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How Far Can L&I Go in Fighting Blight in Philadelphia?

9/19/2018

The Pennsylvania Supreme Court answered that question last week in Rufo v. City of Philadelphia, when it ruled that the Department of Licenses and Inspections (L&I) could require the owner of a vacant property in Philadelphia to install windows and doors rather than board up or otherwise seal the property.

The case turned on the constitutionality of a provision in the Philadelphia Property Maintenance Code that applies to any vacant property deemed to be a “blighting influence." (See Phila. Code, Sections PM-202 and PM-901.2. Note that the current version of the Code uses the term "blighting problem," but the definition remains the same.) The owner stated that he had previously installed windows at the property in question, the former Gretz Brewery at 1524 Germantown Ave., but said the windows were broken by vandals within a few days of installation. The owner argued that the “blighting influence” provision was focused solely on aesthetics rather than public safety, and was therefore an unconstitutional exercise of the City’s authority.

The City argued that the lack of real windows and doors on a property has a “significant adverse effect on the community,” and cited multiple studies that it used to craft its definition of blighting influence. The Pennsylvania Supreme Court sided with the City, finding that the City fairly explained the basis for enactment of the ordinance, while the owner “failed to offer any evidence or persuasive argument to overcome the presumed constitutionality” of the ordinance in question. You can read the full opinion here.

The takeaway? It’s getting harder to speculate in the city. From experience, I can sympathize with the owner’s argument: he’d make some cosmetic improvements to the building, only to see it vandalized soon thereafter. But in 2018, with a vibrant and growing city, that’s more an argument for why the property should not sit vacant rather than an argument for boarding or sealing it. Rehabilitation and redevelopment are the order of the day, and anyone who buys real estate in the city should plan accordingly.

Philadelphia Landlord-Tenant Compliance Guide - Part Two

7/6/2018

Welcome to my second post on the legal requirements for residential rental properties in the City of Philadelphia. Part one is below and at this link. In this post, I’ll focus on compliance with Philadelphia’s Lead Laws.

Lead Certification - This certification is required for residential rental units in Philadelphia built prior to 1978 where children age six or under will reside. Those properties - referred to as “targeted housing” under the law - must be certified as either lead-free or lead-safe by a licensed inspector or certified technician. Some properties, including those owned or subsidized by the Philadelphia Housing Authority, are exempt from the law.

The lead law requires the landlord to obtain a “lead safe” certificate, present it to the tenant, and have the tenant sign it. The landlord must then send a copy of the signed certificate to the Philadelphia Department of Public Health. The city recently expanded the law to include lead water service lines and plumbing components, but as of July 2018, no additional information or resources on the lead water amendments are available from the city.

The city code states that a landlord who is not in compliance with the Lead Law cannot collect rent or evict a tenant. In addition, the lead law gives a tenant the power to sue a landlord to return any rent previously paid to the landlord during any period where the landlord did not have a valid lead certification.

Some thoughts on compliance with this law: Although this certification is only required for units where kids ages six and under will reside, it’s a good idea for all landlords to obtain this certification. First of all, a tenant could become pregnant or adopt a child, and the landlord may not know. A tenant could also have children who visit periodically, or whose temporary visit turns into an indefinite stay. A well-drafted lease will list all occupants and their ages, but it’s risky to rely solely on the lease - even if the lease does not list any children, the landlord-tenant court may consider testimony from a tenant about their changing living situation. If the property has been certified, this will not be an issue.

It’s hard to overstate the importance of strict compliance with all these certifications. A landlord who doesn’t have a valid Rental License or Certificate of Rental Suitability can’t evict a tenant for any reason, whether nonpayment of rent, termination of term, or breach of lease. A landlord who has not complied with the lead law can’t evict a tenant, and can also be sued by the tenant for a refund of rent already paid.

Don’t take chances with the lead law. Compliance is inexpensive, but a civil judgment could cost thousands.

Philadelphia Landlord-Tenant Compliance Guide - Part One

5/16/2018

Landlords and tenants often need help navigating Philadelphia’s complex landlord-tenant laws. This is part one of a two-part series on the legal requirements for residential rental properties in the City of Philadelphia. I’ve tried to make this confusing area of the law easy to understand without oversimplifying or leaving out important details. If it still seems tough to follow, that’s because it’s hard to navigate the system without an experienced attorney on your side.

Residential landlords in Philadelphia must obtain the following licenses or certificates in the order outlined below.

1.    Commercial Activity License (formerly known as Business Privilege License). This license is required for anyone operating a business in Philadelphia, whether they’re a corporation or individual. This license is free and easy to obtain by clicking here.

2.    Rental License (also known as Housing Inspection License). According to the Philadelphia City Code, a landlord cannot collect rent during any period when he or he does not have a valid Rental License. Similarly, a landlord cannot obtain a judgment for possession without a valid Rental License. In fact, Philadelphia Municipal Court won’t accept an eviction complaint unless a copy of a valid Rental License is attached.

You’ll need your Commercial Activity License number when applying for the Rental License. As of 2018, a Rental License costs $55 per unit. You can obtain one here.

3.    Certificate of Rental Suitability. A Certificate of Rental Suitability requires the landlord to certify three things: that there are no open code violations on the rental unit; that the rental unit has the required fire protection and smoke detection equipment; and that the landlord has provided the tenant with the City’s Partners for Good Housing handbook.

A landlord cannot collect rent or obtain a judgment of possession for any period of time before a Certificate of Rental Suitability is issued. The Certificate of Rental Suitability is free and can be obtained here, and the Partners for Good Housing Handbook is available here.

As you can see, Philadelphia landlord-tenant laws are much more complicated than landlord-tenant laws in Montgomery, Delaware, Bucks, and Chester Counties. Check back for part two of my Philadelphia Landlord-Tenant Compliance Guide, where I’ll discuss the complexities of Philadelphia’s landlord-tenant lead disclosure law and the recent changes enacted in 2017.

When and how can a defendant withdraw from a guilty plea?

12/30/2017

Earlier this year, I published an article in the Camden County, NJ Barrister in which I argued for clarification of the standard for guilty plea withdrawals. The article focuses on New Jersey law, although the standard is similar in Pennsylvania. The article is reprinted in full below.

Textual Tension and the Retraction Trap
The NJ Supreme Court should clarify State v. Slater & the standard for guilty plea retraction

It’s an all too common scenario for defense counsel: after a series of discussions with your client and negotiations with the prosecutor, you reach a plea agreement. You reduce the agreement to writing using the standard five-page form, review each question on the form with your client, and place the plea on the record in open court. Then, sometime before sentencing – or maybe on the date of sentencing – your client has a change of heart. Your client now wants to go to trial, or maybe wants a better deal. What’s the standard for withdrawing a guilty plea? Must the client simply show a good faith reason for wanting to withdraw, or must he or she show something much more?

Plea withdrawals in New Jersey are controlled by the state Supreme Court’s opinion in State v. Slater, 198 N.J. 145 (2009). In Slater, two police officers wanted to question a man named Hass in connection with a string of burglaries. An informant told them that Hass, along with another man, Neider, might be found in a certain room at the Millville Motor Inn. The informant provided a description of the men and said that they likely had a small amount of cocaine with them in the room.

The officers went to the motel room, knocked on the door, and Slater answered. Slater did not fit the informant’s description, and he appeared to be alone in the room. The officers asked if they could come in, and Slater agreed to let them enter. Again with Slater’s permission, the officers checked the room for other people, found no one, but did see marijuana in a partially open drawer. The officers then arrested Slater, opened the drawer further, and found 15 grams of crack cocaine and a digital scale.

Slater was indicted and charged with three drug offenses. He moved to suppress the evidence, and after suppression was denied, he reached a plea agreement with the state. During his plea colloquy, Slater acknowledged on the record that he understood the terms of the plea; waived his right to a trial; had not been forced or threatened to enter the plea; had not been promised anything else regarding the agreement; and was not under the influence of drugs or alcohol. He then provided a factual basis for the plea in which he admitted that at the time of his arrest, he was in possession of a certain quantity of cocaine and was “going to sell or share some or a portion of that cocaine.” Id. at 152.

Twelve days later, Slater filed a pro se motion to withdraw his guilty plea. He attached a handwritten certification in which he stated that he “had no control over the drugs that was found in motel room [, and] therefore I should not be punished.” Id. Slater’s presentence report, dated two weeks after his pro se motion, said that Slater repeatedly told police that the motel room was rented by his brother-in-law, named Fowler, and that Slater was just visiting the room. The PSR further stated that Slater denied culpability for the offense, and that his sister’s boyfriend had brought him to the motel room “to chill.” Slater said that neither the cocaine nor marijuana belonged to him and that he wanted to retract his plea.

At sentencing, Slater told the trial court that he was only visiting the motel room and that the drugs were not his. He said he accepted the plea only because he had served so much time in jail that he thought he would be released soon after his plea. “And that’s the only reason I did it. ‘Cause I’m not guilty,” Slater said. Id. at 153. The trial court found that Slater had simply changed his mind about the plea and lacked a sufficient basis for withdrawal. The Appellate Division affirmed, agreeing that a “change of mind” provided no basis to withdraw a guilty plea.

The Supreme Court reversed, holding that Slater had asserted sufficient reasons to withdraw his plea. The Court first noted that guilty plea withdrawals are governed by the New Jersey Court Rules. Before sentencing, plea withdrawal applications are controlled by Rule 3:9-3(e), which provides that a trial court may grant a motion to withdraw “in the interests of justice.” Postsentencing motions to withdraw face a higher standard under Rule 3:21-1, which states that motions may be granted to correct a “manifest injustice.”

The Court stated that trial courts should exercise their discretion liberally to allow pre-sentencing plea withdrawals. The burden rests on the defendant “to present some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. at 156, quoting State v. Smullen, 118 N.J. 408, 416 (1990). The Court noted that while defendants must show more than a change of mind, the inquiry cannot end there, since all withdrawal motions by definition entail some change of mind.

At this point, we can see that Slater presented a plausible basis for his request, as well as a good faith defense on the merits: he would argue at trial that he was simply visiting the room, which was not registered to him, and he had no knowledge of what was in the room. Whether or not this is the strongest case for the defense, it certainly meets the plausible basis/good faith standard set out by the Court.

However, the Court did not stop with the plausible basis/good faith standard, but rather went on to establish four factors that trial courts should use to evaluate plea withdrawal motions: (1) Has the defendant asserted a colorable claim of innocence? (2) What are the nature and strength of the defendant’s reasons for withdrawal? (3) Was the plea entered as part of a plea bargain? and (4) Would withdrawal of the plea result in unfair prejudice to the State or unfair advantage to the accused?

The Court applied these factors to Slater’s case and held that he should be allowed to withdraw his plea. Despite the fact that Slater was the sole occupant of a motel room with drugs in plain view, the Court found that he had alleged facts sufficient to support an assertion of innocence. The Court further found that Slater’s attorney did not well advise him of his possible defenses – for example, that police received a tip that they would find two males who did not fit Slater’s description, and that the room apparently was not registered to Slater.

The problem lies with the phrase “colorable claim of innocence.” Certainly, some defendants are innocent of the crimes charged. But by using the term “innocence,” the Court created a nearly insurmountable barrier. While Slater was successful in his motion, in most cases it is almost impossible for a defendant to withdraw his or her guilty plea, so long as the plea was knowing and voluntary and supported by a factual basis on the record. In applying the Slater factors, trial courts often focus on “innocence” – a very high standard, higher than any other in our criminal justice system – rather than the “colorable claim” in the first Slater factor.

The Supreme Court should address the tension in the Slater language and clarify whether trial courts should evaluate plea retractions according to a plausible basis/good faith/colorable claim standard, which would make retractions more common, or the innocence standard, which makes retractions exceptionally rare. At present in our courts, the latter is the norm. Whichever the Court intends, it should clarify the standard for practitioners and judges alike.

© 2017 William R. McLaughlin, Esq.
Reprinted with permission from the Camden County Bar Association.
Published by the Camden County Bar Association
VOL. 65, No. 7 • March 2017

The Difference Between Eviction and Ejectment

11/28/2015

I often handle cases involving possession of real property. In a standard case, a property owner contacts me to remove a tenant who has failed to pay rent or otherwise breached a lease. In most cases, this is straightforward: I draft and file the appropriate complaint for eviction in District Court or Municipal Court (in Pennsylvania) or the Special Civil Part (in New Jersey). But once in a while, what the owner thought was a simple landlord-tenant case turns out to be something more complicated. Here’s an overview of the difference between eviction and ejectment -- the two basic types of disputes over possession of real property.

Eviction

As mentioned above, this is the basic landlord-tenant case that most of us are familiar with. The plaintiff is an individual landlord, management company, or corporate owner. The defendant in a residential case is an individual or group of individuals or, in a commercial case, anything from a sole proprietor to a larger corporate entity. But once in a while, a property owner is not a landlord as defined under the law, and the person in the property is not a tenant.

In order to proceed in landlord-tenant court, there must be a landlord-tenant relationship between the parties. In most cases, this relationship is memorialized by a written lease. But what if there’s no written lease? The parties still may be landlord and tenant. For example, in a situation with no written lease, look to see if periodic rent has been agreed upon and paid. How much is the rent? Is it payable monthly, weekly, yearly, or at some other regular interval? Has the tenant ever paid it? Are there other indicia of a landlord-tenant relationship?

If rent has not been reserved and paid, or if the parties cannot agree on this basic fact, it’s possible the parties are not landlord and tenant, and therefore the case cannot be heard in landlord-tenant court. What then?

Ejectment

If the parties don’t have a landlord-tenant relationship as described above, then an owner who wants to remove an occupant must file an action in ejectment. Ejectment is the proper way to remove a person other than a tenant who is in possession of real property -- for example, a temporary occupant who has never paid rent but now refuses to leave. It’s hard to defend against a well-pleaded complaint in ejectment: in order to prevail, the defendant must show an ownership interest in the property, a contractual agreement with the owner, or some other ongoing right of possession.

The downside for an ejectment plaintiff is that the matter is heard in the regular trial court: the Court of Common Pleas in Pennsylvania or the Superior Court, Law Division in New Jersey. This requires more time and effort and, unlike filing in the user-friendly landlord-tenant courts, it often requires the assistance of a qualified and experienced attorney.

Do you have questions about the difference between eviction and ejectment in Pennsylvania or New Jersey? Call for an appointment so we can discuss the facts of your individual case.

The Accelerated Misdemeanor Program (AMP 1 and AMP 2) in Philadelphia Municipal Court

6/29/2015

Philadelphia Municipal Court has a number of diversionary programs available to people charged with certain non-violent misdemeanors such as buying or possessing drugs. One such program is the Accelerated Misdemeanor Program, commonly known as AMP.

AMP is divided into two tiers, AMP 1 and AMP 2. AMP 1 offers participants an opportunity to have their case dismissed if they complete community service and pay a fine (slightly over $200) within a certain period of time. A big advantage of AMP 1 is that the defendant is not required to enter a guilty plea – the case is kept active for status hearings, but the defendant is not required to plead guilty. Once the program is complete, the prosecution is withdrawn and the participant can have the charge expunged. With certain exceptions, AMP 1 is only offered to people with no criminal record or a very limited record.

AMP 2 may be an option for someone who has a criminal record limited to non-violent offenses. The program may also be offered to someone who has a substance abuse problem. AMP 2 requires a plea of guilty or no contest, and participants are required to pay a fine and complete community service or substance abuse treatment. The primary benefit of AMP 2 is that successful participants do not have to serve a term of reporting probation – once the AMP 2 requirements are satisfied, the matter is marked complete and no additional reporting is required. Depending on the person’s criminal history, certain AMP 2 cases are eligible for expungement.

AMP cases are not heard in the Criminal Justice Center. Instead, they are handled in courtrooms in certain local police stations, such as the 8th District at Academy and Red Lion; 18th District at 55th and Pine; 24th District at 3901 Whitaker Ave.; and the 35th District at Broad and Champlost.

Who is eligible for AMP? The District Attorney’s Office makes the initial decision. However, as with any diversionary program, certain eligible defendants will slip through the cracks. If you believe you should be eligible but you have not been offered admission to AMP 1 or AMP 2, ask an experienced lawyer if there is a way to gain admission.

What if you violate the terms of AMP? That depends on the nature of the violation. If it’s simply a matter of more time to complete community service or drug and alcohol treatment, participants will often get an extension. But if a participant is arrested on a new charge, the D.A. will almost always try to remove him or her from AMP. If no plea has been entered, the case goes back on the regular trial list. If the person has already pleaded guilty or no contest, he or she may face sentencing on the underlying charge.

Is AMP right for you? For someone with little or no criminal history, AMP 1 can be a great option – it’s a way to have the case dismissed and expunged from your record without going to trial. For a person with a drug or alcohol problem, AMP 2 can provide substance abuse treatment while possibly avoiding a guilty plea (depending on the circumstances).

On the other hand, you should not accept AMP if you want to fight the charges. As in any other case, there may be strong options available to the defense, such as a suppression motion and the opportunity to cross-examine prosecution witnesses. Anyone charged with a misdemeanor offense in Philadelphia should discuss these options with an experienced defense attorney before making a decision.

Do I need a lawyer for a DUI charge?

2/19/2015

People often ask me if they really need to hire a lawyer when facing a DUI charge in Philadelphia. My response: everyone is innocent until proven guilty, but without a good lawyer, you’ll never find the weakness in the prosecution’s case.

When you meet with me, we will discuss all aspects of your defense. If you retain me to represent you, I will do the following:

Represent you at all court appearances up to disposition in Municipal Court.
Thoroughly review all of the prosecution's evidence, including audio and video recording.
Prepare and argue all appropriate motions, including motions to suppress or exclude evidence.

Some issues I will raise in preparing a DUI defense:

Did police have a valid reason to pull you over? They need at least reasonable suspicion of a traffic violation to stop a car.
Did police have probable cause for a DUI arrest? Did the officer perform field sobriety tests? If not, what was the arrest based on?
Did police administer a breath test? Was the machine properly calibrated? Were police trained to use it? Did they use it properly?
Does the police paperwork and audio/video recording support what the officer will say in court?

These are just a few of the grounds for fighting a DUI charge in Philadelphia. Call for an appointment so we can discuss the particular facts of your case.

Constitution Conversation on December 2

11/21/2014

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Join me on December 2 for a discussion inspired by the Neshaminy High School newspaper controversy. This Constitution Conversation sponsored by My Daily Constitution will focus on the free speech rights of high school students and the government’s power to regulate that speech.

The dispute began when student editors of the Playwickian newspaper decided last year not to print the term "Redskin" in reference to the school's sports teams. Since then, the controversy has been the subject of extensive local and national media coverage. At our conversation, we’ll discuss the law underpinning the controversy, including the U.S. Supreme Court’s decisions in Tinker v. Des Moines, Hazelwood v. Kuhlmeier, and West Virginia v. Barnette.

Best of all, attendees can take home a free copy of the U.S. Constitution courtesy of My Daily Constitution.

Tuesday Dec 2
6 - 8 PM
Levittown Branch, Bucks County Public Library
Large Meeting Room
7311 New Falls Road,
Levittown, PA 19055-1006

Thanks to Linda Pollack and My Daily Constitution for inspiring and coordinating the event. For more information, contact me using the contact button above or reach out to MDC at info@mydailyconstitution.org.

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Law for Lawyers: CLE Seminar on November 13

11/12/2014

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Tomorrow afternoon, I'm scheduled to teach a continuing legal education seminar entitled "Fundamentals of New Jersey Residential Landlord-Tenant Practice." Much of what I teach in the seminar comes from practical experience I gained as a legal services attorney representing people in landlord-tenant disputes. I won't say that I've seen it all, but I've seen a lot: landlords who lease illegal apartments unfit for human habitation; government agencies that often miss the mark in providing services; and, yes, some tenants who are bound and determined to game the system.

The seminar runs from 4 to 8 p.m. at Rutgers Law School in Camden, NJ, and seats are still available. If you're interested, click on the link above to register, and be sure to stop by and introduce yourself during the break.

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Hello and welcome

9/26/2014

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Welcome to the McLaughlin Law website. As you can see in the Attorney Profile section, I have 10 years of practice experience. I worked for several years representing low-income tenants and consumers at a local legal services office, where I had hundreds of trials and contested motions. Most recently, I worked for two years as a visiting clinical professor and managing attorney of the Federal Prisoner Reentry Project at Rutgers Law School in Camden, New Jersey.

Working at Rutgers Law was a fantastic experience. I got to work with some exceptionally bright, talented and motivated law students and help them develop into practice-ready attorneys. My students and I represented clients who were incarcerated in federal prison, and we assisted them with a variety of legal matters in both civil and criminal courts.

A good lawyer will always learn something from an experience. So what did I learn as a legal services attorney and clinical professor? Many things. First and foremost was this: clients who have a good attorney almost always get a better outcome than clients who don't. Another thing: there is no one-size-fits-all approach. Lawyers have to take the time to listen to their clients and learn all the facts of each client's case. As an attorney, if you don't devote time to a case, you may still get a good result -- sometimes. But eventually, an unprepared lawyer will have an unhappy client.

I'll write more soon on the value of trust in the attorney-client relationship. For now, it's back to work.

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McLaughlin Law Blog

How Far Can L&I Go in Fighting Blight in Philadelphia?

Philadelphia Landlord-Tenant Compliance Guide - Part Two

Philadelphia Landlord-Tenant Compliance Guide - Part One

When and how can a defendant withdraw from a guilty plea?

The Difference Between Eviction and Ejectment

The Accelerated Misdemeanor Program (AMP 1 and AMP 2) in Philadelphia Municipal Court

Do I need a lawyer for a DUI charge?

Constitution Conversation on December 2

Law for Lawyers: CLE Seminar on November 13

Hello and welcome

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