August 16, 2003
The Big Weekends

Today I experienced a crowded reminder of the changes that have occurred in this resort area in the last several years.

It wasn't that long ago that the most popular tourist period at Delaware's beach resorts was the last week or so in August, combined with first few days in early September, up to and including the Labor Day holiday weekend.

Weekly beach house rentals reached their peak prices for those last fourteen days, as families scheduled their summer vacations until just before their kids returned to school after Labor Day. These rentals usually run Saturday afternoon to the next Saturday morning, which creates huge traffic jams on Saturdays when combined with the day-trippers, seasonal visitors, and the year-round residents.

This year the really big beach weekends this year are August 9-10 and 16-17. The shift away from the traditional end of summer looks like it will be permanent.

That's because many school districts both upstate and where the out-of-state tourists live now schedule their school starts before Labor Day.

The Washington Post ran a story today about this growing phenomenon:

If there is a trend, it's that school time is creeping in on beach time like high tide.

Almost three out of four schools start classes before Sept. 1, according to Market Data Retrieval, a Connecticut company that annually surveys schools districts. Just 15 years ago, only half of schools got started that early.

For example, the Colonial School District is one of the largest upstate school districts. The first day of classes this year is August 26, with the "staff development days" to begin August 18.

Pre-Labor Day starts won't happen here. There are too many Cape Region kids, parents, teachers, and administrators with summer beach jobs. The local tourism economy couldn't stand it.

My personal reminder of this phenomenon hit me early this afternoon as I returned from golfing at a club 20 miles north of home. Traffic came to a complete halt on State Route 1, a four-lane dual highway, about 10 miles north of my house.  (The Rehoboth city limits are about three miles further south from there.)

Those folks were probably going to be stuck on the highways for at least a full 90 minutes to two hours before reaching their destinations.

Fortunately, I know the back-road alternatives, and was able to leave the blocked traffic behind after a quarter-mile crawl.

Some of the Big Weekend travelers are pretty resourceful.

This evening my younger daughter and I joined a major traffic jam during a severe thunderstorm. After I dropped her off at her destination, I began the long slog back.

Traffic was still glacier-like, and the rain was still falling.

I looked to my right and saw a couple riding a large motorcycle.

The woman sitting in the rear seat held a golf-sized umbrella over the two of them--a perfectly sensible solution, especially at 3-5 miles per hour.

August 15, 2003
Communications skills

English is an admittedly hard language to master. Qualified teachers of English as a Second Language are in high demand for a reason. 

If one of the pieces of spam I received this week is any indication, some folks need to brush up on their skills.

The unsolicited, unwanted e-mail was yet another advertisement for special pills to eliminate certain sexual inadequacies.

In itself, that wasn’t too surprising. About every third piece of spam I receive seems to focus on my alleged need for complete sexual satisfaction through the use of pills, creams, videos, or web-cams.

Instead, the best part of this e-mail was its title:

The Females Will Go Crazy For You!

In my mind’s ear I can hear the accent perfectly suited for this come-on:  The Festrunk Brothers, the two “wild and crazy guys” played by Steve Martin and Dan Akroyd on Saturday Night Live.

The interesting choice of language didn’t keep me from deleting this e-mail, but at least it provided a unintended grin.

August 14, 2003
Nice bit of timing for a double-whammy

Sometimes one just has to wonder whether a quiet little backchannel of communications allows two different courts to time their related announcements with such precision.

Take this week’s example, for instance.

Harvey Bowman and his wife operated the Platinum Club in Anniston, Alabama. The Platinum was not only Alabama’s only strip club; according to the federal authorities, it was also where the Bowmans ran a highly profitable prostitution ring.

Imagine that.

As part of their law enforcement efforts, the government seized the Platinum Club, closed it down, and put the touch on $1 million of the Bowmans’ cash at the same time. The Feds also arrested the couple and successfully prosecuted them on prostitution conspiracy charges.

On August 12, Bowman and his wife were sentenced to prison terms of 1 ½ years and 2 years, respectively. The AP story about the criminal court proceedings also mentioned a related civil lawsuit brought by the Bowmans, and noted the fact that their civil appeal was now before the 11^th Circuit, where further proceedings were expected.

Not anymore.

On August 13 the Circuit Court issued its opinion in the case, in which the Bowmans challenged the government’s seizure of the Platinum Club without notice and a prior hearing, where the couple could have had a chance to stop the Feds.

The appellate panel ruled that it did not yet have jurisdiction over any appeal from the seizure or its effects, because the couple’s claims did not meet legal and factual conditions for the appeal to be heard, at least not until the completion of further steps in the District Court.

Nonetheless, the Court noted that any real harm to the Bowmans as a result of the seizure ended once the District Court ruled the Government had probable cause to believe the property was connected to crime at a later hearing, which is what happened in their case.

In a very dry tone, the panel noted that “at best they can hope to recover lost profits” for a relatively short period of time.

In light of the subsequent criminal proceedings, that statement doesn’t fully express how dim those hopes really are.

In so ruling the Circuit Court didn’t exactly rub salt in the Bowman’s fresh wounds from the criminal proceedings. On the other hand, the panel gave a pretty clear signal that as far as their civil case was concerned, the couple could expect to feel the first few crystals of the stuff that pours when it rains in the not-too-distant future.

Double-whammies like this situation don’t show up all that often in the court system.

When they do, however, some of us are just left to speculate.

Fondly.

August 13, 2003
The Sneaking Suspicions Recipes List

Someone wrote and asked how to search this site for the various recipes I occasionally post. I toyed with setting up a search function for this and other purposes, but so far I haven't been able to master some of the intricacies of this version of FrontPage 5.0.

While I work on that little techie problem, in the meantime here's a list of links for the recipes posted to this point in this site's modest history:

March 16, 2002 Steamed Shrimp
March 23, 2002 Sausage Goop
April 13, 2002 Shrimp and Sausage Creole
September 29, 2002 Two-Day Spaghetti Sauce, with Sausage and Meatballs
October 6, 2002 Mashed Potatoes for Homecoming
November 2, 2002 Scones
November 9, 2002 Oatmeal Raisin Movie Cookies
March 19, 2003 Never-used Old Bay® in the cupboard? How is that possible?
July 27, 2003 Pastaletta
August 9, 2003 The anticipation of seafood

Hope you like 'em.

August 12, 2003
Tales from the car hunt
 

Glenn Reynolds and I have a few things in common:

• We’re both lawyers.

• We both work for state governments.

• We both write blogs.

• We both bought new Mazda automobiles within the past week.

Within that short list is a notable distinction between us, however, over and above the stark difference in the daily number of visitors to our respective websites.

Glenn bought an RX-8.

I bought a Protégé.

Judging from his initial reports, Glenn sounds happy with his selection of a 250hp, rotary engine, road-hugging-through-the-Tennessee-twisties sports car.

In a week or two, I hope to report the same level of satisfaction with my choice of a sprightly 130hp, 5-speed manual, fuel-sipping, 85 mile-per-day-over-flat- coastal-plain commuter car I plan to use for the next 160,000 miles or so.

In the meantime, here's a tale from my recent car hunts that surprised me.

A sales representatives at one of the dealerships pointed out the alloy wheels on the particular model he was showing me.

I asked him if people actually chose their cars based on the wheels. After all, I said, you can't see the wheels while you're driving, and no one else can see the wheel design while they're spinning.

He insisted that many folks do, in fact, pick their cars based on the wheels, or spend a truly startling sum on a special order.

He also said that fathers come to the dealership with their teenage daughters, ready and willing to buy their little darlings their first car. On several occasions, the girls sniff at the vehicle choice based solely on the wheel design, and tell their fathers "You can drive that thing if you want, but I won't even sit in it," or words to that effect.

The salesman insisted that the fathers then knuckle under to their daughters' demands.

Later conversations with several other car sales staff confirmed the same experience.

Geez.

I know I'd much prefer to hear a different response from the dads in those situations, such as a simple "No problem. We won't be buying any cars today. We're leaving now."

August 12, 2003
Check first before you buy. That includes your lawyer.

Thomas Raymond Ross found himself in deep trouble.

The Feds were after him on drug charges, and he was looking at serious prison time.

Ross was not one of those folks who prove the adage that a man who represents himself has a fool for a client. He knew he needed a lawyer.

Ross then retained Malik Ali Muhammed to represent him in the case, which went to trial on February 8, 2000.

There was only one problem.

Almost two months before the trial, the California Bar had placed Muhammed on disciplinary suspension.

I suppose Muhammed somehow forgot to mention that little problem to Ross before the trial.

In fairly short order thereafter:

• Ross was convicted.
• Muhammed was disbarred.
• Ross learned of Muhammed’s suspension four months after his conviction.
• Ross appealed to the Ninth Circuit, claiming

that his Sixth Amendment right to assistance of counsel includes the right to a lawyer who is an active member of the bar at the start of trial, and thus—no matter how well or poorly Muhammad actually performed—Ross’s rights were violated.

The appellate panel disagreed.

Citing prior precedent, the judges noted the following:

The Sixth Amendment right to counsel exists “not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” [citation omitted]. It follows that “defects in assistance that have no probable effect upon the trial’s outcome do not establish a constitutional violation.” [citation omitted]. If counsel, who once passed the bar but was suspended before trial, still performed adequately, the process is not made fairer by awarding defendant a windfall even if he can’t identify a single thing a licensed attorney would have done differently. [citation omitted].

Here, we cannot say that Muhammad’s suspension and subsequent disbarment render the verdict inherently unreliable.

The Court left open the possibility that Ross could eventually prove that Muhammad was an constitutionally ineffective advocate, in a subsequent collateral appeal. The panel simply wasn’t willing to give Ross a quick victory based solely on Muhammed’s suspended bar status.

Here’s the consumer tip that this case calls to mind—check first before you buy, including that lawyer you were thinking of retaining. For example, the California State Bar’s web page includes a feature that allows site visitors to confirm that their counsel remains in good standing. I tried this service on one of my favorite California attorneys, and it works.

It’s a shame that folks need to take this small step toward self-protection, even for something as potentially critical as the lawyer they decide to represent them. Nonetheless, the frailties to which all humans are subject can also affect lawyers, many of whom are also human.

Thomas Raymond Ross might agree.

August 11, 2003
Just a little too controlling

New York City’s government sometimes seems to go out of its way to find new and different ways to lose lawsuits. The annoying thing is that it’s usually an avoidable expense.

The August 8 Second Circuit decision issued against the City and its Parks Department supports the not-so-novel idea that city agencies should primarily limit their permit pricing decisions to recovering the government’s cost of dealing with the activity, rather than trying to accomplish some other purposes, however laudable some of those goals might be.

Transportation Alternatives (“TA”) is a bike/pedestrian advocacy group, and has been busy pushing its agenda for thirty years. 

One of the most popular events TA sponsors is its New York City Century Bike Tour.

The extremely popular Tour begins and ends in Central Park, and winds through much of the city. The politicking is kept up throughout the event:

[P]articipants are urged to sign petitions advocating a car-free Central Park; many riders wear shirts with slogans such as "One Less Car"; riders in the 2000 tour were given pro-bike postcards and urged to mail them to city officials.

As one might easily imagine, the cost to stage the Tour is not cheap. It’s also intended to be a significant source of funds for TA’s advocacy efforts. To offset these two  expenses TA charges a registration fee for the bikers. It also uses commercial sponsorship opportunities where it can, such as logo placement on TA's web site, permitting free sample food distribution during the Tour, and similar logo placements on the event’s programs, banners, and other printed materials.

On the other hand, TA is not the only entity that is put to some expense by the Century Tour. New York City had its own burdens.

The city's Parks Department charged a basic $25 permit fee, and also tapped the TA for one of its “special events” fees.

In setting this fee, the Parks staff used an agency document listing ten considerations, for example security, estimated crowd size, and noise issues. Unfortunately, the document gave no guidance about how to use the factors to set the fee. Instead, the city used a matrix table to set the maximum fees to be charged, largely based on whether the event was public or private, and whether there was significant commercial sponsorship involved.

TA paid the city $5,500 and $6,000 in special event fees for the 1999 and 2000 Tours. For the 2001 Tour, the City said the fee would be $6,000, and then made an offer that TA felt it had to refuse:

If you remove the corporate elements of your event, specifically the Ben and Jerry’s presence and the Clif Bar sampling, and make the entrance fee simply a suggested donation, on all your literature including your website, then you will only be required to pay the permit application fee of $25.00 and post the appropriate insurance bond.

TA decided it had enough, and sued the City over the fees.

Neither the District Court nor the Second Circuit had any significant difficulty finding fault with the special events fee system.

In affirming the lower court, the appellate panel noted the following:

[T]he Commissioner has unrestricted discretion in deciding whether to impose a “special events” fee at all. And, … the regulations allow the Commissioner uncontrolled discretion in deciding the amount of the fee, limited only by the prescribed maximums. It is true, the ordinance prescribes a list of “factors” to be considered, but it assigns no weight to any of the factors.... [T]he statutory scheme effectively gives the Commissioner absolute, unregulated discretion as to the amount of the fee for any reason she deems pertinent, within the prescribed maximum limits. The Commissioner may impose a fee as high as $100,000 and as low as one dollar (or zero dollars) on a public Central Park event that enjoys commercial sponsorship, and any fee between $25,000 and zero for an identical event without commercial sponsorship…. The City was unable to explain how it set fees ranging from $1,000 to $10,000 for particular events. Regulations granting such broad and unchecked discretion to a government official charged with imposing fees on traditional expressive activities cannot overcome the “heavy presumption” of invalidity to which prior restraints on speech are subject.

As this case illustrates, the City was attempting to be a little too controlling, while reserving to itself an essentially uncontrolled environment in which to grant permits with First Amendment implications.

That state of affairs was never going to last. It was a mistake to attempt to retain a power the City shouldn’t have exercised in the first place.

The better option would have been to relate the special event permit fee to the cost of providing the necessary city services implicated by the particular event. Given that many such events produce offsetting income, in the form of tax revenues from the commercial activity inspired by such events, it wouldn’t be necessary for the permit fees to be determined by a total cost recovery approach.

On the other hand, there was nothing too special about this event fee, other than it’s near-total indefensibility.

August 10, 2003
Wet summer

I almost stepped on this little fungi early this morning as I took the dog outside.

It wasn’t there yesterday.

These mushrooms are a telltale sign of the continued wet weather we’ve been having here this summer.

The unseasonably cold ocean temperatures are a significant contributing factor.  

When we’re driving home from work up north, we can see the clouds forming into huge piles just along the coast, as the warmer air inland moves east and hits the cold air mass above the chilly Atlantic. Rain is the inevitable byproduct.

I’m sure this weather pattern is normal somewhere else on God’s green earth. It’s just not too normal around here, at least not in August.