Maryland Corkage Law

By Dave Minogue (originally posted to Flickr as P4269130.JPG) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

This past April, Maryland passed a law approving corkage. Corkage is the practice of bringing your own wine to a restaurant that already has a wine menu. Corkage allows patrons to enjoy a wine that is not already stocked by the restaurant. This differs from some Baltimore restaurants BYOB practice, as it only applies to restaurants that already have a liquor license that allows them to serve wine.

According to the Washington Post, there are three conditions set forth by the corkage law:

1. Underage or intoxicated persons should not be served, even their own wine;
2. A wine already on the restaurant’s list may not be brought in;
3. Restaurants must obtain a permit from their local liquor board.

Customers should note that restaurants do not have to allow corkage in their establishment. Additionally, restaurants that do allow corkage may charge a corkage fee to open a bottle for diners. The law does not stipulate a maximum or minimum for this fee. The Baltimore Sun asserts that corkage fees can range from $20 to $40 per bottle. Sales tax will apply to the corkage fee.

In Howard County, the Board of License Commissioners has issued a list of requirements pertaining to corkage practices. Included are the notations that patrons must order a meal and that bottles that are unfinished must be either poured out or recorked.

Pet Trusts in Maryland

I grew up in a veritable zoo. My family included dogs, cats, parrots, lizards, frogs, turtles, fish, and hermit crabs. My parents spare no expense when it comes to their pets, and the care of the menagerie trumped everything else. My mother's mantra is "Animals can't care for themselves" - which is very true, especially if something happens to the pet owner. My mother has always maintained a list of people to call in the event that she and my father pass away. This list includes various breeders, family members, friends, aviaries and wildlife preserves in whom my mother has faith to take care of her furry, feathered and scaly friends. Recently, I have been giving a lot of thought to care for Bandit, the dog my husband and I adopted last fall, should something happen to us.

Fortunately, in 2009, Maryland enacted a 'pet trust' law to allow pet owners a formal mechanism to provide for their pets after the owner's incapacitation or death. The trust can be created for the benefit of an animal alive during the lifetime of the settlor. The trust terminates with the death of the animal (or the death of the last remaining animal if the trust provides for multiple pets). The trust may be enforced by a person appointed by the trust or by the court if the trust does not appoint someone. Further, a person with an interest in the welfare of the animal can petition the court to appoint a person to enforce the trust. In the trust, settlor's can provide express instruction for distribution of trust funds after the passing of their pet. If the funds of the trust are not used in full, the remaining funds can be distributed to the settlor or the settlor's successors. MD Estates & Trust Section 14-112.

Generally, a pet trust consists of a trustee and a caregiver. The caregiver provides the daily care for the pet, while the trustee oversees the handling of the trust to ensure the caregiver's compliance with the terms of the trust. Pet trusts allow the pet owner to have control over the care of their pet. Rather than rely on the goodwill of those tasked with caring for an orphaned pet, the trust can designate the standard of care for the pet. Trusts can direct veterinary care, diet, boarding, and the general standard of living to be maintained for the benefit of the pet. Additionally, the trust can provide compensation to the trustee and the caregiver.

U.S. House passes bill on Eminent Domain

In 2005, the U.S. Supreme Court ruled in Kelo v. City of New London that local government could take over private property of several homeowners for the purpose of converting the property commercial use. The case was unique in that eminent domain had traditionally been used for public works projects - such as highways or public facilities. The Court held that "The city’s determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference"; essentially, local governments were best suited to determine what public use was locally under the takings clause of the Fifth Amendment. Kelo drew much backfire, and in response many state governments enacted laws limiting eminent domains takings to very specific uses.

On February 28, 2012, the US House of Representatives passed a bill seeking to limit the Kelo ruling. The bill, H.R. 1433 (known as the Private Property Rights Protection Act) is co-sponsored by James Sensenbrenner, R-Wisconsin, and Maxine Waters, D-California. According to the Washington Post, the

"legislation would withhold for two years all federal development aid to states or locales that take private property for economic development. It also bars the federal government from using eminent domain for economic development purposes and gives private property owners the right to take legal action if provisions of the legislation are violated."

The Private Property Rights Protection Act was opposed by John Conyers, D-Michigan, who was concerned that the bill exempted the Keystone XL pipeline from the eminent domain restrictions. The Keystone XL pipeline is a project by a Canadian company which proposes to build a gas pipeline from Canada to Texas. Additionally, Rep. Conyers noted that over 40 states have already enacted legislation in response to Kelo.

It is interesting to note that the property in question in Kelo was taken initially for Pfizer to develop a new location. In 2009, Pfizer abandoned the plans. For more information, see this CBS news article from November, 2009.

Wine - To Go?

From the Baltimore Sun, a follow up article to their previous article about growler sales in Howard County: Wine-to-go containers added to bill allowing 'growler' sales in Howard Co.

NJ Lawyer Loses License for Lying to FBI About Gift of Small Dog to Girlfriend of Zoning Board Member

From the ABA Journal: Lawyer Loses License for Lying to FBI About Gift of Small Dog to Girlfriend of Zoning Board Member

Ipad Apps for Lawyers

I was recently gifted an iPad 2, an item with which I am mildly in love. I have discovered a few apps which I am using regularly in my law practice. Since I have had so many people ask about the utility of tablets in the practice of law, I thought I would blog about my favorite apps. I should preface this list with the statement that I have not paid for a single app - every app on this list was free (legally) when I downloaded it.

Blogger - Blogger is the Google blogging software that Taylor Legal uses to publish our blog. The Blogger app lets me quickly post from my iPad. The app was designed for functionality with an iPhone, so it can be a bit cumbersome to write long posts. This app is best for short posts, such as an individual link to a news article.

Constitution - Constitution is simply a copy of the US Constitution in an easy to navigate format. Each section is accessible individually, and notes are included detailing information on clauses and amendments, as well as historical notes relating to ratification. Additionally, the app features short biographies on each signer of the Constitution.

Dragon Dictation - Dragon Dictation records speech to text. The program does a fairly good job of accurately recording notes. Punctuation can be included by speaking common phrases such as "question mark" or "dollar sign".

Dictionary - Dictionary.com in an app. This is great for when you just can not break out the old Rand McNally - or when you have been challenged in a game of Scrabble.

Dropbox - The Dropbox app links to your Dropbox account that remotely stores files. This allows access to your documents while you are out of the office.

Evernote - Evernote stores notes, links, pics, and the like and syncs with all the devices that have the program installed on it. One useful feature of Evernote is that the program automatically converts printed or handwritten text in images so that it is searchable.

Fastcase - Fastcase's app provides free access to items in it's law library.

iTranslate - iTranslate is a program that will convert text from one language to another. Additionally, it has a speech to text feature.

LawStack - LawStack provides quick access to the Federal Rules for Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, and the Federal Rules of Evidence.

WestlawNext - WestlawNext provides access to Westlaw via my account.

Urban Farming

The ABA has a great article on urban farming and the zoning issues that affect it:

http://www.abajournal.com/magazine/article/plowing_over_can_urban_farming_save_detroit_and_other_declining_cities_will

Haunted Houses

Happy Halloween!

Happy Halloween, Howard County!

I just finished carving my pumpkin, and, in the spirit of the season, I thought I would share with you a little legal horror story, which I first heard in law school.

The case in question is Stambovsky v. Ackley, 169 A.D.2d 254 (NY App. Div. 1991). The facts of the case are thus:

Helen Ackley owned a home in Nyack, New York. She and her family had repeatedly reported the home as being haunted by poltergeists. Their tales of supernatural disturbances had appeared in the local newspaper an three occassions, as well as Reader's Digest. The home was also included on a walking tour of the city of Nyack as a haunted house.

A few years later, Ms. Ackley put her haunted house on the market with Ellis Realty. Jeffrey Stambovsky signed a contract to purchase the house, and made a down payment of $32,500 on the purchase price of $650,000. Mr. Stambovsky was not from Nyack and was unaware of the spooky character the home possessed. Needless to say, when he did hear of the otherworldly haunts who were told to roam the home, he wanted out of the contract. He did not attend the closing for the sale of the house, resulting in his forfeiting of the down payment.

Mr. Stambovsky sued Ms. Ackley for the return of the down payment. The New York Supreme Court (their trial court) dismissed his action, as New York followed the property law doctrine of caveat emptor - buyer beware - and said that the seller had no duty to inform a potential buyer of the alleged hauntings. Mr. Stambovsky appealed. The appellate court reversed the decision. The appellate court said that while caveat emptor would normally bar a recission action, in this case "the most meticulous inspection and the search would not reveal the presence of poltergeists at the premises or unearth the property's ghoulish reputation in the community". While the court did not say that it believed in ghosts, because Ackley had made the claim so well known the court ruled that the house was haunted as a matter of law.

The legal term for a haunted house is stigmatized property, as it is property which buyers or tenants may shun for reasons that are unrelated to its physical condition or features. A haunted house has a phenomena stigma, but not all jurisdictions recognize this as something that needs to be disclosed. Other types of stigma include criminal stigma (where the house was a brothel or drug den), murder/suicide stigma, public stigma (where the house is famous to many people and any reasonable person can be expected to know of it), and debt stigma (where the previous owners were hounded by debt collectors at the home).

We at Taylor Legal wish you a very happy and safe Halloween!

Changes to Howard County Alcohol Regulations?

From ExploreHoward.com: Liquor board weighs changes to county alcohol regulations

Howard County Housing to Host “Mortgage Late? Don’t Wait!” a Foreclosure Prevention Event

http://www.co.ho.md.us/DisplayPrimary.aspx?id=6442462870

What is Eminent Domain?

Earlier this week, I posted a news article on Howard County tabling eminent domain. So, what is eminent domain? Black's Law Dictionary, 8th edition, defines eminent domain as "The inherent power of a government entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for the taking." Black's quotes John E. Nowak and Ronald D. Rotunda's Constitutional Law :

The term 'eminent domain' is said to have originated with Grotius, the seventeenth century legal scholar. Grotius believed that the state possessed the power to take or destroy property for the benefit of the social unit, but he believed that when the state so acted, it was obligated to compensate the injured property owner for his losses. Blackstone, too, believed that society had no general power to take the private property of landowners, except on the payment of a reasonable price. The just compensation clause of the fifth amendment to the Constitution was built upon this concept of a moral obligation to pay for governmental interference with private property. (quoting Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 976 (1897).

Benefit Corporations, Benefit LLCs, and Marketing

In June, Maryland saw the creation of America's first benefit LLC, Clean Currents, a green energy company. Clean Currents was created under the recently passed SB 595, a follow up to the state's benefit corporation law passed last year. SB 595 was sponsored by State Senator Jamie B. Raskin (D-Mont).

Two weeks ago, Governor Martin O'Malley attended the inauguration of Blessed Coffee, a Takoma Park coffee shop. Blessed Coffee is a registered benefit corporation under the law passed last year. The company has pledged to allocate 50% of its net profits from wholesale revenue to social programs in Ethiopia's coffee growing regions, and 50% to community based organizations. O'Malley said of Blessed Coffee that “(i)t's a corporation that looks at not only the bottom line of profit, but also the bottom line of social responsibility.”

The Washington Post article, Takoma Park coffee firm holds 'Blessed' event, in quoting Raskin highlights one of the challenges the state has in encouraging benefit corporations:

“'The law allows community-minded companies to take the high bid,'    Raskin said.

The main benefit of the law, however, is as a branding and marketing tool. The community feels that it's a part of the business, and people are often willing to pay for products when they know the money goes toward groups and causes they support, Raskin said.” (sic)

Cause marketing can be effective. A 2010 study said that 41% of Americans have purchased a product in the past year because the product was associated with either a social or environmental cause. The same study said that 88% of Americans think it is acceptable for a company to involve a cause or issue in its marketing; contrast this to the Millenial Americans, of whom 94% think it is acceptable for a company to involve a cause or issue in its marketing. Additionally, Millenials use a company's support of social or environmental issues to determine other corporate interactions. 87% of Millenials use social and environmental causes as a benchmark to determine where to work. 79% of Millenials use the same benchmark to determine where to invest. As Millenials become more active participants in the marketplace, benefit corporations and benefit LLCs are poised to reap the benefits (pun intended).

B Corps in Maryland

Benefit Corporations (also known as B Corps) are corporations formed with the intent to create a beneficial public good. B Corps are held to a higher standard than traditional corporations in that they must create social, environmental and community benefits. The first official B Corp was created in 2007, when Method, a manufacturer of green cleaning products, amended their corporate documents to reflect their intention of benefitting the public good through their business practices. Maryland became the first state to create a separate legal entity for B Corps in April 2010.

B Labs, is a non-profit which provides certification as a B Corp to qualified business applicants. The goal of B Labs is to prevent corporations from “greenwashing”, by providing a third-party stamp-of-approval for businesses that are actually fulfilling their claims. Certification is a stringent process, which requires passing B Labs B Impact Rating System. Applicants fill out a 220 question survey with questions delving into things such as recycling practices, employee demographics, community involvement, and employment benefits. B Labs compiles the results, and after tallying the points, grants certification to companies that have met the minimum passing rate.

On B Labs website, the organization features highlights of some corporations which have passed certification. Emphasized areas include employee demographics, sustainable environmental practices, and community involvement. For example, B Corporation says Method has “>50% women” as employees, has “>50% facilities LEED certified”, and that “>50% employees participate in company-wide service days”.

B Labs certification is not required for a Maryland company to register as a B Corp, but it certainly helps for the business to prove that the requirements of the Maryland law are being met. Additionally, certified B Corps can obtain discounted goods and services from other certified B Corps.

There are currently no tax incentives for B Corps at either the federal or state level. Philadelphia recently instituted a tax break for B Corps, a move that is expected to inspire other municipalities to offer similar incentives. Additionally, it is not unreasonable to assume that state and federal tax law will eventually be amended to reflect the unique nature of B Corps.

If you have any further questions about how becoming a B Corp can benefit your business, please feel free to contact our office.

Welcome!

Consider this blog a forum to discuss legal issues for Howard County and the State of Maryland. Our practice at Taylor Legal™ focuses on land use and zoning, small business and corporate law, local and state government law, alcoholic beverage licensing, contract drafting, and succession planning. I will be posting to this blog as noteworthy topics arise which affect our clients.

For more information regarding our firm, I encourage you to take a look at our website: www.taylorlegal.com. We are in the process of revamping the site, but you should expect new and exciting changes in September 2011.