Without Jurors, The Light of Democracy Dims Remarkably

Written By Christopher B. Dolan

This week’s question comes from Frank T. in the Mission District: I got a jury summons in the mail. Why do I keep getting them? I don’t want to sit on a jury and take time away from work. My husband and I had a real hard time during COVID and taking time off work right now would be difficult.

Frank, I know this is a sentiment shared by many right now. The right to trial by a jury of one’s peers is enshrined in the Bill of Rights that was formed at the time of the birth of our Nation. When The Colonies were under British rule, citizens had no right to have members of their community decide their fate. Justice had become politicized, and it was administered pursuant to British law, and as a manner of repression, as the colonists were considered British subjects. British law was often unjust and unfair to the Colonists and failed to recognize the realities of living in the New World. This was one of the many injustices that spurned the birth of our Democracy. Trial by jury was, and largely remains, an American institution with most countries not offering jury trials to their citizens.

The right to trial by jury was established under and through the Seventh Amendment to the Bill of Rights. As such it was one of the original rights for which a war was fought, blood was spent, and lives were sacrificed. The right to trial by jury is also guaranteed by Section 16, of Article One, of the California Constitution.  

What was once considered a fundamental right and honor is now perceived by many as an annoying and disruptive inconvenience. Not to minimize the impact that you feel jury service has upon your personal circumstances, too many of us now take for granted our democratic freedoms, rights and responsibilities. Jury service is an apolitical right and in today’s environment where the courts have become more politicized, the fact that a jury pool is drawn from a broad cross-section of our community is perhaps one of the most apolitical aspects of our Democracy.  

As your name, Frank, suggests that your pronoun is male, and you reference your spouse with the pronoun he, I deduce that you are in a same sex marriage.  (If my assumption is incorrect, please forgive me.) I want to put this into some perspective: imagine if you or your husband were accused of a crime, were the victim of a hate crime, or been deprived a civil right based upon your sexual orientation.  If you lived in another state, not as progressive as California, the judge might be an elected or appointed official who is homophobic, or against gay marriage, and she/he would be the sole decisionmaker on your case. That prejudice could very well affect the outcome of your case and be demoralizing. Likewise, were no members of the LGBTQ community to heed the call to jury service, you would not receive a jury of your peers.  

No one knows the case you have been summoned for as of now. Jurors are randomly selected from DMV records, voting rolls and other public sources of information and, until the day you show up at the courthouse, there is no way to know what type of trial, or what type of issue, is involved. In San Francisco, if you are summoned to 400 McAllister Street chances are that it is a civil trial involving disputes between two parties, two businesses, or an individual seeking justice against much more powerful interests such as corporations and/or the government. If you are summoned to 850 Bryant Street, it is most likely a criminal case.  

Since COVID-19 began, I have tried two cases to verdict, one in September against a police department and officer where there was a claim of unlawful and excessive use of force resulting in a shooting and one against an insurance company for injuries suffered in a collision. I selected juries, presented the facts, and received verdicts in favor of my clients who otherwise would never have received justice. Had jurors not shown up, my clients would never have had their chance to receive fair and impartial justice. We would never have been able to stand up to the police and, quite possibly, given the judge and venue in another state, we would not even have had a chance, much less won.

The right to trial by jury is already threatened by big monied interests that don’t want trial lawyers like me to balance the power dynamics. Organizations which I am proud to be a member of, such as the American Association of Justice, and the Consumer Attorneys of California, fight diligently and spend millions of dollars annually, contributed by members such as myself who believe in this right, to help elect pro-justice, pro-civil rights and pro-7th Amendment legislators to help preserve the right to trial by jury.  

Many jurors, originally reluctant, after serving their jury service are glad they did it. They feel proud of being a group of twelve (or six in Federal Court) who participated. I hope you take the call to service and have a meaningful experience. Lastly, just because you are called for jury duty doesn’t mean you will serve. Many times, jurors are not needed as a case gets resolved or settled. Even if you are called into court, most jurors do not get selected, as often more jurors are called then end up being needed.

I hope this helps you see things in a different light. Without Jurors, the light of democracy dims remarkably. 

read more

End of Year Holiday Parties Have a Unique Potential for Harassment

Written By Christopher B. Dolan and Emile Davis

This week’s question comes from Matthew H. from San Francisco: My workplace is hosting a Holiday party and they are telling us to keep it work related and professional, if we decide to attend. I don’t plan on getting crazy, but can they tell us how to act outside of our work schedule? It seems a bit much.

Dear Matthew,

Each year, the Dolan Law Firm receives multiple phone calls from people who have been the victim of harassment or discrimination at company sponsored holiday parties. The Holiday season is, once again, upon us, if everyone thinks ahead, many of the potential pitfalls can be averted and everyone can enjoy the party.

End of year Holiday parties have a unique potential for sexual harassment. Several factors combine to make sexual harassment a particular danger at these types of functions. Holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual can also add to the tendency for people to stray from workplace norms. This is often exacerbated by the often-accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

The good news is that employers can take steps to minimize the dangers of harassment. One thing an employer can do is include a copy of the workplace discrimination and harassment policies within any email or invitation, or a simple reminder that the policies in place at the worksite are applicable to the holiday party as well. Reminders that, although co-workers will be interacting socially, they must treat each other with the respect they have for one another in the workplace, can set clear guidelines for what is appropriate behavior. Archaic traditions that attempt to legitimize and trivialize harassment, such as kissing under the mistletoe, need to be left in the past.  

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person over-drinking at a holiday party.

Making sure, prior to the event, that everyone has a safe way to get home is also a big help. It can save an employee from getting a DUI. And, importantly, it can ensure that an intoxicated worker is not coerced to accept a ride home from somebody who makes them uncomfortable or who has ill intent.  

If the employer participates in a gift exchange or “Secret Santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history. Joke gifts can be fun and funny, but can also cross the line into scary intentional harassment. For example, Dolan Law Firm proudly represented an African-American woman who was singled out to receive a particular gift at a holiday party- she was purposely presented a purse embroidered like a confederate flag which contained pictures of the owner of the company dressed as Donald Trump in front of a sign indicating that the south would rise again. 

Another area of concern at holiday parties is religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to be involved in a religious based holiday, or to explain why they are not. We can all celebrate the end of the year, and most religions have some sort of a mid-winter holiday or day of remembrance. 

When employers make the expectations clear and plans for the well-being of all the employees, it allows everyone to enjoy the Holiday party. 

Each employee can also help. Everyone should have a pre-planned manner to travel home safely. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers. Enjoy the party. 

Hopefully, this year Dolan Law Firm does not receive one of those calls.

read more

New California Law Requires Public Schools and Colleges to Carry Free Menstrual Products

Written By Christopher B. Dolan and Katelyn P. Dembowski 

Tess from Oakland asks: I saw on the news that California will now require public schools to carry menstrual products. Can you explain how they will implement this and when this will be available for students?

Dear Tess: Thank you for your question. This is incredible news in the advancement of safety and security for all those who menstruate. 

On October 8, 2021, Governor Newsom signed AB-367, requiring California public schools and colleges to stock their restrooms with free menstrual products. The Menstrual Equity for All Act of 2021 (AB-367) builds off of a 2017 California law which required low-income schools in disadvantaged areas to provide students with free menstrual products. Specifically, the 2017 law required public schools from grade 6 through grade 12, that met a 40% pupil poverty threshold, to stock 50% of their restrooms with feminine hygiene products. The 2017 bill also prohibited the public schools from charging students for the menstrual products.

The Menstrual Equity for All Act of 2021 requires public schools with grades 6 through 12 to stock all school restrooms with an adequate and free supply of menstrual products in the women’s and all-gender restrooms, and at least in one men’s restroom. Schools are required to implement this for the upcoming 2022-2023 academic school year. 

Additionally, the Menstrual Equity for All Act encompasses not only public middle and high schools, but all California State Universities and the community college districts within the state to implement this policy as well. The law also encourages, but does not require, the Regents of the University of California and private universities, colleges, and institutions of higher learning to also stock adequate supplies for all menstruating pupils. 

Assemblywoman, Cristina Garcia, led the charge by introducing this life-changing legislation. “Our biology doesn’t always send an advanced warning when we’re about to start menstruating, which often means we need to stop whatever we’re doing and deal with a period,” she stated regarding the new legislation.” Just as toilet paper and paper towels are provided in virtually every public bathroom, so should menstrual products.” 

Garcia, who crowned herself the “Period Princess,” gained inspiration for The Menstrual Equity for All Act from a 2020 bill passed in Scotland. Scotland became the first country to make period products available to anyone who needs them in all public places. The Scottish Parliament unanimously passed the bill, which is estimated to cost the country approximately $32 million annually. Worldwide, countries like Britain, Australia, Canada, and India have eliminated taxes on menstrual products and many are working towards having free products available in public places as well.  

Unfortunately, access to free and sanitary menstrual products in public spaces is not the norm. According to Women’s Voices for the Earth, more than half the states still tax menstrual products as a “luxury” item. When Women’s Voices for the Earth began tracking menstrual health policies in January 2021, there were only about 20 bills across the United States. As of November 2021, there are now more than 140 bills in 37 states, including 8 bills introduced on the federal level, to advance menstrual equity by requiring free access to period products, eliminating tax, and requiring ingredient disclosures. 

The Menstrual Equity for All Act is the latest step in California toward “menstrual equity” in the nation’s most populous state. California has a history of implementing laws that are later echoed in other states, and we can only hope that states will follow suit and continue to push for menstrual equity for all persons who menstruate. This year, California also eliminated a tax on menstrual products, which used to cost Californian’s more than $20 million annually. 

It is extremely difficult to have access to safe and sanitary menstrual products for low-income individuals around the world. Over 1.8 billion people around the world menstruate. For millions, stigma, taboo, and a lack of access to sanitary products stop them from participating in work, school, and daily life during their periods. A study conducted earlier this year found that 1 in 4 teens who menstruate said they struggle to afford period products. 

Period poverty causes many people to miss out on life and daily activities many of us take for granted. We hope this new law will help many people who menstruate feel more secure when their period comes along, and safer knowing they will have access to sanitary menstruating products.

read more

Can I Order Alcohol to Go?

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Ramon P. from East Bay who asks: I have a favorite Mexican food place, and during the pandemic I was able to get their margaritas to go. It was a great treat amidst all the chaos that was the pandemic. Is that going to continue, and if so, now that so many people are back to work and, on the road, is it safe for us to do so?

Thank for your question, Ramon. Yes, people will still be able to order alcohol to go now and for the near future. Last month Governor Newsom extended the ability of restaurants to sell ‘to go’ alcohol, with food orders, through December 31, 2026, by signing Senate Bill 389. The bill was introduced by Napa representative, Bill Dodd and is ultimately stated in section 23401.5 of the Business and Professions Code. There are several safety mechanisms built into the law as well as an automatic deadline for the law to expire.  

We all recognize that restaurants were hit hard when the pandemic shutdowns took effect. Countless small businesses were forced to figure out how to go from a thriving restaurant to a ‘to-go’ spot virtually overnight. Modifications to the rules, helped restaurants who were struggling to stay open. This ability to sell ‘to go’ drinks came from the emergency orders of the Alcoholic Beverage Control (“ABC”), which is the governing body that oversees restaurant and bar’s liquor licenses. The rule change came at the end of March, 2020, just as the pandemic was settling in on Californians.  As alcohol sales can make up a quarter to a third of a restaurant’s revenue, the ability to make these sales was crucial for restaurants to make it through the pandemic. 

While State Bill 389 requires a food purchase in order to sell “to go” alcohol to the customer, it allows patrons to continue to take home their favorite adult beverage with their takeout meal. Here are some important points to keep in mind:
Alcohol cannot be purchased alone. The law also requires the order to be picked up by the actual customer, and not a driver from a delivery service. As well, the restaurant selling the ‘to go’ beverages is required to have a liquor license, and the beverage must be sold in a container that is sealed. A customer must store the sealed containers in the trunk of the car, or otherwise away from the passenger compartment for the drive home. There are also size limitations on the drinks that can be sold. The cocktails cannot exceed four- and one-half ounces of liquor and wine is limited to three hundred and fifty-five milliliters. As well there is a two-beverage maximum per meal purchased.  

The requirement that sales are coupled with meals means smaller establishments, think your favorite dive bar, cannot sell to go beverages if they don’t have an in-house food menu. The law has restrictions, requiring a “bona-fide” meal be purchased such that prepackaged products will not meet the requirements, and the food cannot be catered in, like with a food truck. Unfortunately, the small alcohol only spots will not be able to take advantage of this law to serve its cocktails to go. The local bars will remain limited to on premises consumption only.     

While all of this is under the guise of keeping restaurants going, it also brings home a lot of safety concerns just like mentioned in your question. DUIs is the first thing that comes to mind.  Distracted driving is also a concern. Will people abide by the rules to leave the alcohol in the trunk until they are safely home? If the container is sealed and transported home in the trunk, there is little concern the driver of the vehicle would become intoxicated or distracted by the beverages, but what if they do not follow the rules? 

California hasn’t given up all its regulations, by any means. These containers are considered “open containers” which are regulated by the Business and Professions Code, which make it an infraction to possess or consume alcohol in public. So, it is imperative that the ‘to go’ drinks stay in the trunk until the customer is safely home. That protects everyone on the road from risks associated with drinking while driving, or distractions. Additionally, the twenty-one year minimum age requirement is still in full effect, and the purchaser must be able to show ID when they pick up their order. The 2:00 am last call is also still in effect, and no one is selling drinks between the hours of 2:00 am and 6:00 am. This law, permitting the sale of ‘to go’ drinks will automatically expire on December 31, 2026. This will give Californians plenty of time to evaluate if these rule changes are helping the restaurant industry, but also importantly, to confirm if alcohol ‘to go’ is safe for Californians.  

read more

Who Is Responsible For Discarded Needles In The Street?

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Nancy G.  from San Francisco: Recently, I moved to San Francisco for a job opportunity. Like many people here, I sold my car and now get around by either walking, biking or taking Bart to work. While walking to and from work, I noticed many used needles on the ground. I know the City of San Francisco tries their best to provide services to those in need, I am worried about the increased number of uncapped and used needles on the ground. Although my shoes are protecting my feet, in the chance that I do not see a needle and it goes through my shoe, what are my rights or the rights of other people if we get pricked by a needle on the ground?

Thank you, Nancy, for reaching out and for your question. This issue is one that San Francisco residents and the community at large have been dealing with for a while now. San Francisco is known for our amazing people, culture, food, arts, cable cars, and bridges. But San Francisco is a major city in the world, and we have many city issues to deal with. In 2018 NBC did a report and looked at 153 blocks in San Francisco. They found discarded needles in 41 blocks and human feces on 96 of the city blocks. It appears that the problem has increased due to COVID-19. The concern with uncapped needles, as you are aware, is that they can be contaminated and can be a health hazard. The city of San Francisco and city leaders are in a constant struggle to maintain clean streets and free of discarded needles. The reality is that this is a very difficult job.

Our office has handled actions against hospitals for improper storage of needles, but your question about needles on the ground in public areas, is a very good question. The cause of action for having an unsafe premise would generally be one that would arise in Negligence. Negligence as a cause of action requires that the person sued:

  1. had a duty to do something,
  2. breached that duty by acting unreasonably,
  3. the Plaintiff who sued the person was injured, and
  4. the damages are casually related to the injury. Generally, business owners must keep the regress and ingress (exit and entrance) safe to their businesses.

Therefore, if the needle is close to any of these areas, and they were aware of this situation, you would arguably establish the first two prongs of Negligence. In much of San Francisco there are also local ordinances that make the business owners responsible for maintaining the sidewalk outside their property, which help you argue what is called negligence per se. 

If your inquiry is how to hold the City of San Francisco responsible, that is a little more difficult. For a case against the City of San Francisco, the standard is different. You would have to allege that the needles make the walkway a Dangerous Condition of Public Property. For this cause of action, you have to prove the walkway was dangerous when used in a reasonable manner, that the City of San Francisco had knowledge of it, had the time and money to fix the condition, and you were harmed by the condition. Assuming you prove the needles constitute a Dangerous Condition, the City of San Francisco has a strong argument that they are doing everything possible to try to combat this problem. 

A problem you have with both a cause of action against the property owners adjacent to the sidewalk and the City of San Francisco, is also what harm was suffered by you stepping on the needle. This may seem strange, because of course the emotional and physical response to stepping on a uncapped needle, not knowing what is in it, is extreme. Often times when a person is pricked accidentally, the needle is tested, the person is put on antiviral prophylactics and told to wait for the results of testing. The pain and worry someone has in this situation goes way beyond the momentary prick you feel. However, the law states that you may not recover damages, unless there was a physical harm caused by the needle. In the Macy’s California, Inc. vs. Superior Court case, a Plaintiff sought emotional distress damages for the fear she suffered after being pricked by an uncapped needle hidden in a returned jacket she bought. In finding that her case could not go forward, the court said: 

The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. Macy’s California, Inc. vs. Superior Court, (1995) 41.Cal.App.4th 744.

Therefore, the courts are not ready to recognize the emotional response to this case, without an actual exposure to material within the needle that causes a detrimental change to the body. Thank you for your question. I am sure many people have thought about this when they see needles on the ground. Please continue to be safe and stay alert as you explore this wonderful city.

read more