New Jersey Drivers Can Now Report Dangerous Driving with #77 Alert System

Law enforcement has always encouraged people to contact them if you notice any suspicious behavior or have witnessed a crime. Similarly, local news stations usually have a hotline to call for this exact reason.

A “Hostile Environment” LAD Claim in a Police Station

Holmes v. Jersey City Police Department, ___ N.J. Super. ___ (App. Div. 2017).  Today’s decision by Judge Reisner in this case under the Law Against Discrimination, N.J.S.A. 10:5-2 et seq. (“LAD”),arises from the fact that the Appellate Division previously held that a police station is a place of “public accommodation” under the LAD.  Here, a […]

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Judge Fisher and a “Leviathan of a Case”

Fairfax Financial Holdings Limited v. SAC Capital Management, LLC, ___ N.J. Super. ___ (App. Div. 2017).  Judge Fisher often is able to write remarkably concise opinions, as shown (for example here and here.  In this appeal, however, Judge Fisher set the current Term’s record for the longest opinion, a 157-page magnum opus for the Appellate […]

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The Supreme Court and the Hospital/Horizon OMNIA Two-Tiered Provider Network Dispute

The Supreme Court announced that it has granted review in Saint Peter’s University Hospital, Inc. v. Horizon Healthcare Services, Inc.  That case, and related litigation involving hospitals and Horizon, has gotten much publicity in the press.  The question presented, as phrased by the Supreme Court Clerk’s Office, is “In this action concerning defendant’s implementation of […]

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A Tour Through the Tort Claims Act With Judge Currier

Patrick v. City of Elizabeth, ___ N.J. Super. ___ (App. Div. 2017).  The Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (“TCA”), contains numerous immunities and other impediments for plaintiffs who seek to recover against public entities or public employees for tort-based injuries.  Today’s opinion by Judge Currier, which affirmed summary judgment in favor of defendants […]

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“Technology” is the Key Word at the Third Circuit Judicial Conference

In this electronic age, technology is everywhere.  So it was perhaps inevitable, and welcome to most, that the common thread running through much of the Third Circuit Judicial Conference, which began yesterday in Lancaster, PA and concludes tomorrow, is technology. One of yesterday’s sessions addressed “Twitter in the Court: Social Media Issues for Judges, Lawyers […]

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Sex Discrimination Includes Sexual Orientation Says the 7th Circuit

“We must consider what this country has become in deciding what [a statute] has reserved.” So wrote Judge Richard Posner, Circuit Judge of the 7^th Circuit Court of Appeals, quoting Supreme Court Justice Oliver Wendell Holmes in Missouri v. Holland, 252 U.S. 416, 433-34 (1920), in his concurring opinion of the 7^th Circuit’s landmark ruling that a person who alleges employment discrimination on the basis of sexual orientation has put forth a case of sex discrimination under Title VII. That’s right. It finally happened.

On April 4, 2017, in the matter of Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), the 7^th Circuit Court of Appeals, sitting en banc, held that Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of their sex, extends the same protections to employees on the basis of their sexual orientation. The courthouse doors, once closed to homosexual or bisexual employees seeking relief from discrimination under Title VII, have opened. Some might call it judicial activism. Others might call it common sense. Either way, the Title VII landscape has shifted.

To be clear, the statutory language has not changed. The statute provides (for those employers subject to Title VII) that “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In Hively v. Ivy Tech, an openly lesbian adjunct professor of the college alleged she had been passed over for promotion and then let go from her position because of her sexual orientation. In reviewing the case, the 7^th Circuit readily acknowledged that the term “sex” in the statute was universally understood to exclude “sexual orientation.” The court commented that the federal courts of appeals felt bound by precedent until the statute either was amended by Congress or reinterpreted by the United States Supreme Court, both of which remained to be seen. In other words, for Ms. Hively, the “writing was on the wall,” or at least ostensibly so.

Then the 7^th Circuit reimagined the statute. The court expressed: “It is therefore neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose.” The Court further commented that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” To suggest that perhaps the drafters of the law did not fully understand or appreciate the “full scope” of the word “sex” in 1964 is, no doubt, an unprecedented execution of judicial sleight of hand. Regardless, the court, acknowledged it was called upon to decide what it means to discriminate on the basis of sex and, in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. According to the court, these are questions of statutory interpretation well within the competence of the judiciary.

Then the court proceeded to march methodically towards its inevitable conclusion. First, the 7^th Circuit noted that “the goalposts have been moving over the years.” Times have changed. There is a much greater awareness, not to mention acceptance, of sexual orientation now than in 1964. The court further observed that the Equal Employment Opportunity Commission, in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), asserted its position that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

The 7^th Circuit then went on to discuss the developments in constitutional law, not only in the employment arena but in the broader area of discrimination on the basis of sexual orientation, which supported this shift in paradigm (and reinterpretation of the statute). According to the court, key among those decisions are: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (gender stereotyping falls within Title VII’s protective ambit); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (same-sex harassment is sexual harassment nonetheless); Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry); Romer v. Evans, 517 U.S. 620 (1996) (striking a provision of the Colorado Constitution forbidding its state’s government from taking action designed to protect homosexual, lesbian, or bisexual persons); Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating a Texas statute criminalizing homosexual intimacy between consenting adults as a violation of due process); and United States v. Windsor, 133 S.Ct. 2675 (2013), which found unconstitutional the part of the Defense of Marriage Act (DOMA) that excluded a same-sex partner from the definition of “spouse” in other federal statutes.

The 7^th Circuit observed that, should the term “sex” in Title VII not include sexual orientation, “bizarre results ensue from the current regime.” For instance, “it creates a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” According to the 7^th Circuit, what the drafters of Title VII “understandably didn’t understand was how attitudes toward homosexuals would change” since 1964. Now was the time, and Hively was the case, to reconcile the irreconcilable.

The bottom line of the 7^th Circuit’s decision in Hively is simple: Ms. Hively stated a claim of discrimination under Title VII when she alleged she suffered discrimination because she is gay. In other words, Title VII includes in its protections sexual orientation as a subset of “sex” discrimination.

The decision, though technically limited to sexual orientation, likely (or presumably) extends to claims of discrimination on the basis of one’s gender identity. Indeed, it would be anachronistic and inconsistent of the court to read “sexual orientation” into “sex” but not “gender identity” into “gender,” and the 7^th Circuit itself acknowledged how difficult it is “to extricate the gender nonconformity claims from the sexual orientation claims.”

Whether the 7^th Circuit’s decision extends to gender identity or withstands scrutiny on appeal to the Supreme Court – which now seems predestined – remains to be seen. Still, the significance of the court’s ruling and the change in federal law that either: (i) has arrived and is here to stay; or (ii) is just around the corner, cannot be overstated. This change is less significant in states like New Jersey, which by state law already prohibit discrimination on the basis of sexual orientation, gender identity, marital status, domestic partnership or civil union status. See The New Jersey Law Against Discrimination, N.J.S.A. 10:5-12, which makes it unlawful to subject employees to differential treatment because of their race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. However, for employers and employees in states like Pennsylvania (which has yet to amend The Pennsylvania Human Relations Act, 43 P.S. § 955), or Georgia (its Fair Employment Practices Act applies only to state agencies and even then does not include sexual orientation as a protected class), the 7^th Circuit’s ruling is a potential game-changer. Employees not previously protected, except perhaps under their employers’ own self-regulating anti-discrimination policies, now may be entitled to protection under federal law.

The Hively ruling could be a wake-up call to employers to revisit their handbooks, anti-discrimination policies and procedures, call their employment lawyers, and (at the very least) give some critical thought to this important issue. As Judge Posner expressed in his concurring opinion: “it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.” Not anymore.

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Small and Independent Brewers Saw Growth in 2016

The Brewers Association, the trade association representing small and independent American craft brewers, recently released 2016 data on U.S. craft brewing. Small and independent craft brewers represent 12.3 percent market share by volume of the overall beer industry, with more than 5,300 breweries operating during the year.

In 2016, craft brewers produced 24.6 million barrels. Retail dollar value was estimated at $23.5 billion, representing 21.9 percent market share. By adding 1.4 million barrels, craft brewer growth outpaced the 1.2 million barrels lost from the craft segment due to acquisitions by large brewing companies. Small and independent brewers continue to show steady growth. Microbreweries and brewpubs delivered 90 percent of the craft brewer growth.

In 2016, the number of operating breweries in the U.S. grew 16.6 percent, totaling 5,301 breweries: 3,132 microbreweries, 1,916 brewpubs, 186 regional craft breweries and 67 large or otherwise non-craft brewers. Small and independent breweries account for 99 percent of the breweries in operation. Throughout the year, there were 826 new brewery openings and only 97 closings. Combined with already existing and established breweries and brewpubs, craft brewers provided nearly 129,000 jobs, an increase of almost 7,000 jobs from 2015.

And, encouraging further growth in the craft brewers industry, a bill has been introduced in New Jersey that would allow microbreweries to sell beer in farmers’ markets, with some limitations. Pennsylvania has allowed the sale of craft beers in farmers’ markets since late 2016.

As craft brewers open microbreweries and beer pubs, they will need assistance to find and lease or purchase locations for their new businesses. One example of repurposing old venues is a new microbrewery and multiuse event space that is planned for Fort Monmouth’s former Dance Hall in the Oceanport section. The 1941 Dance Hall was severely damaged in Super Storm Sandy; those portions are being rebuilt. A second floor will be added, expanding the space from the current 16,000 square feet to 20,000 square feet, with a 2,500- to 4,000-square-foot restaurant, a coffee shop, and an on-site catering area. The microbrewery will produce IPAs and offer tastings and retail sales and service events but will not have a bar. The plan was deemed compliant by a Fort Monmouth Economic Revitalization Authority committee and the parcel was sold “as is” for $120,000 last year.

Stark & Stark attorneys Dolores R. Kelley, Esq., Marshall T. Kizner, Esq., and Eric S. Goldberg, Esq. will discuss craft breweries and distilleries and their impact on commercial real estate at an upcoming free MCE seminar. Stark & Stark Beer & Spirits practice group is one of the only practices in New Jersey and Pennsylvania with a team dedicated to the needs of the craft beer and artisan spirits industry.

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Does Your Community Association Need a Drone Policy?

As drone technology advances and the number of drones in the air increases, managers and board members in community associations are asking about drone policies. If drones are being used in your community or if there is a plan for their use, whether recreational or commercial, your board should adopt a drone policy.

When thinking of drone use, most people may think of recreational drones operated by “those darn kids.” Recreational drones are certainly something associations should stay on top of, with privacy and safety of residents being paramount. Also, recreational drone use is not limited to children and policies should be neutrally applied to avoid running afoul of the law. There are limited government regulations relating to this type of drone use and association policies are an important supplement.

Drone delivery service has been hyped for some time now. Who wouldn’t want to order cold and flu medicine from the comfort of your couch and have it on your doorstep within the hour? Drone delivery is almost certainly on its way to your community one day and we can expect to see further government regulation as it arrives. When it does, your community policies can be adopted once you know what this operation looks like and how it is otherwise being regulated.

There are other business applications for drones that likely require more immediate attention in your community association. These include vendors hired by homeowners and the association, but also entities such as utilities who may have the right to enter association property for certain purposes. The FAA has enacted rules for the use of commercial drones but many community association residents may be concerned that they do not go far enough to protect individual privacy, safety concerns, or the right to quiet enjoyment of one’s home. Managers and board members are right to evaluate and address these concerns through written drone policies which are consistent with current law.

If your board is considering a drone policy, it should work with legal counsel because local, state, and federal regulations are expected to continue to change.

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PennEast Pipeline – What to Anticipate

Shareholder Timothy P. Duggan recently joined Jacqueline Evans, property owner and member of Homeowners Against Land Taking (HALT), on an episode of PrincetonTV hosted by Natasha Sherman. Mr. Duggan and Ms. Evans talked at length about the proposed PennEast pipeline and its anticipated effect on parts of Central New Jersey and Eastern Pennsylvania.

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The Next Two Weeks

In light of Passover and my attendance at the Third Circuit Judicial Conference in Lancaster, PA beginning right after Passover, the next two weeks will likely feature fewer posts on this blog than normal.  The usual level of posts can be expected to return beginning in the week of April 24.

The post The Next Two Weeks appeared first on Appellate Law NJ Blog.

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The Supreme Court Accepts Another TCCWNA Certified Questions Case

The Supreme Court has announced that it has accepted the request of the Third Circuit, in two consolidated cases, to answer certified questions about the Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 et seq. (“TCCWNA”).  The questions presented are “Is a consumer who receives a contract that does not comply with the […]

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The Shoe Dropped…Payless Files for Chapter 11 Bankruptcy

Kansas-based Payless, Inc. filed for Chapter 11 bankruptcy protection in the Eastern District of Missouri (St. Louis) on Tuesday afternoon, under docket # 17-42257.

If you read my blog post about Payless from two weeks ago, this filing should come as no surprise to you. I even put Payless on my retail bankruptcy watch list for 2017 back in January.

The retail discount shoe chain has more than 4,000 stores in 30 countries. CNN reports 400 stores are closing immediately. The company has about $665 million in debt, according to Reuters. In February, Moody’s downgraded the company debt rating, stating the company shown “weaker than anticipated operating performance.”

If you are a landlord with a Payless it is important to know your rights, now. Stark & Stark’s Bankruptcy & Creditor’s Rights Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the District of New Jersey, Southern District of New York, District of Delaware and Eastern District of Pennsylvania on a variety of issues. Most recently, our Group has represented landlords and trade creditors in the EMS, Golfsmith, RadioShack, A&P, Joyce Leslie and Sports Authority Chapter 11 bankruptcy cases.

For more information feel free to contact the author of this blog.

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The Basics of Commercial Construction Liens

The purpose of this blog is to provide a general overview of the basics of filing commercial construction liens. It must be noted, however, that the procedure for filing a construction lien on a residential project is an entirely different process.

The first threshold requirement that must be met in order to file a commercial construction lien is that the party who wishes to file a construction lien must have a written contract with an owner, general contractor, or subcontractor. This threshold requirement cannot be waived and a lien claim is invalid on its face if it is not founded upon a written contract.

The next requirement is that the lien claim must be filed within 90 days of the last date the lien claimant provided materials or services for the project. It must be noted that this 90 day period cannot be extended for the completion of punch list or warranty items. This 90 day period is strictly construed and may not be extended for any reason. The final threshold issue for being able to file a commercial construction lien is that the lien claimant must be a party who is eligible to assert a construction lien claim.

Typically, a general contractor, subcontractor, and sub-subcontractor may file a construction lien on a commercial project. In order to do so, a written contract between the owner, general contractor, subcontractor, and any party who wishes to file a lien claim must exist. The cut-off point for a potential claimant being able to file a construction lien claim is a sub-subcontractor. A sub-sub-subcontractor is not able to file a construction lien on a commercial project.

This same cut-off point applies for suppliers. A supplier may file a construction lien provided they are in privy of contract with either a general contractor or a subcontractor. It should be noted, however, that a supplier to a supplier is not able to file a construction lien claim under the relevant lien law. Once again, a valid supply contract or purchase order which supports the lien claim must exist.

As set forth above, this blog is merely to provide general guidance as to the right to file a construction lien claim on a commercial project. The process as to residential construction is entirely different. Nonetheless, the above guidelines should assist a typical contractor in determining whether or not they can file a construction lien on a commercial project.

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Notice of Disapproval of a Residential Real Estate Contract May Now be Given by Facsimile and Electronic Mail

Conley v. Guerrero, ___ N.J. ___ (2017).  Today’s decision in this case, written by Justice Solomon for a unanimous Court, largely affirmed the ruling of the Appellate Division, reported at 443 N.J. Super. 62 (App. Div. 2015), and discussed here.  The case proceeded from the resolution of New Jersey State Bar Ass’n v. New Jersey […]

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