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California

Silencing oldies radio?

by Walter Olson on September 25, 2014

Under a potentially far-reaching ruling by a federal judge interpreting California state law, satellite and streaming music services like SiriusXM and Pandora — and maybe bars and restaurants too — could be liable for vast sums for having broadcast pre-1972 recordings without obtaining “public performance” permission under California state law. [Hollywood Reporter's THR Esq; plus a very informative take from Jesse Walker]

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“California has a state law that prohibits for-profit companies from using volunteer labor.” That spelled doom for little Westover Winery in Castro Valley, which cleared around $11,000 in profits a year for its owning couple and used unpaid volunteers, many of them amateurs who wanted to learn the wine business. The state hit the business with $115,000 in fines and wiped it out, to the unhappiness of some of the displaced volunteers. [Scott Shackford, Reason; Rebecca Parr, Daily Review/San Jose Mercury News] More: A Debra Saunders column. And I mention this episode, along with the one linked below about a California law combating off-books contractors, in a new Cato post about how licensed and compliant businesses often support making government more powerful and invasive so as to go after the other kind.

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The Sacramento Bee editorializes against the state’s well-established ADA racket, which has been going for many years now and is not being cleaned up through legislative reform because too many people find financial or ideological advantage in keeping things the way they are:

California law puts a $4,000 fine on each violation and directed the proceeds to “aggrieved” parties, even if they weren’t harmed or inconvenienced by the violation. A business could be sued for faded paint on an open handicapped parking spot, a ramp 2 degrees too steep, incorrect wording on a sign. A practiced eye can spot half a dozen violations most anywhere, and that’s a $24,000 jackpot for a scammer. …

ADA rules change constantly. Two years ago, signs next to handicapped parking spaces had to read “No parking.” Now, signs must warn that the fine is $250. That’s not a barrier to a disabled person, but still could be treated like one when it comes to fines. That’s ridiculous. If a business owner hasn’t put up a new sign, he should be given an opportunity to fix it before having to pay some lawyer $4,000.

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If you hire some consenting but unlicensed neighbor for a not-very-big repair or construction job in California, there’s now a greater chance he or she will be headed for jail, no matter how happy you may be with the quality of the work. Gov. Jerry Brown has signed S.B. 315 (text, progress, promotional fact sheet), described by its sponsor, Sen. Ted Lieu (D-Beverly Hills), as a measure “to help curb California’s underground economy.” The measure would step up penalties and enforcement against persons who advertise for, or perform, repair and construction work with a value of $500 or more, counting parts and material as well as labor. (By its terms, the bill appears to apply to someone who offers to do a $500 job for your office that consists of procuring a $400 item and adding $100 for the labor of installing it.) First offenses are subject to six months in jail and a $5,000 fine, and subsequent offenses are treated yet more harshly.

There’s more. The bill, according to its legislative summary, “would additionally require that the enforcement division, when participating in the activities of the Joint Enforcement Strike Force on the Underground Economy, be granted free access to all places of labor,” at least in business locations. (Yes, “all”; you only thought your property was private.) And although the literature on the bill refers repeatedly to the need to curb “cheating” contractors, the penalties apply no matter how satisfied you may be with the contractor’s work.

That’s because protecting customers isn’t actually the point. Such is the political grip of occupational licensure lobbies that the bill passed unanimously in both houses of the California legislature with support from licensed repair and construction contractors. Lieu: “Groups supporting SB 315 are: Contractors State License Board (sponsor); Air Conditioning and Refrigeration Contractors Association; Air Conditioning Sheet Metal Association; American Subcontractors Association, California Inc.; California Chapters of the National Electrical Contractors Association; California Landscape Contractors Association; California Legislative Conference of the Plumbing, Heating and Piping Industry; California Professional Association of Specialty Contractors; United Contractors.”

In short, this is the sort of thing the California legislature does when it wants to think of itself as pro-business: it extends criminal liability for doing business in any other than the authorized way.

More: I’ve got some further thoughts at Cato at Liberty: “The costs of occupational licensure are many. Not least is that it gives established businesses a stake in making government more powerful and invasive.” And am I the only one who interprets the bill as aimed at Craigslist and at sharing-economy interfaces that match odd jobs with persons willing to do them, even if it is not announced as such? More on the law from Steven Greenhut (who was on the story before I was).

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Or so a California Court of Appeals “proudly announced …because it took only 20 years from a developer’s application to build a housing tract under existing zoning, to the court’s EIR [environmental impact review] approval.” [Gideon Kanner, citing Clover Valley Foundation v. City of Rocklin, 197 Cal. App.4th 200 (2011), as well as a September 2014 land use roundtable in California Lawyer]

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An outcry has lately arisen over consumer contracts that purport to ban disparagement of the company that proffered the contract or its products, especially since a few such companies, seeking to silence customers vocally dissatisfied with products or services, have proceeded to sue them, threaten them with suit, or report them as credit risks. Although it is doubtful that existing law in fact permits practices of this sort, California proceeded to pass a new law protecting consumers from retaliation by companies they criticize — a law that appears to go much farther than just banning the practices that stirred the furor. [Volokh] Contra: Scott Michelman, CL&P.

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Public employment roundup

by Walter Olson on September 9, 2014

  • Some wages rise accordingly: “Scott Walker’s Act 10 leads to a ‘teacher marketplace’ in Wisconsin.” [Ann Althouse]
  • Police/fire psychiatric claims: “Retired NYC cop takes plea in $27M disability-fraud case; ex-prosecutor is a claimed ringleader” [Martha Neil, ABA Journal]
  • “Every Day Turns Out To Be Labor Day For Hapless Taxpayers” [Ira Stoll]
  • In Harris case, high court revolted at notion of government inserting itself into family relations to siphon off money for union’s benefit [Budget and Tax News, PDF, p. 9, and thanks for quote]
  • “Overprotecting public-employee pensions, from the Reason Foundation” [Sasha Volokh] “California Embraces Pension-Spiking Bonanza” [Steven Greenhut]
  • “Sure We Hassled Boy Scouts at the Border, But You Can’t Prove We Pulled a Gun, Says DHS” [J.D. Tuccille]
  • “The results show very little difference at age 60 in the life expectancy of police and fire as compared with other public employees.” [Alicia Munnell via Steven Greenhut] “Los Angeles Police Average Total Compensation $157,151 Per Year” [Ed Ring, Flash Report] More: Soaring public safety costs rack California towns [OC Register]

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Like most courts to consider the issue, the California Supreme Court in a case involving Domino’s Pizza has held that a franchisor generally cannot be held liable for the independently made employment decisions of one of its franchisees. Who would disagree with that commonsense view? Well, the Obama National Labor Relations Board (NLRB), as well as three liberal dissenters on the seven-member California court, who would have left it up to case-by-case jury factual balancing, an arrangement likely to coax settlement offers from risk-averse franchisor defendants. [Daniel Fisher, Forbes, also; Shaw Valenza; Fox Rothschild; Gordon Rees; related, Epoch Times last week quoting me; earlier here, here, and here]

Aaron Schepler, Quarles & Brady;

In the supreme court’s view, the fact that Domino’s exercised extensive control over the manner in which the franchisee operates its business was merely a way to ensure the uniformity of the customer experience at its franchised outlets. As the court explained, this uniformity actually benefits both parties to the franchise relationship because “chain-wide variations … can affect product quality, customer service, trade name, business methods, public reputation, and commercial image” and, thus, the value of the brand. And because “comprehensive operating system[s]” are present in nearly every franchise relationship, those systems standing alone could not reasonably “constitute[] the ‘control’ needed to support vicarious liability claims like those raised here.”

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September 2 roundup

by Walter Olson on September 2, 2014

  • Police have traced the crime wave to a single micro-neighborhood in the California capital [Sacramento Bee]
  • “Adam Carolla Settles with the Patent Trolls” [Daniel Nazer/EFF, Reason, related eight days earlier and previously] eBay takes on Landmark in the E.D. of Texas [Popehat]
  • Frank Furedi on law and the decline in childrens’ freedom to roam [U.K. Independent]
  • On “ban the box” laws re: asking about job applicants’ criminal records, it’s sued if you do, sued if you don’t [Coyote]
  • Fake law firm websites in U.K. sometimes parasitize the real ones [Martha Neil, ABA Journal]
  • What C. Steven Bradford of the blog Business Law Prof reads to keep up (and thanks for including us on list);
  • As applications to renounce U.S. citizenship mount, many related to FATCA, our government hikes fee for doing so by 422% [Robert Wood, Forbes]

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Environmental roundup

by Walter Olson on August 27, 2014

  • “Fine for killing birds” is susceptible of two meanings, you know [Coyote on energy production]
  • Lacey Act criminal provisions, of Gibson Guitar raid fame, owe much to influence of domestic forest products companies, and that’s just one of the links between crony capitalism and overcriminalization [Paul Larkin, Heritage]
  • Why California shut down its local redevelopment agencies, all 400+ of them [Shirley Svorny, Regulation]
  • “EPA’s ‘Waters of the U.S.’ Proposal: Coming Soon to a Back Yard Near You?” [Scott McFadin, WLF]
  • Taxpayers shell out handsomely to be sued under Endangered Species Act [Higgins]
  • “How Land Prices Obviate the Need for Euclidean Zoning” [Emily Washington]
  • Casting a skeptical eye on Vandana Shiva’s anti-GMO crusade [The New Yorker]

The many, many pitfalls of wage-and-hour law: “The Los Angeles City Council on Tuesday finalized a $26-million legal settlement to end a lawsuit over a ban on lunchtime naps by trash-truck drivers. … Sanitation officials had imposed the no-nap rule to avoid the bad publicity that would come if a resident, business owner or television news crew stumbled across a sleeping city employee. But lawyers for the drivers said the city, by limiting workers’ mealtime activities, had essentially robbed them of their meal breaks.” [Los Angeles Times]

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  • “The tie that binds public employee unions and Wall Street” [Daniel DiSalvo] “Unions Manipulate New York City’s Public Pension Funds To Punish Their Enemies” [NYT via Jim Epstein, Reason]
  • Illinois latest state to pass “ban the box” law restricting employers’ inquiries on criminal records [Workplace Prof]
  • Two ex-football pros file suit claiming union conspired with owners on concussions [Bloomberg]
  • Average Illinois public retiree’s pension rapidly narrowing gap with average salary of worker still on job [Jake Griffin Daily Herald via Reboot Illinois] By 2006, 1,600 California prison guards were making $110K+, plus more on tendency of state/local government pay to outrun private [Lee Ohanian via Tyler Cowen]
  • Great moments in employment law: Seventh Circuit says other employees’ having sex on complainant’s desk not hostile work environment when not targeted at gender [Eric B. Meyer]
  • Next step signaled in SEIU fast food protest campaign: unlawful property occupations [AP, Chicago Tribune, arrests in May]
  • Trial lawyer win: Obama federal-contractor fiat will forbid pre-dispute agreements to submit bias claims to binding arbitration [AP, AAJ jubilates]

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“On the same day the state approved mandatory outdoor watering restrictions with the threat of $500 fines, the Southern California couple received a letter from their city threatening a $500 penalty for not watering their brown lawn.” [AP]

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CALPERS, the giant California public-sector pension fund, is among the nation’s leading scolds of corporate governance. So as Ira Stoll points out, it’s kind of newsworthy that its CEO over most of the 2000s just pled guilty to taking $200,000 in bribes from a contractor, the money handed over in paper bags and a shoebox. [New York Sun]

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Environmental roundup

by Walter Olson on July 14, 2014

  • California resists idea of charging market-clearing rate for water — too much like economics — and instead encourages tattling on neighbors [New York Times, Coyote]
  • Academia smitten by notion of “climate reparations” [Peter Wood, Minding the Campus]
  • Costly market intervention: “Minnesota doubles down on nation’s top biodiesel law” [Watchdog]
  • Reusable grocery bags have their problems for sanitation and otherwise, but California contemplates banning the alternatives [Katherine Mangu-Ward, Steven Greenhut, Reason]
  • Coming: film about Kelo v. City of New London eminent domain case [Nick Gillespie, Ilya Somin]
  • 45 years later: the famous 1969 fire on the Cuyahoga became a fable for its age [Jonathan Adler on the Cuyahoga]
  • Should beachfront owners have to open their land to all comers? [NY Times "Room for Debate"]
  • Plus: “EPA has no business garnishing wages without due process” [Examiner editorial, earlier]

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Labor roundup

by Walter Olson on July 11, 2014

  • California tenure lawsuit exposes rift between Democratic establishment and teachers’ union [Sean Higgins, Washington Examiner]
  • NLRB pushing new interpretation to sweep much outsourcing into “joint employment” for labor law purposes [Marilyn Pearson, Inside Counsel]
  • Restaurant “worker centers” campaign against tipping. Perhaps a sign their interests not fully aligned with waitstaffs’? [Ryan Williams, DC]
  • NLRB’s edict against non-union employers’ confidentiality policies emblematic of its activist stance lately [Karen Michael, Times-Dispatch]
  • Three public sector unions spent $4.3 million on Connecticut state political activities in 2011-2013 cycle [Suzanne Bates, Raising Hale]
  • Sen. Lindsey Graham prepares funding rider to block NLRB “micro-union” recognition [Fred Wszolek, background]
  • “Table Dance Manager” glitch alleged: “Exotic dancers + allegedly malfunctioning software = Fair Labor lawsuit” [Texas Lawyer]

“The California Supreme Court held [in June] that a business has no common law duty to provide automatic defibrillators in anticipation that a customer will experience heart failure while on the premises.” [TortsProf; earlier, and generally]

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CoronaPitcherLemonsCalifornia legislature does something sensible! [L.A. Times; earlier on this regulation, widely protested by bartenders, sushi chefs and other food and drink professionals] Next headlines to come: blue moon, month of Sundays, and the unexpected freezing over of Hell.