Canadian Government Legalizes Marijuana

On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

Mandatory Patient Prescription Reporting Data Base

On July 1, 2016, Health and Safety Code Section 11165.1 required all designated California licensed professionals who are authorized to prescribe, order, administer and/or furnish Schedule II, III and IV controlled substances to register, on a database that is commonly referred to as CURES 2.0,  the Controlled Substance Utilization Review and Evaluation System. CURES is the prescription drug monitoring program mandated in California. Practitioners can access tips and  Registration pointers as well. Other critical and substantive information is available in the form of a Practitioner’s Manual.

Effective October 2, 2018, it is mandatory for Physicians (MD); Osteopathic Doctors (DO); Dentists (DDS); Podiatrists (DPM); Naturopathic Physicians (NP);  Physician Assistants (PA); Optometrists (OD); Nurse Practitioners (NP); Nurse Midwives (either CNM and/or CM); and Veterinarians (DVM) to consult CURES prior to performing any of the above services. After the initial consultation and at least once every four months thereafter, each of these practitioners must consult Cures 2.0  if the controlled substance continues to be part of the respective patient’s treatment. It is noteworthy that the CURES data collection vendor has published data submission instructions. The consultation requirement as such is inapplicable to Pharmacists (RPh); however, as other dispensing practitioners are obligated to monitor prescriptions of controlled substances, Pharmacists are also required to report on a weekly basis information regarding Schedule II, III and IV controlled substances being dispensed. The applicable Health and Safety Code, however, sets forth limited and designated exemptions.

It is noteworthy that a patient can obtain his or her CURES prescription history through the IPA, commonly referred to as the Information Practices Act. Each Patient Activity Report contains the following record: the patient’s name; date of birth; address; name of the prescriber and DEA number; name and license number of the pharmacy; date the prescription was filled; prescription number; drug name, drug form, drug quantity and strength; number of days of the supply, and each refill number. One may obtain the IPA Request form by contacting the CURES Help Desk.

The goal of Cures 2.0 is to ensure patient safety. Additionally, each particular licensing agency has access to the IPA information to regulate those whom they issue a professional license to ensure they follow the law and maintain proper standards and practices. Spital and Associates is an award winning law firm that provides legal advice and representation in investigations and disciplinary actions brought against individuals and entities that wish to obtain or currently have a professional and occupational license in California.

SUPERIOR ADVOCACY

How does one define the role of a lawyer? What are your expectations? Do you want an average lawyer or a truly great attorney? Here is a list of questions you might want to ask yourself and the lawyer with whom you consult:

  1. Do you want a lawyer who is pro-active, meticulous and believes in YOU?
  2. Are you intent on seeking the advice of a highly regarded attorney with boundless experience; superior knowledge and skills; is smart and knows how to persuasively persuasively articulate the case on your behalf?
  3. Do you place more value on the fees and cost of the lawyer, or are the primary factors both the direct impact of the case and the unintended consequences, now and in the future?
  4. Using objective criteria, one can read about the rating for the attorney; client reviews; attorney endorsements; full resume, including the nature, frequency and number of total and recent awards.
  5. Do you have the utmost trust and confidence in the lawyer with whom you consult, seek legal advice and representation? One of the ways to determine the character, expertise, history, and winning results can be evaluated by viewing the description and details; and,  click the following link as it regards the author, on www.Avvo.com, which is a national legal directory that provides profiles of nearly every lawyer in the United States.
  6. Does your selection of an attorney also encompass whether the lawyer has respect for YOU as a valued individual, instead of  you just being another “case?”
  7. Does the lawyer have a genuine care and appreciation of YOU and your legal issue(s)?
  8. Do you want to retain a lawyer who works long and hard to solely refute, dispel or deny wrongdoing?
  9. Would you prefer a lawyer who not only does the obvious by presenting a thorough defense, but also pursues a comprehensive “offense,” which can involve a painstaking effort to marginalize the charges, allegations, as well as the inferences and conclusions?
  10. Is the attorney mindful of YOUR best interests?
  11. Despite the huge responsibilities a lawyer has to protect your rights and advance your interests, do you want an attorney who not only creates an action plan for himself/herself, but gives YOU a detailed roadmap and plan of action that focuses on what is best about YOU; your redeeming qualities; and, who involves you as an integral part of the “team,” instead of you not being actively involved?
  12. Do you want a lawyer who takes a huge number of cases (as an assembly line) and, therefore, does less on each one and charges less? On the other hand, many clients’ primary goal is to have a lawyer who has a deep commitment, is hard working, considers the advantage of a thorough investigation, research, analysis, strategizing, and has an online presence establishing their proven record.

In summary, take sufficient quality time to research the lawyer you are considering, focus on the impact the outcome can have on YOU now and in the future, rather than solely upon the costs in retaining an attorney. This situation may be a defining moment in YOUR personal and professional life. Give a great deal of weight to the objective facts set forth in the lawyer’s ratings,  attorney’s integrity,  respect by other lawyers and admiration by the countless past and current clients who have provided consistent testimonials month after month, year after year to document the knowledge, experience, skills, concern, and overwhelming energy, along with documented and proven results. Your family, friends, associates, and particularly YOU deserve superior advocacy.

Supreme Court Rules Against Mandatory Union Dues

The case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Janus v. ASCME), No. 16-1466 (June 27, 2018), is a landmark decision is which the U.S. Supreme Court held public sector employees, specifically those in state and local government,  cannot be required to pay membership fees if they do not want to belong to a union.

Previously, the U.S. Supreme Court ruled in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  that  state and local governments can require public employees who do not join the union be required to pay partial “fair share” fees to offset the costs of collective bargaining – negotiating and administering the contract that the non-union members benefit from, even though there is no requirement they  join the union.  The rationale is these employees receive the same benefits, including salary, vacation, sick-leave, etc. The opponents who influenced the Supreme Court argued, among other reasons, an employee should not be forced to join a Union that advocates changes to and, therefore, influences public policy; the Court concluded mandatory fees violated workers’ free speech rights who are entitled to disagree with the positions taken by a union.

Those that favor the Court’s ruling contend public employees should not be forced to pay union dues (fees) as a condition of working for the government entity. Unions will now have to establish greater value if they want to maintain and/or increase the current levels of membership.

States May Collect Sales Tax from Internet Sellers

On June 21, 2018, in the case of SOUTH DAKOTA vs. WAYFAIR, INC., ET AL, the U.S. Supreme Court held
states have the right to collect sales tax from internet retailers even though they do not have a physical presence in the respective state(s).
The majority of the Court noted the number of people in the United States that have internet are close to 90%, and there are nearly one-half trillion dollars in e-commerce annual (mail order) sales. The Supreme Court then decided to overturn a 1992 decision that held the commerce clause was controlling since it prohibited states from burdening and/or discriminating on interstate commerce. With the current Decision, however, states are no longer barred from collecting sales taxes from companies just because they do not have a physical presence in the particular state. The more than 25 year old Court holding that was overruled required a “substantial nexus” or physical presence to exist with the activity in order for there to be a tax.
The dissent focused on the complex nature of collecting sales tax; the huge number of city, county and state jurisdictions and, therefore, widely varying rates of sales tax; along with the negative impact on commerce as the grounds that weigh heavily against states being permitted to impose sales taxes on internet sellers. The dissent opined this is a matter for the U.S. Congress and not the Courts to decide.
In order to be competitive, some brick and mortar retailers have for quite awhile “matched” the price of online retailers, However, there would remain a savings in not paying sales tax by purchasing on the internet; this savings may soon be history as far more states will be taxing these sales if they have not previously collected that from e-commerce retailers.

US Supreme Court Invalidates Federal Ban on Sports Betting

In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

Beware of Cyber Attacks

It has been said, and bears repeating:

  1. There are those that know they have been hacked and those that do not.
  2. There are those who have been hacked and those that will be;
  3. There are those who will be hacked again;
  4. Our devices and products, at home, at work and on the go, are connected to the internet (via wireless networks, millions of Hotspots or Wi Fi). These include the web sites and pages we view online; the social media we view &/or utilizing our own accounts; the GPS we use or are integrated into our computers, smart phones, lap tops, tablets, the cloud, and the hugely increasing products constantly and newly introduced into the marketplace; and,
  5. Cyber attacks are growing beyond our imagination, and they are more sophisticated every day.

In addition, we need to remind ourselves and be constantly vigilant to appreciate that it is not enough to have antivirus, spyware, spam filters and malware programs because it is painfully obvious no one is immune from the targets of malicious others who are thrilled in breaching our devices. And, what could be worse than this unlawful interference with our privacy, as well as our sensitive personal data, confidential business and individual information stolen Be diligent in preventing cyber attacks, detecting, and responding to breaches,

Compelling and Cogent Legal Arguments

All of us from time to time have read magazines, newspapers and articles. It strains credulity, however, that far too much of what has been written is not sufficiently balanced to provide the reader with a true and accurate narrative. Even worse are long winded and/or rambling legal arguments some lawyers may assert to the Court or declare in their Legal Briefs, Motions, Points and Authorities, and other written documents. In addition to the necessity to provide interesting, insightful and easily understood writing, these presentations simply do not rise to the level of being deemed “good writing.”

Also, the statements and arguments a lawyer makes should be cogent, which means they should be powerful and effective. A lawyer’s role is to not simply state events in a narrative, but should present compelling arguments that are truly persuasive. Here, articulating facts, circumstances, statements and arguments should, but unfortunately may not always, be convincing.

Whether one is successful in these tasks may be in the eye of the beholder. However, those who spend countless and painstaking hours to think about and analyze their roles and responsibilities before framing what they intend to communicate may indeed have a better opportunity to obtain winning results. Moreover, they can provide the reader with impressive thoughts and ideas. Some may choose to utilize metaphors, insert something humorous and/or use other tools and skills to convey the subject matter and their information. While this may in certain ways be different, the goal is to benefit their respective clients who may thereby realize the outcome they desire.

Statistics Show More Women and Minorities in Law Firms

The National Association of Law Placement (NALP) reported an increase in the percentage of women and minorities in law firms. Although the Report on Diversity in Law Firms on showed limited gains in 2017 over the previous reported period of time, the increase demonstrates that more women and minorities (Black African American) are choosing law as their career.

There are approximately 35% of the lawyers in the larger law firms who are women, and 15% who are minorities, In addition, the percentage of women and minorities who became partners in law firms increased as well. On the other hand, the disparity is far greater in some cities (for example, only 3% of the partners are women and minorities in Miami) than other cities (for example, 27% in New York) . When comparing the data to 40 years ago, there is clearly a far greater percentage of women and minorities today who have chosen law as their career and became partners in law firms. Proponents claim diversity is a positive factor in society, and it is likely the trend will continue.

DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

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