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RSP QUARTERLYRSP QUARTERLY
Todd Bickel
Vincent Borst
Marshall K. Brown
William A. Castle, Jr.
Catherine A. Cooke
Kimberly A. Doucas
Richard H. Fimoff
Andrés J. Gallegos
Richard L. Gayle
Barry Glazer
Howard S. Golden
R. Kymn Harp
Crystal L. Kontny
Andrew W. Lapin
James M. Mainzer
Eric G. Patt
Stephen P. Patt
Nathaniel J. Pomrenze
Diana H. Psarras
Arthur Radke
Jeffrey M. Randall
Andrew M. Sachs
Paul T. Saharack
Edward S. Salomon
Daniel C. Shapiro
Donna M. Shaw
Caroline S. Smith
Scott D. Spears
Richard Lee Stavins
Tracy E. Stevenson
Robert J. Trizna
Robert McKenna Winter
Alan J. Wolf
Larry N. Woodard
IN THIS ISSUE
RSP GLENVIEW
2222 Chestnut Ave. | Ste. 101 Glenview, Illinois 60026 Tel 847.729.7300 Fax 847.729.7390
RSP CHICAGO
25 East Washington St. | Ste. 1000 Chicago, Illinois 60602 Tel 312.782.9000 Fax 312.782.6690
Article by: ANDRÉS J. GALLEGOS | 312.456.0381 | [email protected]
A priest, a blind man, and a horse walk into a bar… After March 2011, that no longer was the opening line of a silly joke: it became the law of the land, well sort of.
Service Dogs and Miniature Horses for the Disabled
Service dogs and miniature horses for the disabled
COVER STORY
Is the real estate market getting better?
PAGE FOUR
Social media, local governments and free speech
PAGE TWO
Conventional wisdom, urban legends, RSP news, recent announcements, and more…
PAGE FIVE
How do they measure the “square footage” of a house or condominium?
PAGE SIX
Robbins, Salomon & Patt, Ltd. | Attorneys at Law The Difference is Clear ®
RSP QUARTERLY
The Question (answer on page five)
What public building at 1121 South State Street in Chicago was always referred to as Eleventh & State?CHICAGO
LOREFor more information, visit us online at www.rsplaw.com
RSP ATTORNEYS
New regulations under the Americans with Disabilities Act require all public entities (like state and local governments) and all places of public accommodation (like restaurants, bars, hotels, shopping centers, hos-pitals, doctor offices and condominiums) to permit people with disabilities to be accompanied by either a service dog or a miniature horse. Yes, a miniature horse!
Over the last 20 years, the list of permitted service animals for the disabled grew to include a variety of species: pigs, monkeys, snakes, lizards, birds and rodents. But now, a newly revised rule restricts
“service animals” to dogs that have been individually trained to do work or perform tasks for the benefit of an individual with a disability. Examples include assisting individuals who are blind or have low vision with walking and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, pulling a wheelchair, and retrieving items such as medicine or the telephone. Yes, if the dog can answer the telephone, he definitely qualifies.
Public entities and public accommodations may exclude the dog only if it is out of control and the handler does not take effective action to control it,
or if the dog is not housebroken. The dog must be on a leash, harness, tether or under voice control, signals or other effective means of control.
Public entities and public accommodations may not ask about the person’s disability, but can make two inquiries to determine whether a dog qualifies as a service animal: is the dog required because of a disability? and what work or task has the dog been trained to perform?
In addition to a dog, a disabled person may be accompanied by a miniature horse. What’s a miniature horse? As the name implies, they are tiny horses used like guide dogs for the blind and to pull wheelchairs and provide stability and balance for people with ambulatory impairments. For some disabled folks, a miniature horse can be better than a dog. A miniature horse’s average life span is 25 years, compared to seven years for a dog, and they are generally much stronger than dogs. So, if a disabled person enters your office or condominium building with a very small horse, be careful. He’s legal. On the other hand, if he arrives with a pig, out he goes.
Local governments are under
increasing pressure to provide
the public with greater access to
information. Social media sites –
Facebook, Twitter, MySpace,
YouTube, and Flickr – provide
increasingly useful outreach and
communication tools. However,
governmental entities face con-
stitutional issues that complicate
the use of social networking as
a communications strategy.
The interactive nature of social
media provides specific challenges
for units of local government.
A private user on Facebook is
free to restrict content or delete
unwanted posts from that user’s
“wall.” However, a municipality
does not have the same flexibility
when it comes to removing posts
that are deemed unwanted or
that express unpopular opinions.
By removing such posts from a
governmental entity’s wall, local
officials may run afoul of the
First Amendment of the U.S.
Constitution, which generally
prohibits the government from
regulating speech. Private entities
have no such restraints.
A local government’s social
media page will likely have some
level of interactivity, meaning
that citizens can post messages
and comment on information
provided by the local government.
Once that occurs, the page will be
characterized as a public forum.
Generally, a forum is considered
one of three types for governmen-
tal purposes: a traditional public
forum, a designated public forum,
and a non-public forum.
A traditional public forum is
a street, sidewalk, park, or
other place devoted to the free
exchange of ideas. In these
areas, government control of
access is permissible only to
serve a compelling governmental
interest, and that control must
be narrowly drawn to achieve
such interest.
A designated public forum is
one where the government
intentionally designates a non-
traditional public forum for
public discourse. Examples
include public comment time at
a sanctioned meeting of elected
officials, or the designation of
a specific area of government
property for holiday displays
at Christmas time. Government
restrictions on speech in a
TWO
Article by: ERIC G. PATT
ERIC G. [email protected]
Social Media, Local Governments and Free Speech
by: RICHARD LEE STAVINS
Fact or Fiction; finders keepers, losers weepers. ARTICLE UPDATE
RICHARD LEE [email protected]
RSP QUARTERLY Fall 2009
Great Urban Legends Of The Law: Fact or Fiction?
Two years ago, we told our readers about an obscure Illinois statute, the Estrays and Lost Property Act, that sets up a legal procedure for a person to use who finds lost property whereby he reports it to the County Clerk, signs an appropriate affidavit, and eventually becomes the lawful owner of the property if no one claims it.
We commented: “Although no one ever complies with this law, there it sits at 765 ILCS 1020, waiting to be used someday.”
Fast-forward now two years. In September 2011, the Chicago Tribune reported on a McHenry County man who found $150,000 cash in his back yard and turned it over to the authorities and then “filed an affidavit in the McHenry County Clerk’s office under the Lost Property Act so that he can claim the money if no one else does.” Well, well, someone is finally using the Estrays and Lost Property Act. Good for him! Maybe he read our article.
THREE
designated public forum are
subject to the same strict scrutiny
standards as restrictions in a
traditional public forum.
A non-public forum is one where
the government does not intend
to permit expressive activity.
Examples are courtrooms, most
governmental buildings, and
legislative sessions. Control over
access to a non-public forum
can be based on subject matter
and speaker identity, so long
as the distinctions drawn are
reasonable in light of the purpose
served by the forum and are
viewpoint neutral.
What does all this mean for
social media? Because social
media is a new phenomenon,
it is questionable whether courts
would deem a social media site
as a traditional public forum.
A local governmental entity that
establishes its presence on an
interactive website effectively
grants permission to the public
to engage in expressive activity at
that site as a matter of course.
Accordingly, courts are more
likely to find that the govern-
ment intends the site to be
a designated public forum.
Therefore, any governmental
restrictions must be narrowly
tailored to serve a significant
government interest.
This means that restrictions on a governmental social media page must be reasonable and viewpoint neutral. For example, if a municipality allows people to post messages commenting on how terrific its Fourth of July fireworks show was, it must also allow them to post complaints about the show.
However, this does not mean that anything and everything must be permitted. Obscenities, libel, and threats may be barred from the social media site. Any governmental entity with a social media site must establish clear policies and guidelines to be used in determining the allowable topics of discussion at the site and the types of
comments that will be barred.
These policies must be estab-
lished in a content-neutral
manner, so that the municipality
is not engaging in viewpoint
discrimination, which is prohib-
ited under the First Amendment.
Posts critical of the government or
providing incorrect information –
so long as they are not obscene,
libelous or threatening – must
be allowed to remain. The gov-
ernmental entity’s site adminis-
trator could, of course, post
a response to the criticism or
correct any misinformation. The
First Amendment encourages
robust debate.
A social media policy with a
well-defined purpose, standards
for appropriate public posting
of comments, and that publicly
sets forth the municipality’s right
to delete certain objectionable
content will allow governmental
entities to take advantage of the
interactive nature of social media,
while limiting potential problems
and concerns regarding First
Amendment violations.
FOUR
Maybe – just maybe – the com-
mercial real estate market is
beginning to improve ever so
slightly. It sure couldn’t get
much worse.
Real estate investors and devel-
opers who have been mostly on
the sidelines are beginning to
jump back in the game to take
advantage of falling prices and
distressed projects. Recent local
examples include:
• A suburban Chicago retail
development that was dead in
the water two years ago is being
revived by a developer who
acquired the land through a
foreclosure sale, and will soon be
under contract to sell a portion
to a national retailer with plans
to retain and develop the rest.
• An investor is purchasing fully-
entitled land for a residential
development in western Illinois at
a fraction of the cost paid by the
prior owner just a few years ago.
• A developer is under contract
to purchase a Chicago parking
facility via a “short sale” with
plans to redevelop it.
• Another developer recently
purchased a vacant building on
Chicago’s north side and
has signed a lease with a
well-known retailer.
Commercial real estate bank
lending slowed substantially
following the 2008 market crises,
which made doing a real estate
deal extremely difficult if not
impossible. Banks now seem to
be getting a handle on whatever
real estate loan skeletons may
have been in their closets and
are cautiously getting back into
the business of again making
real estate loans. The terms are
much tougher, however, than
in the “good old days” of circa
2007. Typically, those terms
include lower loan-to-value
ratios, higher interest rates,
and requiring guarantees from
individuals with substantial
liquidity relative to the amount
being borrowed.
Nevertheless, new real estate loans are being made, rather than just modifications and extensions of existing loans, which have served as the bulk of the real estate
lending activity in recent years.
Recent new loans we have seen
include these properties:
• An office building and related
parking facility in Chicago.
• A retail property co-anchored
with national tenants in
Indiana.
• A health club facility in Chicago.
• A student housing complex
in Mississippi.
The economy in general is cer-
tainly not thriving, and S&P’s
downgrade of the U.S. credit
rating and recent nosedive in
the stock market is yet another
reminder of that. Nevertheless,
many of these projects would
likely have not gone forward even
one year ago.
The increased level of activity in
the real estate market, however
slight, seems to indicate it may
be getting better out there, and
for those who are affected by the
health of the commercial real
estate market, even a little bit of
good news is welcome, indeed.
Article by: TODD BICKEL
Is the Real Estate Market Getting Better?
TODD BICKEL [email protected]
By your beloved dynamic duo : RICHARD LEE STAVINS AND LARRY N. WOODARD
Recent Announcements & Conventional Wisdom
The Answer (to our quiz on page one)
The building at 1121 South State Street officially was the Central Police Headquarters, but no one ever called it that. It was always: Eleventh & State.
CHICAGOLORE
The publication of this legal newsletter by Robbins, Salomon & Patt, Ltd. is not intended as a solicitation of representation, but rather is a service to clients, other professionals and friends of the law firm. Written entirely by members of the firm, we welcome any comments or questions about topics covered in this issue. This newsletter is not intended as a replacement for individualized legal advice. The contents of this publication may be quoted or reproduced if credit is given to the source.
©2011 Robbins, Salomon & Patt, Ltd. FIVE
ACHIEVEMENTS OF NOTE
Robert Winter served as program facilitator for the Illinois Supreme Court’s orientation program for new law students.
Robert Trizna was appointed to the board of trustees of the Park Ridge Library.
Dan Shapiro and Jim Mainzer have joined Robbins, Salomon & Patt. Dan is a 1987 graduate with honors from Washington College of Law at American University. He concentrates his practice of law in zoning land use, municipal law and litigation. He lives in Deerfield where he serves on the Plan Commission. Jim is a 1978 graduate of Illinois Institute of Technology - Kent College of Law. After law school, he worked for five years as an Internal Revenue Service agent. He is also a certified public accountant. Not surprisingly, Jim concentrates his practice in tax law. He also advises small businesses.
Larry Woodard authored “Selling Commercial OREO: a Practical Guide,” which appeared in the Journal of Taxation and Regulation of Financial Institutions. Larry also was a speaker at an Illinois Institute of Continuing Legal Education seminar on the same subject. (see fig.1)
Kymn Harp authored “Give Them Their Due: Due Diligence in Commercial Real Estate Transactions,” which appeared in Probate & Property, a publication of the real property, trust and estate law section of the American Bar Association. (see fig.2)
Richard Stavins authored “Stay of Judgment Pending Appeal: Avoid the Appeal Bond Trap,” which appeared in the Illinois Bar Journal, a publication of the Illinois State Bar Association. (see fig.3)
Tracy Stevenson was appointed adjunct professor of law at the John Marshall Law School in Chicago. She will be teaching drafting of documents in civil litigation. Tracy will continue practicing law full time with Robbins, Salomon & Patt.
GREAT URBAN LEGENDS OF THE LAW
Fact or Fiction? “Possession is nine-tenths of the law.”
:: PARTLY FACT & PARTLY FICTION ::
We don’t know whether this is fact or fiction, because no one really knows what it means.
There are many explanations of what this oft-stated aphorism is supposed to mean. One is that “posses-sion is nine-tenths of the law” means that nine of the ten common law writs are possessory in nature. The problem with this explanation is that there are many more than ten common law writs and far less than nine require a possessory interest. So much for that theory.
Another explanation is that the phrase really is, “possession is nine points of the law,” and that the nine points are patience, money, a just cause, good counsel, believable witnesses, a true jury, a good judge, good luck and a hell of a good lawyer. This is pure urban legend.
The best theory – because several courts have said so – is that in a legal dispute concerning title to property, the party in possession of the property will often be declared to be the owner. Two federal courts have said that this aphorism is actually still a rule of the common law, not just a proverb, that it dates back to 1616 and that it means that in court a person who possesses property has
“a clear advantage” – whatever that means. Day v. Case Credit Corp., 2007 WL 604636; and Willcox v. Stroup, 467 F.2d 409. A Pennsylvania state court said that, “the maxim possession is nine-tenths of the law is not a legally accurate rule, but possession is an element to consider in determining ownership.” Commonwealth v. Younge, 667 A.2d 739.
WORDS TO LIVE BY
There are three things a person must do alone: testify, die and putt.
RICHARD LEE [email protected]
(above left)
(above right)
LARRY N. [email protected]
fig.1
fig.2
fig.3
SIX
There are three ways of measur-ing square footage in a house or condominium unit. Each method will give different measurements for the same premises. No law mandates the use of one method or another.
1. GROSS SQUARE FOOTAGE
This includes everything within the outside perimeter walls. Assuming an example where the house or condominium unit is a perfect square or rectangle, it’s the distance from the inside of
the north wall to the inside of the south wall multiplied by the distance from the inside of the west wall to the inside of the east wall. All of the interior walls and columns that separate the various rooms are ignored. This method gives the largest number. Not surprisingly, this is the method most often used by sellers, real estates agents and braggarts.
2. NET SQUARE FOOTAGE: This is the gross square footage (No. 1 above) minus the space
occupied by all of the interior walls of the house or unit. This method gives the second largest number.
3. NET LIVING AREA:
This is net square footage (No. 2) minus the space occupied by the interior columns, which are often found in abundance in high-rise condominium units. This method gives the smallest number. Not surprisingly, it is the one rarely quoted by sellers, real estate agents and braggarts.
Article by: RICHARD LEE STAVINS
How Do They Measure the “Square Footage”
of a House or Condominium?
RICHARD LEE [email protected]
2011 | ISSUE 02
RSP QUARTERLY
The Difference is Clear ®
www.rsplaw.com
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