COVID 19
In regard to requiring business to close at some point is that a taking?
Or is the emergency the overriding factor?
--
Kevin Dodson
Attorney at Law
308 A Northeast First Street
Pryor, OK 74361
918-824-3600 <(918)%20824-3600>
Fax: 918-824-3601 <(918)%20824-3601>
E-Mail: kevinatdodsonlawoffice@gmail.com
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See Mugler v. Kansas, 123 U.S. 623 (1887):
The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.
So basically it’s a question of whether the entity is exercising the power of eminent domain or its police powers. For at least Oklahoma Constitutional purposes, where police powers are being exercised, the first question is whether the exercise was reasonable. If the exercise of police powers is reasonable, then a takings claim can only exist if the police powers are exercised in such a way so as to absolutely deny the owner of property any access to the property. See Mattoon v. City of Norman, 1980 OK 137, 617 P.2d 1347 and Brewer v. City of Norman, 1974 OK 123, 527 P.2d 1134. It would seem to follow that, if a City directs that businesses not allow customers into their facility during this State of Emergency, then that does not deny the business owner from having access themselves to the property (it merely restricts who else can access it). By contrast, if a City entered an order that they must close down and no one can go to the property, then they might have an argument that they have been denied complete access to their property.
Sent from Matt’s iPhone
On Mar 27, 2020, at 11:49 AM, Kevin Dodson kevinatdodsonlawoffice@gmail.com wrote:
In regard to requiring business to close at some point is that a taking? Or is the emergency the overriding factor?
--
Kevin Dodson
Attorney at Law
308 A Northeast First Street
Pryor, OK 74361
918-824-3600
Fax: 918-824-3601
E-Mail: kevinatdodsonlawoffice@gmail.com
Notice: CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, or person responsible for delivering it to the intended recipient you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. Interception of e-mail is a crime under the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and 2107-2709. If you have received this transmission in error, please immediately notify us by replying to this e-mail or by calling 918-824-3600, and destroy the original transmission and its attachments without reading them or saving them to disk. Thank you.
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In Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 53, 148 P.3d 842, 856, as corrected, the Court concluded that a temporary moratorium on the plaintiffs proposed use of water from a sensitive sole source aquifer did not constitute a taking of private property for public use under the Constitutions of the United States and the State of Oklahoma. The Court viewed the moratorium on temporary permits as a temporary restriction, at most, on the plaintiffs'/appellants' use of their water. Id. The Court also concluded that a requirement that OWRB in considering applications for regular permits, determine whether a proposed use is likely to degrade or interfere with springs or streams emanating from water originating from a sensitive sole source groundwater basin was a proper exercise of the Legislature’s police power. Id.
As applied to requiring businesses to close, under Jacobs Ranch, such requirements are temporary restrictions at most that do not constitute a taking of private property under the Constitutions of the United States and the State of Oklahoma. Such restrictions are also proper exercises of a municipality’s police power. When reasonable, such exercises are not takings. See e.g., Manufacturers Guild, Inc. v. City of Enid, 2010 OK CIV APP 87, 239 P.3d 986 (concluding that the statute permitting a municipal governing body to cause dilapidated buildings to be demolished if certain procedures are followed did not violate State Constitution's Takings Clauses, as it was a lawful exercise of police power, in that it protected health, safety, and welfare of the general public, it was rationally related to this goal, and it was clear and unambiguous in its purpose).
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
' 405.217.7700 | 6 405.366.5425 | • rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/
This e-mail is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.
From: Oama oama-bounces@lists.imla.org On Behalf Of Kevin Dodson
Sent: Friday, March 27, 2020 11:48 AM
To: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] COVID 19
In regard to requiring business to close at some point is that a taking? Or is the emergency the overriding factor?
--
Kevin Dodson
Attorney at Law
308 A Northeast First Street
Pryor, OK 74361
918-824-3600tel:(918)%20824-3600
Fax: 918-824-3601tel:(918)%20824-3601
E-Mail: kevinatdodsonlawoffice@gmail.commailto:kevinatdodsonlawoffice@gmail.com
Notice: CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, or person responsible for delivering it to the intended recipient you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. Interception of e-mail is a crime under the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and 2107-2709. If you have received this transmission in error, please immediately notify us by replying to this e-mail or by calling 918-824-3600tel:(918)%20824-3600, and destroy the original transmission and its attachments without reading them or saving them to disk. Thank you.
Rick, This right on point. We are dealing with taking just not a taking for public use. Nonetheless, I’m just advocating that we still have to comply with the required procedures. Thanks.
This e mail transmission and/or attachments are covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, is confidential and may be legally privileged. It contains information from the law firm of Bartlett A. Bouse, P.L.L.C., which is either confidential or legally privileged and is intended only for the use of the individual or entity named in the e mail. If you are not the intended recipient, you are hereby notified that any retention, dissemination, disclosure, copying, distribution, or other unauthorized use of, or the taking of any action in reliance on the contents of this information, is strictly prohibited. If you received this e mail in error, please notify this office at bartbouse@bouselaw.com or 580-256-1285 and then delete it.
From: Rick Knighton
Sent: Friday, March 27, 2020 12:18 PM
To: 'Kevin Dodson'; oama@lists.imla.org
Subject: Re: [Oama] EXTERNAL EMAIL : COVID 19
In Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 53, 148 P.3d 842, 856, as corrected, the Court concluded that a temporary moratorium on the plaintiffs proposed use of water from a sensitive sole source aquifer did not constitute a taking of private property for public use under the Constitutions of the United States and the State of Oklahoma. The Court viewed the moratorium on temporary permits as a temporary restriction, at most, on the plaintiffs'/appellants' use of their water. Id. The Court also concluded that a requirement that OWRB in considering applications for regular permits, determine whether a proposed use is likely to degrade or interfere with springs or streams emanating from water originating from a sensitive sole source groundwater basin was a proper exercise of the Legislature’s police power. Id.
As applied to requiring businesses to close, under Jacobs Ranch, such requirements are temporary restrictions at most that do not constitute a taking of private property under the Constitutions of the United States and the State of Oklahoma. Such restrictions are also proper exercises of a municipality’s police power. When reasonable, such exercises are not takings. See e.g., Manufacturers Guild, Inc. v. City of Enid, 2010 OK CIV APP 87, 239 P.3d 986 (concluding that the statute permitting a municipal governing body to cause dilapidated buildings to be demolished if certain procedures are followed did not violate State Constitution's Takings Clauses, as it was a lawful exercise of police power, in that it protected health, safety, and welfare of the general public, it was rationally related to this goal, and it was clear and unambiguous in its purpose).
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
405.217.7700 | 405.366.5425 | rick.knighton@normanok.gov | www.normanok.gov
This. Now we are having a good discussion not just debating how to have closed meetings. Thanks Matt.
This e mail transmission and/or attachments are covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, is confidential and may be legally privileged. It contains information from the law firm of Bartlett A. Bouse, P.L.L.C., which is either confidential or legally privileged and is intended only for the use of the individual or entity named in the e mail. If you are not the intended recipient, you are hereby notified that any retention, dissemination, disclosure, copying, distribution, or other unauthorized use of, or the taking of any action in reliance on the contents of this information, is strictly prohibited. If you received this e mail in error, please notify this office at bartbouse@bouselaw.com or 580-256-1285 and then delete it.
From: Matt Love
Sent: Friday, March 27, 2020 12:17 PM
To: Kevin Dodson
Cc: oama@lists.imla.org
Subject: Re: [Oama] COVID 19
See Mugler v. Kansas, 123 U.S. 623 (1887):
The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.
So basically it’s a question of whether the entity is exercising the power of eminent domain or its police powers. For at least Oklahoma Constitutional purposes, where police powers are being exercised, the first question is whether the exercise was reasonable. If the exercise of police powers is reasonable, then a takings claim can only exist if the police powers are exercised in such a way so as to absolutely deny the owner of property any access to the property. See Mattoon v. City of Norman, 1980 OK 137, 617 P.2d 1347 and Brewer v. City of Norman, 1974 OK 123, 527 P.2d 1134. It would seem to follow that, if a City directs that businesses not allow customers into their facility during this State of Emergency, then that does not deny the business owner from having access themselves to the property (it merely restricts who else can access it). By contrast, if a City entered an order that they must close down and no one can go to the property, then they might have an argument that they have been denied complete access to their property.