Category: Moore’s Musings

MOORE’S MUSINGS
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

BE A GOOD SAMARITAN – DONATE FOOD WITHOUT FEAR OF BEING SUED
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.

Sometimes the fruit gets rotten
And falls on to the ground
There’s a hungry mouth for every peach
As I go ramblin’ ’round boys
As I go ramblin’ ’round — Woody Guthrie

Among the many reasons Woody Guthrie would have heard in the 1930s to justify not providing blemished peaches to the hungry – fear of getting sued was not likely among them, but he would not be surprised to learn that it is an excuse today. The purpose of this article is to present, unambiguously and emphatically, federal law which immunizes from suit everyone who donates food in good faith without actual knowledge that it is harmful. Please clip this article and show it to any prospective donor of food – grocery, caterer, restaurant, farmers market, who expresses reluctance to donate out of fear of being sued:

UNDER FEDERAL LAW (42 U.S.C. Section 1791(c)(1)), THE DONOR (person, entity, gleaner, nonprofit) OF FOOD IN GOOD FAITH IS NOT LIABLE FOR CLAIMS THAT THE FOOD CAUSED HARM.

This law is known as the Good Samaritan Law or more specifically the Bill Emerson Good Samaritan Food Donation Act. The story of the Good Samaritan is of course a nice story from the Bible. Jesus was being quizzed by a lawyer about what Jesus meant by “love thy neighbor”. Jesus described a man who had been attacked by bandits and left for dead on the road. Two priests passed him by without giving aid. A third, from Samaria, stopped, bound the man’s wounds, put him on his own donkey, took him to an inn and paid the innkeeper to look after him. The lawyer, shrewdly catching the drift of the story, said, “He that shewed mercy on him.” Then Jesus said, “Go, and do thou likewise.”

The drafters of the federal Good Samaritan law did not possess the simplicity of the biblical expression and so it has the ifs, ands and buts, common to statutes. In the interest of legal scholarship, I present the operative statutes. The primary statute, 42 U.S.C. Section 1791 (c)(1), says:

“A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.”

Section 1791(c) (2) applies the same protection to nonprofits that receive donated food. Section 1791(b) defines all the terms used in the broadest fashion. For example, Section 1791(b)(4) defines “food” to mean, “ any raw, cooked, processed, or prepared edible substance, ice, beverage, or ingredient used or intended for use in whole or in part for human consumption.” Section 1791(b)(10) defines “person” broadly to include all types of business organizations, thereby covering grocery and produce stores, restaurants, farmers markets, and caterers.

While the statute does not define “good faith”, Section 1791(c)(3) states that the liability shield does not apply only where the donor is guilty of “ gross negligence or intentional misconduct.” Those two terms are defined by Section 1791(b) (7) and (8) to mean:

The term “gross negligence” means voluntary and conscious conduct (including a failure to act) by a person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person.

The term “intentional misconduct” means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person.

Finally, Section 1971(d) applies the same protections to the landowners where gleaning takes place, that is, the persons “who allow(s) the collection or gleaning of donations on (their property)”

California does not have an analogous statute. Since Congress has not stated an intent to be the pre-eminent legislative authority in this area, the state of California, or any local jurisdiction, is free to enact its own legislation expanding, but not reducing, the protections of the federal law.

After all that, if you are confused, please allow me to say it again in a declarative certain fashion:

UNDER FEDERAL LAW (42 U.S.C. Section 1791(c)(1)), THE DONOR (person, entity, gleaner, nonprofit) OF FOOD IN GOOD FAITH IS NOT LIABLE FOR CLAIMS THAT THE FOOD CAUSED HARM.

MOORE’S MUSINGS
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

REGULATING CLOTHES COLLECTION BOXES
Another regulatory action designed to block recycling
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
Oakland has now joined an ever-growing list of cities requiring a clothing bin collection company to obtain the written consent of the property owner, not the occupant, to place the box. I would bet not one staff member or elected of any jurisdiction imposing this law has ever tried to obtain consent of a property owner. These regulators don’t understand how difficult this process is. The result of this kind of ordinance is that there will be fewer clothes collection bins and less textile recycling, all directly in conflict with Zero Waste ordinances, County Measure D, and AB 939.

In my law practice I have negotiated well more than 50 commercial leases, usually representing the tenant/business owner. For a company desiring to place a clothes collection bin on a commercial premises, this is what they would need to overcome to obtain the property owner’s written consent. Please put yourself in the shoes of the clothes bin business and consider:

1. First you have to know who the owner is. The tenant may not know (especially if there is a property manager between the landlord and the tenant) or may not want to tell the box provider, leaving a search of the County assessor’s records as the only option left;

2. Even when you know the name and address of the owner, you don’t necessarily know who the contact person and/or decision maker is in that organization. It can take a lot of phone time to find the right person when you are cold-calling a business. The assessor’s records won’t tell you who to contact. The tenant in possession of where the box is to be placed may or may not know this information and may or may not be willing to provide it. Most commercial tenants want as little to do with their landlord as possible. Once a landlord knows that a tenant wants something (signed consent), it changes the landlord/tenant dynamic, and not for the good of the tenant.

3. Even if the clothes bin company ascertains the contact person for the owner, getting a signed consent is a formidable task. Landlords do not sign consents at will or whimsy. Landlords first wonder about possible liability, whether the tenant has insurance, whether this tenant is following the lease, and a host of other concerns, which often result in consent conditions being negotiated with the tenant, who has no vested interest in the outcome.

4. Even if the bin company finds a contact person willing to have the consent signed, many organizations have decision-making hierarchies that must be followed. Publicly traded REITs (real estate investment trust) own lots of commercial realty. As a publicly traded entity it has internal governance and regulatory rules it must follow before executing a consent.

Let me give one example: On my way to work each morning I pass a Chevron station on Grand Avenue in Oakland that has a box owned by US Again. Let’s say I need to get the owner consent to place that bin. In trying to get the property owner address, I can fairly assume three things right away: 1) the occupant is a franchisee of Chevron; 2) the occupant likely has no relationship with the property owner- leases are typically negotiated directly by the franchisor; and 3) the person on duty operating the Chevron during the day is unlikely to be the franchisee. So, I have to find out the contact information for the franchise holder and ask them to ask their franchisor for the property owner contact information. Why would the franchisee want to help? There is no real benefit to the franchisee in asking for something from the franchisor. Even if I got the franchisor contact information, why would the franchisor want to give me the contact information for the property owner? They wouldn’t. They have no stake in placing a collection box.

It used to be that one could find out the name of the property owner online via the Alameda County Tax Assessor. No longer. You must go to the office in person to do so. I spent 30 or so minutes trying to find ownership information through a private service, giving out my contact information in the process so I could get spammed later, but was unsuccessful and gave up. I could pay a service to find the information or I could go in person to the Tax Collector office to search for ownership but in either case I would not be much closer to satisfying the regulator.

Even if I were to get the owner’s name and billing address for the tax collection (what a private service is likely to find), I would have a long struggle from there to find the business office for the owner and talk my way to a person who could tell me who needs to sign a consent for the placement of the bin. Now the hardest part yet is to convince that person to give a signed consent.

Needless to say, this process of collecting a property owner signature requires a huge time commitment and amount of diligence for a bin company just to place one box. The result will be the placement of fewer boxes. That result means less textiles are recycled and more textiles are landfilled, an outcome that conflicts with established state policy.

I have no quarrel with wanting these collection boxes and commercial premises to be kept clean and clear of blight. I also have no quarrel with regulation of financial responsibility of both the bin company and the tenant in possession. Regulation of these aspects of clothes collection does not require onerous and recycling-diminishing laws that require a paper signature from a property owner as a condition of placement of the bin. Requiring a signed consent from the occupant of the property and permit conditions about blight and insurance should be satisfactory protection for the city.

All the owner-signature requirement does is create a huge barrier to entry of the market, reduces recycling, and grants economic protectionism to the advocates of this law, Goodwill and Salvation Army. This should be off limits to regulators.

MOORE’S MUSINGS
By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

WHAT DOES SAME SEX MARRIAGE HAVE TO DO WITH GARBAGE? (PART II)

(PART I: What Does Proposition 8 Have To Do With Zero Waste?)

For one thing, both subjects have been examined by the Supreme Court in terms of their constitutionality (or lack thereof) under the Fourteenth Amendment. That amendment, ratified as a legacy of the Civil War to equalize the races of Americans, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The recent Supreme Court case of Obergefell v. Hodges^[i], decided with a 5-4 majority, prohibits discrimination against same sex couples in issuing marriage licenses, holds that same sex marriage is one of the “liberties” described in the 14th Amendment.

In 1905 the same Court held that garbage, as described in local ordinances, was not “property”, which the same amendment says cannot be taken without due process. There is no evidence to suggest that the drafters or ratifiers of the 14th Amendment ever considered either same-sex marriage or garbage. In his dissent in Obergefell, Justice Scalia eloquently frames the question that if the constitutional grant of the power to make laws is reserved to the “People”, what the five member majority of the Court did in Obergefell was to override that constitutional power.

When examining existing legal precedent relating to discard management, it is well to remember that 5 votes on the Supreme Court can make or change a law. It is also worth remembering that one person’s perception of a just change is another’s view that the same change is revolutionary.

The framers of the constitution left open to interpretation whether future acts of the republic were to be measured by the truths and values of 1793 or was legal interpretation to evolve with the republic. The fact that the power to make laws was reserved to the People and their elected legislators suggests the former. And since the constitution clearly reserves lawmaking power to the states unless the constitution provides otherwise^[ii], an important question is which of those “unreserved powers” is federal in nature and enforceable by federal courts. Many Court decisions today applauded were required to navigate these conundrums.

For example, the 14th amendment does not say there is a federal power to enforce its premise of equal protection of the laws. Southern (former confederate) states long argued successfully that only the states had such enforcement power and they had no interest in enforcing it except in the manner they interpreted the Amendment. In 1873, a Supreme Court of Louisiana decision that a New Orleans exclusive franchise to maintain slaughterhouses was constitutional was upheld by the US Supreme Court on the ground that even if the franchise grant were a 14th Amendment violation, the federal judicial system had no power to enjoin it. ^[iii]

In another example, the southern states’ concept of “separate but equal” was sanctioned by the Supreme Court because it found that the framers and ratifiers of the 14th Amendment lived in a segregated society and the language of the Amendment does not suggest any intent to change that. The Court’s precedent holding that separate but equal satisfied the 14th Amendment lasted from 1896^[iv] to 1954^[v]. In those 60 years the 14th Amendment never changed, only the Court’s perception of what was right had changed. The 1954 decision in Brown v. Board of Education was unanimous, unlike the 5-4 majority in Obergefell.

For yet another example, in 1857, a 7-2 majority of the same Court decided that a slave named Dred Scott could not sue in federal court to have his freedom decreed because he was not a citizen of Missouri, but was rather “property” and property could not sue anyone in federal court. This decision, authored by Chief Justice Roger Taney, himself a slaveholder, rested its constitutional justification upon the view that the “People” described in the Constitution and the Declaration of Independence (the same “People identified by Justice Scalia in Obergefell) were intended by the drafters not to include African people or their descendants. Chief Justice Taney also believed that the states were not bound to a permanent union but rather had joined, and could leave, the union as they chose. Opposition to that premise led to the Civil War.

Abraham Lincoln made a revolutionary response to the Dred Scott decision: “If this important decision had been made by unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true, or, if wanting in some of those, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay even revolutionary to not acquiesce in it as precedent.

But when, as it true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.”

Lincoln’s Secretary of State William Seward expressed this view of Dred Scott more strongly, “Judicial usurpation is more odious and intolerable than any other among manifold practices of tyranny.” There are those who echo this sentiment about Obergfell and many other Court decisions.

Obergefell is an outgrowth of earlier court rulings about marriage rights under the 14th Amendment: In 1965, the Court struck down^[vi] a Connecticut law prohibiting married couples from obtaining contraceptives. In 1967, the Court struck down^[vii] a Virginia law prohibiting marriage between persons of a different race. For many people today those outcomes are just, and it is all right that the Supreme Court and not the People made those judgments. The Obergefell decision rests partly on the Court’s 1967 ruling in the Virginia case.

So let us examine garbage under the constitution. The Court decided two major cases in 1905, the first in Detriot and the second arising from San Francisco. In Gardner v. Michigan^[viii] the Court affirmed a conviction of a man charged criminally with collecting garbage in violation of a Detroit city ordinance. Garbage was defined by the ordinance as: “The word ‘garbage’ shall be held to include every refuse accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking, dealing in or storing of meat, fish, fowl, food, fruit or vegetables, including dead animals and condemned foods found within the city limits.”

In California Reduction Company v. Sanitary Reduction Works^[ix], San Francisco, by charter, provided for the exclusive franchise (which exists still 110 years later) for collection of garbage, which was challenged by a scavenging, would-be-competitor as a 14th amendment violation. While the definition of garbage under the Charter cannot be found in the opinion, the purpose of the Charter was to eliminate the then-prevalent noxious and disease-producing conditions when generators indiscriminately dumped their garbage into the public streets and waterways. The Court was satisfied that the City was justified by public health and safety concerns to pass this Charter.^[x]

The Court in the 1905 San Francisco case recited two principles nowhere discussed in the 2015 Obergefell case and are quite inconsistent with the Obergefell outcome:

“…if a regulation, enacted by competent public authority avowedly for the protection of the public health, has a real, substantial relation to that object, the courts will not strike it down upon grounds merely of public policy or expediency.

“the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one’s own will.”

The Court’s viewpoint in the Detroit case that garbage was not property seems to be at odds with views of later Courts, composed of different justices, that: 1) garbage was an article of interstate commerce^[xi], (without stating exactly what in the nature of garbage made it an article of commerce) and; 2) Justice Kennedy’s (who authored Obegefell) statement in 1994 ^[xii] that “what makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it.”^[xiii]

Justice (later Chief Justice) Rehnquist dissented from the holding that garbage is an article of commerce since prior court precedent^[xiv] convinced him, “I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items.” In other words, the same type of material that was considered “filth” by turn of the 20th century writers; not what can be found in source separated recyclables in 2015.

So what has same sex marriage to do with garbage? Maybe garbage is not an article of commerce. Maybe regulating the collection of garbage is no longer a proper subject of government regulation. If no legislative action is required to command these outcomes, maybe rights under the constitution are more ephemeral than the framers desired. And today’s just resolution of an important issue by the Courts is tomorrow’s tyranny. Just saying.
CALENDAR

September 27, Annual Picnic
September 17, Board Meeting
September 28-30, Resource Recycling Conference, Indianapolis
October 15, Board Meeting
November 19, Board Meeting
# # #

[i] Obergefell v. Hodges 2015 WL 213646 (2015)

[ii] 10^th Amendment, US Constitution

[iii] Slaughter-House Cases 16 Wall. 36 (1873)

[iv] Plessy v. Ferguson 163 US 537 (1896)

[v] Brown v. Board of Education 347 US 483(1954)

[vi] Griswold v. Connecticut 381 US 479(1965)

[vii] Loving v. Virginia 388 US 1(1967)

[viii] Gardner v. Michigan 199 US 325 (1905)

[ix] California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905)

[x] The Court and the cities enacting these laws were influenced by the then-seminal work of “Municipal Sanitation in the United States” by Charles Value Chapin. Chapin describes the need to regulate the disposal of what he called “filth”, which he characterized as “swill, brine, animal urine, stinking noxious liquid, butcher’s offal, and putrid animal or vegetable matter” (see p. 145-150

[xi] Philadelphia v. New Jersey 417 US 617 (1978)

[xii] C & A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994)

[xiv] Asbell v. Kansas 209 U.S. 251 (1908).

MOORE’S MUSINGS
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

WHY YOU NEED LAWYERS
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
A few months back I reported about a 3-judge panel of the Ninth Circuit Court of Appeals decision rejecting the constitutional Commerce Clause challenge to Alameda County’s drug EPR program (BTW- Longs in uptown Oakland does not accept take-back). Big pharma had asserted that the County ordinance impermissibly regulated out of state conduct. Since the ordinance expressly only applies to companies that sell drugs in the county and applies even-handily to such companies whether based inside or outside the county and state, I thought to myself: pretty obvious and the Court got it right.

But this week an 11-judge panel of the same Court (not including any of the judges in the pharma case) came to an opposite conclusion involving sales of fine art in St. Francis Foundation v. Christie’s et al. A California statute imposes a 5% royalty, payable to the artist, when a work of fine art is re-sold. The purpose is so when someone who bought an Andy Warhol print of a soup can for $10 from the artist when young, re-sells it many years later for $10 million, the artist, now successful, is rewarded. The California statute expressly applies only when a seller resides in California or the sale transaction occurred in California. Like the pharma case, when applied within this structure, out of state and in-state art sellers are treated the same.

In this new case, the plaintiffs (artists or their estates) sued three large agents for resellers of fine art, Christies, Sothebys and Ebay for not making the required royalty payment. Plaintiffs claimed unpaid royalties on sales both in California and in other states. Without distinguishing the claims about the in-state sales from the out-of-state ones, the Court decided that the California statute does violate the Commerce Clause because the legislation can apply to out-of-state conduct, which the Commerce Clause precludes. What? How can that be?

So the Court made up a hypothetical: what if a California resident living part time in New York buys fine art in North Dakota? This transaction has no relationship to California other than the residency of the buyer is there. From this hypothetical – not the reported facts of this case, the Court summarily concluded, “We easily conclude that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant Commerce Clause.” Without further explanation.

The Court did not reveal how the transactions subject to this lawsuit were analogous to this hypothetical. The Court offered no further explanation about how the California law regulated conduct out of state. The remainder of the opinion is a discussion about how the part of the statute applicable to the residence of the seller is legally severable from the rest of the statute that regulates California sales transactions, so that the former is effectively stricken while the rest remains valid.

Appellate Court judges and justices tend to be more result-oriented and less objectively analytical than they might confess in public. The result is either popular or it is not. Roe v. Wade, for example, is founded on a constitutional principle not actually found in the constitution. As another example, the Supreme Court case establishing that the Commerce Clause applies to solid waste because solid waste is an “article of interstate commerce”, never explains why that might be so, or what law it was relying upon to so state. Why a Court protects artists and competing waste haulers but not drug companies is anybody’s guess. I mention this only to highlight the unpredictability of the outcome of disputes that are litigated. But I can’t really complain, it creates work for me.

MOORE’S MUSINGS
A monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

FRANCHISE FEE IS A TAX
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
On February 26, 2015, the California Court of Appeal for the Second Appellate District, entered into the murky fray of Proposition 218 interpretation and attempted to clarify when a franchise fee is a tax requiring pre-approval by the electorate. Though the case arose in the context of an electrical service utility, the Court’s analysis might well apply to other municipal franchises, such as solid waste.

In Jacks v. City of Santa Barbara, the City, with PUC approval, imposed a 1% (of gross receipts) surcharge on the utility, Southern California Edison, to be collected by SCE from the ratepayers, making SCE a pass-through of the surcharge. A taxpayer group challenged this surcharge under the CA Constitution provision known as Proposition 218. Proposition 218, in short, is an outgrowth of Proposition 13’s limitation on government taxation power and requires voter approval before any new tax can be imposed.

As the Court in Jacks noted, Proposition 218 prohibits local governments from imposing “taxes” without voter approval but does not define what “taxes” means. According to the California Supreme Court in Sinclair Paint v. State Board of Equalization, “The term “has no fixed meaning, and . . . the distinction between taxes and fees is frequently ‘blurred,’ taking on different meanings in different contexts… In general, taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or privilege granted.”
Jacks also noted that the state high court, in contrast, has defined “franchise fee” since 1922 as a “charge which the holder of the franchise undertakes to pay as part of the consideration for the privilege of using the avenues and highways occupied by the public utility.”

Jacks took a very literal reading of this 1922 definition to decide that Santa Barbara’s surcharge was a tax and not a franchise fee because, the …”primary purpose is for the City to raise revenue from electricity users for general spending purposes rather than for SCE to obtain the right of way to provide electricity. This constitutes a tax under Proposition 218 and is subject to approval by the electorate.

In reaching this conclusion, Jacks again echoed the state high court’s 1997 analysis in Sinclair Paint, that if it quacks like a duck, it’s a duck: “if revenue is the primary purpose, and [compensation for the franchise] is merely incidental, the imposition is a tax, but if [compensation for the franchise] is the primary purpose, the mere fact that revenue is also obtained does not make the imposition a tax.”

The Sinclair Paint Court also stated that the definition of “taxes”, ” ‘does not embrace fees charged in connection with regulatory activities which fees do not exceed the reasonable cost of providing services necessary to the activity for which the fee is charged and which are not levied for unrelated revenue purposes.’

In the field of solid waste franchises, the Court of Appeal’s 1993 determination in City of Dublin v. County of Alameda, that Alameda County Measure D did not impose a tax, but was an enactment of regulatory power, has long held sway.

But the 1993 Measure D case was decided before Sinclair Paint and before the constitutional amendment of Proposition 218. In light of Jacks, local governments, franchised haulers, and ratepayers, may want to take another look at the applicability of Proposition 218 to solid waste franchise fees.