Legal Thursday – Hoarders and Arbitration Questions

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Welcome back to Lawyer Thursdays!  Last week went over so well, Hewy is going to allow me to continue to answer your legal questions each week! You can submit your legal question to cbdavidson@davidsonlawoffice.com any time.  You don’t have to have specific problem or issue.  I will be happy to answer those legal questions that you may have been wondering about for years!  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.

Question: My next-door neighbor is a hoarder.  Does Helena have any restrictions for such activity?

Answer: That depends on what your neighbor is hoarding and where.  Helena does have an ordinance restricting junk, trash, and debris from your yard.  If the hoarding activity is inside the residence then the issue becomes more difficult and diverse.  Helena cannot do anything about what’s inside your residence (outside of illegal activity) unless it either becomes a public nuisance or a fire hazard.  For example, 28 dogs barking all hours of the day and night would be a public nuisance while hoarding of stacks of newspaper and magazines would be a fire hazard.  If the hoarding activity is creating a health hazard then your recourse is through the Shelby County Health Department.

Question:  Why is it that every time I want to buy something they make me sign a paper that says I can’t take them to court but instead I have to go a mediator?  Is this just a State of Alabama thing or does this occur in other states?

Answer:   I could write a whole book on this issue.  What you are referring to are arbitration agreements that exist nationwide and really started to encroach into our daily lives in the mid to late 1980’s.  Arbitration is legally binding mediation where the parties submit their arguments and evidence to a mutually agreed upon or Court appointed Arbitrator (who you have to pay in whole or in part) who will then decide the case.  There are no rights to appeal and there are no requirements that the Arbitrator even has to apply the law.

The Federal Arbitration Act was first passed by Congress in 1925 to encourage and allow businesses to agree to resolve disputes without the Court system.  However, as we all know, arbitration has now creeped into every aspect of consumer transactions and now employment agreements as well.  In essence, in exchange for the privilege of purchasing that car, house, motorcycle, boat, mobile home, mouse trap, or pack of gum you are also agreeing to the waiver of your rights under the Seventh Amendment of the United States Constitution which states,

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The legislature of Alabama specifically prohibits arbitration. Ala. Code § 8-1-41(3) (1975).  However, the Federal Arbitration Act preempts our State law in almost every circumstance thanks to the U.S. Supreme Court’s decision expanding the scope of the Commerce Clause in Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265 (1995).  Under Dobson, there doesn’t seem to be any activity or transaction that does not affect interstate commerce bringing in the preemptive Federal laws.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

Local Attorney Brian Davidson honored for heroism

Shelby County attorney, Brian Davidson, received the Boy Scouts of America award for Heroism for life saving actions taken following an automobile accident during a Scout outing in July 2010. The Heroism Award is awarded to only a few nominees each year.

http://helenacitynews.blogspot.com/2011/09/local-attorney-brian-davidson-honored.html

ALABAMA PRE-PAID AFFORDABLE COLLEGE TUITION (PACT) PLAN

ALABAMA PRE-PAID AFFORDABLE COLLEGE TUITION (PACT) PLAN

 In a staggering blow to the hard working and trusting citizens of Alabama, the Alabama Pre-paid Affordable College Tuition Plan (PACT) has announced that it is likely to be unable to fund tuition for its beneficiaries who purchased a “guaranteed” plan.  The Trustees of the PACT fund, led by State Treasurer Kay Ivey, has lost more than $350 million and is now is attempting to dodge State responsibility for paying tuition for the thousands of families that have bought into the PACT program.  We believe the PACT program is an agency and instrumentality of the State of Alabama and is responsible for its contractual obligation under the PACT contract. We have consulted a finance expert who agrees that the PACT contracts failed to identify any market risk or that the PACT contract was an investment in the stock market as required by law.  PACT contract owners have significant legal rights they may wish to protect as soon as possible.