Nova Southeastern University H. Wayne Huizenga School of Busin.docx

Nova Southeastern University
H. Wayne Huizenga School
of Business & Entrepreneurship
Assignment for Course:
ISM 5150: IS Strategy & Data Management
Submitted to:
Dr. Arvind Gudi
Submitted by:
Team 8: Anas Hajji, Hamza Oulahrir, Said Liousri
Date of Submission: September 10, 2015
Title of Assignment: Group Case Report #1 (Case#3; Question
#2)—ZipCar
CERTIFICATION OF AUTHORSHIP: I certify that I am the
author of this paper and that any assistance I received in its
preparation is fully acknowledged and disclosed in the paper. I
have also cited any sources from which I used data, ideas or
words, either quoted directly or paraphrased. I also certify that
this paper was prepared by me specifically for this course.
Student's Signature: Anas Hajji, Hamza Oulahrir, Said Liousri
*****************************************************
************

Instructor's Grade on Assignment: Presentation + Report = 9 + 9
= 18/20 = 90%
Instructor's Comments: Please make sure the presentation slides
are readable when printed!
Background:
Zipcar is a car rental company that uses a revolutionary
automated system in which cars are rented by hours or days.
The company tried to spread its cars in several locations to
make it easy for the Zipcar ‘s customers to get their cars.
Indeed, every car has a home location to which it must be
returned. These locations are available on the Zipcar website.
All cars are equipped with a patented wireless technology that
enables communicating actual information about their
availability to customers, and provides the company with useful
information to monitor car security, fulfill reservations, and
maintain mileage information. Zipcar business model does not

rely on human contact, which is not the case for its competitors.
In fact, Zipcar customers do not have to stand in queues and fill
papers to rent their car as the traditional companies do.
Customers also knew in advance the make and the model of the
car they will rent. In addition to that, Zipcar rents cars 24/7
thanks to its unique IT platform, which is not the case for
traditional car rental companies. The company also uses social
networks by creating an online community of users so that they
can share their experience. Zipcar is also trying to market its
innovative technology to attract some institutions that could be
interested to buy it such as competitors and government.
Finally, the wireless technology is considered as the main core
competency and competitive advantage of the Zipcar.
Analysis:
The main challenges that face the company concern its
expansion nationally and globally. Scott Griffith (2011) claimed
“We look at three key factors. The first is high population
density, the second is a strong public transportation
infrastructure, and the third is expensive and hard to find
parking.” Therefore, the company has difficulties to expand in
some areas where the traditional car rental companies are
established. Based on our analysis, we have found that Zipcar
needs to do considerable data mining in order to select the
locations where it can expand nationally as well as globally.
Another challenge facing Zipcar concerns competition. Hertz
car rental is trying hard to gain more market share through the
Hertz on demand, which is a pretty similar technological
concept to Zipcar. Unlike Zipcar, Hertz possesses the financial
means which facilitates to them to attack some Zipcar locations
such as universities and provide car rental with lower rates.
Comment by Arvind Gudi: Please check sentence
construction!

VALUE
CREATION
VALUE
SUSTAINABILITY
Value Rarity
Imitation Substitution Transfer
IT ASSET
IT Infrastructure
M M
M L L
Information Repository
L H
H M M
IT CAPABILITY
Technical Skills
H M
L M M
IT Management Skills
H H
L L M
Information Resources at Zipcar (Low, Moderate, High)
In order to have a better understanding and analyze the problem
deeply, we are going to use the resource-based view. The
resource based view model above shows the different resources
available to the company to maintain and sustain its competitive
advantage. Regarding IT assets, the IT infrastructure in terms of
value creation has a high rating as Zipcar competitive advantage
came from the hardware and software they have developed. It is

difficult to imitate as their technology and system are patented.
Substitution and transfer is rated medium and low respectively.
In terms of information repository, we have valued it low
because Zipcar does not take advantage of its information
system to build a database on customer preferences, traveling
routes, places they visit the most and so on. Indeed, they have a
social platform online where zippers share their experience with
the community or Zipcar itself to improve its service which is
not enough. We thought that imitation can be high as any
company can create a social app online and gather data.
Substitution along with transfer are set to medium. Regarding
IT capabilities, as Zipcar has decreased its human interaction
with its customers by implementing a revolutionary Information
system; we believe that Zipcar is relying on their technicians
and managers to leverage the use of IT resources, a skill that is
not easily replaceable, substitutable or transferable.
Comment by Arvind Gudi: I suggest you show charts and
figures in the appendix! Comment by Arvind Gudi: Is this the
same as the chart – it shows M rating!
Zipcar is the company that created the car-sharing category. The
best advice would be to keep on innovating the entire value
chain by developing award wining websites and interfaces, and
working conjointly with automobile manufacturers such as Ford
and Toyota to closely integrate their cars to the company’s cars.
Being the market share leader could be beneficial for Zipcar to
maintain its competitive advantage by signing contracts with
municipalities, and government. By signing contracts with these
entities, Zipcar can both open up additional revenue sources,
create cost-saving initiatives, and keep up its competitive
advantage. We also recommend to the company CIO to continue
expanding into new markets in order to improve their brand
image as well as their brand recognition. As we stated before,
expanding domestically needs some data mining that will
support the choice of the most adequate places. Finally, the
company should create an information repository that gathers

information on their customers’ preferences through social
networks.
Conclusion :
Value creation is a strength that zipcar already has through its
unique and innovative technology. However, sustaining it is not
going to be easy due to the fast change technology environment.
As the industry leader, Zipcar must maintain its competitive
advantage through innovating its technological advance and
making it hard to be copied by competitors. Moreover, the
company should also work on assessing certain parts of its
value chain by looking for deals with giant car manufacturers,
promoting more aggressively the energy and cost saving aspects
through social media. Finally, they have to gather information
on Zipcars customers’s preferences in order to provide better
services. Comment by Arvind Gudi: Please check grammar!

References
Pearlson, Keri, and Carol S. Saunders. Managing and Using
Information Systems: A Strategic Approach. 5th ed. Hoboken,
NJ: John Wiley & Sons, 2013. Print.
Kilcrease, A. (2011, December 5). A conversation with Zipcar’s
CEO Scott
Griffith. Retrieved September 7, 2015, from
https://gigaom.com/2011/12/05/a-
conversation-with-zipcars-ceo-scott-griffith/
Group Case Rubric
Performance Criteria
Requirements for Exemplary Performance
Score
1. Background (2 points)
Effectively and completely identifies symptoms, critical factors
and current state in Background discussion as relevant to the
specific question. If applicable the background section leads
logically to the problem statement.
2
2. Analysis (4 points)
Completely and effectively applies IS models, course content,
and outside research to support the analysis. If applicable,

logically discusses options, implications and tradeoffs. The
section flows smoothly from the background section and to the
next section.
3.5
3. Conclusions (2 points)
Completely and effectively discusses conclusions logically
based on the analysis. Fully supports position with research. If
applicable, flows smoothly into relevant and practical
recommendations.
2
4. Writing (2 points)
Communicates in exceptionally clear, logical, and
grammatically correct language. Uses external primary research
sources (at least 1 excluding textbook) and correct APA format.
1.5
Total (out of 10)
9
Visit http://www.lawnerds.com/guide/briefing.html to
understand how to brief a case. Pick ONE case study of your
choice. Write your brief.
The Constitutional Foundation
Case 1.3
Iowa,2012.
Mitchell County v. Zimmerman
--- N.W.2d ----, 2012 WL 333777 (Iowa)
Only the Westlaw citation is currently available.
Supreme Court of Iowa.
MITCHELL COUNTY, Appellee,

v.
Matthew Hoover ZIMMERMAN, Appellant.
No. 10–1932.
Feb. 3, 2012.
MANSFIELD, Justice.
Members of the Old Order Groffdale Conference Mennonite
Church are forbidden from driving tractors unless their wheels
are equipped with steel cleats. A Mitchell County road
protection ordinance forbids driving such vehicles on the
highways. The question we must decide is whether the
ordinance violates the religious rights of these church members
under either the United States or the Iowa Constitution.
Although the issue is a close one, we conclude the ordinance as
applied to church members violates the Free Exercise Clause of
the First Amendment of the United States Constitution.FN1 For
the reasons stated herein, we find the ordinance is not of
general applicability because it contains exemptions that are
inconsistent with its stated purpose of protecting Mitchell
County's roads. We also find the ordinance does not survive
strict scrutiny because it is not the least restrictive means of
serving what is claimed to be a compelling governmental
interest in road protection. We therefore reverse and remand for
entry of an order of dismissal.
I. Facts and Procedural History.
On February 1, 2010, Matthew Zimmerman was cited for
operating a Massey Ferguson tractor in violation of a Mitchell
County road protection ordinance. The tractor had steel cleats
or “lugs” on its wheels. The lugs, which comprise “the bar that
makes contact with the highway as the tractor moves forward,”
were several inches long and approximately an inch wide, and
were attached to a rubber belt mounted on the wheel.
The ordinance in question was adopted by Mitchell County in
September 2009. Its stated purpose is “to protect Mitchell
County hard surfaced roads.” The ordinance provides:
No person shall drive over the hard surfaced roadways,
including but not limited to cement, concrete and blacktop

roads, of Mitchell County, or any political subdivision thereof,
a tractor or vehicle equipped with steel or metal tires equipped
with cleats, ice picks, studs, spikes, chains or other projections
of any kind or steel or metal wheels equipped with cleats, ice
picks, studs, spikes, chains, or other projections of any kind.
Mitchell County, Iowa, Mitchell Cnty. Road Prot. Ordinance
(Sept. 22, 2009).
Zimmerman moved to dismiss the citation on the ground that his
constitutional rights to free exercise of religion under the First
Amendment to the United States Constitution and article I
section 3 of the Iowa Constitution had been violated. A hearing
was held before a magistrate, who found Zimmerman guilty of
violating the ordinance and denied the motion. Zimmerman
appealed the ruling to the district court. Because no recording
of the hearing before the magistrate was available, a new
hearing was held.
Eli Zimmerman, a fellow member of the Old Order Groffdale
Conference Mennonite Church, testified at the district court
hearing in support of the motion to dismiss. He explained the
use of steel wheels is a religious practice and a church rule of
the Old Order of Groffdale Mennonite Conference. Zimmerman
cited Romans 12:2 as the biblical passage from which the rule
derives.FN2 The practice of using steel wheels on tractors dates
back at least forty years. The church determined farm tractors
could be used in addition to the traditional horse and buggy, but
would have to be refitted with steel wheels to maintain small-
scale farming and a close-knit community. If a church member
drove a tractor that did not have steel wheels, he or she would
be barred from the church. The steel wheel rule helps insure
that tractors are not used for pleasure purposes and thereby
displace the horse and buggy.
Zimmerman testified that it is permissible for church members
to hire other persons to drive them for business purposes in
vehicles with rubber tires. Also, a church member could hire
someone with a rubber-tired tractor to haul his or her farm
wagons to market.FN3 However, this leads to “a lot of

inconveniences.” In addition, a church member could use horses
for hauling purposes, if it were possible to make a living doing
so. In short, it has long been a religious requirement of the Old
Order of Groffdale Mennonite Conference that any motorized
tractor driven by a church member be equipped with steel
wheels. According to Zimmerman, “The religious practice, it
has to be steel hitting the surface, [be] it soil, [be] it highway,
[be] it concrete.”
The prohibition on driving motorized vehicles with rubber tires
is not the only church rule affecting modern conveniences.
Zimmerman testified that the use of radio, television, and
computers is also forbidden in his religious community.
Over the years, to minimize possible road damage, the steel
cleats and lugs have been made wider and have been mounted
on rubber belts to provide cushioning. In Mitchell County, the
Mennonites use county roads mainly when they need to haul
their produce to the produce market. Both parties conceded that
for some time the Mennonites and the County had peacefully
coexisted, and the County did not object to the Mennonites' use
of steel wheels. However, in 2009, the County embarked on a $9
million road resurfacing project, where the existing roads were
“white-topped,” or covered with concrete. The County had
never used this new method of repaving before.
Two Mitchell County officials testified at the hearing that the
steel wheels have damaged their newly white-topped roads by
causing cracks and taking paint off them. Photos introduced by
the County showed some cracks as well as markings where the
steel wheels had come into contact with the road surface. As
explained by the county engineer, “Because the steel is harder
than the aggregates in that material—in the concrete surfaces
and the asphalt surfaces, ... it will wear that surface off.” FN4
Accordingly, in September 2009, the County adopted its road
protection ordinance. The ordinance provides that violators are
subject to a maximum fine of $500 or 30 days in jail, or both,
and a civil penalty may also be imposed “equal to the amount
necessary to repair the damage to the road.”

Under existing state law, no tire on a vehicle moved on a
highway is allowed to have “any block, stud, flange, cleat, or
spike or any other protuberances of any material other than
rubber,” except for:
1. Farm machinery with tires having protuberances which will
not injure the highway.
2. Tire chains of reasonable proportions upon any vehicle when
required for safety because of snow, ice, or other conditions
tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs projecting
not more than one-sixteenth inch beyond the tread of the
traction surface of the tire upon any vehicle from November 1
of each year to April 1 of the following year, except that a
school bus and fire department emergency apparatus may use
such tires at any time.
Iowa Code § 321.442 (2009). However, a Mitchell County
supervisor testified that “the penalty there is only a $10 fine,
which ... isn't prohibitive really, ... so we enacted ... this
ordinance to protect our roads.” The County concedes that its
ordinance, which expressly states “Iowa Code § 321.442 shall
continue to remain in full force and effect,” is intended to
mirror the Iowa Code provision substantively, while imposing a
stiffer sanction for violations. Mitchell Cnty. Road Prot.
Ordinance.
The district court overruled Matthew Zimmerman's motion to
dismiss. It found “the use of steel wheels on tractors is a matter
of religious conviction for members of the GC church.” It also
determined that the Mitchell County ordinance substantially
burdens this religious practice.... These tractors are used to do
field work, transport grain and produce to market, and are
shared amongst neighbors and family members. All of these
activities require that the tractors be driven on hard surfaced
county roads. While it is admitted that other practices could be
adopted to accomplish these same tasks, this ordinance will
substantially burden the Mennonites ... by requiring them to
find other modes of transporting both their goods to market and

their tractors to fields.
However, the court held the Mitchell County ordinance was
both neutral and generally applicable. It was not motivated by
religious animosity but “to protect Mitchell County's investment
in resurfacing their roads,” and “it treats secular and religious
conduct equally.” The court therefore sustained the ordinance
against Zimmerman's First Amendment challenge, citing
Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d
876 (1990).FN5
The district court then turned to Zimmerman's arguments based
on article I section 3 of the Iowa Constitution. The court held
that even if, hypothetically, that provision required the
ordinance to be supported by a compelling state interest, such
an interest had been established here. As the court stated,
“protecting the integrity of the county's roads” from damage is a
compelling state interest, and the ordinance is “the least
restrictive means” because it only disallows steel wheeled
vehicles “on the hard surfaced roads.”
We granted Zimmerman's application for discretionary review.
II. Standard of Review.
[1] We review constitutional claims de novo. Zaber v. City of
Dubuque, 789 N.W.2d 634, 636 (Iowa 2010).
III. The First Amendment Claim.
Zimmerman contends the district court erred in denying his
motion to dismiss based on the First Amendment to the United
States Constitution. The First Amendment provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assembly, and to petition the Government for a
redress of grievances.
U.S. Const. amend. I (emphasis added). The highlighted
language, the Free Exercise Clause, was part of the original
Federal Bill of Rights and was made applicable to the states
through the Fourteenth Amendment in Cantwell v. Connecticut.

310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1217–18
(1940).
[2] In America, one has “the right to believe and profess
whatever religious doctrine one desires.” Smith, 494 U.S. at
877, 110 S.Ct. at 1599, 108 L.Ed.2d at 884. Yet the Free
Exercise Clause does not guarantee the government's absolute
noninterference with religion.
Two landmark cases under the Free Exercise Clause were
Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d
965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct.
1526, 32 L.Ed.2d 15 (1972). In Sherbert, the United States
Supreme Court held that a Seventh Day Adventist could not be
denied unemployment benefits because she refused to work on
Saturday for religious reasons. 374 U.S. at 409–10, 83 S.Ct. at
1797, 10 L.Ed.2d at 973–74. The Court found a substantial
burden on the free exercise of her religion because the appellant
was “force[d] to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept
work, on the other hand.” Id. at 404, 83 S.Ct. at 1794, 10
L.Ed.2d at 970. The Court then turned to whether “some
compelling state interest” justified this “substantial
infringement of appellant's First Amendment right” and found
none. Id. at 406–07, 83 S.Ct. at 1795, 10 L.Ed.2d at 972.
Therefore, the Court concluded, “South Carolina may not
constitutionally apply the eligibility provisions so as to
constrain a worker to abandon his religious convictions
respecting the day of rest.” Id. at 410, 83 S.Ct. at 1797, 10
L.Ed.2d at 974.
In Yoder, the Court decided that Wisconsin's compulsory school
attendance law could not be applied to members of the Old
Order Amish religion whose religion forbids school attendance
after the eighth grade. 406 U.S. at 207–08, 234, 92 S.Ct. at
1529–30, 1542, 32 L.Ed.2d at 20–21, 36. The Supreme Court
seemed to say that government could not compel conduct that
interferes with the practice of a legitimate religious belief

except based upon “interests of the highest order.” Id. at 214–
15, 92 S.Ct. at 1533, 32 L.Ed.2d at 24–25. Ultimately, it
rejected the state's contention that “its interest in its system of
compulsory education is so compelling that even the established
religious practices of the Amish must give way.” Id. at 221, 92
S.Ct. at 1536, 32 L.Ed.2d at 28.
A decade later, however, the Supreme Court observed that when
a citizen engages in a commercial activity, it may not be
possible for him or her to avoid, on religious grounds, the
effects of laws regulating that activity:
Congress and the courts have been sensitive to the needs
flowing from the Free Exercise Clause, but every person cannot
be shielded from all the burdens incident to exercising every
aspect of the right to practice religious beliefs. When followers
of a particular sect enter into commercial activity as a matter of
choice, the limits they accept on their own conduct as a matter
of conscience and faith are not to be superimposed on the
statutory schemes which are binding on others in that activity.
United States v. Lee, 455 U.S. 252, 261, 102 S.Ct. 1051, 1057,
71 L.Ed.2d 127, 134–35 (1982), superseded by statute on other
grounds, Exemption Act of 1988, Pub.L. No. 100–647, Title
VIII, § 8007(a)(1), 102 Stat. 3781.
In Lee, a member of the Old Order Amish objected to the
payment of employer Social Security taxes. He maintained that
his faith already imposed an obligation on members to provide
for fellow members. Both payment and receipt of Social
Security benefits, he contended, were religiously forbidden. The
Supreme Court did not dispute these points. Id. at 257, 102
S.Ct. at 1055, 71 L.Ed.2d at 132. It acknowledged, rather, that
there was a conflict between the Amish faith and the
requirements of the Social Security system. But the Court cited
“the broad public interest in maintaining a sound tax system”
and found it would be difficult to “accommodate the
comprehensive social security system with myriad exceptions
flowing from a wide variety of religious beliefs.” Id . at 259–
60, 102 S.Ct. at 1056–57, 71 L.Ed.2d at 134. “The tax imposed

on employers to support the social security system must be
uniformly applicable to all, except as Congress provides
explicitly otherwise.” Id. at 261, 102 S.Ct. at 1057, 71 L.Ed.2d
at 135. Hence, the Court rejected Lee's free exercise claim.
This case arguably bears some similarities to Lee. The tenets of
Zimmerman's religion require him to engage in a commercial
activity, i.e., hauling farm products, on a different basis from
others. But the highways belong to everyone, and there is a
public interest in preserving and protecting those highways.
[3][4] Eight years after Lee, in Smith, the Supreme Court made
clear that the First Amendment's Free Exercise Clause does not
prohibit a state from enforcing “a neutral, generally applicable
regulatory law,” and cited Lee as its “most recent decision”
involving such a law. Smith, 494 U.S. at 878–80, 110 S.Ct. at
1600–01, 108 L.Ed.2d at 885–86. A regulatory law that is both
neutral and generally applicable passes constitutional muster
under the Smith line of authority, even though it may require
performance of an act—or abstention from conduct—in
contradiction to an individual's religious beliefs. Id.FN6 Smith
distinguished Yoder on the ground it was not purely a free
exercise case but involved an additional right—“the right of
parents ... to direct the education of their children.” Id. at 881,
110 S.Ct. at 1601, 108 L.Ed.2d at 887. Smith distinguished
Sherbert as an unemployment case. Id . at 882–84, 102 S.Ct. at
1602–03, 108 L.Ed.2d at 888–89.
[5] On the other hand, laws that are not neutral or of general
applicability require heightened scrutiny. They “must be
justified by a compelling governmental interest and must be
narrowly tailored to advance that interest.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–
32, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472, 489 (1993).
[6] Smith and Lukumi illustrate the two poles of Federal Free
Exercise Clause analysis. In Smith, the individuals were denied
unemployment benefits because they had been fired for using
peyote, in violation of a neutral and generally applicable
regulatory law. 494 U.S. at 874–76, 110 S.Ct. at 1597–98, 108

L.Ed.2d at 882–84. The Supreme Court found no violation of
their free exercise rights. Id. at 886–87, 110 S.Ct. at 1604, 108
L.Ed.2d at 890–91. By contrast, in Lukumi, the church
challenged ordinances that targeted the killing of animals for
“sacrifice” but not for food. 508 U.S. at 527–28, 113 S.Ct. at
2223–24, 124 L.Ed.2d at 486–87. The Supreme Court concluded
that “each of Hialeah's ordinances pursues the city's
governmental interests only against conduct motivated by
religious belief,” id. at 545, 113 S.Ct. at 2233, 124 L.Ed.2d at
498, applied strict scrutiny, and found the ordinances did not
pass a strict scrutiny test, id. at 546–47, 113 S.Ct. at 2233–34,
124 L.Ed.2d at 498–99. Mitchell County argues that its
ordinance is a neutral and generally applicable regulatory law
and, therefore, Smith is the more relevant precedent.FN7
In Smith, the Supreme Court did not define general applicability
or expressly distinguish it from neutrality, but merely
referenced “neutral law of general applicability” and “neutral,
generally applicable law” as valid limits on free exercise. 494
U.S. at 880–81, 110 S.Ct. at 1600–01, 108 L.Ed.2d at 886–87.
Smith did not explore the details of general applicability
because it dealt with a uniformly applicable law that contained
no exemptions. FN8 Lukumi provided some clarification of the
contours of general applicability but, because of the extreme
degree of gerrymandering involved, did not provide sufficient
specificity to guide lower courts in cases where fewer
exemptions are allowed. See Lukumi, 508 U.S. at 543, 113 S.Ct.
at 2232, 124 L.Ed.2d at 497 (“In this case we need not define
with precision the standard used to evaluate whether a
prohibition is of general application, for these ordinances fall
well below the minimum standard necessary to protect First
Amendment rights.”).FN9 Lukumi did make clear that although
neutrality and general applicability were overlapping concepts
they were nevertheless distinct, and therefore a law could fail
the separate test of general application even if it satisfied the
neutrality criteria. See id. at 542, 113 S.Ct. at 2231–32, 124
L.Ed.2d at 496 (referring to general applicability as a “second

requirement of the Free Exercise Clause” and devoting Section
IIB of the opinion to a separate analysis of this issue). Lukumi
separated the neutrality and general applicability criteria which
in Smith were loosely treated as a single inquiry. Still, the
Lukumi Court recognized the two requirements were
“interrelated,” and “failure to satisfy one requirement is a likely
indication that the other has not been satisfied.” Id. at 531,
113 S.Ct. at 2226, 124 L.Ed.2d at 489.
[7][8][9] A. Facial Neutrality. We must first determine whether
the ordinance is facially neutral. The most basic requirement of
neutrality is “that a law not discriminate on its face.” Id. at 533,
113 S.Ct. at 2227, 124 L.Ed.2d at 491. “A law lacks facial
neutrality if it refers to a religious practice without a secular
meaning discernable from the language or context.” Id. Here the
ordinance reads as follows:
No person shall drive over the hard surfaced roadways,
including but not limited to cement, concrete and blacktop
roads, of Mitchell County, or any political subdivision thereof,
a tractor or vehicle equipped with steel or metal tires equipped
with cleats, ice picks, studs, spikes, chains or other projections
of any kind or steel or metal wheels equipped with cleats, ice
picks, studs, spikes, chains or other projections of any kind.
Mitchell Cnty. Road Prot. Ordinance. The ordinance's language
is devoid of any religious references. Furthermore, Mitchell
County gave the ordinance the official title of the “Mitchell
County Road Protection Ordinance.” Id. (emphasis added).
Moreover, the first section of the ordinance, entitled “Purpose,”
states:
The purpose of this ordinance is to protect Mitchell County hard
surfaced roads, including but not limited to cement, concrete
and blacktop roads, from damage caused by a tractor, vehicle or
implement equipped with steel or metal tires equipped with
cleats, ice picks, studs, spikes, chains or other projections of
any kind or steel or metal wheels equipped with cleats, ice
picks, studs, spikes, chains or other projections of any kind.
(emphasis added). Thus, we agree with the district court that

“[t]he language of the statute refers to the use of steel wheels in
a secular and nonreligious context.” Therefore, the ordinance is
facially neutral.
[10] B. Operational Neutrality. Our next inquiry is whether the
ordinance is operationally neutral. Because the Supreme Court
has recognized that “[f]acial neutrality is not determinative,” we
must examine the ordinance for “governmental hostility which
is masked, as well as overt.” Lukumi, 508 U.S. at 534, 113 S.Ct.
at 2227, 124 L.Ed.2d at 491 (recognizing that “[o]fficial action
that targets religious conduct for distinctive treatment cannot be
shielded by mere compliance with the requirement of facial
neutrality”). We look beyond the language of the ordinance to
determine whether there is “impermissible targeting” of the Old
Order of Groffdale Mennonite Conference. Id. at 535, 113
S.Ct. at 2228, 124 L.Ed.2d at 491–92 (referring to a “ ‘religious
gerrymander’ “ (citation omitted)). In other words, we ask
whether “religious practice is being singled out for
discriminatory treatment.” See id. at 538, 113 S.Ct. at 2229, 124
L.Ed.2d at 493.
[11] We agree with the district court that religious practice is
not being intentionally discriminated against. The record
supports the district court's conclusion that Mitchell County
enacted the ordinance, not to persecute members of a particular
faith, but to protect its $9 million investment in newly repaved
roads. The ordinance was passed by Mitchell County only after
its engineers detected apparent damage caused to the roads by
steel wheels. That damage had not occurred prior to 2009
because the repaving project that year was the first time the
“white-topping” method had been used by the County.
Moreover, the prohibitions of the ordinance essentially buttress
existing state law requirements. See Iowa Code § 321.442.
At the same time, we must recognize the ordinance was adopted
specifically to address use of the resurfaced concrete roads by
steel wheel tractors. This is not a case where new activity
brushed up against a preexisting ordinance, but where an
ordinance was passed to deal with a longstanding religious

practice. See Yoder, 406 U.S. at 219, 226, 235, 92 S.Ct. at
1535, 1538, 1543, 32 L.Ed.2d at 27, 31, 36 (noting that “[t]he
requirement for compulsory education beyond the eighth grade
is a relatively recent development in our history,” whereas the
Old Order Amish faith has a “history of three centuries”).
C. General Applicability. We now turn to the more difficult
question whether the ordinance is “generally applicable.”
Lukumi found that Hialeah's ordinances violated the principle
of general applicability because “the secular ends asserted in
defense of the laws were pursued only with respect to conduct
motivated by religious beliefs.” 508 U.S. at 524, 113 S.Ct. at
2222, 124 L.Ed.2d at 484. The Court further made clear that an
ordinance could violate the principle of general applicability
even if religious conduct were not the only activity it
prohibited, so long as religious adherents ultimately bore most
of the burden of compliance. See id. at 535–37, 113 S.Ct. at
2228–29, 124 L.Ed.2d at 492–93 (noting that “almost the only
conduct subject to Ordinances ... is the religious exercise” and
“[t]he net result of the gerrymander is that few if any killings of
animals are prohibited other than Santeria sacrifice” while
“most other killings fall outside the prohibition”). The Court
emphasized that Hialeah's ordinances imposed restrictions on
Santeria worshippers the city was not willing to impose in other
contexts, noting that this was the “precise evil ... the
requirement of general applicability is designed to prevent.” Id.
at 545–46, 113 S.Ct. at 2233, 124 L.Ed.2d at 498. The Court
objected to Hialeah's “devalu[ation of] religious reasons ... by
judging them to be of lesser import than nonreligious reasons.”
Id. at 537, 113 S.Ct. at 2229, 124 L.Ed.2d at 493. It recognized
that although “[a]ll laws are selective to some extent, ...
categories of selection are of paramount concern when a law has
the incidental effect of burdening religious practice.” Id. at
542, 113 S.Ct. at 2232, 124 L.Ed.2d at 496.
The Lukumi Court found that the Hialeah ordinances were
underinclusive in terms of serving the purposes they were
designed for—protecting public health and preventing cruelty to

animals—in that they “fail[ed] to prohibit nonreligious conduct
that endangers these interests in a similar or greater degree than
Santeria sacrifice does.” Id. at 543, 113 S.Ct. at 2232, 124
L.Ed.2d at 497. This underinclusion was held to be substantial
because the overwhelming majority of activity that the
ordinances targeted was religious. See id. Two types of
underinclusiveness were identified: (1) secular activities that
equally threatened the purposes of the ordinances but were not
prohibited (and therefore were approved by silence), and (2)
some equally deleterious secular activities that were granted
express approval. See id.
Thus, according to Lukumi, the Free Exercise Clause appears to
forbid the situation where the government accommodates
secular interests while denying accommodation for comparable
religious interests. Hialeah could not constitutionally treat
religious sacrifice as less worthy of protection than secular
animal killings that posed the same type and degree of potential
harm.
Smith dealt with a law containing no exemptions. The
ordinances in Lukumi had a wide array of exemptions. Because
there has been no subsequent word from the Supreme Court on
the meaning of “general applicability,” other courts have had to
wrestle with its definition in specific cases.FN10 Lukumi tells
us that underinclusion is problematic when it is “substantial, not
inconsequential.” Id. Other courts have had to refine the
meaning of these rather general terms.
One prominent discussion of general applicability was authored
by Supreme Court Justice Alito when he served on the Third
Circuit. See Fraternal Order of Police Newark Lodge v. City of
Newark, 170 F.3d 359 (3d Cir.1999). In Fraternal Order, Sunni
Muslim police officers refused to comply with department
regulations requiring them to shave their beards for the purpose
of establishing uniform appearance to the public and morale
within the police force. Id. at 366. This regulation did not allow
for a religious exemption but did permit two secular
exemptions, one for a very limited number of officers who

could not shave for medical reasons and one for undercover
officers. Id. at 360. The court found the undercover exemption
did not undermine the purpose of the rule and therefore did not
impact its general applicability. Id. at 366. However, the secular
medical exemption was considered sufficiently parallel to the
requested religious exemption such that if the former were
accommodated, the latter must also be in order to maintain
general applicability. Id. at 364–66. The City of Newark was
not able to explain why “religious exemptions threaten
important city interests but medical exemptions do not.” Id. at
367. Therefore, heightened scrutiny applied and the city was
required to grant the requested religious accommodation.FN11
The Third Circuit followed a two-step analysis to evaluate the
potential underinclusiveness or nongenerality of the challenged
ordinance. It first identified the governmental purposes that the
ordinance was designed to promote or protect and then asked
whether it exempted or left unregulated any type of secular
conduct that threatened those purposes as much as the religious
conduct that had been prohibited. Id. at 366–67. If a law
allowed secular conduct to undermine its purposes, then it could
not forbid religiously motivated conduct that did the same
because this would amount to an unconstitutional “value
judgment in favor of secular motivations, but [against] religious
motivations.” Id. at 366. However, if the governmental entity
could show that exempted secular conduct was sufficiently
different in terms of its impact on the purpose of the law, the
exemption would not render the law underinclusive. Id. (noting
that “the Free Exercise Clause does not require the government
to apply its laws to activities that it does not have an interest in
preventing”).
[12] Fraternal Order makes it clear that not every secular
exemption automatically requires a corresponding religious
accommodation. The undercover police exemption did not
undermine the purposes of the no-beard policy, and therefore,
had it been the only exemption, general applicability would not
have been violated and no religious accommodation would have

been required (assuming that there was a rational basis behind
the ordinance). Thus, the central question under Fraternal Order
is whether the secular exemptions threaten the statutory
purposes to an equal or greater degree than a religious
exemption. Although there may be many secular exemptions to
a statute, if none of them undermines the statutory purpose, then
even their cumulative weight does not establish
underinclusiveness. Yet, in Fraternal Order, only a single
narrow health exception was held to be sufficient to establish a
violation of general applicability, thus triggering heightened
scrutiny, because it was deemed to threaten the secular purpose.
The Third Circuit has applied its Fraternal Order precedent in
several subsequent decisions. In Tenafly Eruv Ass'n v. Borough
of Tenafly, the court found that the free exercise rights of
Orthodox Jews were likely violated when Tenafly prohibited
them from affixing “lechis” (thin black strips designating an
“eruv” where pushing and carrying is permitted on the Sabbath)
to utility poles while allowing other materials such as house
numbers to be affixed. 309 F.3d 144, 152, 178 (3d Cir.2002).
The exemptions undermined the borough's apparent purpose of
preventing visual clutter. Id. at 172. In Blackhawk v.
Pennsylvania, the court held that Pennsylvania violated the Free
Exercise Clause by refusing a fee waiver to a Native American
who kept a bear for ceremonial purposes when the law, among
other things, categorically exempted zoos and nationally
recognized circuses from such fees. 381 F.3d 202, 210–11, 214
(3d Cir.2004) (Alito, J.). Although the state argued that
exemptions could be justified because they provided a tangible
benefit to Pennsylvania wildlife, the court found the challenged
fee provisions substantially “underinclusive” with respect to
this alleged benefit. Id. at 211–12. In sum, the court concluded:
A law fails the general applicability requirement if it burdens a
category of religiously motivated conduct but exempts or does
not reach a substantial category of conduct that is not
religiously motivated and that undermines the purposes of the
law to at least the same degree as the covered conduct that is

religiously motivated.
Id. at 209.
The Eleventh Circuit applied similar reasoning in holding that a
limited secular exemption failed the general applicability test.
In Midrash Sephardi, Inc. v. Town of Surfside, the town passed
a zoning ordinance “ ‘to provide for retail shopping and
personal service needs of the town's residents and tourists' “
with the goal of protecting “retail synergy” in the business
district. 366 F.3d 1214, 1233, 1235 (11th Cir.2004) (citation
omitted). The ordinance excluded religious assemblies from the
area, but an exemption was allowed for private clubs and
lodges. Id. at 1235. The court found this policy to be
underinclusive with respect to the town's goal of retail synergy
because it was “pursued only against religious assemblies, but
not other non-commercial assemblies, thus devaluing the
religious reasons for assembling.” Id. at 1234. Echoing the
reasoning in Fraternal Order, the court found that these limited
exceptions “violate[d] the principles of neutrality and general
applicability because private clubs and lodges endanger
Surfside's interest in retail synergy as much or more than
churches and synagogues.” Id. at 1235. As in Fraternal Order,
only a single categorical secular exemption was enough to
establish underinclusiveness and require heightened scrutiny.
In another case, a federal district court found a University of
Nebraska policy with three categorical secular exemptions was
not of general applicability and therefore subjected it to strict
scrutiny which it ultimately failed. See Rader v. Johnston, 924
F.Supp. 1540 (D.Neb.1996). The university had a parietal rule
for freshmen that required them to live on campus, but allowed
exemptions for students who were nineteen years or older,
married, or living with their parents. Id. at 1546. These
categorical exemptions, combined with a general discretionary
exemption, together covered more than one third of all
freshmen. Id. at 1553. Nonetheless, the university refused to
grant an exemption to a religious student who wanted to live off
campus at a Christian Student Fellowship house because he

believed that on-campus dorms were immoral and would
endanger his spiritual life. Id. at 1544–45. This decision was
found to violate Rader's free exercise rights and the university
was ordered to refrain from enforcing its policy against him. Id.
at 1558; see also Stinemetz v. Kan. Health Policy Auth., 45
Kan.App.2d 818, 252 P.3d 141, 154–56 (Kan.Ct.App.2011)
(holding that the First Amendment Free Exercise rights of a
Jehovah's Witness Medicaid beneficiary were violated when she
was denied a request for an out-of-state bloodless liver
transplant because, although the regulations generally did not
cover out-of-state services, they allowed for individual
exemptions on a case-by-case basis); Horen v. Commonwealth,
23 Va.App. 735, 479 S.E.2d 553, 557 (Va.Ct.App.1997)
(finding a violation of the First Amendment Free Exercise
Clause when a Native American medicine woman and her
husband were convicted of illegal possession of owl feathers
and the statute exempted possession of such feathers by
“taxidermists, academics, researchers, museums, and
educational institutions”).
By contrast, federal courts have generally found laws to be
neutral and generally applicable when the exceptions, even if
multiple, are consistent with the law's asserted general purpose.
Thus, in Stormans, Inc. v. Selecky, the Ninth Circuit upheld
certain Washington regulations requiring pharmacists to fill all
prescriptions over a pharmacist's objection that providing the
Plan B contraceptive would violate her religious beliefs. 586
F.3d 1109, 1115–17 (9th Cir.2009), abrogated on other grounds
by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 129
S.Ct. 365, 376, 172 L.Ed.2d 249, 262 (2008). Although the
regulations contained exemptions where the customer did not
pay, supplies were limited, or the pharmacist had a legitimate
belief the prescription was fraudulent, the court reasoned that
these exceptions did not undermine the goal of “increasing safe
and legal access to medications” and thus did not affect the
general applicability of the rules. Id. at 1135. In Swanson ex
rel. Swanson v. Guthrie Independent School District No. I–L,

the Tenth Circuit upheld a school district policy forbidding
part-time attendance even though it allowed secular exemptions
for fifth-year seniors and special education students. 135 F.3d
694, 697, 701 (10th Cir.1998). The plaintiffs there were parents
who wanted their child to learn Christian principles at home but
who wished to send their homeschooled daughter to the local
public school part-time so she could benefit from classes such
as foreign languages, music, and science that her parents felt
less competent to teach. Id. at 696. The policy against part-time
attendance applied equally to all homeschooled children,
regardless of the reason for home schooling. Id. at 698.
Although the court emphasized this last point in rejecting the
plaintiffs' claim, it also noted the exemptions in the law (fifth-
year seniors and special education students) were consistent
with the school district's overall purpose of not taking on
students for whom there was no corresponding state aid. Id. at
698 n. 3. Because state aid was based on the number of full-
time students in the district, and only the two exempted
categories of part-time students were counted as full-time for
state-aid purposes, there were no exemptions for students who
did not qualify for state aid, and general applicability was met.
Id; see also Combs v. Homer–Ctr. Sch. Dist., 540 F.3d 231, 242
(3d Cir.2008) (finding a homeschooling law to be neutral and of
general applicability because it imposed the same standards on
everyone who was being homeschooled); Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d
Cir.2007) (indicating that “the relevant comparison for purposes
of a Free Exercise challenge to a regulation is between its
treatment of certain religious conduct and the analogous secular
conduct that has a similar impact on the regulation's aims
”).FN12
With the foregoing authorities in mind, we turn to the ordinance
at issue. Zimmerman contends the Mitchell County ordinance is
not generally applicable because it carries over exceptions from
Iowa Code section 321.442 that undermine the ordinance's
purpose and demonstrate its underinclusivity. FN13 The state

law exemptions are as follows:
1. Farm machinery with tires having protuberances which will
not injure the highway.
2. Tire chains of reasonable proportions upon any vehicle when
required for safety because of snow, ice, or other conditions
tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs projecting
not more than one-sixteenth inch beyond the tread of the
traction surface of the tire upon any vehicle from November 1
of each year to April 1 of the following year, except that a
school bus and fire department emergency apparatus may use
such tires at any time.
Iowa Code § 321.442. Zimmerman asserts these exceptions
“undermine the County's purpose of preventing damage to the
roads.”
[13] Upon our review, we find the County's ordinance lacks
sufficient general applicability to bring this case under Smith.
Section 321.442(1) is not a problem; it exempts farm machinery
tires with protuberances, but only so long as they “will not
injure the highway.” Such an exception is consistent with the
stated purpose of protecting the County's roads.FN14 One could
argue that sections 321.442(2) and (3) do not defeat the general
applicability of the ordinance either. Although they allow the
use of tire chains, ice grips, or tire studs, the exemptions are
limited in scope (“reasonable proportions,” “not more than one-
sixteenth inch beyond the tread of the traction surface of the
tire”), and except for buses and emergency vehicles, in timing
(“when required for safety because of snow, ice, or other
conditions,” “from November 1 of each year to April 1 of the
following year”). One could construct an argument, therefore,
that the ordinance really serves a mixed purpose: It protects the
roads from damage except when necessary for safety reasons.
Yet we believe the effort ultimately fails. School buses are
allowed to use ice grips and tire studs year round. It is difficult
to see how this secular exemption serves either of the foregoing
dual purposes. Moreover, the County declined in September

2009 to regulate various other sources of road damage besides
steel wheels. Rather, it chose to prohibit only a particular
source of harm to the roads that had a religious origin. For
example, although state law contains various limits on the
overall weight of vehicles and also limits weight per inch of tire
width, see Iowa Code §§ 321.440(2), .463, Mitchell County
elected not to cover these matters in its ordinance.
The underinclusion of the ordinance undermines its general
applicability. See Blackhawk, 381 F.3d at 209 (noting that a law
“fails the general applicability requirement if it burdens a
category of religiously motivated conduct but exempts or does
not reach a substantial category of conduct that is not
religiously motivated and that undermines the purposes of the
law to at least the same degree as the covered conduct that is
religiously motivated” (emphasis added)). We are convinced the
underinclusion is “substantial, not inconsequential.” Lukumi,
508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.FN15
[14][15][16][17] D. Application of Strict Scrutiny. Of course,
an ordinance can fail the general applicability test and still not
amount to a Free Exercise violation. However, the ordinance
must then “undergo the most rigorous of scrutiny.” Id. at 546,
113 S.Ct. at 2233, 124 L.Ed.2d at 498. That is, it “must advance
‘ “interests of the highest order” ‘ and must be narrowly tailored
in pursuit of those interests.” Id. (citation omitted). The County
has the burden to show that the ordinance serves a compelling
state interest and is the least restrictive means of attaining that
interest. See Thomas v. Review Bd. of Indiana Emp't Sec. Div.,
450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, 634
(“The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving some
compelling state interest.”).FN16
The district court found that the County has a compelling
interest “in protecting the integrity of the county's roads. This
interest not only includes the economic costs of repairing roads,
but also the safety and drivability of the roads for all.” We do
not decide this issue. See United States v. Oliver, 255 F.3d 588,

589 (8th Cir.2001) (recognizing a compelling governmental
interest in preserving the bald eagle population despite a claim
that possession of eagles was necessary to the practice of the
Sioux faith); Satawa v. Bd. of Cnty. Road Comm'rs, 687
F.Supp.2d 682, 699–700 (E.D.Mich.2009) (holding that highway
safety concerns amounted to a compelling state interest
justifying the denial of a permit for a Nativity display on a
median in the center of a major traffic artery); but see
Blackhawk, 381 F.3d at 213–14 (stating it is “doubtful” whether
“maintaining the fiscal integrity” of a permit fee system is a
compelling state interest); United States v. Hardman, 297 F.3d
1116, 1127 (10th Cir.2002) (stating that “a desire for federal
funds is not a compelling interest”).
We are not persuaded, however, that the ordinance is narrowly
tailored to achieve the stated objective of road preservation.
The photographic evidence does show examples of cracking and
marking that, according to the County's witnesses, resulted from
the steel lugs. The county engineer testified that steel wheels
hasten deterioration of the County's roads. He said that “the
steel is harder than the aggregates ... in the concrete surfaces
and the asphalt surfaces, and it will wear that surface off.” On
the other hand, the County agreed that Mennonite tractors had
driven over hard-surfaced county roads, including both concrete
and asphalt roads, for years before the ordinance was enacted.
The county engineer admitted that various factors lead to road
deterioration,FN17 and he could not quantify the impact of steel
wheels on the County's normal schedule of road repair or
resurfacing . FN18
Given the lack of evidence of the degree to which the steel lugs
harm the County's roads, the undisputed fact that other events
cause road damage, and the undisputed fact that the County had
tolerated steel lugs for many years before 2009, it is difficult to
see that an outright ban on those lugs is necessary to serve a
compelling state interest. A more narrowly-tailored alternative
might allow steel wheels on county roads in some
circumstances, while establishing an effective mechanism for

recouping the costs of any necessary road repairs if damage
occurs. Indeed, an adjoining county reached an agreement with
the Mennonite community to accept a financial deposit in a trust
arrangement to cover possible road damage, in lieu of banning
steel wheels. See
www.co.howard.ia.us/bosinfo/minutesarchive.htm (minutes of
December 7, 2009 Board of Supervisors Meeting); Jean
Caspers–Simmet, Howard County Crafts Agreement Over Steel–
Wheel Tractors, Agri News, Dec. 1, 2009, http:// www.agrinews
. com/howard/county/crafts/agreement/over/steelwheel
/tractors/story–1056.html. As the United States Supreme Court
has indicated in a statutory case arising under the Religious
Freedom Restoration Act, the compelling interest test must
focus on “the harms posed by the particular use at issue here.”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 432–33, 126 S.Ct. 1211, 1221–22, 163 L.Ed.2d
1017, 1032–33 (2006) (finding the compelling interest test
would not sustain application of the Controlled Substances Act
to approximately 130 American members of a Christian Spiritist
sect who used hoasca, a tea containing a hallucinogen, for
communion).
A comparison can be drawn between the present case and a
series of cases that have arisen over state-law requirements for
special signage on slow moving vehicles. In State v.
Hershberger, 444 N.W.2d 282 (Minn.1989), cert. granted,
judgment vacated, 495 U.S. 901, 110 S.Ct. 1918, 109 L.Ed.2d
282 (1990), and State v. Miller, 202 Wis.2d 56, 549 N.W.2d 235
(Wis.1996), members of the Old Order Amish faith challenged
state laws that required their horse-drawn buggies to display
fluorescent red and orange “slow moving vehicle” signs.
Hershberger was a pre-Smith case. There the court applied a
compelling state interest test and acknowledged for purposes of
the case that highway safety was a compelling interest, but
invalidated the sign requirement after concluding that the use of
silver reflective tape and lighted red lanterns, as proposed by
the church members, would adequately address the same safety

concerns. Hershberger, 444 N.W.2d at 288–89. In Miller,
interpreting the Wisconsin Constitution rather than the United
States Constitution, the court also applied a compelling state
interest test. Similar to the Minnesota court, the Wisconsin
court concluded that “the State has failed to demonstrate that
public safety on the highways cannot be served by the
Respondents' proposed less restrictive alternative of the white
reflective tape and the red lantern.” Miller, 549 N.W.2d at 242.
While the analogy between those cases and the present steel
wheels case is not a perfect one, the same basic analytical
framework applies here. The question here is whether the
County's goal of road preservation can be accomplished less
restrictively without banning the tractors used by the
Mennonites. On this record, we believe it can be. We therefore
hold that the application of the Mitchell County road protection
ordinance to Matthew Zimmerman violates his rights of free
exercise of religion under the First Amendment to the United
States Constitution. We need not and do not reach the question
whether Zimmerman's rights under article I section 3 of the
Iowa Constitution have also been violated.
Ethics and Business Decision Making
Case 2.1
La.App. 2 Cir.,2012.
Johnson Const. Co., Inc. v. Shaffer
--- So.3d ----, 2012 WL 638058 (La.App. 2 Cir.), 46,999
(La.App. 2 Cir. 2/29/12)
Court of Appeal of Louisiana,
Second Circuit.

JOHNSON CONSTRUCTION COMPANY, INC., Plaintiff–
Appellee
v.
Bubba SHAFFER d/b/a Shaffer's Auto & Diesel Repair,
Defendant–Appellant.
No. 46,999–CA.
Feb. 29, 2012.
LOLLEY, J.
Shaffer's Auto and Diesel Repair, L.L.C. (“Shaffer”) appeals the
judgment of the Shreveport City Court, Parish of Caddo, State
of Louisiana, in favor of Johnson Construction Company, Inc.
(“Johnson Construction”). For the following reasons, we affirm
the trial court's judgment.
FACTS
At issue in this appeal is whether an agreement existed between
Johnson Construction and Shaffer for the price of repairs to a
1979 Ford dump truck. In March 2007, Johnson Construction's
truck needed repairs; among other things, it was leaking oil and
water. John Robert Johnson, Jr., the president of Johnson
Construction, took the truck along with a 15–ton lowboy trailer
to Shaffer for the repairs. The truck was reportedly fixed and
Johnson paid the initial bill; however, the truck continued to
have the same problems. Mr. Johnson returned to Shaffer with
the truck; again, the repairs were reported to be made and Mr.
Johnson paid the bill. The mechanical problems with the truck
continued, and in July 2007, Mr. Johnson returned to Shaffer a
third time and left the truck and trailer. Although Mr. Johnson
believed he had been given an estimate of $1,000 for the
repairs, he was ultimately sent an invoice for $5,863.49 by
Shaffer. Mr. Johnson offered to settle the matter for the amount
of the initial estimate plus the cost of the parts and shipping—a
total of $2,480. Shaffer did not respond to the offer, and refused
to return Johnson Construction's truck or trailer until full
payment of the invoice was made, plus storage fees of $50 a day
and 18% interest.
Johnson Construction filed suit against Shaffer alleging that its

action in withholding his truck and trailer amounted to an unfair
trade practice pursuant to La. R.S. 51:1405, et seq., and the
matter proceeded to trial. After a trial of the matter, the court
concluded that the evidence showed that Mr. Johnson had been
quoted a price of $1,000 by Shaffer for the repair work, and Mr.
Johnson had not been informed by Shaffer that additional
engine work would be performed at an additional cost. Further,
the trial court determined that Shaffer had acted deceptively in
maintaining possession of Johnson Construction's trailer on
which it had performed no work. Accordingly, the trial court
awarded Johnson Construction $3,500 in damages under the
Louisiana Unfair Trade Practices and Consumer Protection Law,
La. R.S. 51:1405, et seq., and $750 in attorneys' fees. Shaffer
was awarded $1,000 (the amount of the initial estimate as
determined by the trial court) and ordered to release Johnson's
truck and trailer immediately. This appeal by Shaffer ensued.
DISCUSSION
The Parties' Agreement
[1] On appeal, Shaffer raises several assignments of error. First,
he argues that the trial court erred in failing to award him the
full amount of his invoice (i.e., $5,863.49) and his reasonable
storage fees for the truck and trailer. At the outset we point out
that Mr. Johnson maintained he had a verbal agreement with
Bubba Shaffer, the owner of Shaffer's Auto Diesel & Repair,
that the repairs to the truck would cost $1,000. Mr. Johnson also
testified that he was not informed otherwise. On the other hand,
Mr. Shaffer disputed that an agreement for the price of the
repairs was ever reached and maintained that Johnson
Construction owed the full amount of the invoice.
[2][3][4] The existence or nonexistence of a contract is a
question of fact, and the finder of fact's determination may not
be set aside unless it is clearly wrong. Red River International,
Inc. v. Pierce, 44,869 (La.App.2d Cir.10/28/09), 26 So.3d 196.
Furthermore, when there is a conflict in testimony, reasonable
evaluations of credibility and reasonable inferences of fact
should not be disturbed if the factfinder's conclusions were

reasonable under the evidence. Menard v. Lafayette Ins. Co.,
2009–1869 (La .03/16/10), 31 So.3d 996; Johnson v. City of
Shreveport, 45,819 (La.App.2d Cir.12/29/10), 56 So.3d 1059. A
factfinder's decision that is based on its discretion to credit the
testimony of one of two or more witnesses can virtually never
be wrong. Menard, supra .
[5] To enforce an oral agreement pertaining to something priced
or valued in excess of $500, the contract must be proved by at
least one witness and other corroborating circumstances. La.
C.C. art. 1846. A party to the action may be a credible witness,
and the other corroborating circumstances need only be general
in nature. Smith v. Dishman & Bennett Speciality Co., 35,682
(La.App.2d Cir.01/23/02), 805 So.2d 1220.
If the trial court's conclusion in this matter was reasonable in
light of the evidence, we may not reverse its judgment. At the
trial of the matter, the trial court was presented with testimony
from Mr. Johnson, Mr. Shaffer, and Michael Louton, a mechanic
employed by Shaffer. After consideration of the testimony and
evidence, the trial court issued thorough reasons for judgment,
in which it noted its belief that Mr. Johnson did not authorize
Shaffer to perform the additional repairs to the truck, and that
the repairs performed were not actually part of the original
agreement. The trial court also believed that Mr. Johnson had
received a verbal quote of $1,000 for the repairs to the truck,
and he did not give authorization to tear the engine down
(which was the reason for the additional charges). The trial
court did not believe Mr. Johnson was informed of the cost for
the additional work.
Considering the trial court's reasons for judgment, along with
our review of the record, we cannot say that the trial court was
clearly wrong in its determination. Although there were
corroborating circumstances to support both parties'
contentions, the trial court was clearly within its discretion to
credit the testimony of Mr. Johnson over that of Mr. Shaffer and
Mr. Louton. Notably, whether there was an initial verbal
agreement that the repairs would cost $1,000 was subject to a

credibility call by the trial court, which heard testimony from
the involved parties. The trial court viewed Mr. Shaffer's
testimony on the issue as “disingenuous,” and we cannot see
where that was in error. Therefore, the trial court was not in
error in (1) determining that an agreement existed between the
parties regarding the price for repairs and (2) refusing to award
Shaffer the full amount of its invoice in the amount of
$5,863.49.FN1
[6] As for the amount that Shaffer contends is due for storage,
had it invoiced Mr. Johnson the amount of the original estimate
in the first place, there would have been no need to store the
truck or trailer. Considering the trial court's determination that
an agreement existed between Mr. Johnson and Shaffer in the
amount of $1,000, which Mr. Johnson had expressed a
willingness to pay, we cannot see how Shaffer would be entitled
to any payment for storage when it failed to return the truck and
trailer where an offer of payment for the agreed upon price had
been conveyed. In other words, the need to store Johnson
Construction's truck and trailer was created by Shaffer. Thus we
see no error in the trial court failing to award Shaffer storage
fees for the truck and trailer.
Unfair Trade Practices Claim
[7] Shaffer also argues that the trial court erred in awarding
damages and attorneys' fees to Johnson Construction under
Louisiana's Unfair Trade Practices and Consumer Protection
Law (“LUTPA”).
[8] LUTPA, La. R.S. 51:1401, et seq., does not enumerate those
instances of conduct that constitute unfair trade practices, but
La. R.S. 51:1405(A) provides that “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared
unlawful.” What constitutes an unfair trade practice is
determined on a case-by-case basis. Tyler v. Rapid Cash, LLC,
40,656 (La.App.2d Cir.05/17/06), 930 So.2d 1135; A & W Sheet
Metal, Inc. v. Berg Mechanical, Inc., 26,799 (La.App.2d
Cir.04/05/95), 653 So.2d 158. In Berg, this court explained:

Conduct is deemed unlawful if it involves fraud,
misrepresentation, deception, breach of fiduciary duty, or other
unethical conduct. A practice is unfair when it offends
established public policy and when the practice is unethical,
oppressive, unscrupulous, or substantially injurious to
consumers, including business competitors.
Id., at 164 (citations omitted).
Here, the trial court determined that Shaffer had engaged in
unfair trade practices when it refused to release Johnson
Construction's trailer on which Shaffer had performed no work.
The trial court noted that the evidence showed that Mr. Johnson
had made demand on Shaffer to release the trailer and that no
repairs had been made on the trailer. The trial court further
observed that under La. R.S. 9:4501, Shaffer would not have a
repairman's privilege over property upon which no repairs were
made. We agree.
Louisiana R.S. 9:4501(A) provides, in pertinent part:
Any person operating a garage or other place where automobiles
or other machinery are repaired, or parts therefor are made or
furnished, has a privilege upon the automobile or other
machinery for the amount of the cost of repairs made, parts
made or furnished, and labor performed. If an estimate was
given by the repairman for the repairs, then in order for the
amount of the privilege to exceed the amount of the estimate,
the repairman must secure authorization to exceed the amount
of the estimate[.](Emphasis added).
Considering that Shaffer performed no repairs on the trailer, the
repairman's privilege allowed under La. R.S. 9:4501 was
inapplicable as to that piece of equipment. See Van–Trow Olds
Cadillac, Inc. v. Kahn, 345 So.2d 991 (La.App. 2d Cir.1977).
So considering, we see no error in the trial court's
characterization of Shaffer's actions with the trailer as holding
it “hostage in an effort to force payment for unauthorized
repairs.” In Slayton v. Davis, 2004–1652 (La.App. 3rd
Cir.05/11/05), 901 So.2d 1246, the appeal court concluded that
the wrongful seizure of a vehicle was an unfair trade practice

under La. R.S. 51:1405. Although the facts of Slayton are not
precisely on point, we believe it to be analogous to the situation
at hand. Shaffer had no legal right to retain possession of the
trailer, yet it refused to release it to Johnson Construction.
Thus, the trial court did not err in its determination that
Shaffer's retention of Johnson Construction's trailer was a
deceptive conversion of the trailer.
[9][10] Shaffer also argues that the trial court erred in awarding
Johnson Construction general damages in the amount of $3,500
for the “nearly four year unlawful conversion of [its] trailer.”
Louisiana R.S. 51:1409(A) provides, in pertinent part:
Any person who suffers any ascertainable loss of money or
movable property, corporeal or incorporeal, as a result of the
use or employment by another person of an unfair or deceptive
method, act, or practice declared unlawful by R.S. 51:1405, may
bring an action individually but not in a representative capacity
to recover actual damages. If the court finds the unfair or
deceptive method, act, or practice was knowingly used, after
being put on notice by the attorney general, the court shall
award three times the actual damages sustained. In the event
that damages are awarded under this Section, the court shall
award to the person bringing such action reasonable attorney
fees and costs[.]
As noted by the trial court, Johnson Construction did not
provide evidence of the precise value of its loss sustained as a
result of its deprived use of the trailer. However, “actual
damages” as provided in the statute does not require a precise
measurement of the damage—only an “ascertainable loss.”
Furthermore, recovery of general damages is allowed under
LUTPA. Slayton, supra at 1255. Here, it is obvious that Johnson
Construction suffered a loss. Shaffer retained possession of the
trailer for four years, which most certainly had some impact on
Johnson Construction's ability to carry on its business. Despite
the fact that Mr. Johnson failed to present a precise value of the
loss of use for his trailer, considering the length of time that
Shaffer retained it and the amount of the award, we do not

believe that the trial court abused its discretion in awarding
Johnson Construction general damages in the amount of $3,500.
[11] Finally, Shaffer maintains that the trial court erred in its
award of $750 in attorneys' fees to Johnson Construction.
Louisiana R.S. 51:1409 mandates an award of reasonable
attorney fees and costs to the person bringing the action.
Although Mr. Johnson ultimately represented his company pro
se at the time of trial, he was initially represented by an
attorney who prepared the original petition and, later, an
amended petition. When Johnson Construction's attorney
eventually withdrew from its representation, it was not for a
failure to pay by Mr. Johnson, so it can be assumed that the
attorney was paid some amount of his fee for the legal work
performed. We do not believe the trial court's award of $750 in
attorneys' fees was in error, considering that Johnson
Construction had been represented at some time in the litigation
and had presumably paid some amount in attorneys' fees to its
counsel of record.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in
favor of Johnson Construction Company, Inc. is affirmed. All
costs of this appeal are assessed to Shaffer's Auto and Diesel
Repair, L.L .C.
AFFIRMED.
FN1. Although Shaffer noted in brief that Mr. Johnson, after
receiving the invoice, had offered to pay the initial $1,000 plus
the additional amounts for parts and shipping (a total of $2480),
Shaffer has not argued that, alternatively, it was entitled to at
least that amount. Notably, Mr. Johnson's offer to modify the
initial $1,000 agreement went unanswered; thus, there was no
modification of that agreement.
Courts and Alternative Dispute Resolution
Case 3.1

N.C.App.,2010.
Southern Prestige Industries, Inc. v. Independence Plating Corp.
690 S.E.2d 768, 2010 WL 348005 (N.C.App.)
Court of Appeals of North Carolina.
SOUTHERN PRESTIGE INDUSTRIES, INC., a North Carolina
corporation, Plaintiff-appellee
v.
INDEPENDENCE PLATING CORPORATION, a New Jersey
corporation, Defendant-appellant.
No. COA09-888.
Feb. 2, 2010.
CALABRIA, Judge.
Independence Plating Corporation (“defendant”) appeals an
order denying its motion to dismiss for lack of personal
jurisdiction. We affirm.
The facts in the instant case are undisputed. Defendant is a New
Jersey corporation that provides anodizing services. Defendant's
only office and all of its personnel are located in the state of
New Jersey. Defendant does not advertise or otherwise solicit
business in North Carolina. Prior to July 2007, defendant had
engaged in a long-standing business relationship with Kidde
Aerospace (“Kidde”), a North Carolina company.
In July 2007, on the recommendation of Kidde, Southern
Prestige Industries, Inc. (“plaintiff”), a North Carolina
corporation, contacted defendant to establish a business
relationship. Under the terms of the arrangement between
plaintiff and defendant, plaintiff would ship specified machined
parts from its location in Statesville, North Carolina to
defendant's location in New Jersey for anodizing. After the
parts were anodized by defendant, they were shipped back to
plaintiff, unless plaintiff otherwise directed. Plaintiff would
then send the parts to the end user, Kidde.
Plaintiff and defendant engaged in frequent transactions
between 27 July 2007 and 25 April 2008. In all, the record
reveals thirty-two purchase orders and invoices totaling

$21,018.70. All invoices were sent from defendant in New
Jersey to plaintiff in North Carolina and were paid by checks
issued from plaintiff's corporate account at Piedmont Bank in
Statesville, North Carolina.
On 18 November 2008, plaintiff initiated an action for breach of
contract in Iredell County Superior Court. Plaintiff alleged that
defects caused by defendant's anodizing process caused
plaintiff's machined parts to be rejected by Kidde. On 6
February 2009, defendant filed, with a supporting affidavit, a
motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule
12(b)(2) (2007) for lack of personal jurisdiction. On 18 March
2009, plaintiff filed an affidavit, with supporting exhibits,
challenging the assertions in defendant's motion to dismiss. On
4 May 2009, after reviewing the evidence submitted by the
parties, the trial court entered an order denying defendant's
motion to dismiss. Defendant appeals.
Defendant's only argument on appeal is that the trial court erred
in denying its motion to dismiss for lack of personal
jurisdiction. Specifically, defendant argues there are
insufficient contacts to satisfy the due process of law
requirements that are necessary to subject defendant to the
personal jurisdiction of North Carolina's courts. We disagree.
As an initial matter, we note that the denial of a motion to
dismiss is generally deemed interlocutory and therefore not
subject to immediate appeal. However, “[t]he denial of a motion
to dismiss for lack of jurisdiction is immediately appealable.”
Bruggeman v. Meditrust Acquisition Co., 138 N.C.App. 612,
614, 532 S.E.2d 215, 217 (2000) (citing N.C. Gen.Stat. § 1-
277(b)).
Neither party contests the findings of fact contained in the trial
court's order. “Where no exception is taken to a finding of fact
by the trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal.” National Util.
Review, LLC v. Care Ctrs., Inc., ---N.C.App. ----, ----, 683 S.E
.2d 460, 463 (2009)(internal quotation and citation omitted).
Therefore, the only issue to be determined is “whether the trial

court's findings of fact support its conclusion of law that the
court has personal jurisdiction over defendant. We conduct our
review of this issue de novo.” Id. (internal quotations and
citations omitted).
North Carolina courts utilize a two-prong analysis in
determining whether personal jurisdiction against a non-resident
is properly asserted. Under the first prong of the analysis, we
determine if statutory authority for jurisdiction exists under our
long-arm statute. If statutory authority exists, we consider under
the second prong whether exercise of our jurisdiction comports
with standards of due process.
Baker v. Lanier Marine Liquidators, Inc., 187 N.C.App. 711,
714, 654 S.E.2d 41, 44 (2007)(internal citations omitted).
Defendant has conceded that the facts are sufficient to confer
jurisdiction under N.C. Gen.Stat. § 1-75.4 (2007), the North
Carolina long-arm statute. Therefore, “the inquiry becomes
whether plaintiffs' assertion of jurisdiction over defendants
complies with due process.” Baker, 187 N.C.App. at 715, 654
S.E.2d at 44 (internal quotation and citation omitted).
In order to satisfy due process requirements, there must be
“certain minimum contacts [between the non-resident defendant
and the forum state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial
justice.’ “ International Shoe Co. v. Washington, 326 U.S. 310,
316, 90 L.Ed. 95, 102 (1945)(quoting Milliken v. Meyer, 311
U.S. 457, 463, 85 L.Ed. 278, 283 (1940)). In order to establish
minimum contacts with North Carolina,
the defendant must have purposefully availed itself of the
privilege of conducting activities within the forum state and
invoked the benefits and protections of the laws of North
Carolina. The relationship between the defendant and the forum
state must be such that the defendant should reasonably
anticipate being haled into a North Carolina court.
Baker, 187 N.C.App. at 715, 654 S.E.2d at 45 (citation
omitted).
The United States Supreme Court has recognized two bases for

finding sufficient minimum contacts: (1) specific jurisdiction
and (2) general jurisdiction. Specific jurisdiction exists when
the controversy arises out of the defendant's contacts with the
forum state. General jurisdiction may be asserted over a
defendant even if the cause of action is unrelated to defendant's
activities in the forum as long as there are sufficient
‘continuous and systematic’ contacts between defendant and the
forum state.
Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N
. C.App. 690, 696, 611 S.E.2d 179, 184 (2005) (internal
quotations and citations omitted). In the instant case, the record
does not support a finding of general jurisdiction and so it must
be determined whether specific jurisdiction exists.
For specific jurisdiction, the relationship among the defendant,
the forum state, and the cause of action is the essential
foundation for the exercise of in personam jurisdiction. Our
courts look at the following factors in determining whether
minimum contacts exist: (1) the quantity of the contacts, (2) the
nature and quality of the contacts, (3) the source and connection
of the cause of action to the contacts, (4) the interest of the
forum state, and (5) the convenience to the parties.
Id. (internal quotation and citations omitted).
In the instant case, the trial court found that the parties “had an
ongoing business relationship characterized by frequent
transactions between July 27, 2007 and April 25, 2008, as
reflected by 32 purchase orders.” Plaintiff would ship machined
parts to defendant, who would then anodize the parts and return
them to plaintiff in North Carolina. Defendant sent invoices
totaling $21,018.70 to plaintiff in North Carolina, and these
invoices were paid from plaintiff's corporate account at a North
Carolina bank. Plaintiff filed a breach of contract action against
defendant because the machined parts that were shipped to
defendant from North Carolina and then anodized by defendant
and shipped back to North Carolina were defective.
“It is generally conceded that a state has a manifest interest in
providing its residents with a convenient forum for redressing

injuries inflicted by out-of-state actors. Thus, North Carolina
has a ‘manifest interest’ in providing the plaintiff ‘a convenient
forum for redressing injuries inflicted by’ defendant, an out-of-
state merchant.” Baker, 187 N.C.App. at 716, 654 S.E.2d at 45
(internal quotations and citation omitted). As for the remaining
factor, there is no evidence in the record that would indicate
that it is more convenient for the parties to litigate this matter
in a different forum. “Litigation on interstate business
transactions inevitably involves inconvenience to one of the
parties. When [t]he inconvenience to defendant of litigating in
North Carolina is no greater than would be the inconvenience of
plaintiff of litigating in [defendant's state] ... no convenience
factors ... are determinative[.]” Cherry Bekaert & Holland v.
Brown, 99 N.C.App. 626, 635, 394 S.E.2d 651, 657
(1990)(internal quotations and citations omitted).
Therefore, after examining the ongoing relationship between the
parties, the nature of their contacts, the interest of the forum
state, the convenience of the parties, and the cause of action, we
conclude defendant has “purposely availed” itself of the
benefits of doing business in North Carolina and “should
reasonably anticipate being haled” into a North Carolina court.
We hold that defendant has sufficient minimum contacts with
North Carolina to justify the exercise of personal jurisdiction
over defendant without violating the due process clause.
Affirmed.
Torts and Cyber Torts
Case 4.1
Cal.App. 2 Dist.,2012.
Shoyoye v. County of Los Angeles
203 Cal.App.4th 947, 137 Cal.Rptr.3d 839, 12 Cal. Daily Op.
Serv. 2285, 2012 Daily Journal D.A.R. 2491
Court of Appeal, Second District, Division 4, California.

Adetokunbo SHOYOYE, Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES, Defendant and Appellant.
No. B223542.
Feb. 23, 2012.
SUZUKAWA, J.
INTRODUCTION
Defendant, the County of Los Angeles (County), appeals from a
judgment after jury verdict in favor of plaintiff Adetokunbo
Shoyoye arising out of Shoyoye's wrongful detention in County
jail. The County acknowledges that although its initial detention
of Shoyoye was justified, it over-detained him by about 16 days
as a result of unintentional clerical error. The County contends
on appeal that the evidence presented at trial was insufficient to
support a verdict in favor of Shoyoye pursuant to Civil Code
section 52.1 (the Tom Bane Civil Rights Act).FN1 In this case
of first impression, we agree and conclude that not every
wrongful detention is a violation of section 52.1. The evidence
here was insufficient to establish the “threats, intimidation, or
coercion” necessary to implicate section 52.1. Accordingly, we
reverse the judgment as to that cause of action, and reverse the
award of attorney fees made pursuant to that statute. We affirm
the judgment and damage award in favor of Shoyoye on his
claim for false imprisonment.
FN1. All further undesignated statutory references are to the
Civil Code.
FACTUAL BACKGROUND
The Operative Complaint
Plaintiff's third amended complaint alleged causes of action for
(1) violations of Penal Code section 1384; (2) false
imprisonment; (3) violation of section 52.1; (4) violation of 42
United States Code section 1983; and (5) negligence and
negligence per se. The trial court granted the County's motion
for nonsuit as to the 42 United States Code section 1983 cause
of action, and prior to the case being submitted to the jury, the
parties agreed that they would present for the jury's

consideration only the causes of action for false imprisonment
and violation of section 52.1.
Shoyoye's Arrest and Incarceration
The evidence presented at trial included the following
undisputed facts. Shoyoye was lawfully arrested on August 19,
2007, when he was reporting an unrelated incident to the police,
and the police discovered he had two outstanding warrants.FN2
The first warrant related to his failure to address a citation he
received for riding the subway without a ticket, and the second
warrant arose when a former roommate stole his identity and
was convicted of grand theft under Shoyoye's name. Shoyoye
was incarcerated, and shortly thereafter he appeared in court
and was ordered released on the first warrant. A few days later
he appeared on the second warrant in a different court, and that
matter was also resolved in his favor. On August 22, 2007, he
was ordered released, subject to any other holds. He was
transported back to Men's Central Jail, where he was processed
and placed in a dormitory, expecting to be released at any time.
FN2. Shoyoye conceded that there was probable cause for his
arrest and initial detention.
The Error Resulting in Shoyoye's Over–Detention
A County employee mistakenly attached to Shoyoye's
paperwork information pertaining to a parolee scheduled to be
sent to state prison for violating the terms of his parole. The
other prisoner's name was Marquis Lance Parsee. A Department
of Corrections (“DCL”) hold intended for Parsee was entered
into the County Sheriff's computer system regarding Shoyoye. A
subsequent quality control check failed to detect the error. If a
County employee had looked at the paper file on Shoyoye rather
than the computer records, he or she would have realized that
the DCL hold did not pertain to Shoyoye.
Shoyoye's Efforts to Be Released, and the County Employees'
Treatment of Him
While he was at Men's Central Jail, Shoyoye attempted to ask
one deputy or another almost every day about being released,
but he received no assistance. Shoyoye was then transferred to

the Pitchess Detention Center in Castaic, where he was
processed and assigned a bed in a dormitory. He did not
understand why he was not being released.
Shoyoye asked a total of six to eight people for assistance
during his incarceration. At Pitchess Detention Center, inmates
were periodically permitted to submit one written question on a
“yellow sheet” form. Shoyoye submitted such a form asking,
“Why am I here?” He received the response that he was subject
to a “DCL hold.” He submitted another form inquiring what a
“DCL hold” was, along with one other question, and received
the response that he was only entitled to ask one question and
he had asked two. He submitted other yellow sheets indicating
he believed he should not be there, but he received no helpful
responses.
Shoyoye told custody assistant Lawrence Wong that he thought
he should be released. Wong acknowledged that if what he said
was true, then there was a problem. Wong told him to talk to
Deputy Niels Gittisarn. Shoyoye asked him for assistance, and
Gittisarn told him, “Get back to me.” However, when Shoyoye
attempted to speak to him the next day, Gittisarn rebuffed him,
yelling that he was busy. Other inmates accused Shoyoye of
being an informant when they saw him talking to Gittisarn, and
thereafter he was hesitant to approach any County employees
for fear of being labeled an informant.
Shoyoye asked a deputy named Rodriguez what a DCL hold
was, and Rodriguez replied, “[T]hat means that you are going to
prison, boy.” Rodriguez asked what he had done, and when
Shoyoye said it was for not having a ticket on the subway,
Rodriguez lost interest.
Shoyoye attended a church service in order to speak to the jail
chaplain about his plight. The chaplain listened sympathetically,
but did not offer assistance.
Deputy Oren Son monitored the laundry facility where Shoyoye
worked. Shoyoye told him that he was being held for a felony
he did not commit. Son looked at him as he spoke, but then
returned to the book he was reading and gave him the silent

treatment for a few minutes, until Shoyoye eventually gave up
and walked away. Shoyoye knew that if a laundry worker took
breaks or refused to work, he would be subjected to harsh
housing discipline and suspension of privileges. Shoyoye asked
a civilian employee who worked in the laundry facility, Patsy
Hazlett, for assistance after she praised him for good work
performance, but she said she could not help him.
Asked if any of his efforts resulted in anything being done to
determine his over-detention status, he replied, “All I got was
disinterest, being sent away. No. Nothing was done.” He felt
that he had failed to make himself heard, that although he was
civil and polite he got nowhere: there was no “ ‘customer
service,’ if you will.” He described the deputies as walking and
talking tough. Shoyoye thought about escaping but feared he
would get shot; he never seriously considered doing so.
Incident to his incarceration, Shoyoye was subjected to strip
searches that included anal cavity searches, required to wait
naked in line to shower in close proximity to other inmates, and
shackled. On one occasion, he was showering when he was
approached by an aggressive inmate, and he immediately fled
the shower room, still covered in soap. He witnessed criminal
activity and fights, and was housed in a large dormitory with
hundreds of inmates, many of whom were gang members. He
did not drink water because the commode was connected
directly to the drinking fountain. He was exposed to a chicken
pox outbreak. He feared being sent to prison, or put into “the
hole” for further discipline, or having physical force or violence
used against him. He was mistaken for an informant by other
inmates and feared what they might do to him.
Shoyoye's Release
Shoyoye's roommate, Rudy Ramirez, located him at Pitchess
Detention Center and visited him there. Shoyoye asked Ramirez
to contact Shoyoye's boss, Benjamin Swett, and Ramirez did so.
Eventually Swett contacted a state assemblyman's office, and
was put in touch with Renee Hansen, the Chief of Legislative
Affairs for the California Department of Corrections and

Rehabilitation (CDCR). She located Shoyoye in the County's
website, and found a reference to a CDCR number. She
telephoned the inmate locator for CDCR and inquired to whom
that CDCR number pertained, and was told it was Marquis
Parsee. She then ascertained that Parsee was also being held in
the County jail, under the same parole hold number as Shoyoye.
She contacted the County jail and informed them of her
suspicion that they had applied an erroneous parole hold number
to Shoyoye. They concluded she was correct, and immediately
took steps to effect Shoyoye's release. Shoyoye was released on
September 7, 2007, 16 days after he had been ordered released
on August 22, 2007.
The Verdict, the Judgment, and the Posttrial Motions
A special verdict form was submitted to the jury. The jury
answered each of the following questions in the affirmative: (1)
“Did the County of Los Angeles hold [Shoyoye] in custody?”;
(2) “Was there an unnecessary delay in releasing [Shoyoye]?”;
(3) “Was the County of Los Angeles' conduct a substantial
factor in causing harm to [Shoyoye]?”; (4) “Did the employee(s)
of the County of Los Angeles intentionally act or fail to act
with [respect to Shoyoye's] right to be free from the
unreasonable seizure by actual or implied use of threats,
intimidation or coercion?”; and (5) “Was the County of Los
Angeles' employee(s') conduct in violating plaintiff [Shoyoye's]
right to be free from unreasonable seizures a substantial factor
in causing harm to [Shoyoye]?” The jury awarded Shoyoye
$22,700 in economic damages for past and future lost earnings
and property loss, and $180,000 in noneconomic damages for
past and future pain and suffering.
The court pointed out to counsel that “issues could be raised
that the damages go to separate causes of action. And these are
distinctly different causes of action.” The court inquired
whether counsel wanted to direct the jury to indicate whether
the damages it awarded were as to each cause of action.
Shoyoye's counsel objected to any apportionment request, while
counsel for the County was in favor of it. The court decided not

to seek further elaboration or apportionment from the jury. The
court entered judgment in favor of Shoyoye on February 1,
2010.
The County then filed a motion for judgment notwithstanding
the verdict and a motion for new trial, arguing that the evidence
at trial was insufficient as a matter of law to support the jury's
verdict regarding the section 52.1 claim because Shoyoye failed
to present any evidence that County employees violated his
constitutional rights by the use of threats, intimidation, or
coercion. Extensive briefing of the issue ensued.
[1] Ultimately, the court denied the County's posttrial motions.
Thereafter, the County filed a timely notice of appeal from both
the judgment and the order denying its posttrial motions.FN3
FN3. We reject Shoyoye's contention that the County admitted
liability at trial and has therefore forfeited any argument to the
contrary. Shoyoye concedes, and the record makes clear, that
defense counsel argued that any violation of plaintiff's
constitutional rights was not intentional, but due to a mistake,
and was not accomplished by means of threats, intimidation, or
coercion.
Without specifically deciding the issue, we assume for purposes
of this opinion that a constitutional violation occurred and that
Shoyoye was unreasonably detained beyond the time detention
was justified.
DISCUSSION
I. Standard of Review
Denial of defendant's motion for judgment notwithstanding the
verdict is reviewed to determine whether substantial evidence
supports the jury verdict. (Dell'Oca v. Bank of New York Trust
Co., N.A. (2008) 159 Cal.App.4th 531, 554–555, 71 Cal.Rptr.3d
737.)
“Under [the substantial evidence] standard of review, our duty
‘begins and ends' with assessing whether substantial evidence
supports the verdict. [Citation.] ‘[The] reviewing court starts
with the presumption that the record contains evidence to
sustain every finding of fact.’ [Citation.] We review the

evidence in the light most favorable to the respondent, resolve
all evidentiary conflicts in favor of the prevailing party and
indulge all reasonable inferences possible to uphold the jury's
verdict. [Citation.]” (US Ecology, Inc. v. State of California
(2005) 129 Cal.App.4th 887, 908, 28 Cal.Rptr.3d 894.)
However, issues of statutory interpretation and of application of
a statute to undisputed facts are reviewed de novo. (Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 284, 73
Cal.Rptr.2d 596.)
II. Statutory Interpretation
We begin with the language of section 52.1, sometimes referred
to as the Tom Bane Civil Rights Act. It provides in relevant part
as follows:
“(a) If a person or persons, whether or not acting under color of
law, interferes by threats, intimidation, or coercion, or attempts
to interfere by threats, intimidation, or coercion, with the
exercise or enjoyment by any individual or individuals of rights
secured by the Constitution or laws of the United States, or of
the rights secured by the Constitution or laws of this state, the
Attorney General, or any district attorney or city attorney may
bring a civil action for injunctive and other appropriate
equitable relief in the name of the people of the State of
California, in order to protect the peaceable exercise or
enjoyment of the right or rights secured....
“(b) Any individual whose exercise or enjoyment of rights
secured by the Constitution or laws of the United States, or of
rights secured by the Constitution or laws of this state, has been
interfered with, or attempted to be interfered with, as described
in subdivision (a), may institute and prosecute in his or her own
name and on his or her own behalf a civil action for damages,
including, but not limited to, damages under Section 52,
injunctive relief, and other appropriate equitable relief to
protect the peaceable exercise or enjoyment of the right or
rights secured.” The statute further provides in subdivision (h)
that “In addition to any damages, injunction, or other equitable
relief awarded in an action brought pursuant to subdivision (b),

the court may award the petitioner or plaintiff reasonable
attorney's fees.”
Throughout the pendency of this matter, Shoyoye has predicated
the County's liability under section 52.1 solely on a claim of
interference with either the Fourth Amendment to the United
States Constitution or article I, section 13 of the California
Constitution, which both pertain to the right of the people to be
secure against unreasonable searches and seizures.FN4
FN4. Although the parties discuss whether the County is a
person within the meaning of the statute, we do not find it
necessary to answer that question in order to resolve this
appeal.
[2][3][4] “The essence of a Bane Act claim is that the
defendant, by the specified improper means (i.e., ‘threats,
intimidation or coercion’), tried to or did prevent the plaintiff
from doing something he or she had the right to do under the
law or to force the plaintiff to do something that he or she was
not required to do under the law. (Jones [v. Kmart Corp. (1998)
] 17 Cal.4th [329,] 334 [70 Cal.Rptr.2d 844, 949 P.2d 941]
[Jones ].)” (Austin B. v. Escondido Union School Dist. (2007)
149 Cal.App.4th 860, 883, 57 Cal.Rptr.3d 454.) The legislative
history of section 52.1, enacted in 1987, makes clear that the
crucial motivation behind passage of section 52.1 was to
address the increasing incidence of hate crimes in California.
(Stats.1987, c. 1277, § 3 (A.B.63). See Jones, supra, at p. 338,
70 Cal.Rptr.2d 844, 949 P.2d 941.) However, the statutory
language does not limit its application to hate crimes. Notably,
the statute does not require a plaintiff to allege the defendant
acted with discriminatory animus or intent based upon the
plaintiff's membership in a protected class of persons. (Cf. §
51.7; Venegas v. County of Los Angeles (2004) 32 Cal.4th 820,
841–843, 11 Cal.Rptr.3d 692, 87 P.3d 1 (Venegas II ).) A
defendant is liable if he or she interfered with or attempted to
interfere with the plaintiff's constitutional rights by the
requisite threats, intimidation, or coercion. (Venegas II, supra,
at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1.)

In Venegas II, sheriff's deputies stopped a car in which a
husband and wife were driving, based on the husband's
resemblance to a suspect in an ongoing investigation of an
automobile theft ring. The car had no license plates or visible
vehicle identification number. The husband informed the
officers that he was the brother of the person they were looking
for, but when asked to produce identification he said it was at
his home nearby. He declined to sign an entry and search waiver
form to allow the officers to enter his home and retrieve his
identification, instead agreeing the officers could accompany
his wife to their home to get it. One officer assured the couple
their home would not be searched. However, upon reaching the
home, the officers convinced the wife to sign a broadly worded
entry and search waiver form granting them authority to enter
the house and conduct a search. Officers searched the entire
house and found papers showing the husband was on felony
probation. They directed the officers detaining the husband to
arrest him for a misdemeanor Vehicle Code violation and for
violating his probation; he was later booked into custody. The
officers detained the wife for two hours but did not arrest her or
charge her with anything. They determined the following day
that the car was not stolen, and directed that the husband be
released from custody. He was released two days later; no
charges were ever filed against him. The husband and wife filed
an action against individual officers involved in the incident,
the City and County, and the County sheriff's department. The
plaintiffs' complaint included causes of action on the husband's
behalf under section 52.1, and for false detention and arrest.
(Venegas II, supra, 32 Cal.4th at pp. 827–828, 11 Cal.Rptr.3d
692, 87 P.3d 1.) The matter was tried, and the trial court
granted nonsuit in favor of defendants. (Id. at p. 828, 11
Cal.Rptr.3d 692, 87 P.3d 1.)
The Supreme Court reversed, holding that the trial court erred
in requiring the plaintiffs to allege they were members of a
protected class in order to maintain a cause of action under
section 52.1 based on unreasonable search and seizure.

Nova Southeastern University H. Wayne Huizenga School of Busin.docx

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