Your Homeowners Insurance May Not Cover Woodpecker Damage

Meet Amy, City Girl that became a small town resident upon her marriage to George. The stark difference between living in the very center of urbanized civilization and township dwelling was somewhat of an adjustment for Amy. Sure she loved the sights and sounds of nature exposed: the lake, the trees, grass, flowers and the vibrant color of winged birds. Nonetheless, how she missed the hustle and bustle and – yes – even the noise of what she had always recognized as the center of commercial shopping, auto and bus traffic – honking included – and life as she had been bred to appreciate!

Though noise has always been the core of her existence, the incessant pecking on the side of her roof in small town America where she currently had set up residence did absolutely no good for her nerves. Five o’clock in the morning, you see was far too early for a woman of the world such as she to be rudely awoken from her slumbering state. And the fact that the pecking was coming from a fine feathered ‘friend’ known most commonly as the woodpecker did little to placate her uneasiness.

Then came the crunch that really threw Amy off. It appeared as the bothersome woodpecker had begun to incur damage on her lovely home! But nothing could appease Amy when she discovered that her standard homeowners insurance policy did not even cover the damages and losses she now suffered!

“You see, Ma’am,” explained the nice insurance agent, “insurance companies simply do not cover general home liability that has been wrought through negligence. In fact, they view woodpecker damage as something that could have been avoided through proper home maintenance.”

If only Amy had known! She most certainly would have confronted the little peril with a vengeance. Now it appeared that it was too late and she and her husband would have to bear the losses through out of the pocket expenditures.

They say life is a great teacher. Amy knows better than most.

“Learn from me,” says Amy, former city dweller. “Don’t let pests get the better of you or your home risks will!”

How does one tackle a woodpecker problem? There are a number of hands-on methods:

• Go out and purchase a tool that’s on the market in regard to woodpecker deterrence.

• Surround outside home spots that connect to the roof with wired fencing.

• Attach colorful tape below roof and around the roof’s gutters.

• Seal attic holes and house siding with caulk or other materials.

• Hire a pest eliminating firm to take care of the problem.

• Explore your own creative to tackle the nasty wood-pecking problem.

Ask Amy. She’ll tell you forearmed is indeed forewarned: speak to an independent insurance agent about your homeowners insurance policy to make sure it is tailored to your needs.

The Silent Generation (aka Veterans) – Most Misunderstood and Underestimated Generation of All Time

No generation has been so misunderstood and underestimated. This genera­tion brought us civil rights, an unparal­leled national wealth in the arts and commerce, and unimaginable advances in science and technology! “Silents” are about 95% retired at this point. In a few short years virtually no “Silents” will command an industry, a battlefield, anything at all. They will have mostly gone well into the shadows. The Silent Generation also referred to as “Veterans” (mid-l920s – mid-1940s) Silentsare about 95% retired at this point. In a few short years virtually no “Silents” will command an industry, a battlefield, anything at all. They will have mostly gone well into the shadows. No generation has been so misunderstood and underestimated. This genera­tion brought us civil rights, an unparal­leled national wealth in the arts and commerce, and unimaginable advances in science and technology

Three theories about the origin of the label “Silent Generation”…

  1. This generation grew up when chil­dren “should be seen and not heard.”
  2. The assault on America’s political liberty by the House Committee on Un-American Activities in tandem with Senator Joseph McCarthy’s in­quisitions scared the heck out of them. McCarthy whipped up anti-communist sentiment to such a degree that it was dangerous to ex­press an opinion anywhere, about anything. People were going to jail for beliefs and affiliations held 20 or 30 years earlier. Free speech was all but dead. People became apolitical. Safe. Silent.
  3. The name Silent Generation was coined in a 1951 cover story in Time Magazine to refer to the generation coming of age at the time. The phrase became even more fashionable after author William Manchester’s comment that the mem­bers of this generation were “withdrawn, cautious, unimaginative, indifferent, unad­venturous and silent.”

4 million Canadians over the age of 65 constitute 13% of the population, and 1 million of them, or 3%, are over age 80.

SOME CHARACTERISTICS OF Silents AT WORK

Attitudes

  • Trust
  • Privacy
  • Conformity
  • Faith in institutions
  • Respect for authority
  • Patience
  • Responsibility before pleasure
  • Formality
  • Social order

Contributions

  • Consistent
  • Detail oriented
  • Non-complaining
  • Mediators and facilitators
  • Commitment

Cautions

  • May not see “gray” – mostly black & white
  • Assume “no news is good news”
  • May sound parental
  • Often complacent when they disagree

SOME MISCONCEPTIONS ABOUT Silents:

Media Myth: More accidents and illness. Reality: They actually have fewer on-the-job accidents. Insurance claims are no different than for all workers.

Media Myth: Can’t learn technology. Reality: Silents are motivated students when training is done right (respectfully, with low stress).

Media Myth: Don’t want to work. Reality: Many prefer to be working past retirement, at least part time; job changing still carries a stigma for them.

Media Myth: Not as productive as younger workers. Reality: Surveys continue to report that older workers are every bit as productive as younger ones.

Media Myth: Not as smart as younger workers. Reality: Psychologists find that intelligence remains constant until at least age 70.

SOME RESULTS OF COLLISIONS BETWEEN Baby Boomers AND OTHER GENERATIONAL GROUPS

when a Boomer (mid 1940s to mid-1960s) collides, they think…

  • Dictatorial.
  • Inhibited.
  • Technological dinosaurs.

when a GenX (mid-1060s to late 1970s) collides, they think…

  • Too set in your ways.
  • Learn how to use voice mail.
  • You got all the money.

when a GenY (1980s to 2000) collides, they think…

  • Grumpy, grumpy, grumpy.
  • Like, how is a nose ring so different from pierced ears? Hello… ?
  • Learn how to use email. We are all individuals.

There are countless ways we differ in background, personality, values, preferences, and style. To make judgments about these differences (i.e., who is better), is illogical and meaningless. However, exploring generational diversity can help explain – and bridge – the sometimes-baffling differences behind our unspoken assumptions and at-odds attitudes.

Caution: Be careful to avoid reinforcing negative stereotypes. Generational differences are a start, not an end to understanding.

The Top 7 Rules on How To Get Your Contract Signed By Any Seller, No Matter What Price Or Terms

Hello Investor.

OK…Let’s see what you’ve done so far.

You sent out your marketing, hopefully on auto-pilot, but either way, the sellers called you, to solve their problem.

You spoke to the sellers over the phone. You built repoir with the decision makers (the Sellers), over the phone, by showing them empathy to their situation. I’m also assuming that you gathered all the necessary info, which you need to verify if you want to move forward with the next step, seeing the home and meeting the sellers.

Here’s where it gets good!

Moving forward, this article will greatly increase your chances (at what I personally like to call) in getting ink or closing the deal (meaning the sellers sign on the bottom line).

I always tell investors, you can be the most creative, have the best financing or be the best in your county for painting the interior of your home…

But, IF YOU CANNOT get the sellers to sign on the bottom line of your contract…

Nothing Else Matters.

That’s what this article will be focusing on, for you to take away from it.

1. All decision makers must or should be present, when you have your in-home meeting. If they both aren’t present at this time, then you’re giving a “1 Legged Pitch”…Good Luck! Of course, sometimes, there are genuine reasons you can’t meet with all the decision makers, and then it’s up to you if you want to move forward, or pass. Normally, I will not attend the meeting, IF all parties are not present. Word to the wise, you must ask them, upfront, if all parties will be present At the meeting, otherwise, they’ll purposely only have 1 decision maker there, and then it’s very easy to give you a stall tactic, on why they can’t sign…They need to talk it over with their partner.

2. You need to take a quick 5 to 10 minute tour of the home. You’re looking for both good and bad characteristics of their home. One of the biggest mistakes I see most investors make, is they start to beat up the sellers about the home, thinking they’ll get a better price, because they pointed out every little blemish in their home. You do not want to embarrass them, that’s the worst reaction you can get. Obviously, your making notes of all the bad stuff and needed repairs, and their could possibly be a time when you need to bring these into the conversation, but not unless the sellers are unrealistic about the needed repairs to their home. Also, if you can find any reason to give the sellers a genuine compliment about something, this would be a great time, during your initial tour of their home.

3. Third, they must LIKE YOU, period. Sounds basic, I know, but,”How do you get someone to like you?” In fact, it’s very easy, you need to get them to talk about themselves, which in turn means, you are the one asking questions, of them. Not as an interviewer from the police station, more as a concerned family member, looking to help them out of their situation, and you need this info, to help them. Normally, if you’re asking the right questions and they like you, they won’t shut up…which is what you want.

4. Fourth, they must TRUST YOU. I’ll promise you, if they don’t trust you, good night-it’s over, you’re done, stick a fork in ya, because it is not going to happen. You’d have a better chance scoring front row tickets to a Madonna Concert, then having the sellers ready to sign a contract with you. The easiest way to create trust is by not sugar coating everything you say to them, be honest and upfront. A lot of investors have a problem with this; tell them right upfront, that if you buy their home, you are going to make a profit…period. Your not there for your good looks, your there to create a Win-Win scenario. It also helps, to be a REAL PERSON, by that I mean, don’t be afraid to make fun of yourself, self-deprecating on yourself, always works great.

5. You’re a professional, be Prepared. Usually, I will bring with me a deal folder, which has all of my necessary paperwork (contracts, letter of authorization, deeds, land trusts, etc.). Also, I print out my computer research on their home, the comps and county information retrieved online. I also have a book of testimonials from my past sellers, as well a picture book with the last 50 houses, my team and I have completed. Now, if you’re a newer investor and don’t have 50 properties, you can always put together 5 character references from friends, work, family members, etc. and put it into a nice binder.

6. Be a consultant; tell them their options, EVEN if you don’t get the business. This is very important, be willing to tell the sellers, (if you know it in your heart) that YOU are not the best option for them, and they’d be better off going a different route. Here’s the catch, the alternative, would be for you to lie to the sellers, and unless their retarded, they’ll know your lying to them anyway, and now you’ve lost all your credibility. The funny part, they’ll probably still want you to buy their home, even though they can get more money using another option, because you were the ONLY one who was honest with them…people love honesty.

7. Assume the Sale and Close the Deal, BUT DO NOT be a used-car-salesman. Assuming, everything is going great; they like you, they don’t pass out from your low offer, and their asking you all types of buying questions (I.E. How soon can we close, and who pays closing costs, etc.), it’s now time to pull out your contract (never call it a contract, call it an agreement) and CLOSE THE DEAL. The best way, is simply, by asking, “If I can pay $XX, and I can close on this date, what your telling me is we’re ready to move forward, Correct?” And then SHUT UP and let them answer you.

8. BONUS: What happens, after you close for their signatures, and they don’t sign? No problem, we just need to take a few steps back, because we’re missing something. Most of the time, you’ve passed over 1 of their Hot Buttons (something that’s very important to them) and didn’t address it. The best way, is to flat-out ask them, what’s holding them back, from moving forward, right now. Listen to them, trust your intuition, does their reason sound genuine? A lot of people (including myself) just want one night to sleep on it, because they don’t want to make a rash, quick decision. If your still confused, let them know, you have a lot of opportunities on your plate, right now, and your offer is only valid or open for 1 week, from your meeting, after your deadline expires, your offer is off the table. I also like to ask them (the sellers) that if their going to be meeting with numerous investors to solicit bids, to let me try to beat the best offer, by giving me the last shot. Usually the sellers will have no problem agreeing with my request.

In conclusion, using these principles I’ve given above, will absolutely make you much more money, because you’ll know be able to close sellers on demand.

Remember, closing the deal is not a bad thing, only people or investors whom are afraid to ask for the business, hate closing. And more importantly, knowing how to close business (especially sellers) is one of the most critical attributes you need to have to be a millionaire entrepreneur.

Arizona HOA Law – When Can Your Homeowners’ Association Foreclose?

Many Arizona homeowners are surprised to discovery that Arizona law does allow a homeowners’ association to foreclose on a lien against a homeowner in certain situations. This is not true in every state and was not the case in Arizona until fairly recent amendments to the Arizona Revised Statutes. In order to avoid losing your home to your homeowners’ association, you should understand what rights and obligations you have.

Fortunately, Arizona law does not allow a homeowners’ association to foreclose against a homeowner for unpaid fines. Instead, the law distinguishes between assessments and fines, allowing for foreclosure actions based on liens for unpaid assessments, but not fines.

Assessments are defined as the regular dues that a homeowners’ association charges to maintain the community. If a homeowner fails to pay such assessments, and if the assessments remain unpaid for one year or the unpaid amount exceeds $1,200, the HOA will have a lien on the home that can be foreclosed on. Under Arizona law, an HOA’s lien for unpaid assessments attaches automatically, and many homeowners don’t realize until its too late just how much trouble can result from their failure to pay.

Fines, as opposed to assessments, are the penalties that HOA’s charge for violations of the homeowners’ association’s CC&R’s or other governing documents. Common fines stem from a failure to maintain landscaping, leaving trash cans outside, and parking in prohibited areas. Unpaid fines do not result in an automatic lien and require that the HOA sue the homeowner in court and obtain a judgment before the lien can be recorded. Even after obtaining such a judgment and recording a lien, however, the HOA cannot seek to foreclose on the home for unpaid fines.

Notwithstanding the homeowners’ association’s right to foreclose on a lien for assessments it often doesn’t make sense for the HOA to proceed with such an action. Although HOA liens have priority over many obligations, such liens will generally be secondary to the primary mortgage on the home, so if there is not sufficient equity to pay off the mortgage and satisfy the lien, foreclosure may not be warranted. Homeowners should understand, however, that failing to pay assessments may result in the loss of their home, and that HOA’s may pursue foreclosure even when such an action is not financially merited.

The statutes governing the rights and obligations of homeowners and HOA’s are complicated, and homeowners facing collection action by their HOA should contact an experienced Arizona HOA lawyer as soon as possible. In many cases there are merited defenses, but they must be advanced before an adverse decision in rendered by a court.

A Substantive Due Process Challenge to the War on Drugs

Substantive Due Process Analysis of the Incarceration of Drug Offenders

A. Framework

In Washington v. Glucksberg, Chief Justice Rehnquist described the framework for substantive due process analysis:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

Applying this method, one must first examine freedom from incarceration to determine if it is a fundamental right. If so, government policies that require the incarceration of offenders, including drug offenders, must serve compelling interests and be narrowly tailored to achieve them. This article assumes for the sake of argument that drug problems give rise to compelling state interests. It then reviews the interests asserted by the government in its pursuit of its drug war policies and the results of those policies to determine whether the policy of incarcerating drug offenders is narrowly tailored to those asserted interests.

B. The Fundamental Liberty Interest: Freedom from Incarceration

Federal and state laws subject drug offenders to incarceration. Incarceration is a tremendous deprivation of liberty that triggers the protections of the Due Process Clause. The Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for example, the court held:

[I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf–through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause . . . .

Perhaps the earliest explicit recognition by the Supreme Court of freedom from incarceration as a fundamental right under substantive due process came in Allgeyer:

The ‘liberty’ mentioned in [the fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

An 1891 law review article noted that Blackstone described “freedom from restraint of the person” as “perhaps the most important of all civil rights,” and that Lord Coke felt “the liberty of a man’s person is more precious to him than everything else that is mentioned [in the Magna Charta].” Blackstone states that “the rights of all mankind . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.” Indeed, the original Latin in the Magna Charta’s “law of the land” clause uses the term “imprisonetur.”

No court has invalidated a criminal statute through the application of substantive due process analysis to the fundamental right of freedom from incarceration. At the same time, no court has ruled to the contrary. The Supreme Court avoided the question in Reno v. Flores:

The “freedom from physical restraint” invoked by respondents is not at issue in this case. Surely not in the sense of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the sense of a right to come and go at will, since, as we have said elsewhere, “juveniles, unlike adults, are always in some form of custody,” and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.

This analysis would not apply to adult drug offenders. The Fourth Circuit also avoided addressing freedom from incarceration as a fundamental right in Hawkins v. Freeman:

Hawkins’s rhetorical reference to the right as being “freedom from unjust incarceration,” and that of amicus, American Civil Liberties Union of North Carolina, as the “right to be free from arbitrary incarceration,” are issue-begging generalizations that cannot serve the inquiry. A properly precise description can, however, be found in the facts and legal authorities relied upon by Hawkins in support of his claim. From these, we deduce that the precise right asserted is that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from incarceration have “crystallized.”

Hawkins is distinguishable because it deals with an inmate whose parole was revoked. In any event, the casual dismissal as an “issue-begging generalization” flies in the face of nearly 800 years of common law tradition and over a century of Supreme Court decisions recognizing freedom from incarceration as a fundamental right. Indeed the language of the Supreme Court’s Ingraham decision supports the application of substantive due process proposed in this paper:

While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

The Court also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving the confinement of a person found not guilty by reason of insanity:

Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty.

While the Foucha Court indicated that “a State may imprison convicted criminals for the purposes of deterrence and retribution,” the remark was dicta and did not involve any discussion of substantive limits on the police power. In Meachum v. Fano the Court made a similar remark in the context of a case dealing with prison conditions: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.” Again there was no discussion of substantive limits on the police power. Indeed the previous sentence noted: “The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause.”

Recently in Zadvydas v. Davis, the Court noted:

The Fifth Amendment’s Due Process Clause forbids the Government to “depriv[e]” any “person … of … liberty … without due process of law.” Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty that Clause protects.

Freedom from incarceration is not just a fundamental right. It is the one of the most fundamental of rights.

C. Identifying the State’s Interests

Governmental drug policy interests identified in federal statutes include “demand reduction,” “supply reduction,” and “reducing drug abuse and the consequences of drug abuse in the United States, by limiting the availability of and reducing the demand for illegal drugs.”

Federal law sets specific goals for the National Drug Control Strategy. These include:

“Reduction of unlawful drug use to 3 percent of the population”;

“Reduction of adolescent unlawful drug use to 3 percent of the adolescent population”;

“Reduction of the availability of cocaine, heroin, marijuana, and methamphetamine”;

“Reduction of the respective nationwide average street purity levels for cocaine, heroin, marijuana, and methamphetamine”; and

“Reduction of drug-related crime.”

Goals are also set forth with regard to drug-related crime:

(i) reduction of State and Federal unlawful drug trafficking and distribution; (ii) reduction of State and Federal crimes committed by persons under the influence of unlawful drugs; (iii) reduction of State and Federal crimes committed for the purpose of obtaining unlawful drugs or obtaining property that is intended to be used for the purchase of unlawful drugs; and (iv) reduction of drug-related emergency room incidents . . . .

D. Defining “Narrow Tailoring” in the Context of Substantive Due Process

Assuming that the governmental interests are compelling, we must determine whether the incarceration of drug offenders is narrowly tailored to achieving them. The government must show that its policy passes strict scrutiny. The concept of narrow tailoring is not well defined in the context of substantive due process, but has been fairly well defined in regard to the First Amendment and Equal Protection. Equal Protection cases also arise out of the Fourteenth Amendment. In Wygant v. Jackson Bd. of Education the Supreme Court held: “Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” In a footnote, the Court described narrow tailoring in even further detail:

The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. Or, as Professor Ely has noted, the classification at issue must “fit” with greater precision than any alternative means. “[Courts] should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense.”

It is important to note here that a policy that does not advance the government’s interests violates substantive due process regardless of how it compares with the alternatives. If it does not accomplish its purpose, logic dictates it cannot be specifically and narrowly framed to accomplish its purpose.

E. Advancing Governmental Interests

Congress has identified certain tools for assessing the national drug control strategy. The National Household Survey is the measure for “unlawful drug use.” Similarly, “adolescent unlawful drug use” is to be measured “by the Monitoring the Future Survey of the University of Michigan or the National PRIDE Survey conducted by the National Parents’ Resource Institute for Drug Education.” On these measures, the goals are not being reached.

The measure of adolescent drug use that was specifically identified by Congress, illicit drug use in the past 30 days, worsened in 2001. More than 25% of US twelfth graders reported using illicit drugs in the past 30 days. That is nearly double the figure for 1992 and more than eight times the stated goal of 3%. Over 40% of 12th graders tried an illicit drug in the past year.

The PRIDE Survey and National Household Survey show similar results.

The drug war has also failed in its other goals. The Monitoring the Future Survey tracks how twelfth graders perceive the availability of drugs. Reducing availability is an explicit goal of the drug war. The perceived availability of marijuana in 2001 was slightly higher than in 1975. The figures for harder drugs are more disturbing. From 1975 to 1986, roughly 20% of twelfth graders said heroin was easy to get. That number shot up in the late 1980s and has remained consistently higher than 30%. Cocaine remains widely available to our youth, with nearly 50% of twelfth graders saying it is easy to get. The survey began measuring the availability of ecstasy in 1989, when only 22% of twelfth graders felt it was easy to get. In 2001, that number went over 61%, having jumped from 51% the year before.

Drug war policies are not achieving the stated drug war goals. They cannot be “specifically and narrowly framed to accomplish their purpose” because they are not accomplishing their purpose. Drug use has not been reduced in any significant way, and levels of drug use are far above the stated goals. Our children have easy access to drugs. We can’t even keep drugs out of jails. The drug war and the incarceration of drug offenders have also failed to achieve secondary goals regarding supply, demand, purity, drug-related health problems and drug-related crime. The policy of incarcerating drug offenders does not “directly advance[] the governmental interest asserted.” The War on Drugs is not working.

F. Alternative Means

Even if a court is persuaded that incarceration advances the government’s interests, the government must also show that its policy choice fits better than the alternatives. Critics of the drug war encompass a broad spectrum of backgrounds, and the range of “solutions” is just as wide. Libertarians and others favor outright legalization of drugs. The legalization of marijuana is a somewhat popular variation of overall legalization, and there are other variations such as the legalization of marijuana for medical purposes and decriminalization of drugs or marijuana. Another leading approach, known as harm reduction, looks at drugs from a public health perspective.

The effectiveness of some of these alternatives is difficult to assess. Even so, certain comparisons can be made. Advocates of treatment point to studies showing that treatment is much more effective than incarceration. Spencer notes:

The recidivism rate for first time Dade County drug offenders was sixty percent, but for those who successfully completed the Dade County Drug Court treatment programs, the recidivism rate reported by Dade County officials was only seven percent. Drug court treatment programs are also cost effective. It costs Florida only $2,000 to put a drug offender through a drug court program, as compared to $17,000 per drug offender for incarceration. As a result, other drug court programs are being established throughout the country.

Similarly, a Rand study found treatment to be seven times more cost-effective than current supply-control policy in reducing cocaine consumption.

G. The Incarceration of Drug Offenders is Not Narrowly Tailored

Incarceration involves a far greater infringement of fundamental rights than alternatives which are both more effective and less intrusive. The incarceration of offenders is not advancing the state’s asserted interests. The drug war is not narrowly tailored, failing the Supreme Court’s “established method of substantive-due-process analysis” as described by Chief Justice Rehnquist. The laws requiring the incarceration of drug offenders are therefore unconstitutional, if substantive due process analysis is applied.

IV. CONCLUSION

It is true that the approach suggested in this paper would limit the police power. Constitutional protection of individual rights exists for that very purpose. We face coercive government action, carried out in a corrupt and racist manner, with military and paramilitary assaults on our homes, leading to mass incarceration and innocent deaths. We can never forget the tyranny of a government unrestrained by an independent judiciary. Our courts must end the War on Drugs.

For the full article, with endnotes, see: http://www.redlichlaw.com/crim/substantive-due-process-drug-war.pdf

Beware of Direct Transfer Designations – TOD’s, POD’s and Simple Beneficiary Designations

Direct transfer designations, like POD’s (payable on death designations) and TOD’s (transfer on death designations), and simple beneficiary designations, are mechanisms by which an account or other asset is transferred or paid upon the death of the account holder or asset owner to a beneficiary. They are often recommended by the administrator of the account, such as a bank, broker or life insurance company. While these can be very effective and inexpensive means by which to avoid probate and transfer assets at death, they are not without their risks and challenges. A lack of careful consideration of the risks and rewards of these mechanisms can be disastrous. A carefully prepared estate plan will consider, and resolve, all of the risks and challenges of these mechanisms.

Benefits of Direct Transfer Designations

Direct transfer designations, such as POD’s and TOD’s have several benefits. The most important benefits are that they are cheap and easy. Most institutions will permit you to make such designations as a service, for no additional fee. They are simple to create, and there is no need for an attorney or other professional. Most of these designations are made by account owners without legal or professional advice or counsel. Particularly because of this simplicity, they are very popular.

The second benefit is that the payment or transfer is more or less immediate and direct. Where there is a need to make cash or other liquid assets immediately available to a child or grandchild for some purpose, a TOD or POD appear attractive at first glance. Beneficiary transfers, however, typically require claim forms, and documentation in support of the claim. In reality, the process may take more time and effort than succession of ownership (such as through a living trust or joint tenancy with right of survivorship). Nonetheless, it is the assumption that funds are available immediately that often causes folks to choose direct transfer designations.

Unquestionably, direct transfers can have unique benefits as a result of this direct payment, whether or not immediate. For example, if you are widowed and want the bulk of your estate to pass to your children, but still desire a particular asset, fund, account or benefit to pass to a significant other or second spouse, without involvement of your children, a direct transfer may be warranted. Of course, such circumstances are specific, unique, and situational. The proper method for accomplishing an intended result depends upon first carefully considering all options to ensure that the proper tool is selected.

The third benefit is that a direct transfer designation may avoid probate, provided, however, that the beneficiary, transferee, or payee is alive at the death of the account holder or owner. If the beneficiary passes before or after, the asset may be probated. Particularly because the avoidance of probate may not be effective, TOD’s and POD’s are of limited utility in a carefully planned estate. Not surprisingly, because they are available at little or no cost, they are often used for the sole purpose of avoiding probate as an inexpensive substitute for more comprehensive planning. Make no mistake that these devices are NOT substitutes for living trusts. If you have utilized TOD’s or POD’s in your estate plan, particularly if you have done so without professional guidance, you may want to consider carefully the many possible disadvantages of these tools, and consider a more appropriate planning technique.

Regardless, these designations do not, at least effectively, accomplish several goals that might be accomplished by proper estate planning. For example, these devices do not avoid estate taxes, reduce the risk of guardianship, or permit management of assets during periods of incompetency or incapacity, and may not even avoid probate of the asset.

Moreover, there are several potential drawbacks to such devices, particularly if they are used without careful consideration or the advice of counsel. The biggest drawback to these plans is that they do not plan for contingencies. Additionally, use of such designations can cause illiquid estates, can lead to or cause unintended disinheritance, can lead to lawsuits or disputes, and can facilitate or encourage guardianship.

The limitations to such planning devices are discussed further below, followed by a discussion of their potential disadvantages.

Direct Transfer Designations Do Not Avoid Estate Tax

If you have any incident of ownership in or to an account or other asset, it will be included in your taxable estate for estate tax purposes. Consequently, direct transfer designations are not appropriate tools for estate tax planning, if your intention is to remove the value of the asset from your taxable estate. Generally, unless some other reason for excluding the account exists, the account will be included in your taxable estate notwithstanding the direct transfer designation.

POD’s and TOD’s May Not Avoid Probate

There are numerous instances where these techniques have been used to avoid probate, and yet the assets of the estate were nonetheless probated. Transfer upon death designations are not typically made for personal property, and may in fact be unavailable to transfer such assets. Under recent Ohio law, a transfer upon death deed was unavailable for real property that was owned jointly with a right of survivorship, as is most real property owned by a husband and wife. Regardless, if there are sufficient assets to probate, the other assets will pass through probate, even if liquid or other property avoids probate.

Moreover, these designations do nothing to protect assets from administration by a guardian or conservator in the event of incompetence or incapacity. They also do not prevent challenges to a will, appointment of executor, or other legal disputes which may ultimately be resolved by the probate court.

Finally, these designations will not avoid probate if the beneficiary passes away either before or after the account or asset owner. A probate administration may be necessitated, whereas property passing by way of trust will not need to be probated in the event of a death of an heir.

Direct Transfer Designations Do Not Avoid Guardianship

Direct transfer designations do nothing to protect assets from administration by a guardian or conservator in the event of incompetence or incapacity. For more information regarding the danger of guardianship, consider he Open Letter to Congress, drafted by the National Association to Stop Guardian Abuse.

Direct Transfer Designations May Create Illiquid Probate Estates

One potential drawback to these designations, particularly when placed on all liquid checking, savings, and investment accounts is that an estate can be made illiquid. Lack of liquidity can be a problem where there is real estate, personal property, or other assets that must be probated. Probate administration and estate taxes must be paid, and if the probate estate is insufficient to do so, heirs may be required to return cash to the estate, or property may be sold at fire sale prices to satisfy obligations. It is important to consider that ad hoc asset level planning to avoid probate often leaves assets to be probated.

Direct Transfer Designations Do Not Plan For Contingencies

The biggest disadvantage is that these devises are usually limited, and do not provide for contingencies. These plans very rarely answer the “what if?” questions considered by a carefully prepared estate plan. For example, what if the transferee or payee dies shortly before or after the owner? In most cases, the designation will simply pay the estate of the deceased transferee or payee. If, for example, the payee is your son, and he dies before you, without a will, the account or asset will be paid in whole or part to your daughter-in-law. You may desire that no part of your estate pass to the spouses of your children, in order to protect your grandchildren in the event of remarriage. Moreover, if you intended to avoid probate of your assets, you may fail in your efforts.

There are numerous examples of contingencies that a living or testamentary trust can address which are not typically addressed by POD’s and TOD’s. What if the property passes intentionally or unintentionally to a minor? Do you want the property to be distributed to the minor upon his or her reaching age eighteen or obtaining emancipation, or would you prefer to protect minors from their inexperience and lack of wisdom in managing assets?

What if the heir has financial difficulties, lawsuits, judgment liens, tax liens, or similar problems at the time of your death? If you do not intend your assets to pay the claims of third parties against your heirs, you should consider an alternative to a simple TOD or POD.

What if your heir is undergoing a divorce, dissolution, separation, or other marital difficulty? A TOD or POD may or may not be involved in such a dispute, depending upon a number of factors and your state law.

What if an heir is handicapped mentally or physically at the time of your death. If you want to protect that heir, you may want more than a simple TOD or POD.

What if an heir suffers from a substance abuse or other dependency that could affect their ability to manage their affairs? TOD and POD clauses rarely protect a family from such contingencies.

What if an heir joins or becomes a member of a quasi-religious organization, cult, or other organization pursuant to which your heir agrees to surrender or deliver all of the heir’s assets? You may not want your worldly possessions to facilitate or benefit a cult.

What if there is a dispute, contest, or lawsuit? How is the dispute to be resolved, and on what basis?

Regardless which “what if” question concerns you now, you should consider many possible contingencies. As a result, a carefully considered and well drafted estate plan will consider and provide solutions to all of these and many more. TOD’s and POD’s simply have no solutions, because they are not, in and of themselves, “plans.”

Direct Transfer Designations Can Lead to Unintended Disinheritance

Another disadvantage of direct transfers is that they can lead to unintended disinheritance. This occurs because folks often use these to segregate accounts. In other words, a person will select one account with a TOD or POD designation for one heir, and another account for another heir. This is often done to keep confidential account balances which may favor one heir as against another. These can be disastrous in an estate plan. Consider the following example:

Widow Smith has three children and three CD’s. Two CD’s are worth ten thousand dollars, but the third is worth twenty five thousand dollars. Smith’s oldest daughter lives very near, is often helpful in Smith’s day-to-day activities, and is Smith’s designated attorney-in-fact. Smith makes the larger CD payable upon death (POD) to the oldest daughter, but makes the others payable to the other children. Unfortunately, Smith suffers a stroke and undergoes lengthy period of convalescence, including a stay in a nursing home. The expenses require the daughter, now acting through power of attorney, to liquidate one of the smaller CD’s, and to liquidate the larger CD to cash, of which she spends ten thousand dollars. Assuming the only assets remaining at Smith’s death are the checking account, which is now worth only approximately 15 thousand dollars, and the remaining CD which is worth ten thousand dollars, you can see how the POD failed to effectuate her wishes. The checking account is divided equally between the children (5 thousand dollars each) (Widow Smith probably assumed like many people that the checking account will only have a nominal amount of money in the account, which may not be true as the family deals with medical or other crises). Therefore instead of the oldest daughter receiving twenty five thousand dollars, she receives only five thousand. One of the other children receives fifteen thousand dollars. It is obvious the results were not in keeping with the intentions of Widow Smith.

An Attorney-in-Fact May Change Your Wishes

Most people who have utilized direct transfer designations assume that their estate plan is set, and their wishes will be followed. Sadly, nothing could be further from the truth. A direct transfer designation is typically a contractual right, which can be changed by an attorney-in-fact. Moreover, an asset can be transferred, and the designation “undone” by any person with authority over you or your estate, such as a guardian or conservator. Bottom line? A beneficiary designation is simply not an adequate estate plan for most people.

Direct Transfer Designations May Lead to Lawsuits Or Disputes

For all of the foregoing reasons, and countless others, direct transfer designations may cause your estate to be disputed, and may encourage, rather than discourage lawsuits and litigation. There is no substitute for a carefully considered and well drafted trust to ensure that your wishes are expressed and carried out.

Direct Transfer Designations May Facilitate or Encourage Guardianships

Particularly because they may create expectations in the minds of heirs, and because their use certainly does not discourage, and may encourage disputes, reliance on these in your estate plan might even encourage a guardianship application by an otherwise well-meaning heir as he or she seeks to protect their inheritance from others.

Guardianship may be necessitated by assets passing to contingent beneficiaries, as well, such as underage grandchildren. Since the goal of such designations is, in part, avoidance of probate, carefully consider their use in an estate plan.

Roofing Contractors – Understanding What a Roofing Contractor Does and Tips on Selecting One

What is a roofing contractor? Well a roofing contractor is somebody who agrees to complete a undertaking such as a residential or commercial flat roof. In exchange for completing the undertaking, the contractor would receive compensation. This is where the term contractor was coined, somebody completing a contract in substitute for money.

At times if the roofing contractor cannot finish the assignment, he can hire subcontractors to help with completing the assignment. This is more common with sizable sites such as churches, shopping centres, warehouses and other really big buildings. Subcontractors may likewise be used when work is completed on residential homes. Examples would include chimney mending, debris disposal and all-metal flashing.

The ideal roofing contractor is someone who exercises hardly a couple subcontractors. By utilising less subcontractors, it is more promising that the roofing company is much more knowledgeable and may complete an array of roofing related repairs and installation. Some other great bonus of utilizing less subcontractors is that the undertaking would presumably cost less. These savings are normally passed along on to the client.

Roofing is a really specialised skill.  Few general contractors get engaged with roofing because it necessitates a squad of roofers who are comfy working on a roof and are able to function in the all-powerful sun. This is why roofs are normally completed autonomous from the remainder of the house.

A roof is an integral part of whatever building structure, be it a theater, bungalow, warehouse or office tower. This makes it more crucial for a property owner or property managing director to obtain the copesetic contractor. Keeping up and mending roofs are important to keeping up a sound roof structure.

The roof is unclothed to the elements all the time, rich summertime sunshine on one extreme and frozen winter snow on the other extreme. This variability in temperature and atmospheric condition can wreak mayhem on a roof and is thence paramount to make sure the roof is adequately upheld. If a modest blemish or worn down condition is perceived by a property owner, then a roofing contractor should be called out to make sure that the roof can be renovated so that the whole roof does not have to be replaced in the near future.

When choosing a roofing contractor, one has to be very deliberate in arriving at the selection.

The greatest way to acquire a roofing contractor is to employ one for a insignificant repair or for roof maintenance. By engaging a contractor for a small job you can see how good that contractor really is.  If you like the work the contractor did, then by all means higher that contractor in the future when you have a massive repair or a complete re-roofing of your roof.

Another frequent option is to get an estimation from a contractor. Estimates are ordinarily free or cost a small fee. After obtaining an estimate you can then get an idea on how practised, professional and experienced a particular roofing contractor is.

Obviously, you can ask friends or neighbours who have recently had work finished on the roof and find out if they would recommend that roofing company. At times these recommendations are not always the advisable direction to select a roofing contractor because your friend or neighbor may not really realize how well or inadequate of a condition their original roof was in. They may have not asked the fitting questions and hence could have had what they comprehended to be a upright job but cost them a little more.

Another great place to check for roofing contractor’s qualifications is the National Roofing Contractors Association.  Did you know that roofs today also come with Energy Star Information.

One fundamental factor that I must stress is to find out if a likely contractor utilizes subcontractors. Again by employing subcontractors, this make  the undertaking much more expensive than it really requires it to be.

I trust that this informative essay has aided you in readying an informed conclusion when taking a roofing contractor.

Corporate Values – Expertise

Expertise can be described as: “We build our strength on functional knowledge and being recognized as the authority in what we do.” A similar value is “Knowledge”:

“Our business depends on the skills and knowledge of our staff and we are committed to developing the skills and capabilities of all our people.”

An interesting example is this one:

“Global expertise – local knowledge” (1) this is very suitable for a research company.

This statement is very interesting for more reasons, but most of all because it directly supports this and another value on the side (client driven). It communicates first of all the learned lessons that global expertise (what you sell) can’t go without local knowledge (what you buy), because of cultural differences that operate on a local level. It this knowledge is directly communicated to the visitor (potential clients) of the site which makes it very exemplary. An excellent example where values are credible and make sense!

Expertise is a corporate value that can be used without problems. The advantage of this value is that is applies both to people as to a whole organization which makes is very useable in the value statement.

When to use it: the above research company is a good example. Knowledge-based companies value knowledge and expertise which is a success-factor for their business.

It is also a very straightforward value. You can almost measure it. Knowledge is hard to measure but the related issues like: learning, studying and open for new ideas and information are tangible elements to concentrate on in the recruitment process.

Not all companies will equally value the element of expertise and knowledge. It must fit a purpose.

Values need a balance. Expertise is only one of the values in the statement and its focus is on products and services, whereas the business of a company is successful when these can be sold to clients. Client focus is therefore suitable complement, although it is not a very precise value. More suitable would be to combine it with: “practical” or similar values where you stress the importance that knowledge or expertise is useless without a clear purpose. Otherwise you will stack it in a silo and nobody will really benefit from it.

Another complementary value is required to foster teamwork, because knowledge-based companies have an implicit dilemma to get stuck because of too much individual intelligence, but a lack of organizational smartness. Think about this when using or recreating your values statement.

Court Proceedings and Their Legal Transcription

Legal professionals have to deal with a large volume of recorded files on civil and criminal court proceedings every day. They need to spend a lot of time analyzing this information as the case proceeds. This leaves them with little time to create accurate and timely transcripts of the files. Moreover, managing transcription tasks in-house can be a challenging task for these busy professionals. To save time, effort and money, it is better to outsource these voluminous documentation tasks to a reliable and professional legal transcription company that can provide accurate, timely and confidential court proceedings transcription services. Whatever the individual client requirements, a reputable company can offer top quality transcription services at affordable rates.

Why Courts Proceeding Transcription is So Challenging

Legal cases usually begin in a lower court and then proceed to a higher court of law. The Unites States Court Systems is multi-tiered and comprises of Federal courts and State Courts, each with its own structures and procedures. Federal Courts are further classified as District Courts, Court of Appeals and the Supreme Court. US State Courts generally handle a greater number of cases than Federal courts which usually handle more conservative cases and those of national importance.

In addition to this, every case involves a number of steps. For instance, take a criminal case. After the case is charged, the prosecutor issues a criminal compliant. This is followed by the initial appearance of the accused in the court, pleas, the court hearing to determine status, progress or direction of the case, the preliminary hearing, arraignment or first appearance of the criminal defendant on the formal charges before a judge, the pretrial conference or court settlement conference, the plea hearing, the trial, the sentencing, the appeal, and the post-conviction motion hearing. This means that criminal lawyers would need accurate transcripts for all these proceedings for the cases that they are handling, which is definitely not an easy task to accomplish when managed in-house. This is why most lawyers opt to outsource their court proceedings transcription tasks.

How a Legal Transcription Service Provider Can Help

An experienced legal transcription service provider offers simplified, accurate and timely services. With the transcription job taken care of, legal professionals can focus on their core business activities. Transcription is offered for court hearings/pleadings, arbitrations, briefs, meetings, focus group meetings, witness reports, criminal appeals, public hearings, court trials, deposition summaries, allegations, statements and correspondence.

Reputable companies have a team of experienced transcriptionists to work exclusively on each client project. These transcriptionists utilize advanced technology to ensure court transcripts with a high degree of accuracy. A reliable company provides court proceedings transcription solutions to attorneys, legal departments, financial institutions, law firms, and insurance companies among others.

Key Benefits of Good Court Transcription Services

• Quality Solutions – With an objective to deliver top quality and error-free court transcription services, a 3 level quality check is performed by experienced editors, proofreaders and quality analysts.

• Higher accuracy level – Trustworthy transcription companies provide the services of transcriptionists who have experience in working with challenging courtroom situations such as overlapping dialogues, poor diction and multiple speakers. Advanced technologies such as spell check, voice recognition and sound quality improvement software are used to ensure higher accuracy (minimum 99%).

• Dictation options – Two convenient modes of dictation offered are – toll free number and digital recorder.

• Customized turnaround time – The final transcripts are delivered within quick and customized turnaround time.

• Data confidentiality – A reputable transcription firm follows stringent security protocols to protect the confidentiality of important and sensitive legal information.

• Full-time customer support available 24/7/365

• Affordable pricing within the budget line of clients

• Free trial options

One of the significant advantages of court proceedings transcription service is that it allows court reporters and other legal entities to concentrate on their core business activities. Taking into consideration the above mentioned advantages of court transcription services, it is important for legal entities to hire the services of an experienced and reliable legal transcription company. Partnering with such a professional legal service provider brings cost savings in the range of 30 -40%.

How Much Down Payment Do I Need To Buy An Early Education Company?

Unfortunately, the answer to the – “How much money do I need for a down payment?” – question is one that many people learn the hard way. We can make it easier for you here. The amount of down payment required for your purchase of a childcare company, daycare, Montessori, preschool, or special needs school is determined primarily by the following four factors:

1. Your credit score.

2. Your occupational background.

3. Whether or not you’re buying real estate with the business.

4. The lender you choose to make the loan.

In order… here we go.

Your credit score in this market needs to be 700 or better. In some cases, your score can be in the high 600s as long as there is a good reason for it, but ideally you and any partners need to have scores that will average out around 700 or more.

Next, your occupational background can be separated into four tiers.

a. Buyers that have owned at least one center for three years or more should anticipate a down payment of 10 to 15%.

b. Buyers that have three or more years of experience in the education industry but haven’t owned a center or school should expect a down payment of about 15%.

c. Buyers that do not have experience in the education vertical, but have a solid career in a child-related or education-related field such as pediatric nurse, child psychiatrist, dentist, child clothier… etc. should expect a down payment in the 15 to 20% range.

d. All other buyers should expect a down payment of 25%.

Third, if you’re buying a childcare company with real estate then your down payment amount will be lower than if you are buying a childcare company with no real estate. Your financing term will also be longer if real estate is included in your purchase. Assuming you’re using an SBA loan (most people do), your term will be a maximum of 10 years if you’re buying a company with no real estate, but the term can be as long as 25 years when real estate is included.

Fourth, the bank or lender you choose to make the loan can have a considerable impact on the cost of your loan. Costs include the amount of cash you have to use for a down payment as well as your interest rate, points on your loan, the amount time it takes the bank to close… etc. Bank requirements can vary materially. It’s always best to shop banks against each other so you can be assured of getting the best results. Remember, a quarter-point difference in interest rates means a lot of money to you over the term of your loan. Lastly, banks that have worked with and understand our industry are more likely to provide better terms for you.

While there are certainly other factors that will affect the approval of your loan, covering these four successfully will take you most of the distance.

(Legal Disclaimer: Always consult the proper professionals before taking action. By and before the use of the information provided herein, reader agrees that BFS® is not responsible for viewer’s actions related to said information.)