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21
Jun
2022

The Right to Exclude!

By Martin Crim, Esq.

Should hunters be able to enter other people’s land to retrieve their dogs?

Should police be able to enter land and peek through your windows to search for drugs?

Should relatives be able to visit the graves of their family members on private land?

What if the land is posted “no trespassing”?

Few people would complain if firefighters or EMT’s responded to a genuine emergency on their property, and it’s hard to imagine a judge saying that they commit a civil or criminal wrong by coming onto your property to provide emergency help.  This is true even if you didn’t give them your approval. Your approval is implied in a situation where public or private necessity outweighs the practicality of seeking permission to enter your property ahead of time.

But what is there is no emergency? What if you look out your kitchen window and see a stranger standing there on your property? You might, understandably, be alarmed. In this situation, you might assume that the law will back you up if you tell the stranger to leave. But in some circumstances, the law won’t back you up. So, what happens then? Let’s examine some circumstances where the right to exclude may not apply.

First, let us consider a situation of a property owner who wants a particular person to stay off their property. The property owner has the option to issue a “no trespassing letter” to that person, even if the property is normally open to the public, like a school or church. Local governments have a role in enforcing such letters, and in order to do so need to know things like “who has the authority to issue the letter” and “what if the person needs to enter the property for a valid purpose like voting or a parent-teacher conference”? For example, at my church, we have a policy saying exactly who has the authority to exclude someone from the building, to avoid having a situation where it’s unclear who is in charge.

A related issue comes up when a local government tries to protect homeowners’ right to exclude people. In that situation, it becomes a difficult task to specify who is permitted to approach your front door without your approval – and local governments have run afoul of the U.S. Constitution by providing a list of exceptions that allowed everyone but religious missionaries to do so.

Now, what if a homeowner wants to enforce a prohibition against certain visitors? In that case, homeowners have the option to post signs that prohibit certain classes of people – door-to-door salespeople, political canvassers, or whoever.  But what consequences can a homeowner impose upon someone who violates this prohibition? If the trespasser harmed the homeowners in some way, maybe a court would let them collect money from the trespasser. Without some tangible harm, the legal remedy becomes less clear. But what are rights without enforcement mechanisms?

Next, let’s consider a scenario where a loved one’s grave is located on private property. A 1993 Virginia law says that relatives of people buried in a cemetery, along with people who own burial plots there and genealogists, can enter and cross private property to reach the cemetery. There are, limitations, of course. Such visitors have to give notice, limit their activities there, and act appropriately, but the private property owner where the cemetery is located has lost the ability to say, “keep out.” They’ve lost the right to exclude, at least in part.

Next, consider a warrantless police search. US Supreme Court precedents say that police can enter “open fields” even if there are signs warning against entry and fences to keep people out. Under these circumstances, the police can also search your property using aircraft within “navigable airspace,” which means that the government took your right to exclusive use of the airspace over your property and used it to reduce the scope of your right to privacy.

Then we come to the hunting dogs. There’s a case pending in the courts right now that challenges Virginia’s law giving certain hunters the right to retrieve their dogs from other people’s lands. The plaintiffs are property owners who claim that they have been damaged by these dogs running loose on their property. The pending lawsuit builds off a US Supreme Court case that said a company could exclude union activity on its property.

Of possible relevance to the hunting dog case is the portion of the Virginia Constitution that says the people have a right to hunt, fish, and harvest game, subject to laws passed by the General Assembly. The Virginia Constitution also says that the right to private property is “fundamental,” which presumably means that it carries heavier weight than ordinary rights. Those competing rights collide with each other when hunters want to retrieve their dogs.

In some countries, there is a “right to roam,” which protects customary rights to travel, particularly in forests and coastal lands. In the US, a similar right protects “navigable waterways,” which allows people to use bodies of water that are “susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.” That’s subject to a lot of interpretation – and potential abuse.

In law school, students read a case about someone sailing on a lake who ties up at a pier during a storm, even though told not to do so. The principle being taught there is the doctrine of necessity, which forms a defense against the claim that the sailors were trespassing. There is a fundamental moral principle that the right to exclude people from your property has to yield to their right to remain alive in an emergency. But that raises other questions, such as “what constitutes an emergency?”

As that brief survey shows, the right to exclude is an important aspect of the right to property, but like most rights, it is not absolute. Legislators and courts will continue to have to balance competing rights. Businesses, property owners, local governments, and others can’t rely on basic principles like the “right to exclude” because there are often competing principles that affect the legal rights in issue.

If you have a property rights problem, you should consult an attorney to learn your rights and how you might enforce those rights. You should also be cautious dealing with that stranger standing on your property and don’t assume that your property rights are the only thing the law cares about. I have been practicing in this area of the law for 30 years and encourage you to reach out if you have any questions regarding your right to exclude or about what circumstance may allow someone to enter your property without your consent.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.


This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

25
May
2022

Community Meeting with American Legion Post 114

Written by: Olaun Simmons

VF&N’s Olaun Simmons attended a community meeting with American Legion Post 114 and People, Inc. to discuss the revitalization of the historic American Legion Post building and the development of duplexes on Prince William Street in Manassas, Virginia.

If you have any questions on how VF&N can assist you, please feel free to reach out by way of phone or email Olaun Simmons.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

10
May
2022

Billboard Regulation Survives at the US Supreme Court

Written By Martin Crim, Esq.

I think that I shall never see
              a billboard lovely as a tree.
Perhaps, unless the billboards fall,
 I’ll never see a tree at all.
—Ogden  Nash

In the 2015 case of Reed v. Town of Gilbert, the U.S. Supreme Court announced a new rule that restricted local government regulation of signs. That case broadly defined “content-based” regulation in a way that caused alarm in local government circles because it threatened to render unconstitutional many zoning ordinances that addressed signs. One of the fears that it generated was that we might no longer be able to have one set of rules for signs that advertise products and services sold on-site and another set for signs that advertise products and services that are sold elsewhere (a/k/a on-premises v. off-premises signs).

Most billboards are off-premises signs, and the billboard industry aggressively protects its interests in those signs. The Reed opinion gave them an opportunity to increase the number and value of their stock of billboards if they could turn on-premises signs into off-premises signs by getting courts to strike down local ordinances that discriminated against off-premises signs. Federal and state beautification laws dating back to the 1960’s and 1970’s have curbed the ability to put up new billboards, so most billboards you see are “grandfathered” under zoning law – allowed to remain as long as they do not expand in size or upgrade their technology.

Since 2015, billboard companies have filed several challenges around the nation against ordinances that used the on-premises/off-premises distinction, arguing from Reed that an ordinance was unconstitutional if you have to read the sign to apply the ordinance – even if you need just a cursory examination. This became known as the “pillar of salt” theory, after the Biblical story that Lot’s wife got turned into a pillar of salt as punishment for looking back despite being commanded not to look.

Although Justice Alito’s concurring opinion in Reed said that on-premises/off-premises distinctions were still permitted, the failure of the majority opinion to agree with him cast doubt on whether a majority of the Supreme Court would agree. The lack of clarity in the Reed majority opinion left room for the “pillar of salt” theory to persuade some judges. Meanwhile, tens of thousands of local governments had sign ordinances that distinguished between on-premises and off-premises signs.

On April 21, 2022, the Supreme Court finally answered the on-premises/off-premises question, in a case (Austin v. Reagan National Advertising of Austin) brought by two advertising companies who wanted to digitize some grandfathered billboards. Austin’s sign code prohibited that, so the advertising companies sued. The case made its way up the Federal appellate court system to the top, where Justice Sotomayor  delivered the opinion of the Court, rejecting the “pillar of salt” rule as “too extreme an interpretation.”

Instead, the Supreme Court has now allowed sign regulations to distinguish between on-premises and off-premises signs as long as the regulations meet so-called “intermediate scrutiny” (i.e., requiring more justification than the “rational basis” test but not as much as the “strict scrutiny” test). For that reason, the Supreme Court remanded the Austin case for the lower courts to determine whether the Austin sign code had an “impermissible purpose or justification” and whether it was “narrowly tailored to serve a significant governmental interest.”

When I worked on the model sign ordinance for the Local Government Attorneys of Virginia in 2016, we retained the on-premises/off-premises distinction, generally prohibiting all new off-premises signs. (Grandfathered signs have to be allowed as a matter of property law.) We held our breath at the time, and now we can breathe a sigh of relief.

If you have a question about whether a given sign ordinance is still constitutional – either in the abstract or in relation to an existing or proposed sign – I’d be pleased to consult with you and, if appropriate, to represent you in relation to that question.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer[/vc_column_text][/vc_column][/vc_row]

16
Feb
2022

Why Do Preambles Matter?

By Martin Crim, Esq.

If a legislative bill has no preamble, readers are left guessing at what problem the drafter is trying to solve, if any. If the preamble identifies the problem to be solved, then readers can evaluate whether the proposed solution is effective, proportional, and practical.

Most Americans (and many others around the world) are familiar with the preamble to the U.S. Declaration of Independence:

In Congress, July 4, 1776: The unanimous Declaration of the thirteen united States of America, When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another …

This tells you who (thirteen states), what (declaration of independence), when (July 4, 1776), and most especially why (it has become necessary to dissolve the existing political bands). It sets up the self-evident truths and the list of complaints against George III that follow.

The preamble to the Declaration of Independence helps you understand the rest of the document and (along with a strong “therefore” paragraph at the end) turns it from a treatise on the right of self-determination and why George III was a bad king into a founding political document that transformed the world.

Because of its preamble, readers of the Declaration of Independence immediately understood what the Declaration was setting out to tell them: The reasons why the thirteen states were assuming a separate and equal station among the powers of the earth. Readers could then evaluate whether altering or abolishing the current form of government would be an effective solution to the problem. They could evaluate whether the “long train of abuses and usurpations” were so awful that no other step short of rebellion was strong enough to address them. They could debate whether declaring the thirteen states “Absolved from all Allegiance to the British Crown” was practical.

In the same way, a preamble to a legislative bill informs the reader as to the reasons for its existence. What is it trying to accomplish? Why is it needed? Then we can move on to practical questions: Is it likely to work? Is the proposed solution a good fit for the problem? And will it create new problems, perhaps worse than the original problem?

Dear reader, I therefore ask you to read the preamble when there is one, and to ask, if there isn’t one, “why not?” Then you can evaluate the proposed legislation on its merits, looking for the likely results – both intended and unintended – of the bill.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer[/vc_column_text][/vc_column][/vc_row]

21
Dec
2021

Legal Risk Check-Up

Written by: Brett Callahan

Legal Risk Check-Up

It is almost the end of the calendar year! It is also a busy time for many businesses as they try to wrap up any deals, close their books for end-of-the-year accounting, recognize their employees, and celebrate their past year’s accomplishments. And let’s face it, making it through 2021 with a healthy business is quite an accomplishment. However, you may want to add something new to that end of the year to-do list: schedule a time in January to sit down and take a serious look at how your business has grown or changed over the past year or several years, and what that might mean for your legal risks. After all the new year is a time for new beginnings and what better fresh start could your company have than identifying and fixing threats before they snowball into a major problem?

The most cost-effective approach to business legal disputes is usually to avoid them altogether, but that isn’t always possible. Businesses have limited resources and can’t focus on everything at once. So, if you have to prioritize, what are the most common types of legal issues businesses face that either create legal troubles or make them more complicated and expensive than they need to be?

  1. Using inappropriate, outdated, or unfavorable contracts. Contracts are supposed to protect against legal risk. Odds are good if your business has been “using that contract forever” or no one remembers exactly where the contract came from, that the contract isn’t providing much protection. Remember when considering your potential exposure, even if each individual transaction under a regularly used contract may seem small, when you add them together you can get a big problem.
  2.  Not paying attention to the rules of a licensed or regulated industry. You study, take tests, and pay fees to get your real estate or contractor license. But how frequently do you check to make sure all of your practices and contracts are following the rules, including any new rules, of whatever board or agency issued that license? If your business going to take a serious hit if you (or an employee) lose their license, it isn’t enough just to pay your renewal fees. You need to make sure you are taking basic steps to actively protect that license.
  3. Not performing other business maintenance on a regular basis. When was the last time someone looked at the corporate by-laws or company operating agreement? Are you paying attention to what new labor laws apply as your business grows and adds employees? Your practices and policies need to be in alignment with any governing laws or any controlling documents for the business. Businesses change, sometimes slowly, sometimes quickly. Any major change, such as a large expansion, should prompt an immediate review of what new laws your business might now have to follow. But even if it seems like not much has changed in a while, if you review your legal framework, you might be surprised at what you find.

Risk management requires you actively manage those risks and not ignore them until it is too late. If you have any questions on where to start or need help ensuring you are using favorable contracts and complying with any applicable laws, regulations, or governing documents one of our business attorneys may be able to help.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

21
Dec
2021

2022 Criminal Law Mental Health Update

Written by: Bradley Marshall

2022 Criminal Law Mental Health Update

Bradley Marshall will be teaching a continued legal education class on Friday, January 21st, and on Wednesday, March 9th. Both of these dates offer a live webcast and live telephone options. He will go over the new updates effective July 2021, how these changes apply to trial practices, and much more.

To sign up go to  Virginia CLE.
The class offers MCLE Credit: 2.0 (Ethics: 1.0)
Live-Interactive Credit: 2.0 (all dates, all formats) Live Interactive MCLE Credit Symbol
Designation Credit: 2.0 Trial Practice/Litigation

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

17
Dec
2021

City of Manassas Approves Special Use Permit for Building Expansion

Written by: Olaun Simmons

City of Manassas Approves Special Use Permit for Building Expansion

Olaun Simmons of Vanderpool, Frostick & Nishanian, P.C. represented the Prince William Islamic Center in their pursuit of a special use permit to expand their place of worship located on Mathis Avenue. The PWIC, a well-established religious institution in the community for 15 years, has a growing congregation that needs additional space for worship services. The PWIC designed the expansion to include contemporary, high-quality architectural finishes and landscaping facing Mathis Avenue that will help to modernize the look of the Mathis Avenue corridor. On November 3, 2021, the City’s Planning Commission voted unanimously to recommend approval of the special use permit application. On December 13, the City Council voted unanimously to approve PWIC’s special use permit application for the expansion. Olaun was instrumental in helping PWIC successfully navigate the procedural maze often associated with zoning applications.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

10
Dec
2021

Freedom of Information Act – How Can We Best Serve the Public?

Written by: Martin Crim

Freedom of Information Act – How Can We Best Serve the Public?

Virginia first adopted a Freedom of Information Act, or FOIA, in the 1960s. Its purpose is to ensure that the people of the Commonwealth have ready access to public records in the custody of a public body or its officers and employees and that the people have free entry to meetings of public bodies wherein the business of the people is being conducted.

Every year, the General Assembly considers bills to amend FOIA. How should citizens and the General Assembly evaluate those bills? I recommend that we evaluate them in light of the purpose and principles of FOIA.

FOIA ensures access to public records and meetings of public bodies because such access is helpful to voters in selecting candidates and holding public officials accountable. We support democracy by making public records and meetings available for citizens. Note that assisting private parties with claims against the government is not a purpose or goal of FOIA, but in actual practice, those parties make up a large percentage of persons who make FOIA records requests.

Policy is hard, in part because there are always policy considerations weighing against any option you want to look at. What does something cost? Who has to pay the cost? What are the opportunity costs (that is, what will not happen that you want to have happen)?

With FOIA records requests, the costs fall on state and local governments to provide the staff time and materials for copying. Luckily, most citizens are OK with receiving electronic copies, but there is still a time component in searching for documents. In addition, in many cases, someone has to review the content of the documents to determine if they are exempt from FOIA.

The government can charge the person making the request for the “actual cost” it incurs in providing the requested documents. However, the way that the law and the FOIA Advisory Council have defined “actual cost” is less than the actual costs, so taxpayers pick up part of the charge for FOIA records requests. The opportunity costs are harder to gauge, but a large records request can bring a government to a standstill by diverting all available staff to fulfilling the records requests. If the person making the document request thinks that the price is excessive, they can ask a judge to review it, and the judge can reduce the charge if it is actually excessive.

Members of the General Assembly do not feel any responsibility for the costs of FOIA records requests. They don’t see the costs, they don’t have to raise taxes to cover the costs, they don’t hear from constituents about the costs, and their support staff are not diverted from working for them by FOIA records requests. They, therefore, have no frame of reference for the strategic or vindictive use of FOIA records requests.

In litigation, parties will use a FOIA records request to bypass civil discovery and, if they have deep enough pockets, to bring a government agency to a standstill due to the size of the records requests. There are also people who are irrationally hostile toward the government due to personal grievances or ideology and who abuse FOIA records requests to harass and obstruct the operation of government.

How should the misuse of FOIA records requests inform policy decisions? If we return to first principles, we should look at how the release of information would serve the public in understanding how the government works and holding government officials accountable. Reducing the cost of FOIA abuse does not, I submit, serve either of those goals.

FOIA is a good thing, but it is bad policy to change FOIA to make its abuse easier. Your government works for you, and anything that impedes the work of government harms the public interest. Please take an interest in this year’s FOIA bills and ask whether they serve the public interest.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance[/vc_column_text][/vc_column][/vc_row]