Maryland Leads the Way with New Anti-Price Gouging Drug Law

In recent years, drug manufacturers and pharmaceutical companies have come under increasing scrutiny and criticism for raising the prices on new drugs for diseases including cancer, hepatitis C, and high cholesterol, as well as older drugs that have long been used as the lynchpin in treatment for other illnesses.[1] Many of these increases are the result of a business strategy where companies buy old drugs and turn them into much more expensive “specialty drugs.”[2] The actions of two companies in particular have brought the issue of drug-price gouging to the forefront of national news. A recent high-profile example of drug-price gouging includes Mylan Pharmaceutical, which raised the price of EpiPens nearly 400% since 2010; the company recently agreed to pay a $465 million fine to settle a joint federal-state lawsuit over claims that it overcharged the government for the emergency allergy treatment.[3] Another instance of price-gouging was the case of Turing Pharmaceutical’s Martin Shkreli, who raised the price of a drug used to fight life-threatening parasitic infections from $13.50 to $750 per tablet.[4] While these are arguably the most infamous instances of alleged price gouging on lifesaving drugs, they are not isolated incidents or the acts of a few bad corporate apples. Indeed, concern has grown as drug prices on older, generic drugs have also soared.[5]

In response, Maryland has passed legislation that addresses the rising cost of older, generic drugs.[6] The new law prohibits manufacturers or distributors from engaging in price-gouging in the sale of an “essential” generic drug. As defined in the statute, generic drugs deemed “essential” include prescription drugs available for sale in the state for which exclusive marketing rights have expired or that appears on a list of essential medicines adopted either by the World Health Organization or designated by the Secretary of the Maryland Department of Health.[7] Under the new law, price-gouging means an “unconscionable increase” in a prescription drug.[8] An “unconscionable increase” is now defined as excessive when it cannot be justified by the cost of producing the drug or the cost of increasing access to the drug to promote public health. Additionally, the increase leaves consumers who have been prescribed the drug no meaningful choice about whether to purchase the drug because of its importance to their health and insufficient competition in the market for the drug.[9] Essentially, generic drug manufacturers can now be subjected to fines if they impose a significant price increase without justifying it to the attorney general. In turn, if the attorney general is not persuaded that the price increase was justified, s/he can ask a judge to order that the price increase not take effect. Violating the law carries a $10,000 fine.[10]

Despite criticism from drug-manufactures, the pharmaceutical industry and lobbyists, advocates for the law say that it was tailored to cover only the most essential generic or off-patent drugs that Americans cannot live without.[11] While concerns about the high cost of prescription drugs and significant price increases will continue to be a topic of national and local debate, Maryland has taken the first step towards reining in what many view as an unethical and abusive practice by drug manufacturers and pharmaceutical companies that takes advantage of individuals who depend on these prescription drugs to live.

1. Andrew Pollack, Drug Goes from 13.50 a Tablet to $750, Overnight, The New York Times, (Sept. 20, 2015),https://www.nytimes.com/2015/09/21/business/a-huge-overnight-increase-in-a-drugs-price-raises-protests.html.
2. Id.
3. Yancey Roy, EpiPen Maker Mylan to Pay $465M to Settle State-Federal Lawsuit, Newsday.com, (Aug. 17, 2017), https://www.newsday.com/news/region-state/epipen-maker-mylan-to-pay-465m-to-settle-state-federal-lawsuit-1.14070161.
4. Pollack, supra note 1.
5. Andrew Pollack, Drug Prices Soar, Prompting Calls for Justification, The New York Times, (July 23, 2015), https://www.nytimes.com/2015/07/23/business/drug-companies-pushed-from-far-and-wide-to-explain-high-prices.html.
6. Md. Code Ann., Health-Gen. §§ 2-801 through 2-803.
7. Md. Code Ann., Health-Gen. § 2-801(b).
8. Md. Code Ann., Health-Gen. § 2-801(c).
9. Md. Code Ann., Health-Gen. § 2-801(f).
10.Md. Code Ann., Health-Gen. § 2-803(d)(5).
11.Erin Cox, Drug Firms Challenge Maryland Price-Gouging Law, Baltimore Sun., (July 6, 2017), http://www.baltimoresun.com/news/maryland/politics/bs-md-price-gouging-suit-20170706-story.html.

Steve Boyer is a fourth-year evening student at the University of Baltimore School of Law. He will graduate in May 2018 with a concentration in public service. After graduating, he will clerk for The Honorable Glenn L. Klavans in the Anne Arundel Circuit Court for the 2018-2019 term. He looks forward to spending more time with his wife and two daughters as well as reading for pleasure for the first time since 2014. Prior to law school, he received a B.A. in History from West Virginia University in 2009 and a M.A. in Teaching from the University of Notre Dame Maryland in 2014. Steve can be reached at sboyerwvu@gmail.com. You can also view his LinkedIn profile here.

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Deaf Defendants: A Guide to Bridging the Gap

Maryland has one of the largest deaf and hard of hearing populations in the world.[1] In spite of this, the deaf community still represents a minority of individuals and an even smaller minority within the courtroom.[2] As such, many judges and attorneys do not come across them in their line of work often, and because of this, are unfamiliar with legal issues that may arise.[3] Such legal issues may include cases that are unnecessarily lost which can result in jail or prison time for innocent deaf inmates.[4] Therefore, this blog serves to inform and bridge the gap between legal professionals and deaf inmates to lessen the chances of negative impacts on this population.

At a basic level, here are some guidelines that will be fundamental to attorneys in Maryland who represent individuals who are deaf or hard of hearing: 1) obtain valid data on the educational and linguistic level of the client –specifically, the reading level as this information will be pertinent to demonstrating linguistic competence, or incompetence, of the defendant to be tried[5]; 2) obtain data on exactly how your client was Mirandized[6] –this is especially imperative because most officers do not properly administer the Fifth Amendment adequately as they often fail to provide a certified and qualified interpreter. Reading the Miranda warnings is not sufficient as English has a different grammar and syntax than American Sign Language and is often misunderstood. In fact, the Miranda warnings are only “given correctly and fairly about 30 percent of the time. ”[7] This process should be videotaped and recorded as it is the sole way of obtaining an exact record when sign language is involved;[8] 3) during trials, interrogations, and other legally-related affairs involving the deaf client, a certified interpreter should be present and the interpreter should be made available to the defense lawyer as well –this will ensure that the deaf client and all attorneys present can interact and communicate seamlessly;[9] 4) if a deaf or hard of hearing defendant prefers closed-captioning, rather than a sign language interpreter, the request should be made by the attorney[10]; and 5) if interrogations or arrests were actually videotaped at the time, copies of each should be obtained and evaluated by the attorney along with the aid of a sign language interpreter;[11] moreover, all legal documents the deaf client was ordered to sign should be obtained and examined as well.[12]

Because of the complex nature of handling cases with individuals who are deaf or hard of hearing, it is important to be vigilant to certain issues that may arise.[13] This short list of guidelines serves to aid Maryland attorneys who come into contact with individuals in the deaf community to bridge the gap and provide the adequate representation that this community deserves just as all other individuals of varying backgrounds.

1. Andrews, Vernon, Lavinge, Basic Legal Issues in Handling Cases of Defendants Who Are Deaf, American Annals of the Deaf, 1-21 2010.
2. Id.
3. Id.
4. Id.
5. Id.
6. Andrews, at 15.
7. Vernon, M. & Raifman, The Miranda Warnings and the Deaf Suspect. Behavioral Sciences and the Law, L.J. 14(1) 121-135, (1996).
8. Id.
9. Vernon, M. & Miller, K.R. Linguistic incompetence to stand trial: A unique condition in some deaf defendants, Journal of Interpreting, Millenial Edition, pp. 99-120, (2001).
10. Id.
11. Andrews, Vernon, Lavinge, Basic Legal Issues in Handling Cases of Defendants Who Are Deaf, American Annals of the Deaf, at 5.
12. Id.
13. Id.

Adriana Featherstone is a 3rd year law student, second-year staff editor on Law Forum, and Sign Language Interpreter. The subject of her blog post was inspired by her dual interests in the criminal and civil aspects of law as it relates to the deaf community, as well as the work she encountered during her tenure at the Governor’s Office of the Deaf and Hard of Hearing. Upon graduation, she aspires to continue pursuing a career that combines both worlds of deaf studies and the law. Her linkedin profile can be found here.

Contract Killings Can Be Self Defense, So Says the Court

Domestic violence is and continues to be a problem in the United States.[1] There has been substantial research conducted on the Battered Spouse syndrome and the effects that domestic violence has on the mental state of victims.[2] While in some cases victims leave their abusers, others have hired hit men to deal with their abusers for them.[3] This concept of hiring a person to harm or kill one’s abuser is a topic that courts have struggled with and Maryland courts are no exception.

In Porter v. State, the defendant, Karla Porter (“Porter”), hired a hit man to kill her husband who allegedly physically and emotionally abused her throughout the course of their marriage.[4] On March 1, 2010, Porter told her husband, Ray Porter (“Ray”) that an alarm went off at the gas station which the couple owned.[5] When Ray went to the gas station and was shot and killed. Immediately after, Porter called the police and informed them that her husband was killed in the midst of a robbery.[6] After an investigation, Porter was arrested for her role in Ray’s death. Porter later confessed that she contracted Walter Bishop to “beat up” her husband because she believed that her husband was going to kill her.[7] Porter was charged with first-degree murder, conspiracy to commit first-degree murder and use of a handgun in the commission of a violent crime. [8]

At trial, Porter testified to numerous instances where her husband, Ray Porter (“Ray”), physically and verbally abused her.[9] Additionally, two expert witnesses testified with regard to Porter’s mental state at the time of the murder.[10] At the conclusion of trial, Porter proposed that a self-defense jury instruction be given to the jury which the State objected to.[11] The lower court provided an imperfect self-defense instruction that was provided by the State to jurors.[12] Porter was ultimately convicted of the offenses and requested a new hearing on the grounds that the jury was not properly instructed on batter spouse syndrome and how to consider this in regards to imperfect self-defense.[13] The trial court denied the motion and Porter appealed.[14]

The Court of Special Appeals of Maryland held that Porter did not provide sufficient evidence which would entitle her to an imperfect self-defense instruction.[15] The court further held that any error related to the inclusion of the instruction was harmless.[16] Porter appealed again and the Court of Appeals of Maryland granted certiorari.[17] On appeal, the Court of Appeals held that there was no reason to “distinguish contract killings from other forms of non-confrontational defensive action.”[18] The Court of Appeals of Maryland further held that the improper jury instruction was not a harmless error and reversed the decision of the Court of Special Appeals and remanded the case for a new trial.[19]

1. Kit Kinports, Defending Battered Women’s Self–Defense Claims, 67 Or. L. Rev. 393 (1988); See also, Intimate Partner, 1993-2010, Violence, https://www.bjs.gov/content/pub/pdf/ipv9310.pdf
2. See Lenore E. Walker, Battered Women Syndrome and Self–Defense, 6 Notre Dame J.L. Ethics & Pub. Pol’y 321, 327 (1992).
3. See, State v. Martin, 666 S.W.2d 895, 899 (Mo. Ct. App. 1984).
4. Porter v. State, 2017 WL 3380943, at *2 (Md. Aug 7, 2017).
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Porter, 2017 WL 3380943, at *2.
11. Id. at *3.
12. Id.
13. Id. at *4
14. Id.
15. Id.
16. Porter, 2017 WL 3380943, at *4.
17. Id.
18. Id.
19. Id. at *15

Makeda Curbeam is a third year evening student at the University of Baltimore School of Law. She serves as a staff editor for the UB Law Forum. Her interests include family law and juvenile justice. She can be reached at Makeda.curbeam@ubalt.edu. You can view her linkedin account here.

Cracking Down on Dope Dealers: Maryland Heroin Dealers Are Now Facing Manslaughter Charges

As the heroin crisis in the U.S. and Maryland continues to rise, State’s attorneys are turning to a new method of policing to convict drug dealers: manslaughter charges. Several counties have begun to charge drug dealers with manslaughter charges in addition to possession with intent to distribute or distribution of narcotics when a drug user overdoses and dies from the heroin and the drugs can be traced back to a specific dealer.[1] St. Mary’s County is one of the first to charge six individuals with manslaughter.[2] Governor Hogan applauded the measures taken in St. Mary’s for getting tough on heroin dealers, as Maryland had over 2,000 overdose deaths last year.[3] The rate of overdose deaths rose 37% so far in 2017, with 550 overdose deaths through March, compared to only 401 in 2016.[4] This is due in part to the rise of the use of Fentanyl, a painkiller that is 50 times more powerful than heroin that is found on the street, and Carfentanyl, an elephant tranquilizer which is considered 10,000 times more powerful than heroin.[5] Both Fentanyl and Carfentanyl are mixed with heroin to create a more potent high for the drug users.[6]
Despite the tough words, it may be very difficult for these prosecutors to secure convictions for manslaughter. First, the biggest issue facing prosecutors is that the drug charges carry a greater penalty than manslaughter charges. For example, Distribution of Heroin and Possession with Intent to Distribute Heroin each carry a penalty of up to 20 years and a $25,000 fine for the first offense.[7] The penalty is even greater if the defendant has a prior conviction.[8] A Manslaughter charge only carries a penalty of 10 years and a $500 fine.[9] So even if the prosecutor could prove that the defendant did commit the manslaughter related to the overdose and secured a conviction, the punishment to the defendant is much less than the drug charges they are already facing. A defendant would receive a stiffer sentence for the drug charges than the manslaughter charges. This has already occurred in Queen Anne’s County, where a defendant was charged with involuntary manslaughter related to an overdose death.[10] The charge was dropped in lieu of a plea to distribution of heroin in which the defendant received a sentence of 16 years [11] , far more than the manslaughter charge. Second, it is much easier for a State’s attorney to secure a conviction for Possession with Intent to Distribute than manslaughter. A manslaughter charge would require the police to determine the whole backstory of the sale from the dealer to the user and then that the user overdosed on that specific dealer’s heroin. Comparable to finding a dealer with heroin and cash on him and a cell phone that shows he was selling drugs. The latter can be found in a single traffic stop or search, whereas the former would take a long investigation by a narcotics unit or detective which might only result in a conviction for a charge that has less time than a drug distribution charge.
If the legislature cracked down on dealers and increased the penalty for manslaughter to one greater than the distribution charges, then the manslaughter charges would be more justified and the police could vigorously go after the dealers for them. As long as manslaughter carries a 10-year penalty and distribution a 20-year one, Maryland State’s attorneys are just spinning their wheels on manslaughter charges when they can secure a conviction for distribution much easier than manslaughter.

1. Brian Witte, Maryland Governor Applauds Murder Charges in Overdose Cases, U.S. NEWS & WORLD REPORT (Aug. 9, 2017), https://www.usnews.com/news/best-states/maryland/articles/2017-08-09/maryland-officials-bringing-charges-in-drug-deaths
2. Brad Bell, Drug dealer charged with murder in St. Mary’ County overdose deaths, ABC 7/WJLA, http://wjla.com/news/local/drug-dealers-charged-with-murder-in-st-marys-county-overdose-deaths
3. See supra note 1.
4. Id.
5. Id.
6. Id.
7. Md. Code Ann., Crim. Law § 5-608.
8. Id.
9. Md. Code Ann., Crim. Law § 2-207.
10. Angela Price, Centreville man charged with manslaughter in overdose deaths, The Star Democrat, (Jun. 14, 2017), http://www.stardem.com/spotlight/article_bc823dd7-5711-5ab6-b88a-7bc2083f1220.html
11. Id.

John Navalaney is a third-year day student at the University of Baltimore.  He serves as a staff editor for Law Forum.  His legal interests include criminal law and real estate law.  In his spare time, John enjoys going to the beach and cheering on the Washington Redskins from the Charm City.

Raccoons are still safe

By: Elizabeth Hays

National security, equal rights, healthcare, and road kill are top priorities for any state government, at least according to Maryland Governor Larry Hogan.^[1]  When the headline first appeared – “Hogan vows to fight Maryland ‘road kill’ law” – I pictured a poor little raccoon being hauled away after being hit by some in a Ford Bronco.  If you keep reading, however, you find out that it has absolutely nothing to do with Rocky the raccoon and everything to do with the governor trying to overcome road blocks in his transportation initiatives.^[2]

In the 2016 legislative session, House Bill 1013, more affectionately called the ‘Road Kill Law,’ was passed and became law after overriding Governor Hogan’s veto.^[3]  The new law created a scoring system for approval of Maryland transportation projects.^[4]  According to the Governor, the new mandated scoring system forces the cancellation of 66 out of 73 top transportation projects; yet, Assistant Attorney General David Stamper doesn’t necessarily agree with Governor Hogan’s assertion.[5]  He stated, “the administration can pick a project with a lower score over a project with a higher score if it provides, in writing, a rational basis for the decision.”^[6]  If you believe that the legislation is only advisory, Hogan states, then you are ignorant of the facts.^[7]

Joining the exhilarating political sparing match, Delegate Brooke Lierman, the freshman Democrat from Baltimore City, who led debate on the bill in the House, said “Gov. Hogan seems to be creating his own fake news. It’s just a score, and that shows to us, the taxpayers, how we’re spending our money in a transparent way.”^[8]  Adding to the continued contradiction, Maryland Department of Transportation Secretary Pete Rahn agreed with the governor that the there was no possible way to avoid the cancellations of the projects under this new law.^[9]  In a legislative hearing held on November 18, 2016, he stated, “The one-size-fits-all ranking system mandated by this law is wrong for Maryland drivers, wrong for employers relying on needed improvements to local roads and bridges, wrong for tourists and visitors traveling to our state, and wrong for Maryland taxpayers who expect their dollars to be spent in an fair and equitable manner on projects that will improve their daily lives.”^[10]

The repeal of the ‘road kill’ law is deemed a top priority by the Hogan administration and will likely produce more and more controversy while the facts continue to be sorted out.  As far as actual road kill law in Maryland is concerned, you still need a salvage permit for removal of animals off roadways.^[11]  While it is uncertain what the 2017 legislative session will bring, for now, raccoons are still safe.

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Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of UBSPI. Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

Maryland Governor Doubles Down on Victims’ Rights

By: Jared Lerner

Out of the darkness comes some light, as Maryland Governor Larry Hogan provided a small beacon of hope for crime victims with his new Justice for Victims Initiative.  There is still plenty of work to be done for victims’ rights, but at least one person is taking a step in the right direction.  On Thursday, January 12, 2017, Maryland Governor Larry Hogan announced his Justice for Victims Initiative.[1]  Governor Hogan stated, “Making Maryland safer begins with making sure we have a criminal justice system that holds offenders accountable for the harm they cause, while also supporting victims and the community in the process of healing.”[2]  The Republican governor is no stranger to victims’ rights, as they continue to be a part of his focus while in office.  In the 2016 legislative session, Governor Hogan worked with the Maryland legislature to enact criminal justice reform by way of the Justice Reinvestment Act (“JRA”).[3]  The JRA reformed Maryland’s restitution system; making sure victims are compensated for financial loss from crimes.

The Justice for Victims Initiative includes four proposals: (1) Repeat Sexual Predator Prevention Act of 2017; (2) Protecting Victims of Sex Trafficking Act of 2017; (3) Transitional Housing Assistance Program; and (4) Repeat Drunk Driving Offenders Act of 2017.[4]  The Repeat Sexual Predator Prevention Act, a bipartisan measure, “will allow courts to admit evidence of a defendant’s prior history of sexual assault convictions during prosecutions for subsequent sexual offenses.”[5]  The Protecting Victims of Sex Trafficking Act will expand the definition of sexual abuse to include sex trafficking, including sexual abuse committed by a parent or an individual acting in a supervisory capacity.[6]  The Transitional Housing Assistance Program will direct up to $5 million in funding to provide up to one year of housing assistance for crime victims.[7]  The Repeat Drunk Driving Offenders Act will make drunk driving a felony for repeat offenders with three or more prior conviction.[8]  It would also make drunk driving a felony for a repeat offender who causes death or life-threatening injury.[9]

Governor Hogan calls the Justice for Victims Initiative “common sense legislation that will help protect the most vulnerable among us, improve services for the victims of crimes, and help us reduce and prevent the number of future victims of crime.”^[10] 

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Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at jared.lerner@ubalt.edu.

Maryland Lawyers May Advertise as Specialists

By: Daniel Weir

On October 13, 2016, the Standing Committee on Rules of Practice and Procedure of Maryland submitted to the Court of Appeals of Maryland a proposed amendment to Rule 19-307.4(a) to remove the prohibition against an attorney from “holding him or herself out publically as a specialist.”[1]   The debate on whether to allow lawyers in Maryland to assert themselves as “specialists” or obtain certifications reflecting a specialty has gone on for over 40 years.[2]  Maryland held out for many years despite Supreme Court decisions observing that attorney advertisements were First Amendment forms of commercial speech.[3]  At the time of the Committee hearing to change Rule 19, Maryland was only one of two states with an outright prohibition on advertising as a specialist.[4]  Many Maryland attorneys were already holding themselves out as specialists on a strictly word-of-mouth basis.[5]

It would seem that the main control over this new rule is an already existing rule – Rule 19.307.1.   The committee indicated that “[a]ll advertising by attorneys is subject to Rule 19-307.1, which precludes attorneys from making a false or misleading communication about the attorney or the attorney’s services and, in relevant part, declares a communication to be false or misleading if it ‘contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’”[6]

On December 13, 2016, the Court of Appeals of Maryland decided to adopt the Committee’s recommendation.[7]  An argument in favor of the change stated that lawyers who have practiced a particular type of law for a long period of time have earned the right to hold themselves out as specialists.[8]  The argument against the change was that young lawyers who are not yet specialists will have a harder time selling their services to clients if they are not yet specialists; the change could force a new attorney to simply pick one type of law and lock in early to gain the specialist title.[9]  This perspective hints at legal factionalism, whereas before, perhaps someone in a firm could primarily practice criminal law and do some immigration law work as needed.  Whether the lift on the prohibition will aid or frustrate the practice of law in Maryland will be observed when the change goes into effect April 1, 2017.[10]  Only time, and the cases opined by the Attorney Grievance Commission, will set the parameters as to how this change will truly take shape.

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Daniel Weir is a 3L Student Editor. Daniel has an interest in criminal and mental health law.  Daniel enjoys exploring the mountains of Western Maryland and performing minor automotive repairs and maintenance on domestic vehicles.  You can view is linkedin here.

What to Know Before Hiring an Exotic Dancer

By: Hillel Cohen 

A person hiring another person often faces the question of whether the hiring person’s status is one of employer or independent contractor.  This is an important distinction because employer-employee relationships are bound to minimum wage laws under the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MHWL”), and the Maryland Wage Payment and Wage Collection Law (“MWPWC”). [1]  The recently decided Court of Appeals for the Fourth Circuit case, McFeely v. Jackson Street Entertainment, LLC, begins to provide a clearer understanding of the definition of an “employee.” [2]

          In McFeely, an exotic dance club requested all hired dancers to sign agreements entitled “Space/Lease Rental Agreement of Business Space” that classified dancers as independent contractors. [3] The dancers claimed that they were employees and sued the dance club for minimum wage. [4]  The court created an economic realities test that contained were six factors to determine whether dancers were employees or independent contractors. [5] The six factors are:

1.  the degree of control that the putative employer has over the manner in which the work is performed;
2. the worker’s opportunities for profit or loss dependent on his managerial skill;
3. the worker’s investment in equipment or material or his employment of other workers;
4. the degree of skill required for the work;
5. the permanence of the working relationship; and
6. the degree to which the services rendered are an integral part of the putative employer’s business. [6]

Yet, the court did note that this was not a bright-line rule, and, each case would be considered based on the totality of the circumstances. [7]

After applying the factors to the present case, the court concluded that the dancers qualified as employees. [8]  The dance club created the work schedule for the dancers, established operating hours that “controlled the stream of clientele,” and paid for all overhead expenses of the dance club, including wages for all non-performing staff.9  Moreover, the dance club warned the dancers not to charge too much money to their customers and enforced many restrictions on the dancers (i.e., no drinking, smoking, or having family or friends visit them during work hours).10  Accordingly, the dancers were entitled to minimum wage under FLSA, MHWL, and MWPWC. [11]

It is important to note that in this specific case, the dance club was successful in raising a “good faith defense” to liquidated damages after September 2011. [12]  In September 2011, the dance club sought legal advice in response to a lawsuit brought by the dancers, and the club was advised to require all dancers to sign an agreement to acknowledge their status as independent contractors. [13]  However, before that date, the court rejected the dance club’s defense because reliance on legal advice is distinct to ignorance of the law. [14]   The court reasoned that ignorance of the law was not a valid defense, because this would create a substantial disincentive to the employer, i.e., no employer would be motivated to learn and conform to governing labor law. [15]

Although, this case involved exotic dancers, it has relevance for all types of workers.  The court’s six factors will likely be cited as a way to determine if a worker is an employee or an independent contractor.  Therefore, a hirer should be keenly aware of how its instituted rules and regulations may alter the hiree’s status of “independent contractor” versus “employee.”

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Hillel Cohen is a third-year day student at the University of Baltimore. He serves as a Staff Editor for the UB Law Forum. His legal interests include real estate and commercial law. He can be reached at Hillel.Cohen@ubalt.edu. You can view his LinkedIn here.

 

Bike Lanes Invade Baltimore

By: Elizabeth Hays

     Recently, Maryland Avenue has undergone a dramatic change-it’s not additional parking, it’s not a wider road, and it’s not the food truck I keep hoping for-it’s a bike lane.  It’s not just some extra space for a bike to get around cars, but an actual protected lane carved out of the already narrow two-lane road.  To many bikers, this is probably a welcomed change.  To the rest of us, this is one more reason to buy a smart car. With the addition of this bike lane comes confusing new rules of the road, which have the potential to cause traffic jams and bike-car-pedestrian collisions.

            Per Maryland law, these new bike lanes are classified as bicycle paths.[1] A bicycle path means any travel-way designed or designated by signing or marking for bicycle use, located within its own right-of-way or in a shared right-of-way, and physically separated from motor vehicle traffic by berm, shoulder, curb, and other similar devices.[2] In contrast, a bike lane means any portion of a roadway or shoulder designated for single directional bicycle flow.[3] Maryland law requires bicyclists to use a bike lane if a safe one is available on the same street; however the law is silent as to bicycle paths.[4] Therefore, bicyclists are not even technically required to use the new bicycle paths.

            While the bicycle paths are meant to be a safe solution for bicyclists and drivers to share the road, some bicyclists have voiced concerns about the bicycle paths not being wide enough to pass slow bicyclists.[5] Therefore, while they can legally move to the roadway to pass, it creates even more confusion on a road. A driver needs to keep an eye on pedestrians, traffic lights, construction, and now bicycle paths and rouge bicyclists passing. Are bicycle paths a good idea? Probably. However, the law either needs to be more clear or stricter about the enforcement and application of bicycle laws in Maryland to prevent major headaches for drivers, pedestrians, and bicyclists alike.

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Elizabeth Hays is a third-year day student at the University of Baltimore. She serves as a Staff Editor of the UB Law Forum and is Co-president of University of Baltimore Students for Public Interest (UBSPI). Her legal interests include, administrative and military law.  She can be reached at elizabeth.hays@ubalt.edu

What is Money?

By: Colin Campbell

To most of us, the definition of money seems rather simple and straightforward. However, that was not the situation for the Court of Appeals of Maryland, which was called upon to determine whether bank account assets are money or personal property under Maryland’s Forfeiture Statute.^[1]

In Bottini v. Department of Finance, Montgomery County, Montgomery County Police arrested Gianpaolo Bottini for CDS possession with the intent to distribute.^[2]  While on bail, Bottini emptied his two bank accounts, totaling $64,388.33, and placed the sum of the assets into his sister’s account.^[3]  His sister then opened a new bank account in her own name and deposited the entirety of the assets into this new account.^[4]  Upon conviction of Bottini, the Department of Finance of Montgomery County sought forfeiture of the assets in the account, claiming it was money resulting from Bottini’s illegal drug distribution.^[5]  Bottini’s sister objected, asserting that the assets were intangible personal property, not money, thus the county request was untimely.^[6]  Under Maryland’s Forfeiture Statute, CP § 12-102, requests for intangible personal property must be filed within 90-days of seizure.^[7]  Since the county did not file its complaint for forfeiture within 90-days, the request would have been untimely and should have been dismissed.^[8]

The Montgomery County Circuit Court Judge began by stating his personal understanding of what constitutes money.^[9]  According to the circuit court, the legislature intended money to be more than just fungible cash but also assets kept in a bank account.^[10]  The circuit court further stated that while the legislature has not defined money, the court does not believe it is necessary to do so.^[11]  Furthermore, the circuit court found that since the assets were transferred to Bottini’s sister to pay for his attorney’s fees, and not as a gift or loan, that the funds were Bottini’s and subject to forfeiture.^[12]  The circuit court held in favor of the county and issued an order for the $63,891.83 to be forfeited, finding that the assets were the proceeds of illegal drug transactions subject to forfeiture.^[13]

Defendants appealed the circuit court decision and in an unreported opinion the court of special appeals upheld the circuit court’s holding.^[14]  However, one judge dissented, finding that the bank account assets were “a contractual interest, claim, or right—i.e., intangible personal property—and that, as such, the complaint for forfeiture was untimely filed.”^[15]  The defendants filed a petition for writ of certiorari, which was granted.^[16]

Defendants argue that since bank account assets do not have a physical location and are only available by demand out of the bank’s assets, they are not money as intended by the forfeiture statute.^[17]  They argued that the forfeiture statute intends money to mean physical currency such as bills and coins.^[18]  The county argues that the forfeiture statute refers to physical money and wealth generally.^[19]  Furthermore, a bank account reflects the physical money available to the account holder and thus is money under the statute.^[20]

The court of appeals began by looking at the Merriam-Webster and Black’s Law Dictionary definitions of money.^[21]  Both sources defined money as physical cash and assets or wealth that can be converted to cash, such as the assets contained in a bank account.^[22]  The court further noted that the physical assets portion of the forfeiture statute did not have a heading for bank accounts.^[23]  Thus, the court of appeals found in favor of the county and affirmed the definition that bank accounts are money under the statute.^[24]  First, the court noted that this holding is consistent with the commonly held understanding of what constitutes money, and then referenced past holdings in which it had used the term “money” when referring to bank account assets.^[25]  Next, the court referenced that the legislative history of the forfeiture statute supported this definition since the intent of the statute was to encompass all funds resulting from illegal drug manufacture and distribution.^[26]  The court ultimately upheld the trial court’s finding that the county’s request for forfeiture was timely, and as such the account assets should be forfeited to the county.^[27]

The dissent argued that the county was not seeking forfeiture of the defendant’s money but rather their bank account, which housed their money.[28]  As such the property at issue was a contractual interest, or intangible personal property, subject to a filing limitation of 90-days after seizure or 1 year from the disposition of the criminal charges.[29]  Since the bank account had been seized by the county in April of 2012 and petitioned for in August of 2013, the county petition was untimely.[30]

This case establishes a bright line rule that bank account assets are money under the forfeiture statute subject to the 90-day post-criminal conviction filing date.  A rule making the financial gains resulting from drug distribution easier to be forfeited to the state.  However, the legislature should still take steps to define money in the forfeiture statute to avoid future possible issues if a similar action were to concern the assets of an investment account.

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Colin Campbell is a third-year day student at the University of Baltimore.  He serves as a Staff Editor for the UB Law Forum.  His legal interests include criminal prosecution and government contracts. He can be reached at Colin.Campbell@ubalt.edu.  You can also view his LinkedIn here.