Tuesday, April 25, 2006

Rethinking the city

Recently, I've been posting numerous articles and rants on related to housing and development in this city. I'd like to follow up with an interesting article regarding a unqiue perspective on city planning. Perhaps, with our dwindling industrial base and the changing demographics of the city, Jamestown needs to look away from the traditional mix of industry and commerce.

My personal preference? Why, thank you for asking, imaginary reader. I grew up in the sticks outside a college town. If you're going to shift to a service economy, and barring amazing and unexpected changes, we're going to a service economy, I'd rather we seized the lead locally and focused on expanding JCC and JBC. The alternative service area appears to be elder care and CNA-type positions. Unmedicated schizophrenic SSI recipients (I work downtown, trust me on this) don't really have much economic impact, no matter how many aides are needed for their care. And they don't exactly contribute to the wellbeing of a community. Students with a taste for alcohol and public intoxication aren't necessarily beneficial either, but the arts and culture associated with the educational institution permeates the entire city. I don't think the presence of Fredonia or UB or the PA schools will have an effect. SUNY Canton is surrounded by public and private schools, and has recently undergone a change from a strictly two year school (it was one of the ag & tech community colleges, originally) to offer an array of technical and profession-related four year degrees.

This isn't to say college towns don't have their own issues. In my hometown, for example, there's a continual divide between the "college people" (professors and professional staff) and the "working people" in the blue collar jobs...but at least there are both sorts of jobs, which isn't something I see happening locally.

Utility Liens

If you're interested in landlord/tenant or utility service law, there's an ongoing issue in the City of Jamestown that has my attention. It's long been the practice of the city-owned Board of Public Utilities to place a lien on property for unpaid utility service received at that address. It's long been a complaint of local landlords that tenants run up bills and then the landlord is left to foot the bill.

Except, of course, the BPU does not foreclose on these liens and the total actually comes due only upon transfer of the property. Now this is changing: the City Council voted yesterday to allow these utility arrears to be placed on the tax bill. Local law has long allowed the BPU to have unpaid sewer charges placed on the city tax bill for the subject property, and now this will be expanded to cover the water and garbage charges.

I'm most often an advocate for low-income individuals, and I've had my share of differences with the BPU and with local landlords, including some of those named in the article, by way of disclosure. What irritates me most about this isn't the actual legal issue itself. I think the subject properties gain their economic value from having utility service, and the landlord does bear some of the burden. I can understand the liens, if not the billing, but these are tough times for local governments in closing budget gaps. What irks me is the standard "woe is us" line parroted by the P-J without any question. Sure, someone lost money in business...that's not new to anyone in business in Chautauqua County. But despite the loss on that one budget line, what was the gain on others? Or is the P-J allowing a claim that someone has lost money for 45 years and still remains in business to go unquestioned?

What are the details, at least in thumbnail sketches, of the small claims judgments mentioned? Are they all for utility bills, or does it include rent and damages? Did the tenant default at small claims court, so that the landlord was granted his request unquestioned, or was it the result of a hearing? Ok, so that last one is a little too broad for the article in question. The P-J is always ready to cover an apartment where a disgruntled tenant trashed the place, but a large portion of properties in this city with substandard conditions go uninvestigated and uncovered. Then after the tenant leaves, the landlord can claim the broken fixtures, holes in the walls, peeling paint, etc., were due to the tenant and get a judgment, regardless of the fact that the tenant made numerous complaints and nothing was ever repaired. In the words of one local landlord to me: "I move trash in, I throw trash out." And another recently told me: "I don't put money into this place. I only take it out." Why isn't this side of the story ever covered?


The P-J (or the Post-Urinal to the discontented wags...the local version of those who coined "Buffalo Snoooze" and "Syracuse Post-Substandard", among others)has changed formats on the website and you can now check out local news. Such as this recent commercial for large-scale development in the region.

Saturday, April 22, 2006

In the Adirondacks?

Then volunteer!

The new museum looks very promising as a tourism destination. Tupper Lake could use the economic boost, and it wouldn't hurt to have something educationally-focused in the area either.

Adirondack webcam

Eviction stuff

Instead of my usual "no, seriously, listen to me, I'm a lawyer. Ok, so have it your way...but don't come crying to me when you get evicted" style post, another attorney emailed me last night with an interesting decision of the Second Circuit, as related in this post from a court-watching blog.

The gist is that, given a Friday night/Saturday morning reading, that the Fair Debt Collections Practices Act now is directly applicable to landlord/tenant proceedings where an attorney issues the petition and notice. FDCPA is a federal law which governs the activities of third-party debt collectors. The two parts I'm most familiar with, working with mostly indigent clients, are that (1) the 3rd party has to verify the accuracy of the debt within 30 days upon request of the debtor and (2) upon request of the debtor, collection calls/contacts have to stop, other than notice of lawsuits, etc. (That's a very thumbnail understanding...as always, don't take anything I write here as advice.)

I see the biggest issue here being timelines. The FDCPA has relatively short timelines for turnaround on debt verification, etc., but nowhere as short as the summary proceeding process of Real Property Actions and Proceedings Law Article 7. The demand a tenant pay or quit under RPAPL 711(2) usually has a three-day period attached, and after that period runs the landlord can file suit. Given that a creditor's agent isn't supposed to continue collection during the verification period, can any tenant now stay eviction by demanding verification? Does this mean petitions will now all be written by attorneys, and the attorney will appear in court, but will be filed pro se by the landlord to avoid FDCPA entanglements? Is the court clerk a third party under the law when the court issues the petition? Maybe these are answered in the decision, or maybe I'm extrapolating too far, but I see a lot of unresolved questions dancing before me.

I'd also like to see how this fits in with the existing (and much cited but unbinding) caselaw like St. James Court L.L.C. v. Booker (176 Misc.2d 693, 673 N.Y.S.2d 821 (NYC Civ Ct 1998)) and Schwartz v. Weiss-Newell (87 Misc. 2d 558, 386 NYS2d 191 (NYC Civ Ct 1976)). Schwartz held that the notice to the tenant had to fairly apprise the tenant of the amount due and the periods for which it was due. Booker went further and required a month-by-month accounting of arrears to be provided as part of the three-day notice. The requirement in Booker was due to the fact that Booker's rent was partially paid by certain human services agencies each month. The opportunity to cure, or prepare defenses, requires a respondent receive fair notice of the petitioner's claims, and since Booker didn't necessarily have knowledge of who had paid when, the petitioner was required to share information.

This is of interest to me as I recently had a discussion on a related matter, a situation where counsel argued Booker-esque points. Client's rent was partially paid by an agency, and he was supposed to make up the difference. He received a three day demand for $800, roughly. Counsel spent a good part of the three day period trying to figure out how someone who paid $100 out-of-pocket each month, and had lived in an apartment three months, could be $800 behind. Turns out the landlord had rolled the costs of the summary proceeding, attorney's fees, the unpaid security deposit, alleged damages, utility bills, and prospective utility charges not yet billed together to reach the $800 figure. The actual figure of rent unpaid was in the $200 range. The court did not agree with the respondent's Booker-inspired arguments about the requirements for a three day notice, siding (as is within its discretion) with the petitioner's argument that 711(2) only requires notice and the statute itself makes no further requirements as to specificity. Somehow I think a federal court, under FDCPA, may have been a little less tolerant of a four-fold multiplier in demanding satisfaction of a debt.

Friday, April 21, 2006

Constitutionality and Cellphones

On days I'm too lazy or too busy to come up with posts, thankfully there are bloggers like BuffaloPundit dealing with legal issues in WNY.

Thursday, April 20, 2006


It's 11:15 and I don't know if I can make it until noon today. So let's talk food...where are your favorite spots to dine in Chautauqua County? It's not really law related, but even lawyers have to eat. When we aren't sucking the souls from unsuspecting victims, of course.

Tuesday, April 18, 2006

Music Law, No. 2

So you and the band have finally cut some tracks. Maybe it’s a demo in a good local studio or you caught your patented live magic on tape at a recent show. You’ve got a copy in every car you ride in, and you’re loving hearing it on tape. Then you pull up at a stoplight one day and hear your tunes coming out of the car next to you. You’ve been pirated!

For many local bands, the notoriety of having a tape (do people still use tapes?) passed around wouldn’t be a bad thing. One of the biggest initial problems is spreading the word and getting people to know who you are (and come to shows). Few marketing devices work better than free samples of your hottest tracks. But there comes a point (for most acts) when free distribution isn’t cutting it. Either it is reducing the profits from a CD you are trying to market, or else someone is ripping off your songs and playing them as their own. That’s why it’s important to understand copyright and your legal interest in the music you produce. As always, this isn’t intended to be legal advice. Each situation is unique and if you have questions, you should seek out a professional in the area. The following is meant to be a primer on the basics of an area of law important to many creative artists.

Copyright, as a legal term, are the rights that you have as creator to control who uses your creation. The key point is when your idea, whether it is lyrics, music or both, into a “fixed into a tangible medium of expression.” If you write out your lyrics in a spiral-bound notebook, you’ve fixed them. The same with scratching out the musical notations for the new song on the back of a napkin at Aldo’s at 3am. And to make it more complicated (because it’s the law…if we didn’t make it complicated, you wouldn’t need lawyers, would you?), there’s a separate copyright for each performance that is fixed into some medium. Take a singer/songwriter strumming away on her acoustic guitar: she holds the copyright to the words and music she’s written down, and a separate copyright for the recorded performance of those words and music. This performance copyright attaches to each new recording. Now you might see why (well, one of thousands of reasons) the topic of royalties can become so complicated: the radio station pays a fee for the right to play the song, but then that amount is split between writers and performers. Take one of the more famous covers from my wayward college days: the 10,000 Maniacs “Because the Night” from MTV Unplugged. A copyright exists for the band, as performers, and for Patti Smith and Bruce Springsteen, as the writers that put it on paper in the first place. (Ignoring, of course, any interest MTV had as producer of the show…we don’t want to get that complicated.)

So knowing you own the copyright is all well and good, but what does it mean? If someone’s stealing your material and you have to take them to court, a bunch of notebook pages with Guinness stains all over them don’t make the best proof. For this reason, many people have used the old fashioned method of mailing themselves a copy of the lyrics/music/tape. The unopened envelope, with a date stamped on it, is then saved in case there’s ever a need to prove authorship. The envelope would then be taken to court and opened there, proving no hijinks had occurred. This method, while spread by word of mouth, isn’t heartily endorsed by this lawyer. The same with putting the © mark on all your items. While this is a good idea, it isn’t required by law to have a copyright (remember, you have that just from writing it down) and, in itself, it lacks teeth. © away, but also consider registering your tape or demo with the US copyright office. Using a single form (Circular 56: Copyright for Sound Recordings) and paying a single fee, you can register your copyright on an entire CD, both performance and the underlying musical composition. Using other forms, you can register either/or the written or performed versions.

In closing, it’s important to realize that you already own a copyright to the works you’ve created. The next logical step is determining what to do about protecting those copyrights as you’re working to spread your music and build a reputation in the field. And as a final thought, this article © the Jamestown Lawyer, 2006.

Monday, April 17, 2006

Quis custodiet...the dog catcher?

Interesting blog I found through Albany Lawyer's blog.

Scroll down a bit. Brought to you in the interest of surrealism and with a knowing nod to friends and family in the Colton area.

Indigent Legal Services...

Or perhaps "indignant legal services," since a large portion of my clientele is usually upset about something or other. It's sort of odd, in comparison to my criminal defense work. In crim work, most of my clients have generally been pretty happy to have someone helping them out and talking to them. In my civil job, they treat the free lawyer like an entitlement (when they aren't threatening to take their limited funds to go get a "real lawyer", that is) as if they are purchasing a share of my very being by walking in the door and demanding assistance. They never want to hear that they are wrong and are quick to blame the lawyer as being "one of them"; "them" apparently being the monied elite doing their best to keep him/her down.

And then on the other side, you have "real lawyers" who are convinced everything a legal services office does is merely obstruction and all-but-frivolous. Like how the guy who once argued adverse possession after 30 days (statute says 10 years) tried to say my reliance on the criticized but not overruled Jamal Estates line of cases was frivolous. If the bank showed up at his client's house and said "oh, yeah, here's the foreclosure notice. I should have had it to you days ago, but you know how busy I am," they'd be moving to dismiss and having a royal fit. But yet this same generic group thinks that it's discourtesy to raise the same sort of issues in an eviction, when there are routinely filing, service and pleading issues.

All and all, maybe it should be "indignant legal services" due to this lawyer's attitude.

Thursday, April 13, 2006

Just to clarify...

I just wrote a long post, excorciating some unnamed senior partner at an unnamed megafirm who wrote me a very condescending letter today. I'm a poor legal aid lawyer, he's a "real lawyer" who makes six figures, so of course he treats me like crap and talks down to me. The "clarify" was just going to be about civility in practice, harkening back to my earlier post about my first day in court.

But sometimes, the best thing to do is turn the other cheek and not write scathing and unread posts about certain people. The thing to do is just let it go to court and then have Mr. Erie County Bigshot realize it takes the better part of a month to get his eviction warrant served by the Sheriff in this county. My clients probably could have been out in time for the landlord to rent the place for May if he'd wanted to talk settlement, but since he's so hot to litigate and hammer me with the fact he can have them evicted, he can explain to his client why they are still in the place during the second week of May.

Tuesday, April 11, 2006

Part of a series of columns on music law

Other than a few twisted people out there (probably the same people busily inventing Celtic death ska or something of the ilk), no one gets into music because they enjoy profit statements, business plans, or long-range budgeting. Even the most casual musician, however, can benefit from some basic planning and business advice. The following isn’t intended to be legal advice, but just as a way to get you thinking about these issues. If you have questions, please seek out a reputable attorney who can deal with the specifics of your situation.

A “contract” is just a legal word for a legally-enforceable promise, where the parties involved promise to act in certain ways in reliance of the other party acting in certain ways. Don’t worry, it’s not as complicated as that sentence sounds. If your band and the manager of CBGBs agree that you’ll play two hour-long sets for $1,000 total, then you’ve got the basics of a contract. You are promising to play and they are promising to pay, and that’s basically the simplest form of contract.

A contract can be oral or written, but of course oral is harder to prove after the fact. Forming a contract requires a “meeting of the minds” as to all the issues involved. Since miscommunication is a more common problem than outright bad faith dealings, a contract is a great way to avoid trouble on this front. Contract formation also involves another legal concept, called “consideration”, which can be a little more complicated. It means (and my Contracts professor would curl up in a ball and cry at this crude definition) that each party brings something to the deal in order to get something. That’s a more complicated area than I want to get into here, but it’s important to note. For example, you give your time and band reputation to Club X, and the venue gives you a place to play and cash. It can be that simple, but without consideration, it’s not a contract.

The remedy for a breach is, quite often, a lawsuit. Understandably, most bands don’t want a reputation as being difficult. I believe, though, that putting everyone’s obligations in print actually cuts down on the bad situations that occur in handshake deals. A written contract shows that you’re not only talented but a professional and you take business seriously, just like the club owner who is trying to make a buck. That’s a first step in succeeding in the music business.

Sunday, April 09, 2006

Non-legal news and notes

Well, loyal readers, it's been a while since I last made a substantive post. So long, in fact, that I've forgotten I don't have any regular readers. I fear it's a common affliction in the blogosphere, that even those with the best intentions and numerous ideas for posts don't have the time to type.

In the near future, the blog will probably be undergoing some formatting changes. In the overly long paragraph I just edited out, which read like an Academy Awards speech thanking everyone under the sun, I noted that in the coming months I'm starting a new position full time with a public interest law firm. That is likely to affect the sort of cases and clients I'm seeing as well as placing some new content controls on my blogging activities. Stay tuned for more on that...

The actual reason I was posting today was entirely non-law related. It's baseball season and, here in Jamestown, the Jammers have a new logo. Wrathful Grapes, apparently. I wish I was making that up.