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The Law Frog on KILO 94.3 – October 26, 2022

On the third Wednesday of every month, David McDivitt joins KILO 94.3 to answer legal questions from callers in Southern Colorado. Being a part of the morning show on KILO 94.3 is a dream come true for David, who had always aspired to be a rock star. David’s talents lead to him practicing law over practicing sick guitar rifts, but this lets him help people in need AND rock out with other music fans. Tune in from 8am-9am to hear some of the fascinating legal situations David addresses. If you have any questions of your own be sure to call in: 719-633-KILO or submit a question here.

McDivitt Law Firm Frog

October 26, 2022

Legal Issues Covered This Week

Caller: A caller wants to know if a homeless person is holding a sign that says “anything helps” can he shoot them with a Nerf gun? 

David: Not only is that person a jerk, but it will land them in court. The only question at this point is what the DA can get away with as far as prosecution, because I guarantee you they want to prosecute someone like that. It violates any normal sense of human decency. There was a 14 year old charged a few years ago with felony menacing for aiming a Nerf gun at traffic. I think with this case you could definitely charge for felony menacing, which in Colorado is our version of battery. You’re putting someone in a position of fear of getting hurt. It could also be harassment. Bottom line, Don’t be a jerk. 

Caller: A man was eating Texas Pete’s Hot Sauce when he discovered it made in North Carolina, not in Texas. Can he sue? Will this win? 

David: This is an awful lawsuit and it turns people off to the entire legal system. I really dislike this lawsuit, especially when on the website it addresses the origin of ‘Texas Pete.’ they don’t purport to be a Texas based company, or claim to use Texas ingredients, its a nickname someone used in the 1920’s when they started the company. Someone should be allowed to use a nickname or moniker in their marketing purposes. The only value in this lawsuit would be if a judge were to certify this as a class, and then they could exert some leverage on the company and get a settlement. I think that is what the lawyer is trying to do here. I practice class action lawsuits, and respect attorneys who take on cases to address real problems and enact positive change. This case does not meet that criteria, and pollutes our area of practice. This is a terrible use of the legal system.

Caller: What are the laws for a homeowner putting ‘no parking’ signs in front of their house across the street from an elementary school pickup and drop off area? Is it illegal? 

David: Unless there is something I am missing, that is not legal or allowed. You cannot just put up a sign on your property that impersonates a governmental sign. If it’s a freestanding sign on a building, they need a permit. You cannot unilaterally declare no parking on a street that the city maintains and controls. This is not a private street, the road does not belong to you. You do, however, need to be conscientious of not blocking alleys, driveways, or streets, or from obstructing crosswalks. You cannot, however, enforce things that you personally want. If you encounter this, ask to see a permit. They cannot do anything.

Caller: Can I file a civil suit against my neighbors for loss of property value because they do not maintain their property? My house is in a neighborhood district that fines homeowners for not maintaining property. If I were to sell my home I would lose money because of my neighbors. What can I do? 

David: The first thing that comes to mind is nuisance law. A classic case that everyone has to study in law school was a case where a city in Arizona was expanding and had to build around a pig farm. They sued the pig farm for being a nuisance in this developing community, and they won. You have to establish that the neighbor, and their lack of upkeep, is in fact a nuisance. If the behavior was corrected and would not result in the diminution of the property in the sale, it would not matter. I would encourage this individual to try and follow up with the town or city. Approach it from the angle of trying to keep the property clean and sanitary. I am probably missing something on this, but try to attempt some friendly neighborhood communication before resorting to legal recourse.

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