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Posts Tagged ‘Rhode Island’

A Series of Particular Events: Foreseeability and the First Circuit

Posted on: February 6th, 2019

By: Thomas Hay

A three-judge panel on the First Circuit denied Omni Hotel’s petition for review of their decision to overturn a lower court ruling that awarded summary judgment to Omni and reinstated a negligence charge filed by a man who was beaten, and his arm broken by a group of individuals in Omni Hotel’s Providence, Rhode Island hotel lobby. The First Circuit held that the development of a particular sequence of events can, without more, render future harm foreseeable.

The First Circuit’s opinion effectively broadened the duty of care imposed on hotels to protect guests and members of the public against spontaneous criminal conduct by a third party.

The plaintiff lived in a condominium complex adjoining the hotel. He had access to and regularly used the hotel’s services and amenities. On the night in question, hotel security had evicted from the premises a group of youths whose partying had caused a disturbance. Some of the evicted group returned outside the hotel with a case of beer and attempted to pick a fight with a passer-by which was seen by the hotel’s valet. A number of the group would later reenter the hotel’s lobby and proceed to beat the plaintiff resulting in the breaking of his arm.

While the lower court found that Omni had a special relationship to the plaintiff, as the “possessor of land that holds the land open to the public/member of the public,” on the issue of foreseeability, the lower court found that the hotel did not have a legal duty to protect the plaintiff from an attack spontaneously committed by third parties. Additionally, the lower court found it unforeseeable that the specific rowdy and later evicted group would spontaneously attack the plaintiff.

In the First Circuit’s review of the case, Omni cited Rhode Island cases that pertained to a “past occurrences” theory of foreseeability, whereas the plaintiff cited cases that illustrated a “sequence of events” theory of foreseeability. The First Circuit ultimately agreed with the plaintiff, saying that while it may not have been foreseeable that the group would assault the plaintiff at the time of their eviction, the attack was foreseeable by the time the group had returned and tried to pick a fight with the passer-by.

The First Circuit stated that the development of a particular sequence of events can, without more, render future harm foreseeable. According to Omni, this decision imposes an undue burden on businesses, “which will now unnecessarily face the prospect of a jury trial every time anyone is injured on their premises.”

While the implications of this case as it pertains to the liability of business owners and injuries that occur on their premises goes to be seen, hotels in the First Circuit should be wary of omitting to assist any guest or even member of the public from the actions of aggressive third parties.

If you have any questions or would like more information, please contact Thomas Hay at [email protected].

 

Mu v. Omni Hotels Management Corp., 885 F.3d 52 (1st Cir. 2018)
Mu v. Omni Hotels Management Corp., 882 F.3d 1 (1st Cir. 2018)

“Sanctuary Cities” Get a Reprieve For Now

Posted on: January 10th, 2019

By: Pamela Everett

As many city, county and state attorneys are aware, in 2017 the US. Department of Justice (DOJ) added three conditions to the application process for the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program in an effort to eliminate so called sanctuary cities. The Byrne JAG program originated from the Omnibus Crime Control and Safe Streets Act of 1968,  which created grants to assist the law enforcement efforts of state and local authorities. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health.

The first condition, called the “Notice Condition” requires grantees, upon request, to give advance notice to the Department of Homeland Security of the scheduled release date and time of aliens housed in state or local correctional facilities. The second condition, called the “Access Condition,” requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status. The third condition, called the “Compliance Condition” requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status. Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of credible evidence of a violation of the Compliance Condition. Additionally, all grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. The DOJ also requires the jurisdictions’’ legal counsel to certify compliance with the conditions.

A number of jurisdictions have sued the DOJ and the U. S. Attorney General regarding these new conditions and sought a nationwide injunction; however, so far, none have  been successful in obtaining a nationwide injunction.  Recently a partial win was handed to the states of New York, Connecticut, New Jersey, Rhode Island, Washington, and Commonwealths of Massachusetts and Virginia and the City of New York. The States and the City challenged the imposition of the three conditions on five bases: (1) the conditions violates the separation of powers, (2) the conditions were ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions were not in accordance with law under the APA, (4) the conditions were arbitrary and capricious under the APA, and (5) § 1373 violated the Tenth Amendment’s prohibition on commandeering.  This case challenged the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled.

While the court held that the plaintiffs did not make a sufficient showing of nationwide impact to demonstrate that a nationwide injunction was necessary to provide relief to them, it did find as follows: (1) The Notice, Access, and Compliance Conditions were ultra vires and not in accordance with law under the APA. (2) 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. (3)  The Notice, Access, and Compliance Conditions violated the constitutional separation of powers. (4)The Notice, Access, and Compliance Conditions were arbitrary and capricious under the APA.  (5) The DOJ was mandated to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance to disburse those awards as they would in the ordinary course without regard to those conditions.  Additionally, the DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

The DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

There are several other cases pending, including one filed by the City of San Francisco, seeking the issuance of a nationwide injunction to prohibit the enforcement of the new conditions. Stay tuned for more developments in this area.

If you have any questions or would like more information, please contact Pamela Everett at [email protected].

 

Related litigation: City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017); affd. appeal, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review. Conference City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018) City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018)(currently on appeal); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018)

 

HOA’s Situated in California’s Coastal Zone May Not Unilaterally Ban Airbnbs

Posted on: November 27th, 2018

By: Frank Olah

In the past few years, online booking sites such as Airbnb have predominated the short-term vacation rental market. As a result, many of California’s traditional vacation destinations have seen a surge in short-term rental (STR) activity causing cities and municipalities to issue rules in an effort to regulate this new type of market without alienating full-time residents.

For communities located in California’s coastal zone, the Coastal Commission has assisted with the development of Local Coastal Program (LCP) vacation rules. It has been the Commission’s position that rules affecting short-term vacation rentals in the coastal zone must be done in the context of a LCP and/or be authorized pursuant to a coastal development permit (CDP).

The coastal zone is an enormous area larger than the State of Rhode Island that varies from several hundred feet to five miles on land and includes a three-mile-wide band of ocean. Implementation of California’s Coastal Act (Pub. Resources Code § 30000 et seq.) policies is accomplished through LCPs that must be prepared by the 15 counties and 61 cities located in the coastal zone, which are then submitted to the Commission for approval. An LCP includes a land use plan. Development in the coastal zone may not commence until a CDP is issued by the Commission or a local government that has a certified LCP.

Unsurprisingly, the influx of Airbnb renters in common interest developments has raised the question of whether and to what extent HOA Boards may regulate or outright prohibits STRs. Generally, California HOA’s have the right to restrict short-term rentals, set minimum rental periods, and impose reasonable fees; and the Board’s decisions are entitled to deference by the courts.(See, Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466.)

However, the issue has arisen as to whether HOA’s located in coastal zones under the Commission’s jurisdiction may similarly regulate STRs. This year California’s Second District Court of Appeal found that HOA’s located in the coastal zone do not enjoy similar discretion and deference. In Greenfield v. Mandalay Shores (2018) 21 Cal.App.5th 896, the court held that the decision to ban or regulate short term rentals, such as Airbnb’s, must be made by the City and the Coastal Commission, and not the HOA.

In Greenfield, owners in the Mandalay Shores Community Association, located in the Oxnard Shores Coastal Zone, sought to enjoin enforcement of the HOA’s resolution banning STRs because they argued the ban constituted a “development” under the Coastal Act requiring a CDP and the HOA had failed to obtain the permit before adopting the ban.

The court observed that for decades non-residents had rented beach houses at Oxnard Shores on a short-term basis. The certified LCP for the City of Oxnard did not address STRs. In 2016, the City announced it was considering drafting a STR ordinance to regulate the licensing and operation of STRs. In June 2016, Mandalay Shores, a mutual benefit corporation, adopted a resolution banning STRs for less than 30 days and imposed significant fines on homeowners who violated the ban. In August 2016, the Commission notified Mandalay Shores that the STR ban was a “development” requiring a CDP.

The issue before the Greenfield court therefore was whether such a STR ban constitutes a “development” under the Coastal Act requiring HOA’s to obtain a CDP. “Development” is broadly defined to include any “change in the density or intensity of use of land.”  Courts have given that term an expansive interpretation, not restricting it merely to activities that physically alter the land or water.

The court then analogized the STR ban to a locked gate or posting “no trespassing” signs to prevent access to a beach. The court reasoned that one of the goals of the Coastal Act is to maximize public access to the beach. By banning short-term vacation rentals, an HOA created a “monetary barrier” to the beach.

The court found that the STR ban changed the intensity of use and access to the homes in the Oxnard Coastal Zone because before the ban, STRs were commonplace in Oxnard Shores. Just to be sure there was no misunderstanding, the court held: “STR bans are a matter for the City and Coastal Commission to address. STRs may not be regulated by private actors where it affects the intensity of use or access to single-family residences in a coastal zone. The question of whether a seven-day house rental is more of a neighborhood problem than a 31-day rental must be decided by City and the Coastal Commission, not a homeowner’s association.”

The Greenfield court relied on the fact that the STR ban at issue affected 1,400 units that had historically been used for short-term rentals. While this fact may limit application of the case to new developments or those which did not historically have STRs, the Coastal Commission’s policy is to require cooperation from the HOAs in obtaining CDPs according to the local coastal plan where the HOA is situated in a coastal zone. Therefore, HOAs contemplating STR bans must work with their local government and the Commission to develop suitable regulations or risk litigation by HOA members hoping to cash in on Airbnb’s popularity.

If you need help with this or any other HOA related question, Frank Olah practices HOA law in California and Washington and is a member of Freeman Mathis & Gary’s HOA National Practice Section. He can be reached at [email protected]. For information regarding governmental regulation of STRs, please contact Dana Maine in Freeman, Mathis & Gary’s Government Law National Practice Team at [email protected].