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.”


Hillel Cohen is a third-year day student at the University of Baltimore. He servHillel Cohenes 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.

 

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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.


Elizabeth Hays is a third-year day student at the University of Baltimorunnamed-3e. 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.


15658752_10153979825990124_1989165244_oColin 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.

NOISE RESULTING FROM LEGALLY PERMISSIBLE FIREWORKS DOES NOT CONSTITUTE AN ABNORMALLY DANGEROUS ACTIVITY, AND THE APPLICATION OF STRICT LIABILITY IS INAPPROPRIATE.

By: Jason C. Parkins

The Court of Appeals of Maryland held that noise emitted from a lawful fireworks display did not constitute an abnormally dangerous activity; therefore, the parties were not subject to strict liability.  Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 569, 132 A.3d 866, 881 (2016).

On September 9, 2012, in Frederick County, Calvary Assembly of God, Inc. hosted a fireworks event on Auburn Farms, a property adjacent to Andrew David Toms’ (“Toms”) dairy farm.  Prior to the fireworks display, Calvary acquired all permits as required by section 10-104 of the Public Safety Article (“section 10-104”).  Calvary hired a professional fireworks company (“Zambelli”) to plan, oversee, and perform the fireworks display.  The location of the fireworks display was approved by a fire marshal prior to the event.  The fire marshal concluded that the event required a 250-foot radius, clear of structures, surrounding the firing location.  The permits acquired for the display demarcated a firing radius of 300 feet.  Additionally, a fire marshal was present at the event and supervised the display.

PURSUANT TO § 1-206(B) OF THE ESTATES AND TRUSTS ARTICLE, ARTIFICIAL INSEMINATION ENCOMPASSES IN VITRO FERTILIZATION USING DONATED SPERM; A COURT MAY USE THE GOLDBERGER FACTORS TO DETERMINE VOLUNTARY IMPOVERISHMENT; A TRIAL COURT CAN ISSUE A PERMANENT INJUNCTION FOR HARASSMENT BASED ON § 1-203(A) OF THE FAMILY LAW ARTICLE.

By: Virginia J. Yeoman

     The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure.  Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016).  The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment.  Id.

     Stephen Sieglein (“Sieglein”) and Laura Schmidt (“Schmidt”) married in 2008.  Before marrying Schmidt, Sieglein had a vasectomy.  When Schmidt desired a child, Sieglein refused to have his vasectomy reversed, but agreed to accompany Schmidt to the Shady Grove Fertility Reproductive Science Center (“Shady Grove”).  In 2010, they both signed a consent form at Shady Grove, which demonstrated their desire to undergo assisted reproduction treatment, and their understanding of the risks and obligations involved.

Despite not formally objecting, defense counsel properly preserved the issue of whether the circuit court inappropriately weighed defendant’s decision not plead guilty at sentencing; the circuit court did not impermissibly consider defendant’s rejection of the plea offer at sentencing.

By: Colin Campbell

     The Court of Appeals of Maryland held that defense counsel’s statements conveyed an objection to the circuit court’s perceived consideration of the defendant’s decision not to plead guilty at sentencing.  Sharp v. State, 446 Md. 669, 113 A.3d 1089 (2016).  As a result, the court held that defense counsel sufficiently preserved the issue for appellate review.  Id. at 684, 113 A.3d at 1098.  Ultimately, though, the circuit court’s statements at sentencing did not give rise to the inference of an impermissible consideration.  Id. at 701, 113 A.3d at 1108.

     On March 17, 2003, Raymond Evianiak (“Evianiak”), Justin Sharp (“Sharp”), and others were drinking at a party.  While intoxicated, Evianiak insulted Sharp, leading to an argument.  A few hours later Sharp proceeded to punch Evianiak and beat him with a bottle, in response to the earlier insult.  At no point did Evianiak defend himself or retaliate against Sharp.  Sharp was charged with attempted first-degree premeditated murder, first-degree assault, and openly wearing and carrying a dangerous weapon with the intent to injure.

     On April 30, 2014, Sharp appeared in court for trial where he was advised of the maximum penalties he faced if convicted.  The State offered a plea of first-degree assault and recommended a twenty-five year sentence, with all but ten years suspended.  The court counter-offered a twenty-year sentence, with all but eight years suspended.  Sharp declined both offers, pled not guilty, and elected a jury trial, at which point the court withdrew its plea offer.

Pursuant to § 10-402(C)(2)’s exception to the wiretap ban, an individual is not under the supervision of an investigative or law enforcement officer when interceping an oral communication, absent restrictions on equipment use and some subsequent contact.

By: Ashley N. Simmons

     The Court of Appeals of Maryland held that a detective providing recording equipment to an individual, absent any limitations for use and no interaction thereafter, did not amount to the individual acting under supervision of an investigative or law enforcement officer.  Seal v. State, 447 Md. 64, 80, 133 A.3d 1162, 1172 (2016).  The court found that guidelines must be given to the person conducting the wiretapping, as well as at least some contact to monitor the progress.  Id. at 79-81, 133 A.3d at 1172.

     During the summer of 1982, ten-year-old Donald W. (“Donald”) frequently stayed at his step-grandmother’s house. Donald’s step-uncle, David Seal (“Seal”), also resided in the Montgomery County home.  Donald testified that he awoke one night to Seal fondling his private parts.  The sexual abuse continued until Donald entered the seventh grade.  Approximately twenty years later, Donald contacted Seal about the abuse.  Seal apologized for his prior behavior and offered to make payments to Donald, which Donald declined.

     On January 22, 2013, Donald, a resident of West Virginia, went to the Montgomery County Police Station and spoke with Detective Tracey Copeland (“Copeland”) regarding the abuse.  Copeland and Donald made several unsuccessful phone calls to Seal in an attempt to obtain a confession.  Ultimately, Copeland provided Donald with the recording device, showed him how to operate it, and then sent him home with the equipment.

A state agency’s enabling act is constitutional if their decisions are subject to judicial review; Maryland law provides guidelines for state agencies when using their discretion to issue penalties

By: Nicholas Mastracci

     The Court of Appeals of Maryland held that the Maryland Underground Facilities Damage Prevention Authority enabling act does not violate the Judicial Vesting Clause of the Maryland Constitution or the Separation of Powers Clause of the Maryland Declaration of Rights.  Reliable Contracting Co. v. Md. Underground Facilities Damage Prevention Auth., 446 Md. 707, 729, 133 A.3d 1112, 1125 (2016).  The court also ruled that the Authority was a state agency based on the relationship between the Authority and the State of Maryland.  Id. at 729, 133 A.3d at 1124-1125.  As such, section 10-1001 of the State Government Article provides guidelines when assessing civil penalties.  Id.

     In February 2013, a local utility notified the Maryland Underground Facilities Damage Prevention Authority (the “Authority”) that Reliable Contracting Company (“Reliable”) began an excavation project without permission.  Reliable’s conduct was in violation of section 12-101 of the Public Utilities Article (“PU”), which establishes the one-call system.  As a result, Reliable caused damage to the local utility’s facilities.  On April 16, 2013, after an investigation, the Authority assessed a civil penalty of $2,000 for excavating without notifying the one-call system, and a $1,000 penalty that could be waived if Reliable completed training offered by the Authority.

Successive Post-Conviction petitions are not barred by the doctrine of Res Judicata or Maryland Rule 4-704; a petition for DNA testing will be denied if the evidentiary threshold for a wrongful conviction claim is not met.

By: Kayla M. DiNuccio

     The Court of Appeals of Maryland held that the doctrine of res judicata and Maryland Rule 4-704 do not bar successive DNA petitions.  Jackson v. State, 448 Md. 387, 406, 139 A.3d 976, 987 (2016).  The court further held that denying Jackson’s petition for DNA testing without a hearing under Maryland Rule 4-709 was proper, because none of his assertions would have produced exculpatory evidence.  Id. at 411, 139 A.3d at 990.

     In 1993, Steven Jackson (“Jackson”) entered an Alford plea to second-degree rape of Patricia M. in the Circuit Court for Baltimore County.  Jackson was sentenced to twenty years imprisonment with all but four years suspended and five years supervised probation.  In 1995, the balance of Jackson’s sentence was suspended and he was placed on probation.  While released on probation, Jackson was convicted of two additional counts of second-degree rape.

     Thereafter, Jackson filed numerous petitions for DNA testing pursuant to section 8-201(c) of the Criminal Procedure Article of the Maryland Code (“section 8-201(c)”) for the rape of Patricia M.  In 2005, Jackson filed his first petition for DNA testing, which was granted, but yielded inconclusive results.  In 2008, Jackson filed another petition, which was denied.  In 2009, Jackson filed a petition for post-conviction relief, which was denied.  In 2013, Jackson filed a fourth petition for DNA testing, which was again denied.  Jackson subsequently appealed the denial of the 2013 petition but later withdrew.

An applicant must satisfy the unwarranted hardship standard to be granted a variance; the variance must have no adverse impact on the environment and conform to the purpose of the critical area program.

By:  Michael Louis Brown

     The Court of Appeals of Maryland held that the Worchester County Board properly applied the “unwarranted hardship” standard and correctly granted a variance under local critical area law.  Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 140, 136 A.3d 866, 882 (2016).  The court held that the variance would not have an adverse impact on the environment and the development was in conformity with the Critical Area Program’s purpose and intent.  Schwalbach, 448 Md. at 143-44, 136 A.3d at 883.

     Roy T. Schwalbach (“Schwalbach”) owned waterfront property in a community where piers and boating were common.  In order to reach navigable water next to his property, Schwalbach sought a variance from a Worcester County ordinance that limited the length of piers to 100 feet.  The variance was granted by the Worcester County Board of Zoning Appeals (the “Board”).  In a written decision, the Board determined that Schwalbach would not be able to reach navigable water without the variance.  Furthermore, the Board noted that the environmental impact would be mitigated, because Schwalbach’s permits were issued under the condition that he would fulfill specific planting requirements.