Colorado Law Compass

It’s Saturday night.  You decide to head down to the Moose Lodge and have a few brewskis, hang out with your pals, enjoy yourself.  Time to head home.  What?  No, you don’t need a cab.  You’re fine to drive.  Problem is, you’re not.  You rear end another car and send the driver and passenger to the hospital.

What can get worse than that?  You’re the Police Chief.

Yup.  That’s what happened to Charles Budde, the police chief for the Kane County Forest Preserve District.  You cynics might be thinking, so what, he’s a cop.  He’ll get off.  Well, apparently the fine folks in Kane County don’t cotton to their police chief drinking and driving.  They yanked his driver’s license.  Then they canned his ass.

So far, so good.  Only Mr. Budde got his feelings hurt.  How can they do this, he must have thought to himself.  I’m an alcoholic!  I’m disabled!

You know what happened next: he sued.  He argued that the District violated the Americans with Disabilities Act (“ADA”) by discriminating against him because of his disability when they fired him; by failing to accommodate his alcoholism; and by retaliating against him for requesting a reasonable accommodation.  The federal district court granted summary judgment in favor of the District, and Budde appealed.

The 7th Circuit Court of Appeals upheld summary judgment with a succinct analysis:

Based on the record, we find that there were sufficient facts for Meyers to believe that Budde’s misconduct constituted a violation of the District’s SOPs, which warranted his termination. He violated both the SOP that prohibited officers from being publicly intoxicated, as well as the SOP that prohibited employees from violating public laws. As police chief, the District could reasonably expect Budde to refrain from engaging in unlawful activities. We agree with the district court that in choosing to drive while intoxicated and causing a crash that sent two people to the hospital, he failed to comply with the workplace rules, and Budde was no longer qualified to perform his job as police chief.

In addition, both the District and Budde agree that one of Budde’s essential job functions was the ability to operate a vehicle: Budde was the police chief who authored General Order 92-09, stating that the ability to operate a vehicle is an essential job function, and the District provided Budde with a police car to use at all times. Appellant’s Br. at 13-14. The District argues that Budde was not “qualified” because, as a result of his misconduct, his driver’s license was suspended and he could not operate a vehicle. In contrast, Budde argues that “the ability to operate a vehicle” is different from “hav[ing] a valid driver’s license.” Appellant’s Br. at 13.

We do not find Budde’s attempt to draw a distinction persuasive. The only logical reason to require the police chief to have the ability to operate a vehicle is so that he can, in fact, drive the vehicle. And under Illinois law, “no person shall drive a motor vehicle unless he holds a valid license, permit, or restricted driving per- mit.” Illinois Driver Licensing Law, 625 Ill. Comp. Stat. 5/6-101. Budde’s inability to operate a vehicle is not the result of his disability; it is a consequence of choosing to drive his car after consuming four or five glasses of wine.

The District terminated Budde because of his miscon- duct, not due to discrimination. Budde was not “qualified” to perform his job as police chief, based on his failure to comply with workplace rules and his inability to operate a vehicle. Budde’s claims for failure to accom- modate and retaliation for seeking an accommodation are also without merit.

This case may not answer the question of whether or not alcoholism is a disability, but it does get to the threshold question in an ADA claim: is the plaintiff a “qualified individual with a disability?” A “qualified individual with a disability” is someone who (1) satisfies the requisite skill, experience, education, and other job-related requirements of his employment position, and (2) can perform the essential functions of the position held or desired, with or without reasonable accommodation.

If your job requires you to drive, and you’ve lost your license because of a DUI, you’re not going to win an ADA suit.

photo: http://www.flickr.com/photos/ajmexico/ / CC BY-NC-SA 2.0 – that is not Mr. Budde in the above photo.

Starbucks has been on the firing line this week, defending itself against gun control advocates who are pushing it to ban guns in its coffee shops.  Since I kind of lost my taste for guns and hunting after taking a hunter safety course and going rabbit hunting when I was 14, I haven’t kept up with such things.  But this Denver Business Journal story mentions that while I can’t go into a Starbucks with a 9 mil tucked into my waistband and covered by my jacket, it’d be okay as long as everyone could see I was packing heat.  Got me wondering just what the laws are in Colorado.

The Colorado State Patrol has a great primer on Colorado gun laws:

What are Colorado’s laws concerning firearms?

Colorado allows a person to carry a firearm in a vehicle, loaded or unloaded, if its use is for lawful protection of such person or another’s person or property. [C.R.S. 18-12-105(2)] Colorado law also allows a person to possess a handgun in a dwelling, place of business, or automobile. However, you cannot carry the weapon concealed on or about your person while transporting it into your home, business, hotel room, etc. Local jurisdictions may not enact laws that restrict a person’s ability to travel with a weapon. [C.R.S. 18-12-105.6] The Act permits the nationwide carrying of concealed handguns by qualified current and retired law enforcement officers and amends the Gun Control Act of 1968 (Pub. L. 90-618, 82 Stat. 1213) to exempt qualified current and retired law enforcement officers from state and local laws prohibiting the carry of concealed firearms.

How do I obtain a Concealed Weapon Permit?

A permit to carry a concealed weapon may be obtained through the Sheriff of the county in which you live. You must meet certain requirements to qualify for the permit. [C.R.S. 18-12-203] Consult your local Sheriff’s Department for more information obtaining a permit. The permit and a valid photo identification must be carried with the handgun at all times. A permit is not required and a handgun is not considered concealed when a person is in a private automobile or other private transportation. [C.R.S. 18-12-105 (2)]

What is the Law Enforcement Officers Safety Act?

The Act permits the nationwide carrying of concealed handguns by qualified current and retired law enforcement officers and amends the Gun Control Act of 1968 (Pub. L. 90-618, 82 Stat. 1213) to exempt qualified current and retired law enforcement officers from state and local laws prohibiting the carry of concealed firearms. To apply for Retired Commissioned Officers Firearms Training, click here.

Am I required to register my weapon in the State of Colorado?

The State of Colorado prohibits gun registration. CRS 29-11.7-102

If I’m traveling through Colorado with a weapon, Can I Have it in my vehicle?

Colorado law allows a person to carry a firearm in a vehicle, loaded or unloaded, if its use is for lawful protection of such a person or another’s person or property. [C.R.S. 18-12-105 {2}]. Colorado law allows a person to possess a handgun in a dwelling, place of business, or automobile. However, you cannot carry the weapon concealed on or about your person while transporting it into your home, business, hotel room, etc. Local jurisdictions may not enact laws that restrict a person’s ability to travel with a weapon [C.R.S. 18-12-105.6].

Is it Legal to Carry a Weapon in Colorado National Forests?

While visiting National Forests in Colorado, you may carry a weapon. However, in addition to state laws, you must comply with Federal Regulations pertaining to the use of a firearm on National Forest System lands.

A firearm may not be discharged in the following National Forest areas:

1. Within 150 yards of a residence, building, campsite, developed recreation site, or occupied area; or
2. Across or on a Forest Development road or an adjacent body of water, or in any manner or place whereby any person or property is exposed to injury or damage as a result of such discharge; or
3. Into or within any cave. [36 CFR 261.10 (d)]

Some forest or distrcits have additional restrictions on discharging a firearm. You are advised to check with the authorities in the areas you will be visiting.

photo: http://www.flickr.com/photos/michaelbmxking/ / CC BY 2.0

The U.K.’s Telegraph has a great article on an informal study that facebook may be causing an uptick in divorce.  While the popular social networking site is likely more a symptom than a cause, it is fascinating that there are so many references to the site in recent divorce petitions.  It never ceases to amaze how, after almost two decades of the Internet’s ubiquity, people still seem to think that what they put out there is private.

Come on, people.  I really need to post this?  Maybe I need to create a new category: Things That Make You Go Duh.

The Better Business Bureau has received a pattern of complaints against a company called Skyline Steak and Seafood and are warning consumers to do their homework whenever someone knocks on their door offering to sell them meat.

The BBB says you should follow these tipss:

• Avoid letting the person into your home.

• Ask the salesperson for written material about the company.

• Check to see if the company is licensed with the Department of Agriculture. The department can be reached at (303) 477-4220.

• Call the USDA’s Meat and Poultry Hotline at (888) 674-6854.

• Check the company’s BBB Reliability Report at www.denver.bbb.org.

But why even go that far?  How about just politely closing the door?  Just say no to door-to-door meat salesmen.

photo: http://www.flickr.com/photos/jg33/ / CC BY-NC-ND 2.0

Good news for people who love to do their taxes: beginning next year you’ll get a chance to fill out one more form: DR 0252.  Not only will tax geeks get to fill this out, but so will pretty much anyone who buys anything online.  DR 0252, also known as the Consumer Use Tax Return will have to be filled out by anyone who pays sales tax online.

Colorado Governor Ritter signed into law the Internet Sales Act on February 23, 2010.  While Coloradoans were already obligated to pay taxes on Internet sales, apparently no one (insert feigned look of shock here) was doing so.  The Internet Sales Act was put in place to change that.  How will the Centennial State know if you’ve paid sales tax? Retailers with more than $100,000 in sales are required to notify the state of the amount each Colorado customer spent in a given year.

Unsurprisingly, this law is not without its flaws.  Consumers turn to the Internet to save money, especially on sales tax.  Once that incentive is gone, Internet sales may dry up.  How will Internet retailers respond?  Well, one can only imagine that they won’t report sales to Colorado.  Colorado still faces an uphill battle with enforcement on this issue.  Time will tell if they are willing to spend the money and resources to capture this source of revenue.

7 News has more.

photo: http://www.flickr.com/photos/zizzy/ / CC BY-NC 2.0

The scam goes something like this: You respond to a job post on craigslist.  The “employer” decides to advance you some wages, and sends you a check.  But since the check is for more than what you’re going to be paid, he asks you to deposit the check in your bank account, and send him another check for the difference.

To someone who’s out of job, the prospect of a paycheck is enticing.  But if you don’t recognize the flaws in this scenario, you should.  This is just a variation on the Nigerian 419 Scam.

What happens next is that the “employer’s” check comes back a counterfeit or as having insufficient funds in the account.  In the meantime, the check you sent has already been cashed.  You are going to get dinged for the overdraft, and maybe worse.  You could be on the hook for writing a bad check as well.

Colorado’s 9 News has a story on how people in Colorado are getting taken by this ruse.  One guy was taken for almost $10,000, even though his bank, Wells Fargo, told him that the fake check had cleared.  After he heard that, he wired the money out.  How he’s on the hook is beyond me.  Wells Fargo told him the check had cleared.  What else does he need to know?  And it appears Wells Fargo wired the money out of his account.  Just like a cashier’s check, why would Wells Fargo wire money that wasn’t in the account?

This guy’s story notwithstanding, be careful.  If it sounds too good to be true it is.  I have yet to find an example of a get rich quick scheme where that isn’t the case.  If you know of one, leave a comment and tell me the story.

photo: http://www.flickr.com/photos/amrosario/ / CC BY 2.0