Colorado Law Compass

A proposed law that would require all children under eight to be in booster seats when riding in a vehicle has made it over its first hurdle in the Colorado Senate.  The law would eliminate height and weight requirements and put in place an across the board requirement.

While the bill made it past this first hurdle, its opponents are decrying it as “nannyism.”  I was just driving the other day when I saw a woman in the passenger seat of an SUV holding a toddler in her lap.  The fact is, there are still people out there that think it’s perfectly safe to transport a child this way, despite the risk they are exposing them to.  Frankly, I don’t understand the whole “big government/nanny state” argument.

The argument goes only as far in its logic as saying that the government shouldn’t be allowed to tell a person what to do.  That’s fine as long as nothing goes wrong, but that’s not why we have laws like this.  Something always goes wrong.  A kid gets in an accident without one of these booster seats, and he’s going to get hurt.  Vegetative state hurt.  Tell me who is going to pay for his medical bills if the other driver is uninsured and if mom and dad’s insurance doesn’t cover them.  Suddenly mom and dad are struggling to pay the rest of their expenses and are looking at bankruptcy.  This won’t solve the kid’s expenses going forward.  Oh sure, he could get disability payments from the government, but we don’t want that, do we?  But the hospital and doctors are left holding the bag for the unpaid bills.  And how are the hospitals and doctors supposed to pay their employees if they aren’t getting paid?  Suddenly, the hospitals and doctors are faced with two choices: fire employees or raise their rates for people who can pay their bills.

What if all of this could be avoided simply by putting in place rule that lower the odds of something like that happening.  Is that really such a bad idea?

Read more at the Denver Post.

photo: http://www.flickr.com/photos/sigsegv/ / CC BY-SA 2.0

Find yourself a nice car on craigslist?  Says it has a “salvage title”?  What’s that?  The Colorado Attorney General’s website has some info:

In Colorado, a “salvage vehicle” is any vehicle that is damaged by collision, fire, flood, accident, trespass, or other occurrence, excluding hail damage, to the extent that the cost of repairing the vehicle to a roadworthy condition and for legal operation on the highways exceeds the vehicle’s retail fair market value immediately prior to such damage. In assessing whether a vehicle is a salvage vehicle, the retail fair market value is determined by reference to sources generally accepted within the insurance industry including price guide books, dealer quotations, computerized valuation services, newspaper advertisements, and certified appraisals, taking into account the condition of the vehicle prior to the damage. When assessing the repairs, the assessor shall consider the actual retail cost of the needed parts and the reasonable and customary labor rates for needed labor.

If you sell a motor vehicle that has been rebuilt from salvage you must, prior to transferring such vehicle, prepare a disclosure affidavit stating that the vehicle was rebuilt from salvage. The disclosure affidavit must also contain a statement as to the nature of the damage that resulted in the determination that the vehicle is a salvage vehicle. The words “rebuilt from salvage” must appear in bold print at the top of each such affidavit. That affidavit must be provided to the purchaser and you must obtain the purchaser’s signature clearly stating that the purchaser has received a copy of the disclosure affidavit and has read and understands the provisions contained therein.

You may be guilty of a misdemeanor if you fail to provide this disclosure affidavit. Moreover, any person who purchases a vehicle rebuilt from salvage who was not provided with a copy of this disclosure affidavit and who, subsequent to sale, discovers that the vehicle purchased was rebuilt from salvage shall be entitled to a full and immediate refund of the purchase price from the prior owner.

If you purchase a motor vehicle that has become a salvage vehicle, you are required to apply with the Colorado Motor Vehicle Division for a “salvage certificate of title.” As part of that application you will be required to include disclosure of the type of damage (excluding hail damage) resulting in salvage. In the case of an application for salvage title due to vehicle abandonment at a repair shop, the application must denote that the reason for salvage is “vehicle abandoned at a repair shop”. The reissued certificate of title will then be permanently branded with the designation “REBUILT FROM SALVAGE.” You can contact:

Colorado Division of Motor Vehicles
Motor Vehicle Titles, Room 146
1881 Pierce Street
Lakewood, CO 80214
Phone: (303) 205-5608

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

Colorado Attorney General John Suthers announced March 9th that attorneys from the Consumer Protection Section have reached a settlement with attorneys Jack H. Boyajian, Marvin Brandon and Karen Nations, their four law firms and one associated business barring them from violating Colorado’s debt-collection and consumer-protection laws.

The consent decree, approved Monday, March 8, by a Denver District Court judge:

* Permanently bans Brandon from collecting debts in Colorado;
* Enjoins Boyajian from collecting debts in Colorado for five years; and,
* Enjoins Nations from collecting debts in Colorado for three years.

If Boyajian or Nations wants to resume debt collection in Colorado following their respective bans, the settlement requires that they obtain appropriate licenses from the state. The consent decree also requires that Boyajian and the corporate defendants pay the state $200,000 in costs and fees, though $180,000 of the amount against Boyajian will be suspended if he pays the remaining $20,000 in a timely fashion.

The Office of the Attorney General filed a lawsuit against the attorneys and law firms in July 2008 alleging that the law firms and their principals had violated the Colorado Fair Debt Collection Practices Act and the Consumer Protection Act.

The defendants’ business primarily revolved around debts related to bounced checks, many of which were outside the statute of limitations and could not be the basis of a legal action. In some cases, the defendants added fees in excess of the amounts allowed by law and demanded penalties of up to three times the amount of the bounced check, often called “treble damages.” Treble damages only can only be assessed following a successful lawsuit. The defendants and their businesses also were suspected of sending out collection letters on law firm letterhead without being reviewed by an attorney.

Each of the law firms named in the state’s lawsuit was incorporated in California with principal offices in New Jersey. None of the three attorneys was licensed to practice in Colorado. The law firms and one associated business are defunct or no longer doing business in Colorado.

photo: http://www.flickr.com/photos/f-r-a-n-k/ / CC BY 2.0

In recognition of National Consumer Protection Week, the Colorado Attorney General released a list of the top consumer complaints of 2009, published here for your information:

Type of business/Number of Complaints

1. Rebate offers 631
2. Utility complaints (cable and satellite television) 254
3. Roofing and gutter contractors 193
4. Health food and nutritional supplements 145
5. Timeshare resales and vacant lot resales 129
6. Computer training 113
7. Magazine subscriptions 110
8. Tanning salons 109
9. Personal care products 108
10. Telephone (Cell phones and equipment) 75

Business/Number of Complaints

1. National Energy Rebate Fund 627
2. DirecTV 169
3. Claim Specialists, Inc. 161
4. Timeshare Rescue 124
5. GNS, Inc. 119
6. Video Professor, Inc. 112
7. At the Beach 109
8. Dazzle Smile 103
9. Dish Network 73
10. Qwest 60

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

Colorado Law Compass wants to congratulate Texas lawyer Bill Ogletree for yesterday’s wave of unwanted attention in the blawgosphere.  Mr. Ogletree’s name was all over the place for a Smoking Gun story about a letter he wrote to the City of Houston, Continental Airlines, and the Houston airport’s food court management company.  During a layover at the Houston airport, Mr. Ogletree stopped for a bite to eat.  When he did, he took off his jacket, and, in his haste, walked off without it.  When he went to retrieve it, it was of course gone.  I mean, it was an $800 Polo leather jacket with a fancy plaid lining.

Instead of chalking it up as a lesson learned, the 62 year old lawyer is pointing his no doubt well manicured fingers at the above three entities.  In his letter, he threatens them with legal action unless they cough up $800. His logic is simple: unless they pay the $800, they will be forced to defend themselves in court and rack up unknown gazillions in attorneys’ fees and costs.  He is claiming that, as bailees, the three entities had a duty to protect the jacket.  I don’t see a duty here.  How are the airport, city, or food court management supposed to be responsible for every piece of personal property that comes through the airport, especially since he is not claiming to have actually put it in the possession of any person?  He left it on some chair, no doubt, and some opportunist grabbed it the second he walked away.

I’ve written a fair amount of demand letters, and this is what I always tell my clients who ask me to write them: they hardly ever work.  I don’t expect Mr. Ogletree’s to have any effect either.  The first essential element to an effective demand letter is that they have to have some support in the law.  Since Mr. Ogletree’s  argument rings false, the responding lawyers are probably not worried about having to defend such a case.  In fact, they might be able to get attorneys’ fees against Mr. Ogletree for filing a groundless lawsuit.  In addition, while Mr. Ogletree threatens them with the time and expense of defending such a suit, he fails to mention that prosecuting such a case is going to take up a fair amount of time on his part.  This is time that he is not going to be generating revenue for his law firm, or even spending time with his family on much more pleasant pursuits.

The second essential element to a demand letter is something the writer has absolutely no control over: the other party’s ability to resolve the matter.  Even if the other party doesn’t dispute your position, he may not be able to meet your demand, e.g. pay for your services rendered.  While a lawsuit might be the next step, the threat of a lawsuit is likely not going to be enough to get him to cough up the money.

My point isn’t that you shouldn’t write a demand letter, or even that you shouldn’t hire a lawyer to write the letter.  My point is that you should set your expectations low on the results you’ll get from such a letter.  After you get no response, you have a choice to make: put up or shut up.  You either have to file a lawsuit, or walk away with your loss.

photo: http://www.flickr.com/photos/cindy47452/ / CC BY-NC-SA 2.0

Tough economic times have a way of compounding problems. What happens when the unemployed can no longer pay all of their bills?  Unfortunately, a debtor’s story of woe is probably not going to be enough to keep a creditor from reporting late payments or an account in default.  When that happens, finding a job with an employer who runs credit checks can be difficult, if not next to impossible.

The Denver Post has a story this morning about the effect that such credit checks can have on the unemployed.  Once the vicious cycle begins, it is difficult to stop.  Some states are taking measures to stop this practice, and a bill was introduced last summer in Congress, where it is still bottled up in committee.

I’m not sure an outright ban is the answer.  There are certainly jobs for which the employer would want to know about a prospective employee’s financial history, like a bookkeeper or accountant, for example, or anyone who is handling money.  Short of that, there doesn’t seem to be a compelling reason to run a credit check.

Colorado has not yet banned such checks, nor do there seem to be any pending proposals to do so.  While some blemishes on your credit report may not be avoidable, it’s important to avoid those that are, like judgments.  If you are sued by a creditor, be sure and respond to the lawsuit.  Do not simply ignore it.  Try and negotiate a payment plan to avoid garnishment.  If possible, ask the creditor to stay entry of judgment unless you default on the new payment plan.  This will keep a judgment from showing up on your credit report.

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

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