Augusta’s District 7

What in the world is going on with naming a replacement fo District 7′s Commission seat? It has now been over 2 weeks since Donnie Smith, District 7′s Commissioner, resigned from his seat. It only took a week for the Commission to appoint a replacement for Joe Jackson after he abruptly resigned last month. Yesterday the Augusta Chronicle ran an article on the likely replacements: Echols, Frantom, and Harris.

One has to wonder why there is, at least from the outside seems, a lack of urgency to appoint a commissioner for District 7. For those who follow the local government, it is fairly easy to guess as to why there was a rush to appoint the commission rushed to get Hasan aboard yet has no urgency to appoint a District 7 replacement.

As the Donnie Smith fiasco has unfolded, I began to think about the District 7 race between Smith and Echols two years ago. I am sure the majority if not all of Smith’s voters now wish they had voted for Echols. During his campaign, Echols pledged not to vote for any property tax increases.

Smith, on the other hand, recently voted for the tax hike, then retreated after the appararent outcry from District 7 residents. Presumably so Smith could save face with his district, Smith voted “no” in the final vote that increased the tax burden.

The vote on the tax increase ended in a 5-5 tie with the mayor casting the tie-breaking vote in favor of the tax increase. If any one of the 5 “no” voters had abstained, the tax increase would have failed. This tactic has been used repeatedly in the past.

Have any of the 5 “no” votes answered the question on why they didn’t abstain? The voters in those districts need to demand answers because their vote was basically a vote in facor of a tax increase.

Adhesion Contracts

After re-reading my blog post from last Tuesday regarding the terms and conditions we agree to on a daily basis, I thought I should clarify that not ALL adhesion contracts are enforceable.

For example, South Carolina courts view adhesion contracts in vehicle purchase agreements (the agreement the car dealer has you sign) with “considerable skepticism”. As a refresher, adhesion contracts have been defined as standard form, non-negotiable, contracts that are offered on a take-it-orleave-it basis.

Courts will not enforce adhesion contracts if the terms are unconscionable. Certainly, many of these contracts are enforceable but I did not want you to come away with the impression that all of them are enforceable.

Be sure to visit my law office’s website at: www.nehlaw.com

Uber

Over the last few weeks I have had the opportunity to go to Atlanta a couple of times. I met some friends over there and we decided to go out to dinner. How were we going to get there? One of my friends from Atlanta suggested we use Uber. I had read about Uber before but had never used it.

It was a great experience. We ended up being picked up by a late model large SUV. It was very clean and the wait to be picked up was short. The driver was very polite. And most importantly, it was much cheaper than a taxi or driving service. It is simple to use, you just download an app on your phone, request a pick up, and pay through paypal.

I have seen ads that Uber is coming to Augusta. It makes me wonder what kind of response Uber will receive from the local taxi companies, the commission, and the law enforcement. The Oxford, Miss. police department has been ticketing Uber drivers for violating a newly enacted ordinance preventing services such as Uber from operating without paying to be a licensed taxi company. You can read about that here.

Memphis similarly created a similar ordinance that similarly banned Uber if the drivers did not pay the taxi fees. The Memphis newspaper, the Commercial Appeal, came out against Uber stating they believed it was a matter of public safety.

My friend who lives in Memphis, wrote a a letter to the editor refuting this assertion. You can find his letter here (subscription required). Basically, he states that Uber already does a more thorough background check than that required by the city ordinance. Further, because of the GPS technology employed by Uber, it would make it virtually impossible for a driver to commit a crime against a passenger and get away with it.

I am anxious to see how the local authorities handle Uber when it gets to Augusta. I am sure the taxi companies will lobby hard against Uber (as they even opposed a city bus stop near Fort Gordon).

The Richmond County Code appears to be broad enough that an Uber driver would be required to pay the taxi regulatory fee. Ordinance Number 1400, adopted April 16, 2013 defines a taxicab as a vehicle “regularly engaged in the business of caryying passengers for hire….” Uber will likely argue that because the drivers use their personal vehciles and aren’t full-time professional drivers, that the vehicles cannot be considered to be regularly engaged in the business.

Uber is able to offer affordable transportation because, in part, they do not have to pay the costly regulatory fees. It will be interesting to see how Augusta handles Uber when it arrives.

Remember to visit my law firm’s website at www.nehlaw.com.

Terms and Conditions

Today I came across this article revealing that researchers have found it would take 15 work weeks for the average internet user to read all of the privacy policies he or she encounters in a year. That is an amazing figure but not overly surprising considering how many websites the average internet user access or subscribes to in a given year.

For example, I am sure that I agreed to a lengthy privacy policy when I bought this domain and when I downloaded the website’s theme.

The article got me thinking, though, about how long it would take the average internet user to read all of the terms and conditions, not just the privacy policies, of all the websites the user visits in a year.

Has anybody ever read the terms and conditions for a website, program, or application? LinkedIn’s user agreement, for example, is over 7,800 words (the privacy policy is about the same length). The terms and conditions on a website are just the latest versions of adhesion contracts – contracts where the consumer becomes bound by the terms if the consumer accepts the product (a/k/a shrink wrap contracts – the consumer becomes bound by the terms after opening the software package).

What has become known as browse wrap agreements – agreements binding upon the person accessing a website without deliberately consenting to the terms (you don’t have to hit “I AGREE”) – have become the norm. Many of these browse wrap agreements contain exclusive an jurisdiction provision and/or arbitration provisions. These provisions end or limit the judicial relief that would otherwise be available to the internet browser.

Because it is nearly unviversally accepted that these type of contract are enforceable, there are few local reported cases.

One that I found, from 2010 in the U.S. District Court for the Northern District of Georgia enforced the forum selection clause in Facebook’s agreement after a Facebook user brought a suit alleging copyright and patent infringement. The Court declined to address the case on the merits citing the user’s agreement to litigate only in Santa Clara County, California. In other words, the Facebook user couldn’t have his day in court in Georgia.

Given how much we surf the internet, we have likely unknowingly submitted ourselves to a plethora of terms and conditions and our only remedy for any wrong is likely in a far away locale.

The Hiatus is Over

I apologize for not posting during the last few weeks. I have been busy starting my own law firm. My law website can be found at nehlaw.com. When I started this blog I posted a picture of me standing under the Miller Theater marquee – “Coming Soon”. Opening my own firm is what I was referring to. Now that I have done that, I will get back to posting regularly as I continue to get everything set up and running. A lot has happened around Augusta in my absence including the resignation of my commissioner. Hopefully I will have the opportunity this week to post my thoughts on that and some other events that have occurred around Augusta. Thank you!

The Augusta Commentator