Category Archives: Special Topics

Texas AG Establishes Price Gouging Hotline

Texas AG Establishes Price Gouging Hotline

Price gouging is illegal in Texas. Texas are encouraged to report suspected price gouging to the Texas AG’s Office.

After a disaster, price gouging can occur by unscrupulous people attempting to take advantage of others in the midst of crisis. Texas has codified that price gouging during a disaster violates the Texas Deceptive Trade Practices Act [1]. In fact, many cities and counties have plans that provide ways to ensure prices are controlled during the disaster. [2] Specifically, selling “fuel food, medicine, or another necessity” at an excessive price or demanding such in connection with the necessity is illegal. [3] Though consumers may take action on their own, the County or District Attorney is allowed to prosecute those suspected of price gouging during a disaster. [4] Texas also has the Consumer Protection Division under the umbrella of the Texas Attorney General’s Office. That office helps to investigate and prosecute claims of price gouging.

The Texas AG Consumer Protection Division has established a hotline and email address to support consumers who suspect price gouging. [5]

The AG’s hotline is: 1 (800) 621-0508

The AG’s email is: consumeremergency@oag.texas.gov

Price gouging doesn’t just happen in a disaster zone. There have been cases where states have prosecuted companies that were hundreds of miles away from where the disaster impacted. [6] Everyone is encouraged to remain vigilant.

References:

[1] Tex. Bus. & Com. Code § 17.46(b)(27) (2017).

[2] Tex. Gov. Code §418.106(b)(1) (2017).

[3] Id. 

[4] Tex. Bus. & Com Code § 17.48 (2017).

[5] AG Paxton Announces Consumer Protection Hotline, August 25, 2017, Full Article Here.

[6] See People ex rel. Spitzer v. Weaver Petroleum, Inc., 827 N.Y.S.2d 813 (2006) (evidence of price gouging found at gasoline retailer in New York following Hurricane Katrina). But see White v. R.M. Packer Co., Inc., 635 F.3d 571 (1st Cir. Feb. 18, 2011) (evidence supported a conclusion of “conscious parallelism, but not price gouging).

CMS Increases Hospital Emergency Preparedness Requirements

CMS Increases Hospital Emergency Preparedness Requirements

The Center for Medicaid and Medicare released a final rule in September 2016 that would require increased preparedness at hospitals accepting Medicaid/Medicare payments.

In September 2016, the Center for Medicaid and Medicare Services released an update to the requirement for hospitals accepting payments from CMS to improve their disaster and emergency preparedness with new standards.

Specifically, the updated rule (impacting 42 CFR 402-494) will allow for a bit more flexibility in the planning and exercises at a hospital. For example, facilities would be allowed to omit certain planning requirements based upon who they serve (i.e. day-time only would not be required to have a substance plan that covers a 24-hour clock). That and there would be a bit more flexibility in choosing what types of exercises they could use to meet the annual requirements.

The new rule went into effect on November 15, 2016.

For more information, see the links below.

CMS Press Release

Federal Register – Original Posting

Federal Register – Correction to Original Posting

Can We Have Non-Lethal Drones?

Can We Have Non-Lethal Drones?

During it’s legislative session in 2015, North Dakota may have authorized UAS’ to be armed with Non-Lethal munitions and systems.

A question that many have asked–and we have recently seen on the front lines in Iraq–is whether Unmanned Aerial Systems (“UAS”) or drones can be armed with some sort of lethal or non-lethal weapon system. Arguably during its legislative session in 2015, the State of North Dakota may have opened the door to the idea.

I ran across an article claiming that North Dakota had authorized the use of non-lethal weapons on UAS. The article seemed to imply that the new statute explicitly authorized such a use. After looking up the bill myself, that’s really not the full story.

So what’s the deal?

The initial introduction of the bill in January 2015 explicitly prohibited the arming of Law Enforcement UAS with lethal or non-lethal weapon systems (among other things limiting a UAS’ use and requiring warrants for certain searches). However, during a committee markup in mid-February 2015 the committee dropped the language prohibiting non-lethal weapon systems. Sparing too much of legalese, one of the things courts may look at when attempting to understand a statute is the legislative history. I see where the article jumped straight to the conclusion that “non-lethal weapon systems have been authorized!” They never really authorized them; however, they never really prohibited them either.

So what does this mean for emergency managers? Simply, before your Law Enforcement side talks about adding “UAS as platforms for non-lethal weapons” into the jurisdiction’s Emergency Operations Plans; you might want to consult with your jurisdiction’s legal counsel for advice on how to exactly handle it.

References:

[1] House Bill 1328, 64th North Dakota Legislative Assembly, An Act to provide for limitations on the use of an unmanned aerial vehicle for surveillance.

State Employees Can Take Paid Leave to Volunteer in a Disaster

State Employees Can Take Paid Leave to Volunteer in a Disaster

Texas allows state employees to take paid administrative leave to volunteer with the Red Cross during a disaster.

For many years the state of Texas has allowed for State employees to take paid administrative leave to volunteer with the Red Cross during a disaster. Can’t believe it? It’s true! In fact, It’s written into Texas statute (Tex. Gov’t Code § 661.907). Granted, the code has been expanded over the years, but here’s the upshot: State employees who are certified by the American Red Cross as Disaster Service Volunteer, may take up to 10 days paid administrative leave per year when three conditions are met: (1) at the request of the Red Cross, (2) the employee’s supervisor authorizes it, and (3) the governor approves it. Further, there can only be up to 350 state employees on this paid administrative leave at any one time.

So what does this mean? This means that there is an incentive for state employees to get involved with their community  to help themselves and their communities become disaster ready. In my opinion, those who volunteer during disaster response are more likely to be ready when one comes their way. Granted, they aren’t going to be 110% ready, but the mindset will have at least set in once that this could likely happen to them.

The next question becomes: why don’t major corporations do this? The fact is that they likely do to some degree. The question will always boil down to “who is going to pay the workman’s comp if the volunteer gets hurt while on this paid administrative leave?” The Texas Labor Code does allow for Disaster Volunteers to be covered by state workman’s compensation plans if strict time line and conditional requirements are met. Really, it’s going to boil down to what the volunteer’s and the corporation’s insurance carriers think about it.

So next time you’re at the DMV and get really mad at the person behind the counter, realize that they may actually be the same person that comes to help you after disaster strikes.

State Bar of Texas Annual Meeting – Day 1 Review

State Bar of Texas Annual Meeting – Day 1 Review

Today was the first day of Continuing Legal Education (CLE) and meetings for the State Bar of Texas. Here is my take on some of the events attended and topics discussed.

Today was the first day of the State Bar of Texas’ Annual Meeting, hosted in Fort Worth, Texas this year. Though the location rotates every year, this is the first time since 2010 that the conference has been held in Fort Worth. There were many great events and discussions on a wide variety of topics available to attend today. Here is the highlights of some of the major ideas shared during a small handful of the presentations today:

  • Advertising Rules and Social Media Usage for Attorneys: Though one might think that the State Bar vets all attorney ads for “tastefulness.” That really isn’t their job. The State Bar actually seeks to ensure that ads are not misleading or fraudulent to the public.
  • Legal Perspectives on Drone Regulation and Liabilities: This is an area to watch very closely. The FAA came out with proposed regulations in February 2015 and closed the comment period recently. We are still waiting to see what the new regulations will be for commercial (that includes government) and hobby/recreational Unmanned Aerial System (“UAS” aka “Drones”). Though some Fire, Police, and Emergency Management Departments might hope; there is skepticism that local governments will obtain a separate regulatory scheme apart from commercial business applications.
  • Fit for Flight: A Critical Look at Mental Health in the Pilot Community, and the Science Behind the FAA’s Fitness for Duty Standards: This was interesting in the fact that an analogy could be drawn to first responders in the sense that they are similarly placed in high stress situations as part of their duties. (Sometimes what I call “complete and utter boredom interrupted by moments of sheer terror”) It is interesting that this same concept of mental fitness hasn’t completely parted over to the Police, Fire and Emergency Management professions, given some of the concerns over suicide and mental illness within some of the professions. I believe that it might be a matter of time before we begin seeing industry wide application of similar principals. It won’t be a carbon copy of the system (that would be somewhat inappropriate and economically infeasible for most small departments); however, some of the best practices might be ported over.
  • Liability Insurance: Key Practice Pointers for Litigators: One of the major take aways is that there can be an additional counsel brought in during an insurance case to represent issues related to Insurance Policy coverage rates. The whole role of this attorney its to represent the actual policy (where the insured and insurer’s interest align). For example, if the insured and insurer both come to a conclusion in court on what the settlement ought to be, this third attorney would be the one to raise the red flag if the contract (insurance policy) will not cover the settlement reached.

New Edition of NFPA 1600 Issued

New Edition of NFPA 1600 Issued

The NFPA released a new edition of Standard 1600 covering recommended Continuity and Emergency Management planning standards.

This past month the National Fire Protection Association (“NFPA”) released its revised Standard 1600. This revised standard is the product of the 2015 review cycle. The last review cycle was in 2012 ;with the next scheduled to begin in 2018.

One of the major changes that you may notice right off the bat is that the new standard now retitled from “Standard on Disaster/Emergency Management and Business Continuity Programs” to “Standard on Disaster/Emergency Management and Business Continuity/Continuity of Operations Programs”. This is a significant shift in titles and demonstrates the expanding role of COOP programs.

As we delve into the new publication and compare it with the 2013 edition expect follow-on blog posts to discuss the changes that have occurred. Until then, you can find the 2016 edition of NFPA 1600 from the National Fire Protection Association’s website here. A PDF download is free, print copies will incur charges.

Reefer & Recovery: Possible SBA Disaster Loan Issues

Reefer & Recovery: Possible SBA Disaster Loan Issues

As states and tribes legalize marijuana, are there any problems that emergency managers face? Regardless of personal/political opinions, are there tertiary impacts we in the profession should be thinking and advising our political leaders about?

As states and tribes legalize marijuana, emergency managers are faced problem of controlling the impact of a disaster without the assistance of federal programs that are heavily relied upon. The Emergency Management Cycle is the standardized method emergency managers use to understand how to approach their job. Each of the cycle’s four phases present a unique problem for consideration concerning marijuana legalization. This article is second in a series of four articles related to marijuana legalization and potential issues related to Emergency Management. This article asks whether or not legalized marijuana grow operations and dispensaries are eligible for Disaster Loans from the U.S. Small Business Administration.

Note: This article does not state a position on the legalization of marijuana and merely identifies potential issues for emergency management as it is legalized at state and tribal levels. This article is not legal advice! Consult with a licensed attorney in your jurisdiction!

Background: After the President issues a federal disaster declaration, the U.S. Small Business Administration (“SBA”) can offer low-interest loans to businesses and individuals. Businesses can qualify for up to $2 million in low-interest physical disaster loans to cover damage to their business. Further, small businesses, and agricultural operations who suffer an economic impact from a disaster can apply for the Economic Injury and Disaster Loan program (“EIDL”).

Hypothetical: California just experienced its first tsunami from a 8.7 magnitude earthquake centered around the Cascadia subduction zone (predicted to be the most dangerous part of the San Andreas fault). You represent a legalized medical marijuana grower in Northern California. The grow operation lost everything to the tsunami, including: plants, equipment, inventories, and facilities. The owner wants to know if she can qualify for either a Physical or EIDL SBA loan to get everything started again. What do you advise her?

Answer: Apply, but don’t expect to get a yes. Under 13 CFR § 123.201(d), illegal activities are generally ineligible for both disaster loan programs. However, the SBA encourages everyone to apply for a disaster loan simply because things can change depending on the disaster. Upon receiving the denial letter from the SBA, the owner will have six months to submit a written request for reconsideration of the application by a different SBA loan officer. If the request is denied for a second time, the owner will have at a minimum 30 days to appeal to the SBA’s Office of Hearings and Appeals. An additional 60 days may be granted if the second denial letter states new reasons for denying the application. At any one of these points the argument could be made that the grow operation was legal. There are no general cases on point regarding what “concerns” are illegal and the statute is vague enough, making the approval of a grow operation’s application subject to the discretion of an SBA loan officer or Administrative Judge.

Next Step: Though immediate reaction might be to lobby for some sort of policy change, doing so might create more hurdles for marijuana businesses. Currently a single sentence in both statute and operating procedure guide loan officers on marijuana businesses. Advocating for policy reform independent of rescheduling efforts may lead to more barriers. Lack of formal guidance enables owners to make better arguments during reviews and hearings.

Paramedics in Body Armor?

Paramedics in Body Armor?

Cleveland EMS units will now need to wear body armor during calls for service in the field.

Effective December 21, 2015 the Cleveland EMS Director ordered her employees to begin wearing their issued bullet-proof vests while on calls in the field. For example, Paramedics would be required to wear the personal protective equipment while responding to a medical emergency at an apartment complex but not at court or at the hospital. Though the EMS Director stated that no specific threats have been made against the department, she did cite incidents in other jurisdictions (such as Detroit) where Paramedics had been attacked. In the public safety community we have always known that first responders (i.e. police, fire, ems) are potential secondary targets of attacks; however, we don’t always see them as potential targets at rather routine call for service–such as the infamous “difficulty breathing” call that always seemed to come about the time I was scheduled to go home.

This is the first EMS service I could find that has started requiring body armor during all calls for service. One of the big questions is what happens if someone takes their body armor off to better perform their duties during a medical response? Are they still able to receive workman compensation benefits? This will be a muddy area that may find precedent from the law enforcement community.

Registration of Drone Operators

FAA To Require Drone Operator Registration

FAA seeks to increase accountability of drone operators due to recent near misses. This could be a sign of relief for Emergency Managers.

According to the FAA, pilot sightings of unmanned aircraft near airplanes and at sporting events have doubled since last year. Some of these reports included interference with wildfire-fighting operations on the West Coast this year. Despite the increase, no accidents have been reported to the FAA.

Though there are no current requirements in place, Secretary of Transportation has directed a Task Force to develop and deliver a report by November 20th to have registration requirements in place by mid-December–just in time for the holidays. This gets interesting as the Consumer Electronics Association predicts that 700,000 drones will be sold this holiday season.

What does this mean for emergency managers? Really not much for internal operations. Currently government entities are required to receive a Certificate of Authorization from the FAA before operating their own unmanned aviation program. Hobbyists and some commercial entities have typically been afforded less regulation. However, emergency managers should see this as a somewhat sigh of relief. The ability to assign ownership of a specific unmanned aircraft could lead to more accountability and more responsible airborne operation. This may reduce the risk assessment emergency managers currently assess unmanned aircraft incidents at.

However, questions remain as to how this will be regulated, if state and local law enforcement entities will have the ability to enforce. Further, just because there are regulations doesn’t mean that everyone will follow them. Without an effective enforcement mechanism, any new FAA regulation of unmanned aircraft wouldn’t really have the desired impact. A pressing question–though it is unclear how this could be addressed–is how do you distinguish between the unmanned aircraft operated by regulated and approved operators and those operated by individuals with more of a nefarious intent?

Though the last statement may seem to contradict the sigh of relief emergency managers may feel, it really could help weed out the nefarious intenders from the responsible ones. For example: there are 100 unmanned aircraft within a jurisdiction owned by the citizenry. 90 are registered and operated by those following the rules (i.e. don’t fly near a stadium) and 10 are not. This form of deterrence reduces the logical leap required to identify those unmanned aircraft with a higher likelihood of nefarious intent. But without mandatory registration at purchase, it would be extremely hard for authorities to identify the owner of the nefarious unmanned aircraft–especially if it is not recovered by authorities.

Sources:

Article by Ian Duncan of the Barlitmore Sun: Click Here

FAA UAV Webpage: Click Here

FAA UAV Registration Information: Click Here

Pot and Preparedness: Are there issues with Marijuana Legalization?

Pot and Preparedness: Are there issues with Marijuana Legalization?

As states and tribes legalize marijuana, are there any problems that emergency managers face? Regardless of personal/political opinions, are there tertiary impacts we in the profession should be thinking and advising our political leaders about?

As states and tribes legalize marijuana, emergency managers are faced problem of controlling the impact of a disaster without the assistance of federal programs that are heavily relied upon. The Emergency Management Cycle is the standardized method emergency managers use to understand how to approach their job. Each of the cycle’s four phases present a unique problem for consideration concerning marijuana legalization. This article is one in a series of four articles related to marijuana legalization and potential issues related to Emergency Management. This article asks whether or not legalized marijuana grow facilities need to coordinate a pre-plan with their local fire department to better avoid possible tort liability.

Note: This article does not state a position on the legalization of marijuana and merely identifies potential issues for emergency management as it is legalized at state and tribal levels. This article should not be considered legal advice. Consult with an attorney

Background: Marijuana grow facilities often pose significant hazards to firefighters. These hazards stem from complex ventilation, facility layout, and electrical wiring (often violating codes). Despite training, these hazards become nearly impossible to avoid given the existing complexities of a structure fire. This is compounded by the mixture of THC and chemicals used in cultivation giving emitted smoke a sickening effect, rather than giving a “high”.

Hypothetical: The current legislation to legalize Marijuana in Wisconsin is approved. A year later there is a fire at an indoor grow facility in Madison. The Madison Fire Department and HAZMAT respond. The facility is partially saved; however, four fire fighters are seriously injured and two of the apparatus’ (fire truck) were damaged and attributed to code violations at the indoor grow facility. Will the firefighter’s and fire department separate civil claims against the owner succeed?

Answer: While the firefighters may likely succeed the department may have issues. The common law firefighter rule generally bars a firefighter’s negligence claim. However, in Clark v. Corby, the Wisconsin Supreme Court found a valid negligence per se claim based the violation of local housing ordinances and hidden hazards. 249 N.W.2d 567 (Wis. 1977); accord Peak v. Cent. Tank Coatings, Inc., 606 F.App’x 891 (10th Cir. 2015). Here, the hidden hazard exception will likely allow the firefighters to succeed. So long as the strict guidelines are followed, Wisconsin statute allows agencies seek reimbursement from a property owner whose negligence caused a HAZMAT incident for actual, reasonable, and necessary expenses included involving the release or potential release of HAZMAT. The issue comes in with the tedious processing requirements. If not strictly adhered to, the agency might forfeit reimbursement.

Next Step: Though sometimes annoying, it is imperative for legal marijuana growers to comply with all building and zoning ordinances at all times. Further, facility owners should work with the local fire department and allow a “pre-plan” for the department’s emergency response to the facility.