified pursuant to the provisions of this part, the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit.”).
5 City of Miami, 571 So. 2d at 1323-26.
6 Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So. 2d at 34.
Stephen A. Meck is of counsel for Carson & Adkins in Tallahassee, representing management in the areas of labor and employment law. He was previously general counsel for the Public Employees Relations Commission for more than 20 years. Meck is a past chair of the Labor and Employment Law Section of The Florida Bar, in which he was given a lifetime achievement award. He is a fellow of College of Labor and Employment Lawyers and past president of the Association of Labor Relations Agencies. He thanks J. Trevor Carson, a law student at Nova Southeastern University College of Law, for his invaluable assistance in preparing this article.
This column is submitted on behalf of the Labor and Employment Law Section, Zascha Blanco Abbott, chair, and Robert Eschenfelder, editor.


text:
1. The acceptance of a draft dated in one state and drawn by a resident of such state on the resident of another, and by the latter accepted without funds and purely for the accommodation of the former, and then returned to him to be negotiated in the state where he resides, and the proceeds to be used in his business there -- he to provide for its payment -- is, after it has been negotiated and in the hands of a bona fide holder for value and without notice of equities, to be regarded as a contract made in the state where the draft is dated and drawn, even though by the terms of the acceptance the draft is payable in the state where the acceptors reside.
2. It is accordingly to be governed by the law of the former state, and if by the law of that state the holder of it, who had purchased it in a course of business without notice of equities, is entitled to recover the sum he paid for it, though he bought it usuriously, he may recover such sum, though by the law of the state where the draft was accepted and made payable, and where usury made a contract wholly void, he could not.
3. A purchaser of a bill or note who purchases such paper as that above described, though a broker, is not a lender of money on it, and if he purchase honestly and without notice of equities -- there being nothing on the face of the draft to awaken suspicion -- he can recover the full amount of the draft.
4. Though this Court may be satisfied that a plain error has been committed in a judgment below against a defendant in error, and that he ought to have more than the court below adjudged to him, yet if he himself have assigned no error, the error of the court below cannot be corrected here on the writ of the opposite side.
any consideration or security therefor, and without any funds in their hands to protect it, the understanding being that the draft was to be discounted at a certain bank in Chicago and that Pelton should take it up at maturity. Having accepted the draft, Tilden & Co. sent it back to Pelton for the purpose of being negotiated in Illinois, and in order that the proceeds might be used in his business in that state and in Michigan. Pelton, having endorsed the draft, delivered it to one A. C. Coventry for the purpose of having him negotiate it for the benefit of him, Pelton, and Conventry, having endorsed it also, sold it through a note broker to one Blair at Chicago for $4,825, and no more, Blair, at the time when he discounted the draft, having no knowledge whatever of the understanding between Tilden & Co. and Pelton or that the draft was accommodation paper and accepted without any funds in the hands of Tilden & Co.
"$5000] CHICAGO, August 4th, 1869"
"Sixty days after date pay to the order of myself five thousand dollars, value received, with exchange, and charge to account of"
"TO MESSRS. TILDEN & CO."
"Accepted, payable at the Bank of North America, New York."
"Endorsed: W. T. PELTON, A. C. COVENTRY"
By statute of New York, the exacting of greater interest than seven percent renders a contract illegal and void.
By the statutes of Illinois, ten percent interest is lawful. Any agreement for a higher rate forfeits all the interest. But the contract is not void, and the principal may be recovered.
to any law of the State of Illinois, it shall and may be lawful to make the amount of principal and interest of such contract or loan payable in any other state or territory of the United States or in the City of London in England, and in all such cases such contract or loan shall be deemed and considered as governed by the laws of the State of Illinois, and shall not be affected by the laws of the state or country where the same shall be made payable."
The draft matured of course on the 6th of October, 1869, and the acceptors refusing to pay it, Blair sued them in assumpsit in the court below. Plea, usury.
1st. That by accepting the draft and returning it to the possession of the drawer, the defendants empowered him to negotiate it and put it in circulation by any valid transfer.
2d. That the negotiation and transfer, having been made in Illinois, was valid except as to the interest reserved.
3d. That interest having exceeded the rate of ten percent per annum interest was forfeited, and could not be collected either from the drawers or acceptors. That as to the principal it was valid as to both.
4th. That the plaintiff was entitled to judgment for the sum of $4,825, being the principal less the interest illegally reserved, with costs.
The defendants excepted to the first, second, and fourth of these conclusions of law and to so much of the third as found that the contract, except as to interest reserved, was valid and was binding on the defendants as to the principal.
The plaintiff excepted to the fourth conclusion so far as it limited his right of recovery to the $4,825 and to the refusal of the court to allow interest.
Judgment being given for $4,825, the defendants, Tilden & Co., brought the case here on error, Blair, the plaintiff, not taking any writ or assigning any error.
was or shall be lawful according to any law of the State of Illinois, it shall and may be lawful to make the amount of principal and interest of such contract or loan payable in any other state or territory of the United States or in the City of London in England, and in all such cases such contract or loan shall be deemed and considered as governed by the laws of the State of Illinois, and shall not be affected by the laws of the state or country where the same shall be made payable."
Illinois can admit of no question. [Footnote 5] And this is the rule everywhere unless the note or bill is declared by statute to be void in its inception.
Cook v. Litchfield, 5 Selden, 279; Lee v. Selleck, 33 N.Y. 615, and Hyde v. Goodnow, 3 Comstock 271.
Norris v. Langley, 19 N.H. 423; Converse v. Foster, 32 Vt. 320; Conkling v. Underhill, 3 Scammon 388.
Sherman v. Blackman, 24 Ill. 347; Hemenway v. Cropsey, 37 id. 357.


text:
Party Name: GERMAN INS. CO. v. PEARLSTONE ET AL.
Attorney: [18 Tex.Civ.App. 707] Oeland & Brown, for appellant. Alexander & Atkinson, for appellees.
Appeal from district court, McLennan county; Marshall Surratt, Judge.
Action by I. M. Pearlstone & Son against the German Insurance Company. Judgment for plaintiffs. Defendant appeals. Affirmed.
[18 Tex.Civ.App. 707] Oeland & Brown, for appellant.
Alexander & Atkinson, for appellees.
This is a suit upon two policies of fire insurance. The plaintiffs recovered in the court below, and the defendant has appealed.
4th day of October, 1895, the said defendant, in consideration of the sum of $35 to it in hand paid, executed and delivered to plaintiffs its policy of insurance No. 76,311, wherein and whereby it insured these plaintiffs in the sum of $1,000 against loss by fire on the goods, wares, and merchandise hereinbefore described, and plaintiffs show that they have complied with all the conditions of said policies. It is further shown to the court that about the 19th day of August, 1896, while said polices were in full force [18 Tex.Civ.App. 708] and effect, the property insured thereby was, without default of these plaintiffs, destroyed by fire, and on the 5th day of October, 1896, full proofs of loss were made out by plaintiffs and forwarded to defendant, and received and accepted by said defendant, no objection being made thereto. Defendant is notified to produce said proofs of loss on trial hereof. Plaintiffs show to the court that by reason of the premises defendant became liable and promised to pay these plaintiffs the sum of $3,500 in accordance with the terms of said policies, but though often requested, they have hitherto failed and refused, and still fail and refuse, to pay the same, or any part thereof, whereby these plaintiffs have been damaged in the full sum of $4,000." Fire insurance is a contract of indemnity; and, unless the owner of the policy is also owner of or interested in the property covered by it at the time the latter is destroyed by fire, he sustains no loss, and therefore cannot recover upon the policy. This point is well settled by the authorities, and this court has recently ruled upon it. Insurance Co. v. Davis, 45 S.W. 604, and authorities there cited. And it must be conceded that the petition in this case does not, in express terms, allege that the property belonged to the plaintiffs at the time it was destroyed by fire. However, the petition does aver that the defendant insured the plaintiffs against loss by fire "on their stock of merchandise, consisting of dry goods," etc. This constitutes an averment of ownership of the property by plaintiffs, and it is not expressly limited to any particular date. Besides, the petition charges that the policies were in force and effect at the time of the fire, and, as they could not have been in that condition (if the policies were then owned by plaintiffs) unless they had an interest in the property, the latter fact is argumentatively or impliedly charged. Furthermore, the petition charges that the defendant insured the plaintiffs against loss of their property by fire; that it was destroyed by fire; and thereupon the defendant became liable to the plaintiffs for the sum of $3,500, the face of the policies. Now, the liability alleged could not exist unless the plaintiffs owned or had an insurable interest in the property at the time it was burned; and the averment of such liability, in connection with the other averments referred to, indicate that the petition was constructed upon the theory that the plaintiffs owned the property at the time of its destruction, and that it was intended that it should be so understood. Dist. Ct. Rule 17 (20 S.W. xii.) prescribes that in passing upon a general exception every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency, and that rule has been often applied. In view of this rule, we hold that the petition was not obnoxious to a general demurrer, and in support of our ruling we cite Pennington v. Schwartz, 70 Tex. 211, 8 S.W. 32; Loper v. Telegraph Co., 70 Tex. 694, 8 S.W. 600; Wynne v. Bank, 82 Tex. 378, 17 S.W. 918; Rutherford v. Smith, 28 Tex. 322; Cattle Co. v. Carroll, 63 Tex. 49; and Pan Handle Nat. Bank v. Security Co. (decided by this court at this term) 44 S.W. 15.
[18 Tex.Civ.App. 709] 2. The property insured was a stock of merchandise, alleged to be worth over $20,000. The plaintiffs were, when the policies were issued and the fire occurred, retail merchants; and their stock of merchandise was constantly shifting, goods coming in by purchases frequently made, and going out through the medium of daily sales. Under these circumstances it was impossible for the plaintiffs to furnish a correct inventory or itemized list of the property destroyed by the fire, and the court did not err in overruling the defendant's special exception addressed to the petition because it was not accompanied by such inventory or list.
year 1895, and the petty cash book, covering the time from October 21, 1895, to the end of that year. One of the policies was issued September 3 and the other October 4, 1895, and they were both in force when the fire occurred. So it appears that for seven months of the time appellees produced their full set of books, and for nine months of the time they produced the ledger, journal, and petty cash book; while for 45 days of the first and 17 days of the second policy they produced only the ledger and journal. The question propounded to the witnesses impliedly states that the latter two were the only books covering the life of any part of either policy that was produced.