Police Training Needed to Raise Dementia Awareness

Police actions and training have been the focus for some time now, but our elders need to be included when there are conversations about reform.  Specifically, better training when it comes to identifying dementia and working with those that struggle with the insidious disease would necessarily lead to less frightful and concerning interactions.

In Colorado, a slight 73-year-old woman of 80 pounds was recently wrestled to the ground after leaving Walmart without paying for $13.88 in merchandise.  The police video footage shows that there were no efforts to talk with the demented woman to assess her awareness or understanding of the situation, before her arms were wrenched behind her and she had a male police officer on top of her, all while she was crying, “I’m trying to go home.”  Civil claims and criminal investigations are on-going.

It is heart-breaking, and a reminder to us all to slow down, and use patience and calmness when interacting with people with dementia.  In fact, let’s just try use that standard in ALL of our interactions with ALL of our fellow humans.

Oregon Supreme Court: Churches’ Challenge Struck Down

New Multnomah County Courthouse

A group of churches and public officials in Baker County challenged Governor Brown’s executive orders aimed at slowing down COVID-19. On Friday, June 12, 2020, the Oregon Supreme Court struck down the churches’ challenge.

Previously, Judge Matthew Shirtcliff of the Baker County Circuit Court granted a preliminary injunction, which rejected a number of Governor Brown’s “Stay Home Save Lives” restrictions related to public gatherings and business operations. Judge Shirtcliff ruled that Governor Brown’s restrictions were unconstitutional.

Judge Shirtcliff’s decision was then heard by the Oregon Supreme Court. Governor Brown’s challengers conceded that the governor had the power to limit public gatherings and business operations during a pandemic. However, they argued that she could only do so for a period of 28 days. Attorneys for Governor Brown argued that the police powers granted to the governor in ORS chapter 401 authorize certain emergency powers.

While the plaintiffs in the Baker County case argued for a 28-day limit, other groups in locales across the country are rooting their arguments elsewhere. Such is the case where churches allege that stay home orders infringe on religious freedom, granted by the First Amendment of the U.S. Constitution. Governor Brown’s challengers raised this argument, but the Oregon Supreme Court chose not to address those allegations.

The Oregon Supreme Court considered other jurisdictional decisions, including the U.S. Supreme Court, as well as a lawsuit brought against the California Governor Gavin Newsom. In Jacobson v. Massachusetts, decided over one-hundred years ago, the U.S. Supreme Court supported elected officials’ broad power to respond to public health emergencies. In South Bay United Pentecostal Church v. Newsom, the U.S. Supreme Court denied a request to suspend the California governor’s executive order placing limits on public gatherings in order to slow the spread of COVID-19.

As the global pandemic continues to affect communities across the nation, lawmakers and government officials face the continuing debate on whether restricting public gatherings and business operations violates the constitutional rights of Americans – both in their state constitutions as well as the U.S. Constitution. Only time will tell how other state courts – and federal courts – address challenges to these restrictions.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

Colleen Muñoz is a litigator at SYK. Her practice is centered around commercial and fiduciary litigation focusing on real property, employment, and construction law.

Congress Passes CARES Act, Adds Forgivable Loan Program for Small Businesses

Congress passes the CARES Act, by 96-0 vote. Adds forgivable loan program for small businesses.

Late in the evening on March 25th, the United States Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) by a vote of 96-0. The House passed the Act on Friday, March 27th. President Trump signed the Act into law a few hours later. While SamuelsLawBlog.com will provide additional details on the CARES Act in the coming days, here are additional details of the Act’s significant $349 billion expansion of the Small Business Administration’s (“SBA”) Section 7(a) loan program:

Eligibility Requirements.

Small business and nonprofit organizations are eligible if they have not more that 500 employees (or the SBA’s applicable size standard for the industry, if higher). Independent contractors and other self-employed individuals are also eligible for loans.

Maximum Loan Amounts.

Business will be able to borrow the lesser of: (i) $10 million; or (ii) the business’s average monthly payroll costs during the prior year, times 2.5, plus any outstanding principal owed on SBA disaster loans entered into after January 31, 2020. For this purpose, payroll costs include salaries and wages (but excluding annual compensation to any individual in excess of $100,000), commissions, tips, health insurance premiums, retirement benefits, state and local taxes assessed on employee compensation, as well as vacation, parental, family medical or sick leave benefits. Qualified sick leave and family leave wages under the recently-passed Families First Coronavirus Response Act are not to be included in the calculation of monthly payroll costs for purposes of this calculation.

Use of Loan Proceeds. 

Borrowers under this program can use the loan proceeds to cover costs for payroll (including sick, medical, and family leave, and health benefits), rent, mortgage interest payments (not principal), utilities, and interest on any other debt obligations that were incurred before February 15, 2020.

Loan Terms.

The Act caps the maximum interest for these loans at 4 percent. If the loan is not forgiven (see below), the remaining loan balance will have a maturity of not more than 10 years. Additionally, the Act waives collateral and personal guarantee requirements under the 7(a) program.  Loan payments under this program can be deferred for at least six months and not more than a year.

Loan Forgiveness

Borrowers that receive loans under this program would be eligible, under certain circumstances, to have a portion of these loans forgiven. The total amount of loan forgiveness would not be allowed to exceed the amount of 7(a) loans granted by the CARES Act but would otherwise be equal to the amount of expenditures of the borrower made in the 8 weeks following the loan’s closing on payroll costs, including payroll costs for tipped workers in excess of their normal pay level, mortgage interest (not principal), rental payments, and utilities, in each instance for arrangements that were in place prior to February 15, 2020.

Reduction in Loan Forgiveness Amount.

The policy behind the loan forgiveness provisions is to encourage businesses to keep employees on the payroll. Therefore, the amount that can be forgiven is reduced proportionally by the reduction in employees as compared to a prior base period (i.e. at the election of the borrower, either: the period from February 15, 2019 to June 30, 2019, or the period from January 1, 2020 to February 29, 2020). The amount of loan forgiveness would also be further reduced for any reduction in wages to an employee beyond a 25{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} reduction in compensation compared to the prior year’s compensation. This would only apply to employees that earn not more than $100,000 on an annualized basis in any pay period. For employees that are laid off or that have their wages cut between February 15, 2020 and 30 days after passage of the Act, the borrower will not have to take those cuts into account if those employees are rehired or their wages are restored to prior levels by June 30, 2020.

Tax Free Loan Forgiveness.

Interestingly, the CARES Act also states that the amount of loan forgiveness provided under the Act is not included in the borrower’s income (i.e. the forgiveness is tax free!).

Timing of Loan Program.

The CARES Act allows the SBA to move quickly to approve loans under this program.  Once a lender receives an application for loan forgiveness, they have 60 days to issue a decision on the application.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

Carrie Fisher: Some Early Thoughts on Her Estate

Carrie Fisher

May the Force be with you Carrie – you were one of the brightest stars.

The entertainment world lost an iconic legend today. Carrie Fisher, best known for her role as Princess Leia Organa in the Star Wars films, passed away this morning after suffering a heart attack on December 23, 2016, while on a flight from London to Los Angeles. In addition to her Star Wars role, Ms. Fisher starred in many other films, and also authored several books, plays, and screen plays. She recently published her autobiography, The Princess Diarist.

From a legal perspective, it is far too early to analyze Ms. Fisher’s estate to any degree. However, one can make a number of observations:

  • Fisher was not married at the time of her death, but was survived by one child, her daughter, actress Billie Lourd, age 24. Ms. Lourd therefore would be Ms. Fisher’s sole natural heir.
  • Fisher was married for a short time to singer, Paul Simon. Ms. Lourd’s father is talent agent Bryan Lourd. However, Ms. Fisher and Mr. Lourd were never legally married. Therefore, neither Paul Simon nor Bryan Lourd would be an heir to Ms. Fisher’s estate, absent an express bequest in her will or trust.
  • Fisher was the child of two entertainers, the late Eddie Fisher and Debbie Reynolds. Eddie Fisher died in 2010, and was survived by four children, including Carrie Fisher. Presumably, Ms. Fisher was a partial heir to Eddie Fisher’s estate, although few details of that estate appear to be public. However, Ms. Reynolds is still living and will likely leave her estate to her surviving son and Ms. Lourd.
  • Fisher was a California resident, so her name and likeness will be protected by the California Celebrity Rights Act for another 70 years. However, her depiction of Princess Leia was apparently transferred by contract to Lucasfilm Ltd. when she starred in the first Star Wars film at the age of 19.
  • Along with her other principal Star Wars actors, Harrison Ford and Mark Hamill, Ms. Fisher agreed to take a percentage of the movie’s profits, plus a take of TV screenings, re-releases and more. Therefore, these residual profit rights will presumably be inherited by Billie Lourd.
  • Carrie Fisher was involved with a number of charitable causes during her lifetime. Her will or trust may therefore include bequests for charitable causes.
  • While Congress and the new administration are considering a repeal of the federal estate tax, any such legislation will likely be effective no earlier than January 1, 2017. Therefore, the portion of Ms. Fisher’s estate that exceeds the 2016 estate tax exemption amount of $5.45 million will be subject to a federal estate tax at the rate of 40%.

Because of their notoriety, the estates of well-known celebrities are often illustrative of many issues that many people face in their estate planning. Only time will tell if important lessons will emerge from the Estate of Carrie Fisher.

Rural Justice in Old England: A Sabbatical in England

Rural England

In contrast to the established courts and courtrooms in London, justice was once delivered to the outlying rural areas of England by horseback. For example Cambridgeshire had three towns which hosted periodic courts called “assizes.”  The word “assize” refers to the sessions of the judges who traveled across the seven circuits of England and Wales, similar to the original concept of circuit courts in America. Abraham Lincoln was known to have traveled on such circuits during the time that he practiced law in Illinois. In England, these assizes were still active until they were abolished by the Courts Act of 1971, which replaced them with a single, permanent Crown Court.

These old assize courts were authorized by a commission of “Oyer and Terminer” (literally, to “hear and determine”), which authorized them to investigate through a grand jury and to hear the case by means of a petit jury (commonly known as a trial jury), similar to modern American criminal procedure. As an interesting historical aside, the governor of Massachusetts commissioned a court of Oyer and Terminer for the Salem witch trials in 1692.

While traveling through Cambridgeshire, I stopped at the old market town of Wisbech where, in the old days, the King’s Court would ride into town with judges, barristers, soldiers and horsemen, together with wives, children and many others to administer justice, which was often summary and brutal. The departure of the Court was celebrated in the Market Place with a feast!

Coquine Receives 2016 Restaurant of the Year Award

Congratulations to Coquine! The local neighborhood Café and Restaurant was awarded Portland’s 2016 Restaurant of the Year award by The Oregonian.

Coquine is not quite a year old, but has been drawing local and national attention. The Oregonian article states “Coquine replaces fireworks and unnecessarily bold flavors with subtlety and unerringly precise technique.” Read the full article on The Oregonian’s site for more information on the Restaurant, the Owners, and the Award.

Happy Birthday – The Estate Tax Turns 100

Wishing a happy 100th birthday to the Estate Tax!

In 1916, Congress instituted the estate tax to boost U.S. revenues just in case we joined the fight in World War I. At the time, the top rate was 10% and the exemption was $50,000, which meant it affected less than 1% of estates. Proponents of the tax thought it was a reasonable way to raise money while its opponents in Congress thought it was a matter best left to the states.

The U.S. had imposed temporary taxes on estates to pay for earlier conflicts but they were always repealed. The reason this one lasted was the hope that it would preclude the establishment of an aristocracy in America by preventing concentrations of wealth. Presidents Theodore and Franklin Delano Roosevelt were both proponents, as well as Andrew Carnegie, despite the size of their own estates. One particularly extreme view was that of Senator Huey Long of Louisiana. He wanted to confiscate all fortunes that were greater than $8 million.

Now, the estate tax is 40% on assets owned at death above the exemption amount. For 2016, the exemption amount is $5.45 million. It’s estimated that only about 4,400 people will have taxable estates this year.

Emerging Leaders for Oregon – Women, Wine & Words of Wisdom

In honor of Women’s History Month, join Emerging Leaders for an evening celebrating and empowering women.

SYK attorney Victoria Blachly will be among the guest speakers from professional, non-profit and political arenas sharing their experiences working on behalf of women, their perspectives on leadership and success, and their wisdom on what can be done to work towards a stronger future for Oregon.

This event is open to all! The goal is to bring together emerging leaders to learn more about what we can do to positively impact our respective communities and our state, and to network with others who inspire all of us to action. Emerging Leaders will be partnering with Dress for Success Oregon to host a donation drive during the event to support their remarkable efforts in our community.

For more details see their invitation.

Event Details
Wednesday, March 30 | 5:30 – 7:30pm
Cerulean Skies Winery | 1439 NW Marshall St | Portland, OR 97209
Street parking available
Event is no cost to attendees and the event is open to the public. No-host bar and light appetizers will be served.
5:30 – 5:45pm Reception begins, guest sign-in
5:45 – 5:50pm Welcome by Rebecca Tweed, President of Emerging Leaders for Oregon
5:50 – 6:20pm Guest Speakers
6:20 – 6:40pm Question, Answer, Comments period from attendees
6:40 – 6:55pm Dress for Success feature
6:55 – 7:00pm Thank you and conclusion of formal program
7:00 – 7:30pm Networking and event enjoyment!

Founded in 2010, Emerging Leaders for Oregon is a statewide non-profit group of young, professional, civic minded and energetic leaders who have come together to work for a different and better kind of Oregon. Their mission is to inform, inspire, and equip Oregon’s emerging generation of leaders to engage with their communities.

Primary Contact: Rebecca Tweed – (503) 860-6033, rebecca@statestreetsolutions.com

 

9th Circuit Upholds DOL’s Restrictions on Tip Pooling

On February 23, 2016, the Ninth Circuit Court of Appeals held in Oregon Restaurant and Lodging Association v. Perez (9th Cir., No. 13-35765 [Feb. 23, 2016]) that the U.S. Department of Labor (DOL) has the authority to regulate the tip pooling practices of all employers, not just those who take a tip credit. This is a considerable expansion of their authority.

In 2011, the DOL issued a rule that changed the requirements of tip pooling.  Prior to this rule, the DOL could only regulate the tip-pooling practices of employers who used a tip credit. The DOL did not have authority to impose these requirements on employers who pay their employees at least the federal minimum wage. The 2011 rule changed that. Now, all employers are subject to section 203(m) of the Fair Labor Standards Act (FLSA) regardless of whether the employer uses a tip credit or not.

Two cases were brought separately, one in Oregon and one in Nevada, challenging this rule. The district courts in both of these cases sided with the employers, holding that the new rule was not valid. The Ninth Circuit reversed both cases in a 2-1 decision, saying that the DOL had the authority to establish this rule. One judge issued a scathing opinion in dissent, saying that this ruling was contrary to precedent.

What are the requirements under the rule?

Any tip pool that includes employees who would not customarily receive tips is invalid. In a restaurant, servers and bartenders are customarily tipped, while the kitchen staff is not. A valid tip pool in a restaurant could not include kitchen staff. Therefore the employer cannot require the servers and bartenders share their tips with the kitchen staff. However, a tip pool comprised of only customarily tipped employees may still be valid.

When will this become effective?

A federal appellate court ruling is not effective until the court issues a mandate. The minimum timeline for a mandate is 21 days from when the court issues its opinion, so at the earliest this ruling will be effective on March 14, 2016. However, the deadline may be extended if the plaintiffs petition for a rehearing or if they petition the U.S. Supreme Court for a writ of certiorari.

According to the website for one of the plaintiffs, the National Restaurant Association, they are still considering their legal options. There is a good chance that at least one of the plaintiffs will either petition the Ninth Circuit for a rehearing or petition the Supreme Court of the United States. In the meantime, restaurants in states covered by the Ninth Circuit should be preparing to make changes to their tip pools on short notice. States covered by the Ninth Circuit are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

If you have questions about complying with these DOL regulations or the impact of this recent case, be sure to contact an attorney who is well versed in hospitality law.

Attorney Denise Gorrell has a unique background in hospitality law. She spent over a decade in the Seattle hospitality sector, which included time with wine retailer Esquin and the award winning restaurant Wild Ginger. Her experience gives her a deep understanding of the challenges faced by food and beverage entrepreneurs. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

In Memory of Harper Lee

Harper Lee

Great American author Harper Lee will be remembered

Harper Lee died today at the age of 89. Best known for her works “To Kill a Mockingbird,” and her more recent sequel “Go Set a Watchman,” she is particularly beloved in the legal community for her creation of the character Atticus Finch—a small town attorney whose kindness was surpassed only by his integrity. An informal poll of the attorneys of Samuels Yoelin Kantor revealed that many of us were influenced in part by Atticus Finch when making the decision to attend law school. Several still consider Atticus, at least as presented in “Mockingbird,” an aspirational standard and archetype for the profession.

Harper Lee was born in 1926 in Monroeville, Alabama, which remained her home until the time of her death. She was the youngest daughter of Francis Finch Lee and Amasa Coleman Lee, an attorney who was the primary inspiration for Atticus Finch. Her elder sister Alice, who passed away at the age of 104 in 2013, was also an attorney who practiced into her 90s, and acted as Ms. Lee’s agent and supporter.

Ms. Lee was famously publicity-averse and refused to speak about her own life or work publicly. Which made it a shock in 2015, when it was announced that HarperCollins would publish a sequel to “Mockingbird.” Many in the literary community questioned whether Ms. Lee had the mental capacity to approve its publication, and wondered suspiciously at the timing—taking place after her sister Alice’s death. “Go Set a Watchman” gained further notoriety for its portrayal of an elder Atticus, who has become anti-integrationist and biased in his elder years. In our informal office poll one attorney called “Go Set a Watchman” a “huge revelation as to how an idol can change.” Perhaps now that Ms. Lee has passed, more revelations will come out regarding the circumstances under which the sequel was published.

Despite the turmoil surrounding her creation over the last year, “To Kill a Mockingbird” will likely remain an enduring piece of the American literary canon. And hopefully Harper Lee’s first portrayal of Atticus Finch will continue to inspire lawyers and law students as an example of the aspirational standard of the profession.