Monday, August 19, 2019

How Stupid is This?

Lemonade stands can be so complicated
Picture it.  You're 9-years-old and you REALLY want this new toy.  You'd give anything for that toy.  Your folks are on a tight budget and your toy is simply not on their radar. 

What are you going to do?  What can you do?  Well, if you're in the state of Texas, you can now open a lemonade stand and sell lemonade to passing strangers (well, you can on September 1 - after the summer season ends).

Why is this even a thing?  Well, back in 2015, two Texas police officers stopped at a lemonade stand and demanded to see their operating permit.  

Say what?!  Yeah, murder and mayhem running amok and the police stop to shut down two kids operating a lemonade stand.

So, again I ask, what is this even a thing?  I'm thinking it's about money.  See, the police were just doing their police job enforcing laws.  Laws like if you don't pony up cash for a permit, you can't open a business.

So, what these municipalities are demanding is that kids go through the whole process of opening a business to sell lemonade.  Preposterous, you might say, but you are the ones who voted these bozos into office.  Don't like what they're doing to enterprising little Billy and Suxie selling lemonade?  Vote the bums out of office (and be quick about it)!

I mean, do you even know what it takes to open a business selling lemonade?  Dang but they have whole websites dedicated to the business of opening a lemonade stand!  Turns out it's quite the process if you do it right.  

First, there is the Business Plan and Environmental Impact Statement (because environment). Of course, you have to factor in your start-up costs which involve:
  • a stand, cart, or storefront
  • commercial-grade equipment for making and dispensing lemonade
  • lemons, sugar, water, and ice
  • containers to hold said sugar, water, and ice
  • cups, straws, and napkins
  • licensing and insurance costs
  • R&D costs (to pay for the process to find just the right flavor)
Follow this up with organizing your business (do you form as an LLC or LLP - in case you get sued).  Next, you need to register for taxes.  Did  you realize that many (if not all) states/cities require that you pay taxes on office machinery?  So will be a taxed on your lemonade stand/cart, the equipment for dispensing lemonade, cups, straws (which now must be biodegradable because of that one "report" cranked out by a kid that every environmental wacko now views as environmental scripture), any and all containers holding sugar, water and ice, and napkins and anything else you'll be using for your business.

Next, you're going to need to open a business bank account (you know, to handle all that cash that will soon come rolling in at 5 cents a pop) and if you're rolling in money, you're going to need to hire an accountant.  

Then, if you need help (i.e. hire other kids to help sell) selling all that delicious lemonade, you'll have to pay workers' compensation insurance (can you hear the cash register at the assessor's office?).  Follow this with business permits and licenses and general business insurance.

Of course, you don't want to go through all this without an online presence so you'll have to hire a web designer, do you?  I mean, you do have to think of your brand.  All the popular organizations have a brand these days.

...and all this just because some schmucks at city hall (or on capital hill) can't just let a couple of kids just set up a card table and sell lemonade that their mom made for them on a neighborhood street corner.  What a crock!

What is really sad is that cities are so strapped for cash that they're willing to stop a kid from buying a toy (which is where that money is going, anyway).  Don't have time to stop the burglars or rapists but doggone it we have all the time in the world to harass a couple of 9 year-olds on a street corner.

Yep, that's government in action - harassing kids since, well, since forcing citizens to pay assessments, fees, fines, excises, duties, tariffs, contributions, dues, tributes, or tithes even became a thing.

Monday, August 12, 2019

Just like dad

Dad yelling at son
Typically when I'm looking through the legal rags, I see countless lawsuits against corporations or some family law matter.  The other day there was a story about a rear-end collision resulting in a $21 million verdict?  21 Million!!!  That's insane. 

The topper of the week, though, was the lawsuit filed by a dad against this son.  That's right - dad sued his son.  Seems dad and son were lawyers and son was working for dad.  

I'm guessing dad and son had a falling out and son decided to open his own law practice.  The problem is that dad had named his son after himself - so, the opposing parties were Dad and Dad, Jr.

Now, Dad had been practicing personal injury for a long time - long before Dad, Jr. decided to work for Dad.  After the falling out, Dad, Jr. opened his own practice and called it....wait for it...Dad, Jr law firm II (see the play on words there?  That's II as in too as in I'm Dad, too, or something like that).  

Poetic justice, I think since it's a real slap in Dad's face.  I'll bet Dad never thought Dad, Jr. would ever rebel against Dad and that Dad, Jr. would always just goose-step as he was so ordered.  Clearly, Dad, Jr. is a rebel and a force to be reckoned with.

Anyway, Dad didn't like (or get) the joke and sued Dad, Jr. for trademark infringement seeking, among other things, to prevent Dad, Jr. from using his own name.  Seems also that Dad is pulling out all the stops seeking to put the kibosh on Dad, Jr. from using his name (i.e. "Dad").  

For his part, Dad, Jr. is not Dad and Dad, Jr. created a website that (I think) is enough different as to not overlap Dad.  Being a techno fuddyduddy (and probably someone who was unable to program a VCR) Dad is livid that Dad, Jr. is using anything that resembles his name.  According to Dad:
Defendant's (i.e. Dad, Jr) confusingly similar designation in connection with identical services is likely to cause confusion among consumers as to the affiliation, connection, association, origin, sponsorship, or approval of defendant's with or by Plaintiff (i.e. Dad).
This reminds me of the Lexis/Lexus lawsuit a few years back.  In that case, Lexus (the car manufacturer) sued claiming that Mead couldn't use the name Lexis (a data retrieval service). The court found that because the two names were being used in different industries, that there would be no confusion.

In this instant case, there are two problems to address.  First is whether trademark law can prohibit someone from using his own legal name or restrict its use when there are two people in the same industry who are using it to promote their business.  

Thing is, unless there were some contract provision saying that Dad, Jr. must not use the name of "Dad" withing 50 miles of Dad, then I don't see how Dad has a chance in hell of succeeding.

The second problem is what is going to happen years down the line when Dad, Jr. has kids.  Is Dad, Jr. going to want to have anything to do with Dad?  I don't know many grandparents that don't freak out when they discover that they can't see their grandchildren.  Dad, for his part, really needs to think these things through.  What is the real cost of winning?  

Maybe, Dad, you need to step back and see the big picture.  In the immediate sense it's all about about money and hurt feelings, but long term?  Maybe you need to think about who is going to be around when you can't take care of yourself.  Do you really want to make Dad, Jr. to be your enemy?  

Just think about it Dad, who would you rather have selecting your rest home?  A happy Dad, Jr. or a resentful Dad, Jr.?

I'm just sayin.

Monday, August 5, 2019

Word of the Month for August 2019: Stare Decisis

Playing off mom and dad to get what you want
Do you remember being a kid?  Specifically, do you remember going to mom for something and then going to dad when mom said no hoping that dad would give a more favorable response?  

Yeah, happens all the time.  The other day, my kid tried that.  She saw a toy in the store and, turning to mom said, "can I have that?"  When mom said, "NO!" she turned around (I was standing maybe 3 feet away) and said, "Dad, can I have that?"  I gotta wonder if she even realized that mom was still standing there when she asked me.

Thing is, these days law and the decisions courts hand down are very much like that.  People go to one court, don't get what they want so they go to another court asking for, basically, the same thing.  

The kicker is that unlike parents (who, hopefully, are on the same page and the kid realizes that it's unlikely dad will overrule mom), it is critical that courts make the same rulings over and over so that people know how law will be applied.

Take, for example, the 1st Amendment of the United States of America.  The 1st Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Dialing in on the religion section, things seem pretty straight forward, huh?  Congress shall make no law respecting the establishment of religion..."  To help clarify things, the SCOTUS has, over the years, handed down a number of cases dealing specifically with the unlawful established of religion.  

In School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963), the Court considered whether a Pennsylvania law and policy of the Abington School District requiring public-school students to participate in classroom exercises involving daily Bible verse reading violated the religious freedom of students under the First and Fourteenth Amendments. 

In an 8-1 decision, the Court found that the Pennsylvania law and school-district practice violated the Establishment Clause and the Free Exercise Clause.

Huh!  Imagine that - the SCOTUS ruled that schools can't force students to recite bible verses.  Imagine my chagrin and surprise, then, when I read an article about a 13 year-old girl who was forced to read an Islamic prayer of conversion - the Shahada - and say there is  “No God, but Allah.  

In Wood v. Arnold, the parents of Caleigh Wood sued Charles County Public Schools in Maryland, the county board of education, and Evelyn Arnold and Shannon Morris, principal and vice principal of La Plata High School for violating a student’s (i.e. their daughter's) First Amendment rights under either the Establishment Clause or the Free Speech Clause.

Sounds like a clear violation of the 1st Amendment, doesn't it.  I mean, looking at Schempp, this sounds like a clear violation of this girls rights, right?  Turns out, however, that the Wood's lost their case in the Federal District Court our of the State of Maryland and, subsequently, lost their appeal in the United States Court of Appeals for the Firth Circuit.  

Of course, this brings us to our word of the month: STARE DECISIS.  According to Black's Law Dictionary, STARE DECISIS means:
Latin: To stand by things decided.  The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.  The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases.
Soooooo, the problem here is not so much how the SCOTUS might rule as it is how a court in Maryland might rule in a given scenario.  Huh.  Well, looking at cases dealing with Maryland and religion, it appears Maryland has a history of dubious rulings on state and religion.  

In the early 1960s, the Governor of Maryland appointed Roy Torcaso as a notary public. At the time, the Constitution of Maryland required "a declaration of belief in the existence of God" in order for a person to hold "any office of profit or trust in this State.  Mr. Torcaso took exception to this and filed suit - and lost in Maryland.  

Eventually Torcaso v. Watkins made its way up to the SCOTUS which held that Maryland's requirement for a person holding public office to state a belief in God violated the First and Fourteenth Amendments to the United States Constitution.

Then there was the case of McGowan et al. v. Maryland in which Maryland had enacted a series of "Blue Laws" prohibiting work on Sunday.  The SCOTUS held that while Maryland's Blue Laws were lawful, it added that "We do not hold that Sunday legislation may not be a violation of the "Establishment" Clause if it can be demonstrated that its purpose is to use the State's coercive power to aid religion."

It would appear, based on the language in McGowan, that the Wood's will be successful in their appeal.  What is sad is that Maryland couldn't just concede recognizing that the need to be right may be less than the need to follow the law of the land.

I'm just sayin.

Monday, July 29, 2019

A rough game of tag

Tag, you're "it"
My kids love playing tag.  Actually, now that I think of it, it's not the act of getting tagged as it is the chase - they love getting chased and caught and then chased, again.  They can never get enough.

I suspect that's what was going through the head of the young lady who cut in front of EVERYONE on the freeway today.  Driving the most gosh awful colored puke green Ford fiesta you have every seen, this lady got on the freeway and proceeded to cut over three lanes to get in the #1 lane.....and then slow down. 

Anyway, like I said, lady hops over to the fast lane, slams on her brakes and wonders why everyone is flipping her the bird.  I guess you could say everyone was slow shaming her.  You could say that but, in actuality, we were all just amazed that she was still breathing having just narrowly missed getting creamed by not one but two semis.

Thing is, if I were compelled to drive in such an ugly car, I'd want to get creamed, too - but I digress.  The reason I bring all this us is because as I was on my way to work today, I came upon the twisted remains of a car accident.  Seems a dually (you know, those hunking passenger trucks used for hauling) and a VW Bug (or what now looked like a Bug) tried to get it on in the middle of the freeway.  Didn't turn out so well for the Bug.

I was thinking while watching the firemen pull out the jaws of life what was going through the driver of the Bug just before the accident. Were they paying attention to driving or were they texting someone and didn't see the dually come up from behind?

Of course, South Carolina's law on texting and driving isn't something to write home about.  Heck, with a fine of only $25 per violation (under 15-5-3890), it's not even enough to discourage anyone from texting and driving.  Maybe if the fine were say $1,500 a pop and 6 months without a drivers license, then maybe people would think twice about driving and texting.

Probably, then, it's a good thing I'm not a politician - I'd be too draconian with my penalties for distracted drivers (among other things).  But, maybe that's what is needed.  Someone who is more concerned about the prevention of an offense than the appeasement of the electorate.

Monday, July 22, 2019

Don't Look, Don't Tell

Under-boob suits are the latest
I know I'm going to get screamed at for this but...

You remember the story about the Emperor's New Clothes?  Seems a king was tired of his wardrobe and wanted something "new."  So he searched around and found a couple of "new" fashion designers who told him they had come up with a "new" design - something that would just blow him away.

The day of the unveiling arrived and out walks the king in his new suit of clothes.  Problem was, he wasn't wearing anything.  Everyone is snickering behind his back but, of course, he being king, the commoners couldn't (or wouldn't) just up and tell the king that the king was naked - until one young boy blurted out, "THE KING IS NAKED!"

What brought this to mind was that the other day I was listening to the radio and heard about the latest women's fashion trend to hit the market just in time for summer - the under boob suit.  

That's right - a bikini top that exposes the underside of a woman's breast (more than usual).  And it's not just bathing suits.  All kinds of women's clothes are being modified to expose the bottom side of women's breasts.

Is this OK?

You know, I wouldn't think it's OK except for that stupid torn jean trend.  Dang, but I thought the torn jeans thing was the dumbest thing since sliced bread and now this?! I would think that women groups all around the world would (or should) be
Torn jeans is not fashion
freaking out.  I mean, here you have yet another vehicle to exploit women's bodies and I'm not hearing anything.  Not a peep.  Well, actually, I hear a lot from guys who approve of this new style - but nothing from women??!

Maybe it's a First Amendment thing.  Under Black's Law Dictionary, Indecency is defined as: The quality, state, or condition of being outrageously offensive, esp. in a vulgar or sexual way.  Unlike obscene materials, indecent speech is protected under the First Amendment.

So, it's OK to wear anything's an expression of speech?  Yeah, that's it.  Sounds a bit weak, but that's the craze these days - weak arguments founded in insanity.

Earlier this year all anyone heard was about the #metoo movement but now all I hear on this are crickets in a field of complacency.  

Aren't you women just sick of being objectified?  Because that is what this is - your collective bodies are being paraded around beaches and in public for all to see...and you don't see a problem with this?!?

Waaaaait a second.  I get it.  It's not that women like this sort of thing.  Rather, it's that they're afraid to stand up and be heard?  Is that it?!  Too timid to stand up and be counted?  Don't want to be the tallest blade of grass.  Afraid to be the squeaky wheel?  Get a grip and take a stand.

But now, 
I'm just a "stupid" guy wading out in a field of crazy.  Please tell me how I am wrong, here.  Please scream at me and tell me how this is not an attack on women.  How paring down the percentage of clothing covering a woman's body is not somehow undermining the credibility of women or the message NOW has been spouting for the last half century.  That it's not what a woman wears but what she says that's important.  

Sorry to break it to you, folks, but it's a package deal.  Unless it's your job to walk around with no (or little clothes on), walking around naked will only result in no one taking you seriously.  No one over 18, that is.