Student Loan Debt Now Exceeds Credit Card Debt in U.S.

I already knew that I am not the only one swimming in a sea of debt I took out in order to better myself, my future and the future of my family.  However, I didn't know just how many other people are in the same situation. The Federal Reserve recently released a report revealing that student loan debt now exceeds Credit Card debt in the United States.  In light of that report and a conversation I had this morning over coffee with a middle-aged business man, I thought this situation warranted a blog post.

I am writing, not to complain about my personal situation, but to shed light on just how large a problem this is in our country.  Like many other individuals with lofty goals, aspirations, and desires, I entered law school in 2006 with the thought that if I was going to work 60 hour weeks I should make more than the $30k/ year I was making at the time.  I thought that I would work hard in school, graduate with honors, find a solid clerkship, and land that first job that would double or triple the salary I earned in my job as a loan officer and management trainee that garnered me $30k/ year.  I was wrong, not about everything, but about what was waiting for me on the other side of the experience.

I didn't grow up in a wealthy family, so I played basketball at a Division 2 school to pay for my undergraduate work.  I enrolled in law school as a part-time student so I could work during the day, go to school at night, and work on the weekends to pay my way through school.  I made the dean's list about half the time I was in school, graduated Cum Laude, landed a good summer clerkship with a well-respected firm, and passed the bar on my first try.  The only problem is that there were no $60k to 90k/ year jobs waiting for me on the other side of the mountain of debt I piled up to pay for my education.  So, I started a firm with a business partner and we have been at it for close to a year now.

I paint the picture of my situation to illustrate what has happened to so many people like me.  I have the good fortune of being blessed intellectually enough that I did well in school and am getting by in the real world without outside support.  However,  I can't really touch my student loan debt.  I have a house payment (my student loan payment) and no house for the bank to foreclose on.  I still believe that I will make it through with hard work and a bit of luck, but most other people aren't as fortunate as I am.  Most students didn't do as well as I did, can't find a job in the legal field, are overqualified for other jobs resulting in employers shying away from hiring them because they would have to be paid a higher salary and are generally in a desperate situation financially.

I recently signed a petition that asks the government to forgive student loan debt as an economic stimulus.  What we have created in the past 5 years is a generation of individuals who did what they were supposed to do in order to better themselves and are worse off than they would have been without putting in all the hard work and effort they put in. 

So, I solicit your thoughts on the matter.  I know I'm not the only one whose daily dose of reality is a mountain of debt that seems insurmountable and grows larger because of my current situation.  Tell me what you think.

Here is the link to the article about student debt exceeding credit debt: http://blogs.ajc.com/business-beat/2011/10/19/student-loan-debt-now-exceeds-credit-card-debt/

Adam W. Howell, Esquire

The Great "Truck Nuts" Debate

First, let me say that I do not endorse the term "Truck Nuts."  However, that seems to be the god-given name of the product that is the subject of this blog post.  Thus, I will refer to the product the way it was branded.

On July 5, 2001, Virginia Tice of Bonneau, S.C, pulled into a local gas station with red ”truck nuts” hanging from her trailer hitch. To explain, “truck nuts” are fake bull testicles made of plastic or metal that can be hung from the trailer hitch of trucks, or other vehicles, I suppose.  The usual intent of placing this product on a vehicle has been described to me by acquaintances as "making the truck more 'manly'."   On the day in question, Bonnneau's police chief, Franco Fuda, pulled in behind the 65 year-old Ms. Tice and asked her to remove the plastic testicles from her vehicle. When Ms. Tice refused, Chief Fuda wrote her a $445 ticket for violating South Carolina’s Obscene Bumper Sticker Law.

South Carolina Code of Laws Section 56-5-3885 states that, “a sticker, decal, emblem, or device is indecent when, taken as a whole, it describes, in a patently offensive way, as determined by contemporary community standards, sexual acts, excretory functions, or parts of the human body; and taken as a whole, it lack serious literary, artistic, political, or scientific value.”

Ms. Tice hired an attorney, but not before Chief Fuda moved for a jury trial in hopes of clarifying South Carolina’s obscenity laws and preventing misinterpretation. Chief Fuda believes that he has correctly applied the statute and that he will prevail in court. Ms. Tice’s attorney, Scott Bischoff, seems to believe otherwise. Mr. Bischoff intends to argue whether the large, plastic testicles are actually an accurate depiction of a human body part. Mr. Bischoff, who says that the Chief is “arbitrarily interpreting a statute incorrectly,” is not the only person who believes that the law was misused.

The case has thrown the state of South Carolina the national media spotlight by sparking a debate over whether “truck nuts” violate indecency laws or if attempting to regulate them violates the First Amendment right to freedom of speech.

Jay Bender, attorney and professor at University of South Carolina, noted that although they may be tasteless and stupid, they are not illegal. He adds that the statute is very clear about what is obscene and “it doesn’t have anything to do with artificial bull testicles.”

First Amendment attorney David Hudson believes that Ms. Tice has a good case because the South Carolina law is “unconstitutionally broad and vague and violates the first Amendment.” He also noted that in cases in other states where law enforcement officials cited individuals for contents of their bumper stickers, most were tossed out because of the great deal of protection that is offered by the First Amendment regarding offensive expression. He also added that the Supreme Court has made it clear that expression of an idea cannot be prohibited because society finds it to be offensive or disagreeable.

At first glance, this case is seemingly insignificant, and as people throughout the country have been expressing, a waste of time. It is important to remember that every major Court decision starts somewhere, and that even a case dealing with “truck nuts” could have a substantial impact on policy. Cohen v. California, which is now one of the most well-known First Amendment rights cases, started over Robert Cohen being arrested for wearing a jacket that said “F*ck The Draft” in the Los Angeles Courthouse.  Surely there were not many people who had the foresight that the case would go all the way to the United States Supreme Court and lead to a major decision regarding obscene speech. Not to say that this case will ever go that far, but it is just something to consider before dismissing the importance of the “truck nuts” case.  And, after all, we should all relish an opportunity to have some fun when the law extends the invitation.

Feel free to post your thoughts and/or comments.

Adam W. Howell, Esquire

Should Congress reverse DOMA?

In 1996 Congress passed the Defense of Marriage Act (DOMA), federally recognizing marriage as a legal union between one man and one woman. Under the Act, which was signed into law by then-President Bill Clinton, same-sex marriages that are recognized as legal in one state do not have to be acknowledged as a legal union in states that do not recognize them. This is contrary to the Full Faith and Credit Clause of the constitution, which requires that a marriage performed in one state between a couple must automatically be recognized in every other state in the country.

On July 20, 2011, for the first time since the Defense of Marriage Act was passed, a congressional committee looked at reversing it. The “Respect for Marriage Act,” which is pending in both houses of Congress as identical bills, would allow legally married same-sex couples to take advantage of the same benefits that married heterosexual couples receive under federal law. Senator Diane Feinstein, a democrat from California, introduced the new bill along with 27 co-sponsors. Democratic representative Jerrold Nadler from New York is sponsoring the House version, along with 117 co-sponsors. The Obama administration also announced earlier this week that they supported the legislation. Back in February, the White House instructed the Department of Justice to stop defending it in Court.

The introduction of the bill to the Senate Judiciary Committee included a hearing on the subject with testimony from both opponents and supporters of the new legislation. Witnesses included men and women whose same-sex marriages, which are valid in their home states of California, Connecticut, or Vermont, are not recognized for federal purposes, because of DOMA. They told the stories of the hardships they faced.  One man recounted his tale of nearly losing his house because he could not receive his deceased husband’s pension. Another woman told the financial hardships that she faced because she was taxed thousands of dollars for being listed on her wife’s insurance policy. Various other legal experts and Representative John Lewis, a democrat from Georgia, weighed in, too. For the opponents of same-sex marriage, they took the opportunity to try to stop what they consider to be an “unacceptable change to the definition of marriage.”

The new bill will certainly face tough opposition, especially in the House among the Republican majority, but the LGBT advocacy community has made a great amount of progress in the 15 years since the DOMA was enacted, leaving those who believe it should be overturned optimistic. Bowers v. Hardwick, a late 1980’s case in which the Supreme Court said that states were free to “express moral disapproval” of homosexuality by arresting a man in his own bedroom for having sexual intercourse with another man was overturned by Lawrence v. Texas in 2003. Last year, Congress passed a repeal of  “Don’t ask, Don’t tell,” which the military is working toward implementing effectively on a daily basis. Having the DOMA repealed would be another huge step towards complete equality for the LGBT community. No date has been set for a vote on the repeal legislation. 

Feel free to post your comments and/or thoughts regarding this hot-button issue.

Adam W. Howell, Esquire

Obamacare Legislation Upheld By 6th Circuit Court of Appeals

Lost in the Casie Anthony trial uproar the past couple of weeks, a major decision was handed down regarding President Obama's Health Care Legislation and its constitutionality by the Sixth Circuit Court of Appeals.

In Thomas More Law Center v. Obama, the Sixth Circuit Court of Appeals upheld Obama’s health care law when they affirmed that Congress could require Americans to have minimum insurance coverage. This was the first of three anticipated federal Court of Appeals decisions on the constitutionality of the Affordable Care Act. The Thomas More Law Center, a public interest law firm, brought the case on the grounds that Congress had overstepped its powers by enacting the law, which they argued was too broad and therefore unconstitutional.  Their position was that requiring citizens to buy a minimum amount of insurance or to face penalties could subject them to financial hardship. The government countered with the argument that the measure was necessary to achieve the overall goal of reducing health care costs and to make reforms such as protecting people with preexisting conditions. The government's attorneys argued that requiring coverage would stop the costs of changes from being shifted to the household and providers.

In a 2-1 decision, the three-judge panel rejected the challenge to the legislation by the Law Center. The ruling was particularly notable because Republican appointed Judge Jeffery Sutton, who was nominated by George W. Bush, was one of the Judges to uphold the mandate. Judge Boyce Martin, a Carter appointee, wrote the main decision, with Sutton concurring in part, and Judge James Graham dissenting in part.

In the opinion, Judge Martin makes it clear that the decision of the court turned on whether the Constitution grants Congress the power to enact the legislation.  He stated that the minimum coverage provision, like all congressional enactments, “is entitled to a “presumption of constitutionality” and will be invalidated only upon a “plain showing that Congress has exceeded its constitutional bounds. U.S. v. Morrison, 529 U.S. 598,697 (2000).”  Thomas More Law Center v. Obama, No. 10-2388 (Ohio Ct. App. 2011)  He  further explained that while states have the general police power to enact minimum coverage provisions similar to the one in the Affordable Health Care Act, the federal government does not share this power and can only enact such a law if it is authorized to do so by one of its enumerated powers. Id.  Thus, the determination necessary then turns to whether Congress properly relied on its authority under the Commerce Clause to enact the minimum coverage provision. Id. “The Court has explained that Congress’s Commerce Clause power encompasses three broad spheres: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and (3) “those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.”  United States v. Lopez, 514 U.S. 549, 558 (1995).” Id. In this instance the United States only contended that the minimum coverage provision fell within the third category. This meant that the Court needed only to consider whether the provision falls within Congress’s power to regulate activities that substantially affect interstate commerce. Martin wrote that Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care substantially affects interstate commerce because “the minimum coverage provision is essential to the Affordable Care Act’s “larger reforms to the national markets in care delivery and health insurance.” Id.

In his concurrence, Judge Sutton rejected the argument made by Thomas More that Congress was improperly regulating “inactivity.” He gives greater insight into the argument that is being made by Thomas More, which is that Congress’s authority to regulate interstate commerce extends only to individuals already in the stream of the relevant commercial market, but not to force individuals to enter into a market. Id. Sutton rejected this contention noting that they are not being forced into the market because uninsured people pay for medical coverage by “self-insuring,” by saving money or by relying on someone else to eventually cover the costs. Id. Sutton notes,  “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other, and both affect commerce.” Id.

In his dissent, Judge James Graham says if the exercise of power is allowed and the mandate upheld “it is difficult to see what the limits on Congress’s Commerce Clause authority would be.” Id. He finds this mandate to be a novel exercise of the Commerce Clause power as no prior exercise of that power has required individuals to purchase a good or service. Id. Judge Graham says that, while there is certainly an interstate market for health insurance, the plaintiffs in this case have not entered into the market, and in no other instance has Congress before attempted to force a non-participant into a market. Id. He holds that it is important to uphold the framework of meaningful limitations on congressional power under the Commerce Clause and that this case is an opportunity to prove so. Id.

Robert Muise, who argued the case for the Thomas More Law Center, said that the organization would file petition for review as quickly as possible and ask the Supreme Court to hear the case.

The United States Court of Appeals in Atlanta, GA heard arguments on the same issue in the Federal government’s bid to reverse a Pensacola, Florida federal judge’s decision that the mandate is unconstitutional just 7 days after this case was heard.  Another appeals court in Richmond,Virginia heard arguments in early May regarding the issue. It is likely that the high court will wait for these decisions before reviewing them during their next term, which begins in October.

We will see what happens in regards to the petition for review, but it seems this needs to garner a little more attention in the media than it has been attracting so we decided to do our part to raise awareness.  Feel free to post your comments and/or thoughts.

Adam W. Howell, Esquire

Smoke Intrusion - Smelly Inconvenience or Modern Trespass?

Can you imagine having to move out of your home because your apartment or condo was so permeated by cigarette smoke that you were beginning to have the types of health problems that regular smokers subject themselves to? If you live in a condominium or apartment complex, you may be experiencing this yourself. Throughout the country there is a growing movement to stop unwanted secondhand smoke from impacting residents in apartment and condominium complexes. States, such as Utah, have already passed laws that give condominium and apartment associations the authority to prohibit smoking in units, common areas, or the entire premises. Utah Code Unannotated § 57-25-1(h).  As with anything else, as public concern for secondhand smoke in multi-unit dwellings has increased, so have the number of legal actions addressing it, and with marked success.

Courts have found in instances wherein smoke seeps into a condominium or apartment unit via another unit an intrusion has occurred. This should not be read to mean that the occasional smoke blowing into an apartment from an open window means that a tenant or unit owner has grounds to begin legal proceedings. Courts have set out that there is a certain level of interference that must occur that goes beyond mere inconvenience or customary conduct in order to rise to the level of recoverable damages.  A cause of action arises when the smoke becomes an interference that impacts and negatively affects the day-to-day life of a multi-unit dweller. Merrill v. Bosser, No. 05-4239 (Fla. 17thCir. Ct. June 29. 2005). 

What causes of action can be brought, whom they can be brought against, and the available remedies are all case specific. Successful causes of action that have been brought to stop the smoke from entering impacted homes include nuisance, negligence, breach of the covenant of quiet enjoyment, breach of warranty of habitability, battery, intentional infliction of emotional distress, trespass and constructive eviction. Unit owners and tenants have successfully brought suit against Homeowner’s Associations, landlords, and other tenants. There have been instances where there has been monetary compensation, while others have resulted in restraining orders or injunctions. 

One of the more common causes of action brought is a claim for nuisance. While no Courts in the state of South Carolina have addressed whether secondhand smoke is considered a private nuisance, courts in other states have. In Merrill v. Bosser, a Florida County Court addressed this particular question as an issue of first impression when an owner of a condominium brought suit against another unit owner when excessive second-hand smoke was seeping into her unit causing her family to experience physical ailments and, on occasion, to have to sleep elsewhere. The Florida Court relied on a Nebraska Court of Appeals decision, Thomsen v. Greve, 550 N.W.2d 49,55 (Neb. Ct. App. 1996), which held that to “have the use and enjoyment of one’s home interfered with by smoke, odor, and similar attacks upon one’s senses is a serious harm.”The Florida Court held that the plaintiff could recover damages for nuisance because the facts of the case demonstrated an interference with property on numerous occasions that went beyond “mere inconvenience or customary conduct.” (Merrill v. Bosser).

Breach of warranty of habitability is another common cause of action that has been brought in these cases throughout the country in instances when the tenant is renting the property. Every state has an implied warranty of habitability for rental properties, which follows that the premises must be fit for occupation. See S.C. Code Ann. § 27-40-440.  In a Ohio case; Fox Point Apt. v. Kippes, a landlord moved a known smoker into the apartment below a nonsmoking tenant who suffered nausea, swollen membranes and respiratory problems from the cigarette smoke entering her apartment. The tenant sued the landlord, alleging breach of habitability and breach of the covenant of peaceful enjoyment, which the common law implies in every rental agreement. The jury unanimously found a breach of habitability, awarded medical costs and reduced the rent by 50%. (Id.)

 Many tenants also bring a claim for breach of the covenant of quiet enjoyment. While some leases will actually provide an express covenant for quiet enjoyment of the premises, many do not. Despite this, many courts have agreed that the covenant of quiet enjoyment is implied. In a Boston, Massachusetts case, a nonsmoker who was living above a smoky bar withheld her rent when smoke was seeping from the bar into her apartment, depriving her of quiet enjoyment of her apartment. The landlord sued the tenant for failure to pay rent, and the Judge determined that the smoke from the bar below made the apartment "unfit for smokers and nonsmokers alike." Gainsborough St. Realty Trust v. Haile, No. 98-02279, Boston Housing Court (1998).  The judge further found that "the evidence does demonstrate to the Court the tenants' right to quiet enjoyment was interfered with because of the second-hand smoke that was emanating from the nightclub below."  (Id.)  As a result the judge awarded the tenants $4,350. (Id.).  

If you or someone you know is experiencing issues with Smoke Intrusion, please call Epstein & Howell at (843) 735-8423 to schedule a consultation today.

Adam W. Howell, Esquire


Earthquake-Proof Nuclear Plants - Dream or Reality?

Can nuclear power plants be safeguarded to withstand an earthquake of the magnitude anticipated in South Carolina?  This issue is a hot topic and one that hits home for me because Oconee Nuclear Station is located approximately 15 miles from my hometown of Seneca, SC.   In light of the failure of Japan's Fukushima Nuclear Plant in the aftermath of the March 11th earthquake that rocked that region repeatedly for several days, the Nuclear Regulatory Commission conducted an inspection of 104 Nuclear Power Plants in the U.S. to address seismic concerns.  The study included inspections of Oconee Nuclear Power Plant and the Fairfield County atomic energy site in Jenkinsville, South Carolina.

The results of the inspections are troublesome.  As to the Fairfield County site, the NRC said:

  • None of the permanently installed fire protection equipment was "seismically qualified," or designed to function after an earthquake of the size expected in South Carolina.
  • Some firefighting equipment was not kept in buildings or locations that were qualified seismically
  • A berm, or wall, that shields the power plant from flooding was not seismically qualified.  The berm is there to protect the plant if wind-whipped waves from Lake Monticello threaten the facility.

The most troubling news is that many of the reviews of the 104 conducted around the country resulted in findings similar to those at the Fairfield County site.  Thus, this problem is more widespread than just around South Carolina.  This country is beautiful and it should be safeguarded as much as possible.  If there is more that can be done, we should all be pushing to make sure what can be done is, in fact, accomplished.  I can't imagine trying to go home for a day on the lake or hiking in the beautiful Foothills of South Carolina and finding all the beauty that I grew up enjoying destroyed.  I don't want that to happen to me and I don't want that to happen to anyone else.

So, I reccomend that you call your congressman, write your local paper, and try to create a buzz; just do whatever you can to make sure that our country stays beautiful.  We are so blessed to live in a clean, gorgeous country that the least we can do is protect it to the best of our ability.

Adam W. Howell, Esquire

Here is the link to the article in the State by Sammy Fretwell that prompted me to address this issue today:

http://www.thestate.com/2011/05/27/1835940/nuke-plant-issues-aired.html#storylink=omni_popular

Rickshaws Create a Carnival Atmosphere in Charleston?

I am posting today to comment on the recently passed Ordinance governing the operation and permitting process for Rickshaws in Charleston, SC.  The Ordinance is located at Chapter 19, Article XVI, Section 461 of the Code of the City of Charleston. For starters, Section 19-461 (a)(2) states the following finding of fact, "The continued proliferation of rickshaws in the Peninsula area tends to create a carnival or theme-park atmosphere which is destructive of the historic and traditional ambiance of the Peninsula area, which is substantially made up of Eighteenth and Nineteenth Century structures."  Section (a)(3) continues, in pertinent part, "Rickshaws are by their design and nature, slow-moving, and pose a potential danger for those using the vehicles and the streets."  Furthermore, Section (a)(3) reads, "As a result of the token pilot program (an extra night-time permit program), City Council believes that there is an increasing demand for the use of rickshaws by residents and visitors in the district and that a limited increase in the number of rickshaws permitted in the district is in the public's best interest."

So, if I'm reading this Ordinance correctly, the City is saying 'Rickshaws ruin our city streets by making them look cheap and like an unregulated carnival."  Additionally, 'Rickshaws make our streets unsafe because they are slow-moving and the like.'  Then, in the same breath, the City says 'We are going to increase the number of Rickshaws on the streets because it is in the public interest to do so."  Am I the only one that finds this contradictory? If you took part in governing a City, would you allow more of something you find detrimental?  I don't think so.

Personally, I am biased.  I rode a rickshaw for Pedicab (one of the Rickshaw companies) for the better part of a spring and summer while attending school in this great City.   Thus, I find the theme park/ carnival comments insulting.  However, the City is entitled to their opinion.  I just don't understand why you would want more of something you see as detrimental if you really think it's all that bad.  Which brings us to the real point - MONEY.  You see, the main purpose of this Ordinance is to create more revenue for the City.  What else would it be, right? 

A little background quickly.  Prior to this Ordinance, the permits for each bike allowed on the street, called tokens, were awarded on a quarterly basis through a lottery.  The fee for each token was the same.  This resulted in an uneven distribution of tokens because the City chose how the tokens would be distributed.  So, the enterprising owners of the Rickshaw companies would get together and split them up evenly after the City's distribution.  Not bad for a sense of community on the part of the owners if you ask me.  Hold on though.

Now, the City has decided to do-away with the lottery system and make the tokens available under a competitive bidding process.  Section 19-467 of the new Ordinance specifies that there will only be 15 General Operating Tokens and 15 Night Time Tokens, which will be competitively bid on by any company who meets the requirements to bid.  The tokens can last for up to 5 years and the general and night-time tokens will be bid on separately.  The highest bidder gets the first token, the next highest bidder gets the next token, and so on and so forth.  The only restriction is that no one company can acquire more than 49% of the General tokens and 49% of the Night Time tokens.  But, that means that one company could own half of all the tokens available for the next five years as long as they operate safely enough for the tokens to be renewed and they pay the 15% increase in the fee each year.

Here is my beef with this. The City knows how much they need to receive monetarily for each token to cover the expenses associated with Rickshaw operation, which I presume is why the fee was flat for each token prior to this Ordinance's enactment.  However, the City created an Ordinance which attempts to extract more money for each token through the bidding process and guarantees the City an increase on that fee of 15% per year.  So, its clear to me that this is about money.  Not about carnivals, theme parks, or traffic congestion.  I believe somebody needs to speak up on behalf of these companies and their employees and I see no reason why it shouldn't be me.  Especially because I was once a rider myself.

So, what do you think? Is this fair?  Should the City repeal the Ordinance?  Should they distribute the tokens evenly with a set fee?  My opinion is that they should charge each company the same for each token and split them as evenly as possible.  Fair is fair, right?  Didn't we all learn that in Kindergarten?  Well, the Ordinance specifically explains that it is designed to combat the even distribution that was occurring after the fact.  So, to answer my own question, "I guess we didn't all learn that fair is fair and to share and share alike prior to entering grade school."  That's no fun.

Adam W. Howell, Esquire

How Do You Become a Heroin Dealer/Heroin User?

I am posting today in response to an article I read in the Charleston Post and Courier.  To quickly summarize the events that led to the sentence in the case, a 26-year-old black male sold heroin that ended up being used by an 18-year-old white male at a teen house party in a Mt. Pleasant neighborhood.  The heroin was extremely potent and it sent the 18-year-old into a coma and eventually to his grave.  The dealer was sentenced to 27 years yesterday. The reason I wanted to post about this is not to challenge the length of the sentence or play the race card.  I am posting because I am saddened by what this says about our community.  Heroin is an extremely dangerous drug.  It is not a drug that we expect our children to come across in middle or high school.  It is not a drug that we expect the organist at church to peddle on the side.  We expect our teens to encounter marijuana and alcohol as they are prevalent and widely distributed, but heroin is altogether another animal.

The sad fact is that when this teen party ended, the best option for extending the "fun" these kids could come up with was scoring and using heroin.  This is simply disturbing.  While the heroin dealer gets a 27 year sentence on the back-end of these events, I feel the real issue that requires addressing is how 18-year-old kids get to the point where heroin is what they are doing for late night fun and how the dealer gets to the point where he feels selling heroin is his best financial option.  I know people make their own decisions, but those decisions are often affected by the circumstances of their lives.  I don't know the  dealer or the child that died, their families, how they were raised, or any of those other factors personally, but a story like this gives me pause.  

I believe the community would be well-served by an analysis of how these school children arrived at the point of using heroin and how this dealer got to the point of being a heroin dealer.  I feel that the circumstances that led to these individuals to be a part of these events are the real issue, but I don't see anybody addressing those with the vigor of the criminal charges against the dealer.  My hope is that the community will rally to ferret out what led all of the individuals involved in this unfortunate situation to act the way they did and then attempt to keep others from heading down that same path by using what they learn in the process.  

Adam W. Howell, Esquire

Here is the link to the Post and Courier Article I mentioned above:

http://www.postandcourier.com/news/2011/may/04/27-years-for-drug-dealer/

Tenant's Obligations in Residential Leases

If you rent a home or apartment, this post should be informative for you as it explains the obligations you have under South Carolina law.  What better than a little bit of Landlord/ Tenant Law to keep everybody alert on this beautiful Wednesday morning in Charleston, South Carolina.  Enjoy. Pursuant to Section 27-40-510 of the South Carolina Residential Landlord and Tenant Act (the "Act"), a tenant has a duty to maintain the dwelling unit they lease.  The Act requires that the tenant specifically shall, in pertinent part:

(1) comply with all obligations imposed by building and housing codes that affect health and safety;

(2) keep the unit reasonably safe and clean;

(3) dispose of all waste in a reasonably safe and clean manner;

(4) keep all plumbing fixtures reasonably clean;

(5) use in a reasonable manner the facilities and appliances on the premises;

(6) not deliberately or negligently destroy, damage, or remove any part of the premises or allow others to do the same;

(7) conduct himself and require other persons on the premises with his permission to conduct themselves in a manner that will not disturb other tenant's peaceful enjoyment of the premises.

While some of these obligations do fall under the common sense umbrella, they still require attention when leasing a property as a tenant.  If you have questions regarding your lease with a landlord or if you are a landlord who has questions about your obligations to a tenant,  please call Epstein & Howell, LLC today to have your questions answered. 

Adam Howell can be reached at (843) 735-8423 and Rebecca Epstein can be contacted at (843) 735-8417.

Adam W. Howell, Esquire

US Supreme Court: Arizona Taxpayers Lack Standing to Challenge State Income Tax Credit for Organizations That Support Religious Schools

I believe Justice Kagan's dissent in this case is correct.  Whether through a tax credit or a tax appropriation, the Arizona taxpayer is directly affected under this program.  Thus, any Arizona taxpayer should have standing to challenge the tax credit.

Adam W. Howell, Esquire

Below is the text of the Wall Street Journal Article discussing the Supreme Court's Opinion.

By Ashby Jones

The Establishment Clause of the U.S. Constitution seemed poised to take center stage on Monday in a case which asked whether an Arizona tax-credit program violates the separation of church and state doctrine.

But by a 5-4 vote that split along the right-left faultline, the Supreme Court on Monday upheld the program without reaching the constitutional issue. Click here for the WSJ story; here for the NYT story; here for the recap over at Scotusblog; here for the opinion itself.

The upshot: the Court upheld an Arizona tax-credit program that offers a dollar-for-dollar reduction of state income tax payments to organizations that support religious schools. The ruling could open the door to the expansion of such programs nationwide.

In an opinion penned by Justice Anthony Kennedy, the justices ruled that Arizona taxpayers have no standing to challenge the state’s tax-credit program on grounds that it violates the First Amendment prohibition of government “establishment of religion.” The decision effectively overruled decades of precedent permitting lawsuits against government programs that subsidize religious institutions through tax incentives.

“Every state that is considering a tax-credit program can rest easy,” said Robert Enlow, president of the Foundation for Educational Choice, a group which favors public subsidies for private schools.

Normally, an individual can sue the government only by alleging a personal injury from its misconduct, not because he believes it simply is overstepping its authority.

But in 1968, the Supreme Court created an exception for religious subsidy cases, observing that otherwise it would be virtually impossible to enforce the Establishment Clause.

Writing for the majority, Justice Anthony Kennedy explained that the exception applied only to government appropriations intended to subsidize religion. “A dissenter whose tax dollars are ‘extracted and spent’ knows that he has in some small measure been made to contribute to an establishment [of religion] in violation of conscience,” Justice Kennedy wrote.

In contrast, a tax credit implicates funds never collected in the first place. “When the government declines to impose a tax,” Justice Kennedy wrote, “there is no such connection between dissenting taxpayer and alleged establishment.”

In her first major dissent, Justice Elena Kagan called the distinction between tax appropriations and credits “arbitrary.” “Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy,” she wrote.

The Op-Ed writers at the WSJ applauded the ruling, claiming that it was notable “mainly for its insight into the progressive mind.”

Barry Bonds Defense Strategy - Flaxseed Oil and Arthritis Cream

I chose to post this article because of the defense strategy Bond's  counsel is employing to explain his conduct.  To paraphrase, they are saying, "Yes, Barry took steroids.  But, he thought he was taking Flaxseed Oil and Athritis cream instead of the 'cream' and the 'clear' that he was actually taking.  Thus, he didn't lie to the Grand Jury seven years ago when he said he never knowingly took steroids."  As the prosecution put it, it is "ridiculous and unbelievable" that an athlete of Bond's caliber would unwittingly take steroids because he thought they were Flaxseed Oil and Arthritis Cream. Adam W. Howell, Esquire

Below is the text of a Sporting News Article about the beginning of Barry Bonds Perjury Trial. 

Testimony began Tuesday in the federal perjury trial of all-time home run leader Barry Bonds, after the prosecution and defense sparred over whether Bonds knew he had taken performance-enhancing drugs during his career.

Assistant U.S. Attorney Matt Parrella, in his opening statement, called it “ridiculous and unbelievable” that Bonds thought he was taking flaxseed oil and arthritis cream, when his personal trainer gave him steroids.

Opening arguments began today in the Barry Bonds perjury trial. (AP Photo)

Bonds’ defense team objected to Parrella’s use of the phrase “ridiculous and unbelievable.”

Allen Ruby, Bonds' lead attorney, acknowledged in his opening statement that Bonds took two designer steroids known as the “cream” and the “clear,” but did so unwittingly.

Seven years ago, Bonds told a grand jury investigating sports doping that he did not ever knowingly take performance-enhancing drugs.

Bonds has pleaded not guilty to four counts of lying to a grand jury. Bonds also has pleaded not guilty to one count of obstruction. Each count carries a penalty of up to 10 years, but federal guidelines recommend a sentence of 15 to 21 months.

The government had promised not to prosecute him for drug use if he told the truth to the grand jury. Ruby said in his statement that “Barry answered every question. He told the truth. He did his best.”

Parrella tried to show a deep connection between the Bay Area Laboratory Co-Operative (BALCO) and Bonds. BALCO was at the center of an international sports doping ring that the grand jury was investigating in 2003. Parrella later showed a photograph from a magazine of Bonds, BALCO founder Victor Conte and Bonds' former personal trainer and childhood friend, Greg Anderson, in which the prosecutor referred to the three men as the "Three Musketeers of BALCO." That remark drew an objection from Bonds' defense team.

Anderson, as he has done throughout Bonds' legal battle, refused to testify on Tuesday. U.S. District Susan Illston found Anderson in civil contempt and ordered him to be held in custody until he testifies or the trial ends. The trial could last up to four weeks..

Parrella stated that when it comes to admitting his own drug use, Bonds simply “couldn’t do it.” The prosecutor also promised in his opening statement that there will be witnesses who will discuss conversations they had with Bonds about his steroid use and that one witness will testify to watching Bonds inject steroids.

Ruby countered by trying to discredit some of the government's key witnesses, such as Bonds' former business partner Steve Hoskins and Bonds' ex-girlfriend Kimberly Bell, saying that both were "facing the loss of financial benefit that Barry provided to them over the years."

Lead investigator Jeff Novitzky was called to the witness stand after lunch. In his testimony, Novitzky recounted the start of his BALCO investigation and how he received a tip that led him to investigate the lab. He also spoke of how he would root through the lab's trash every Monday night for about a year and found incriminating evidence that tied BALCO and steroid use to famous athletes.

Prosecutors believe Anderson provided Bonds with PEDs and instructions on how to use the drugs. Anderson's refusal to testify has hindered the government's case against Bonds because the judge has ruled most of the evidence tied to Anderson as off limits.

Anderson has already spent more than a year in jail for refusing to testify in 2006 before the grand jury investigating Bonds. Anderson also served three months in prison after pleading guilty in 2005 to money laundering and steroid distribution.

Running Red Lights Legally

Have you ever gone for a bicycle ride only to wait at a red light that never changes for you because it doesn't sense your presence?  I have and I'm guessing you have too. Well, Kansas took a common sense approach to this problem and passed a bill that allows bicyclists and motorcyclists to run a red light if the signal "fails" to turn green after a "reasonable period of time." 

The bill leaves the discretion for when to run the light in the hands of the cyclist, but is aimed at ensuring riders don’t get trapped in perpetuity at intersections because of signals that either malfunction or don’t detect the motorcycles or bicycles.

Motorcycle riders testified that their bikes were often not big or heavy enough to trigger the sensors that cause red lights to switch. For fear that riders would have to choose between being stuck on the Kansas tundra or running a light and risking a ticket, they urged the legislature to approve the so-called “Dead Red” bill giving them a free pass. The riders testifying in support of the bill belonged to a group known as ABATE, or A Brotherhood Against Totalitarian Enactments.

So, how is this applicable to South Carolina?  Those of us that live in the state know that it is full of rural areas where the stoplight sensors are unlikely to be triggered by any other traffic.  Additionally, due to our temperate climate many cyclists live in our state and travel our roadways on a regular basis.  I think a law of this type would work perfectly in South Carolina.  If you do as well, I encourage you to contact your local representatives to urge them to pursue a similar common sense bill here in our great State.

Adam W. Howell, Esquire

'Habitual Offender' Law

Did you know that your driver's license will be suspended for five years if you are declared a 'Habitual Offender' by the Department of Motor Vehicles in South Carolina pursuant to S.C. Code Ann. S 56-1-1090?  Well, it is true.  The penalties associated with being classified in this manner are harsh and certainly worth note.  DUI/DUAC counts as one of these offenses making fighting a conviction for those offenses even more imperative.

While there is an appeals process through the administrative law court, there are no guarantees that your suspension will be reduced and you must serve at least two years of the suspension prior to filing for a reduction pursuant to S.C. Code Ann. S 56-1-1090.

Additionally, if you are convicted of driving under suspension while under the 'Habitual Offender' suspension, S.C. Code Ann. S 56-1-1100 stipulates that the driver is guilty of a felony and must be imprisoned not more than five years.

Immediately below is the applicable statute that explains what offenses count toward the 'Habitual Offender' classification.

Under S.C. Code Ann. S 56-1-1020, an habitual offender is a person whose record as maintained by the Department shows that he has accumulated the convictions for separate and distinct offenses described in subsections (a), (b) and (c) committed during a three-year period:

(a)   Three or more convictions, singularly or in combination of any of the following separate and distinct offenses arising out of separate acts:

(1) Voluntary manslaughter, involuntary manslaughter or reckless homicide resulting from the operation of a mother vehicle;

(2) Operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor, narcotics or drugs; (this is the DUI/DUAC provision)

(3) Driving or operating a motor vehicle in a reckless manner;

(4) Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility;

(5) Any offense punishable as a felony under the motor vehicle laws of this State or any felony in the commission of which a motor vehicle is used;

(6) Failure of the driver of a motor vehicle involved in any accident resulting in the death or injury of any person to stop close to the scene of such accident and report his identity;

(b) Ten or more convictions of separate and distinct offenses involving moving violations singularly or in combination, in the operation of a motor vehicle, which are required to be reported to the department for which four or more points are assigned pursuant to Section 56-1-720 or which are enumerated in subsection (a) of this section.

(c) The offenses included in subsections (a) and (b) shall be deemed to include offenses under any federal law, any law of another state or any municipal or county ordinance of another state substantially conforming to the above provisions.

Adam W. Howell, Esquire

For Aggressive DUI Defense, Call Epstein & Howell, LLC at (843) 735-8423.