Winter 2006 Edition
Vol.10 – No.3
Attention All Landlords! Get accurate, up-to-date information on the legal aspects of your rights and responsibilities. “Legal Survival for Landlords” will be presented by attorney/author Robert Friedman at Clarence High School, Learning Assistance Center, 9625 Main Street, Clarence. The course will be held from 6:00 p.m. to 9:30 p.m. on Wednesday, February 8, 2006 and Tuesday, April 25, 2006. Mr. Friedman will discuss mold litigation, Section 8 tenants, the new Bankruptcy Law, the landlord’s duty to screen out terrorists, evictions, leases, Small Claims Court, discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt collection and lead paint. There is a registration and book fee. To register call (716) 407-9001 or visit www.clarenceschools.org.
Friedman & Ranzenhofer, P.C. Practice Areas
- Accidents/Personal Injury
- Debt Collection
- Divorce/Family Law
- Elder Law/Wills/Trusts
- Mediation/Collaborative Law
- Municipal Law
- Not-for-Profit Corporations
- Real Estate
Win a $100 Gift Certificate
Complete our short online survey by February 14, 2006 and be entered into a drawing to win a $100 Walden Galleria Mall gift certificate.
Congratulations to Lynn Matthews of West Seneca, the winner of our Fall survey contest!
Landlords’ War on Terrorism
Landlords and property managers, whether you know it or not, you have been recruited as soldiers for the war on terrorism. You have a duty to your tenants, your insurance company and your country to fight terrorism. Shirking that responsibility could result in jail, fines and/or civil damages.
Landlords and property managers now realize that they are potentially vulnerable to attack from a well-organized, well-financed and determined enemy. In the aftermath of 9/11, security and terrorism have been central concerns for many of us. These issues were brought directly to landlords in May of 2002 when the FBI Joint Terrorism Task Force issued a warning that terrorists may be targeting apartment buildings for future attacks. Eleven of the nineteen September 11 hijackers were tenants of apartments. The al-Qaida handbook specifically mentions apartments as ideal hiding places and potential targets because of their light security. Many landlords know exactly what to do if a pipe leaks or a lock is broken. But few know what to do if a terrorist attack wiped out power, communication systems and HVAC and forced tenants to be quarantined inside their apartment complex.
This issue and the next issue contain articles on the Landlords’ War on Terrorism. This issue contains “Tenant Wins $2.45 million for Property Manager’s Search” and “Screening our Terrorists.” The next issue contains “Cooperation with Law Enforcement” and “Premises Liability for Terrorism.”
Tenant Wins $2.45 Million for Property Manager’s Search
An Egyptian-born radiologist won a $2.45 million verdict for invasion of privacy against a property manager. Shortly before noon on September 11, 2001, the manager entered the apartment to replace furnace filters and check on the condition of the apartment. She then called police to report that the apartment contained Arabic literature, a how-to-make bomb video, an airplane flight manual, a compact disc with a jacket depicting an exploding plane flying between two buildings and bomb-making chemical residue on the counter tops. This report resulted in the tenant’s arrest, eviction, loss of his job and news articles labeling him a terrorist. The police investigators found neither information on how-to-make a bomb nor bomb-making materials. The computer software was Microsoft’s 2000 Flight Simulator which is most popular flight simulator game in the U.S. The compact disc jacket did have an airplane on its cover, but it was not exploding and there were no buildings in the picture. The Arabic literature was an English version of the Koran. The “bomb-making chemicals” were merely dust and dirt on the kitchen counter. The United States District Court for the Western District of Pennsylvania jury concluded that the property manager’s search was made with malice or reckless indifference to the tenant’s rights.
Screening Out Terrorists
Screening for good tenants has always been important. Since 9/11/01, preventive measures against crime, including terrorism are especially important. Incorporating proactive steps in the screening process will prevent dangerous tenants from exposing others to life-threatening activities. Landlords should update written policies and train staff in screening procedures.
Landlords can not discriminate on the basis of race, color, religion, sex, age, national origin, marital status, disability, military status, sexual orientation, or familial status. However, they are not prohibited from discriminating on the basis of citizenship. Asking for documentation of citizenship or immigration status does not violate fair housing laws. However, it can’t be a pretext for discrimination and can’t result in disparate treatment. All applicants should be treated the same. Pursuant to Executive Order 13224, all U.S. citizens and organizations are prohibited from any business transaction with any person or entity on the United States Treasury Office of Foreign Assets Control’s (“OFAC”), Specially Designated Nationals and Blocked Persons List (“SDN List”). OFAC administers economic and trade sanctions against nations and individuals. The SDN list contains the names of persons deemed to be involved in money laundering, drug trafficking, terrorism or terrorist financing. Landlords, property managers and brokers must check present and prospective tenant’s names against the SDN list at www.ustreas.gov. The OFAC Hotline is 800-540-6322. Records must be saved for five years. For violations, the criminal penalties are $50,000 to $10,000,000; imprisonment for 10 to 30 years and civil penalties up to $1,000,000.
Landlords should screen as follows:
- Rental applications completed by each applicant should ask the applicant “Are you or any member of your household a SDN or other Blocked Person designated by the U.S. government as a person who commits or supports terrorism or is involved in international narcotics trafficking?” Inquire about any discrepancies or gaps in residence or employment history. Verify the applicant’s employment.
- Credit/criminal reports from www.saferent.com and ww.realpage.com contain SDN, rental history, criminal history, akas, prior employers, roommates and addresses, and verify the authenticity of Social Security numbers.
- Request original documentation to verify the applicant’s identity: Social Security cards, driver’s license, pay stubs, student id, visa or green card.
Leases should provide that the tenant represents that he or she is not on the SDN list, authorizes additional periodic SDN checks, and permits the landlord to terminate the lease for terrorist or other criminal activity.
Technological Risks for Employers
Two new technological trends, camera phones and online psychological tests, can expose employers to great civil liability. Possible lawsuits include discrimination, invasion of privacy, harassment, and infliction of emotional distress.
RESUME SCREENING. Five million Americans a year take psychological tests, usually over the internet for a wide range of jobs. It is a very quick and inexpensive way for employers to screen out applicants before conducting interviews. These tests raise the following three legal issues:
- Whether the test creates a disparate impact on a particular group of applicants such as, minorities. The Equal Employment Opportunity Commission applies a 80% rule. A pass rate of less than 80% for minority applicants suggests that the test has a disparate impact. For example, if 100% of whites pass and only 70% of Hispanics, there may be a problem.
- A psychological test may qualify as a “medical test” in violation of the Americans with Disabilities Act, which prohibits pre-employment medical tests. A test that could be used to interpret an applicant’s mental health may violate the ADA. The Seventh U.S. Circuit Court of Appeals held that the Minnesota Multi-Phasic Personality Inventory (MMPI) qualified as a “medical examination” under the ADA. Therefore, it was illegal to use it as an employment test that could be used to screen out applicants with disabilities.
- Questions might violate state laws regarding invasion of privacy about religion and sexual behavior.
The following precautions should be taken to avoid charges of discrimination:
- The supplier of the test should have studies demonstrating that there is no disparate impact on minorities, women or other protected groups, and that the test scores correlate with job performance and
- the test questions must be job related.
- $1,133,000 – Shopper, who fell sustaining severe spinal injuries, claimed that the accident could have been avoided if the store had cleaned up a liquid soap spill in a timely manner (Dutchess Co., N.Y. Supreme Court).
- $807,631 – A sporting goods customer fell when a poorly latched gate he was leaning against gave way at the checkout line (Sacramento Co., Calif., Superior Court).
- $499,999 – A photo shop patron sustained a fractured knee from a fall down interior entry stairs in a dimly lit corridor (Bronx Co., N.Y. Supreme Court).
- $350,000 – A teen blamed closely positioned racks, whose bases were obscured by clothing, as the reason for her trip and fall at Sears (Kings Co., N.Y. Supreme Court).
- $305,366 – A shopper in a gourmet market required full knee replacement after slipping on a strawberry (Palm Beach Co., Fla., Circuit Court).
- $210,500 – A department store shopper blamed an obscured bath supply display for a fall that required shoulder surgery (Middlesex Co., N.J. Superior Court).
- $39,300 – A mall-goer tripped over a hole left by a removed vinyl traffic pole while walking across the street to shop (Bergen Co., N.J. Superior Court).
- $30,000 – A Kroger’s customer who slipped on water and fell into a rack blamed lack of warning cones (Texas, Ct. at Law).
- $135,450,000 – A Giant’s fan consumed 16 beers during the game and collided with a family vehicle. A toddler was left quadriplegic (Bergen Co., N.J. Superior Court).
- $14,000,000 – Moose Lodge bartender served an intoxicated patron who swerved into the path of a car paralyzing the driver’s seven year old son and seriously injuring the driver and her daughter (Washington).
- $2,400,000 – A drunk trucker with a history of on-the-job intoxication crashed into a car. The victim’s leg required amputation (Denton Co., Texas, District Court).
- $1,025,000 – A driver who crossed the center line causing a deadly head-on collision was under the influence of alcohol, marijuana and Valium (Monmouth Co., N.J. Superior Court).
- $740,000 – A drunk driver veered over the double-yellow line into car of pregnant motorist causing knee, lung and rib injuries (Palm Beach Co., Fla., Circuit Court).
- $433,333 – A driver and three passengers who were celebrating a friend’s 21st birthday consumed beer and liquor before ramming into a telephone pole, resulting in a fatal fire. (Bucks Co., Pa., Ct. C.P.).
- $100,000 – An intoxicated driver rear-ended plaintiff three times, causing head and back injuries and then fled the scene (Los Angeles Co., Calif., Superior Court).
CAMERA PHONES. It is estimated that by 2006, 80% of all cellphones will have photo capabilities. Photos taken with camera phones can be transmitted instantly to other cellphones, to e-mail accounts and posted on websites. National fitness chains, YMCAs, courthouses, and major companies have banned camera phones. If a female employee has her photo taken in an area where she has a reasonable expectation of privacy such as a restroom, she could sue for invasion of privacy, harassment under anti-discrimination laws and infliction of emotional distress. If the phone records sound there is liability under federal and state wiretap laws. Employees can easily take photos of intellectual property, trade secrets, customer’s personal information, and proprietary business information. Employers should implement, distribute, and post camera phone policies which state what is and what is not permissible in the workplace. The policy should remind employees of the state’s video voyeurism law which subjects them to criminal prosecution.
Verdicts for Injured Shoppers
Verdicts Against Drunk Drivers and Bars
Fred Friedman Named Citizen of the Year
Fred Friedman, founder of Friedman & Ranzenhofer, P.C. Attorneys and Honorary Austrian Consul, has been selected as the Clarence Chamber of Commerce Citizen of the Year. He will be honored at their annual awards dinner on Thursday, January 26, 2006 at 6:00 p.m. at Samuel’s Grande Manor, 8750 Main Street, Clarence, New York. Fred’s service to the communities of Clarence and Western New York include: Clarence Chamber of Commerce (Director and President), Clarence American Legion (Judge Advocate), Akron-Clarence Kiwanis Club (President), Erie County Judges & Police Conference (Director and First Vice President), National Council of International Visitors (Director and Western New York Chapter President), Niagara Frontier Chapter American Youth Hostel (President), Buffalo Youth Hostel (Co-Founder), “SCORE” (Chapter President and Assistant District Manager), Community Foundation for Greater Buffalo (Promoter and Fundraiser). Fred was recently appointed to the Advisory Board of the U.S. Attorney of WNY for the “Safe Streets Project”. He was named Honorary Consul of Austria in 2002. As consul, Fred makes annual trips to his native homeland and is the voice in Western and Upstate New York for pensions, passports, visas, and other governmental benefits for the Austrian public. He has lectured at Austrian schools and universities. Fred was admitted to the New York Supreme Court in 1955, the U.S. District Court for Western District of New York in 1956, the U.S. Supreme Court in 1961 and the U.S. Tax Court in 1963. He was the American Bar Association International Exchange Committee chairman. Fred served as Akron Village Attorney, Genesee County Family Court hearing officer and Chairman of the Committee on Law & Public Safety Erie County Charter Review Commission. The other honorees are the Bank of Akron, Business of the Year; Clarence Log Cabin Quilters, Organization of the Year; and Christopher T. McGinley, Young Leader of the Year. For reservations, call the Clarence Chamber at (716) 631-3888.
While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Victoria Square Publishing Co. Inc. and Friedman & Ranzenhofer, P.C. shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.