To the delight of comedians everywhere the FTC is reportedly looking into why McDonald's ice cream machines often seem to be out of order. At first this seems pretty much like a waste of time, and nothing do with ag law, but it does.
It's because the McDonald's franchisees may be restricted from repairing the machines. The technicians are hard to come by and the four-hour cleaning cycle seems overly complex, but if you can’t even hire somebody other than a previously anointed technician, the market doesn’t work right. That is high prices and less quality. The ice cream machine with a repair restriction is legally the same critter as a yield monitor or a tractor that has the same rules. Imagine the delay when only a factory authorized representative can adjust, or trouble shoot a wonky seed tube sensor.
The concept is that an owner of a piece of equipment has right to repair, and the right would be expanded to require manufacturers publish diagnostic tools and documentation they use to fix repair their goods. This concept has traction in some states out east, where it was on a the ballot in Massachusetts as measure requiring data on cars that manufactures don’t like to make public. In fact, 27 states have kicked around right to repair measures in various formats.
Another concept being pushed is requiring manufacturers to create products that can be easily fix. Consider Apple products and how they are seemingly impossible to access, like the iPods. They have small batteries in them that fail after a number of years and right now, you or a third party that attempts to replace them will void the warranty if you do manage to figure out how to open them up. The other option is to toss them and buy new, which environmental advocates are against.
Who would be against this? The people who build things don’t want their products easily copied and they raise concerns that non authorized non trained people modifying their product makes the product dangerous in some cases.
Ag relies upon tech and this issue is as important to the future of ag as climate change, land use, and taxation.
Back in 2018, California, which can change the law with a ballot procedure that allows the voters to bypass the legislature and essentially enact whatever, passed a law that prevents farm owners in the state from using confinement systems for veal, bred hogs, or layers that are “cruel”. To not be cruel, the animal must be able to do the Hokey Pokey in the area, that is, the animal must be able to lie down, stand up and turn all the way around and each animal has a minimum square footage required.
Also, it is illegal in California to sell products that are derived from facilities that do not meet the Hokey Pokey test starting 1 Jan 2022. California raises about 4% of the bacon it needs, most of it comes from the Midwest. So essentially, the Californian’s are telling Iowa how to raise hogs, chicken and beef.
Since we are talking about it here, it should be no surprise that it went to court. American Farm Bureau and the National Pork Producers took the lead. They lost. They lost in the appeals court, even though the court acknowledges that the rule will cause changes throughout the nation. This appeals court, the 9th Circuit, is referred to in some legal circles as the 9th Circus, as it has a long history of adopting liberally liberal interpretations of the law to further social agendas.
Back in the dark ages when I went to law school, we read about Wickard, a farmer who was growing wheat in violation of an ordinance enacted by the state. The federal court pointed out that the Constitution says the feds regulate Commerce between states and since wheat makes the flour and people in all states buy flour, the fed gets a say in by making sure that one state doesn’t make an undue burden on the other state residents. This is referred to as the dormant commerce clause. It is a wide-reaching grant of federal authority, but it has always been viewed by the courts as a narrow power.
The court didn’t care that the Hokey Pokey rule, while limited to California Agri business, has an impact on ag business in other states. 87% of all pork is consumed outside of California, but the 13% who now have to have Hokey Pokey approved production raise the price for all. Since it impacts everybody, the court found it okay.
The price increase has restaurant owners simply considering removing pork from the menu, which of course, is the ultimate goal of those who seek to dismantle and eliminate ag production as we currently know it.
This ruling can go up for appeal to the US Supreme court, so it is not over for Bacon in San Francisco, but it doesn’t look great.
Public service reminders
HIPPA means your doctor can’t tell your neighbor about that weird growth on your arm pit or ask about your vaccination status. HIPPA applies to covered entities who get your health information, like doctors, insurance companies and hospitals. It does not cover Aunt Maude asking if you have to continue to take penicillin or if that rash is all cleared up.
Free Speech does not mean you can say whatever you want to say at any time. All rights are subject to other people’s enjoyment of their rights. For example, you cannot yell fire, or we are all going to die in a crowded theatre unless it is factual. Also, certain words are “Fighting words’ and are essentially off limits for expressing yourself. Also, certain images are pornographic and not artistic. In the words of a Supreme Court justice “I will know it when I see it.”. So, we do have limits on our conduct as part of our social compact with one another.
It has been tested recently in court and private companies can ask their employees to be vaccinated against whatever they ask them to be, or the employee can and work for a company that doesn’t ask or doesn’t care. If you work for government agency, which government (local, state or federal) will determine what they can and cannot ask you do to continue employment.
The government retains certain rights no matter who is on the deed. In fact, if you look back at an abstract far enough, most of original conveyances came from the United States government via a “patent.”. This document, in Iowa is generally for 40-acre sections signed by Franklin Pierce. In the end, the uncomfortable truth that we don’t always contemplate is that our rights of property ownership are derived from and there for are controlled by, the government. Of course, the government is supposed to be by the people so we are really granting ourselves rights. right??
Here is a look at some of the government powers.
Police Power: Zoning ordinances and building codes that promote the health, safety, or the general welfare of the public. Zoning can be easily defined as the government’s ability to enact regulations to reasonably control land use. It could be an ordinance requiring mowing of grass; in the country it might be soil conservation rules requiring owner to terrace property; statute authorizing destruction of diseased cattle without compensation; ordinance prohibiting ownership of dangerous/vicious animals. Sometimes zoning can’t be enforced so you need to get a variance from a board of adjustment. In Iowa, what was once an easy process is now being tightly construed that in order to get a variance, no other economic value can occur. For example, construction of a pergola less than 30 feet from the curve is something that has been routinely allowed by a board of adjustment, but under Iowa supreme court rulings, not having a pergola isn’t depriving a landowner of all economic use and is therefore not a hardship, so the variance should not be granted. The impact on the surrounding properties also considered. Note, zoning on ag land is pretty limited but the county can stop using the ag designation as a shield to get around rules against subdividing ground int buildable lots in the county for residential use.
Eminent Domain: Eminent Domain provided for in 5th Amendment to the Federal Constitution. It prohibits the government from taking private property for use without just compensation for the owner. The eminent domain clause is also known as a taking’s clause. An explicit taking is the classic example is if a landowner will not voluntarily sell property to the state to build a highway, so the state uses its eminent domain powers to obtain the property and provide the owner with “just compensation.” An implicit taking occurs when the government regulation indirectly causes a result that has the same effect as an explicit taking. An example would be if an owner bought land to develop it, but then shortly later, the government banned new development in that area. The resulting process from eminent domain power is called condemnation.
Taxation: Taxation can affect real estate in two ways the taxes that are assessed against the real estate or other taxes (i.e. income tax, sales tax) that becomes a lien on the property due to the owners’ debt. When real estate taxes remain unpaid, the property can be sold at tax sale.
Escheat: This is the process by which property reverts back to the state (or county) in cases where an owner dies without heirs and without a will or where the property is abandoned. Since the government granted the rights in the first place, they built in a feature to allow them to reclaim the rights granted if nobody else can claim them.
Statutory Interests in Property
Yes, dirt is what is behind your ear and soil is what we grow crops upon. The alliteration of soil is special is catchy but not quite as catchy as dirt is different. We treat landownership and its disposition in estate plans differently than we do cash, the family shoe factory or even the family dog. Understanding how property works is an essential knowledge component for the landowner, the potential heirs or the prospective new buyers. Every state’s property system is different, and this will focus on Iowa’s.
Property ownership is often described as a “bundle of sticks”. I grab a wad of pens to demonstrate each stick. Each of these “sticks” represents an individual right. Sometimes an owner might have the entire bundle of sticks. The occupant usually has most of the sticks. Sometimes, a life tenant might have another one, a mortgage company might have another one, the REC might have one for a power easement, or the city might have another stick due to zoning requirements. Yep, the government retains some rights, like police power, eminent domain, taxation, and reclamation of “dead” properties (when nobody else can claim it, the government makes sure it can).
To keep track of the rights, in Iowa we utilize an abstract & title opinion system. Most of the states and international holdings use a system developed by an Englishmen in Australia, the Torrens system and it is coupled with a title insurance requirement. An abstract of title (a/k/a abstract) is prepared which summarizes any recorded or filed instruments affecting title like mortgages and judgments. It is a history of the property. An abstract can only provide information about recorded instruments as they are shown on their face. Some problems are not revealed from an abstract (i.e., forged signature, seller was incompetent, etc.).
An attorney reviews the abstract and issues a title opinion that states the legal descriptions, the titleholder(s) and any objections (which may be defects to be corrected such as tax liens or may be issues of notice such as presumably acceptable utility easements). It is like a book report on the history. Unlike a title insurance system where defects are routinely insured over, Iowa’s system requires that any defects must be resolved before closing can occur. It is illegal to sell title insurance in Iowa, so the state has a title insurance equivalent (that is far cheaper) to make sure Iowans can get nationally marketed mortgage products.
Sumner, Iowa Attorney practicing in Iowa primarily in Ag Law, Bankruptcy, Estate Planning, Real Estate Law. Lawyers at the Dillon Law P.C. are dedicated serving Iowa, including but not limited to the cities of Allison, Charles City, Cresco, Decorah, Des Moines, Dubuque, Elkader, Grundy Center, Independence, Manchester, New Hampton, Waterloo, Waverly, Waukon, West Union & Vinton, and the communities that makeup Allamakee, Benton, Black Hawk, Bremer, Buchanan, Butler, Chickasaw, Clayton, Delaware, Dubuque, Fayette, Floyd, Grundy, Howard, Polk, Winneshiek, counties. © 2021 Dillon Law P.C. Sumner Location | 209 E. 1st Street, Sumner, IA 50674 Volga City Location | 502 Washington St, Volga City, IA, 52077. West Union Location | 103 N. Vine Street, West Union, Iowa 52175 West Union, Iowa 52175 We are there most Fridays 10-3 and by appointment. Telephone: (563) 578-1850 Email: firstname.lastname@example.org Home | Attorneys | Blog | Ag Law | Bankruptcy | Estate Planning | Real Estate Law | Contact | Iowa Ag Law Attorney Sumner Taxation Commercial Transactions Production Contracts Labor Hobby Farm Liability Bremer Fayette County Lawyer