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City Threatening to Sue State for Negligent Failure to Legislate:

The Philadelphia Daily News reports:

What's held [the Philadelphia City Council's gun control agenda] in check is that only the commonwealth can legislate in the area of firearms, and unless the General Assembly will delegate power to the city, Council's actions would be dead on arrival....

[Now, Councilman Darrell Clarke says the Council] is preparing to file a legal complaint related to the Legislature's inaction....

Asked how Council can move forward on the bills without a state enabling law, Clarke said, "We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case." ...

What a great theory! If you think the state has been negligent in terms of enacting good-sense legislation, why, just sue the state for negligent failure to legislate. Once it does that, and some other city or organization thinks the state has been negligent in terms of enacting bad-sense legislation, it can sue the state for negligent legislation.

Then the courts can just decide what makes the best sense, and that'll be that. No need for them to limit themselves to any areas specially removed from the political process by a constitutional provision (say, the right to free speech, the right to bear arms, city home rule as assured by some express state constitutional provision, and the like). Just apply a general "did the legislature fail to enact good sense legislation? / did it enact bad legislation?" test, potentially covering any question under the sun. Cool.

Thanks to Guy Smith for the pointer.

Anon NYC 2L:
Some democracies, like Hungary, provide for an action for an unconstitutional failure to legislate (e.g. http://www.uni-miskolc.hu/~wwwdrint/20063varnay1.htm). Is this more common in non-common law systems?
5.4.2007 12:25am
Truth Seeker:
Next San Francisco will sue Congress for failing to stop the war.
5.4.2007 12:29am
gattsuru (mail) (www):
I hope to whatever deities exist that this dies a horrible death. A 'success' by the gun-control agenda here could easily lead to judicial rule.

The Philly Council members should be stripped of office for such an insane violation of their duty to uphold the Constitution of the United States and the laws of the United States, and for simply being too stupid in all the wrong ways.
5.4.2007 12:48am
Joshua:
It's a cute theory (and it gives a whole new meaning to "legislating from the bench"), but even if it holds up in court I wonder whether it will really have its desired effect in practice, particularly in cases where the needed legislation is, for whatever reason(s), political anathema. How can the courts force the legislature to comply? If the only remedy is monetary, legislators may decide that sticking state taxpayers with the judgment would be less politically damaging than passing the necessary but unpopular legislation.
5.4.2007 12:56am
Milhouse (www):
Does "Contempt of the legislature" still mean anything in the USA? How about "ultra vires"?
5.4.2007 1:30am
Dan P (mail):
Philadelphia has for years had its hands (rightfully in my opinion) tied by Title 18 Section 6120. In 6120 Commonwealth preempts all regulation of firearms and ammunition (except in the cases of lawsuits for faulty products, etc)

This prevents Philadelphia from enacting whatever crazy gun control schemes they want (which based on what they're saying would be pretty much full registration, no carry permits, and even complete bans on handguns)

They've long tried to claim that their home-rule charter allows them to do this but in fact the charter specifically prohibits them from doing anything not allowed by statute (say for example, 6120)

The PA Courts ruled against their schemes in the past in Commonwealth v. Ortiz and this is basically what we're seeing here is Philadelphia grasping at straws to try to infringe on Pennsylvanian's right to bear arms.
5.4.2007 1:32am
Stormy Dragon (mail) (www):
Once again, I'd like to suggest that Philadelphia County ought to be kicked out of Pennsylvania. Perhaps New Jersey will take them.
5.4.2007 1:45am
Dru Stevenson (mail) (www):
But how far away is this from what the Supreme Court just did in Mass. EPA? I know that was a state compelling a government organ (an administrative agency) to regulate, and this is a govt organ (municipality) suing a state. But isn't the underlying concept at least analogous?

And even if they prevail in court (seems like a long shot), I assume the court would just order the legislature to "do something soon," (like the S.Ct. did in Mass v. EPA) which still leaves it mostly to the usual political process, right? It is not exactly like the court gets to make the rules.
5.4.2007 1:52am
Brian G (mail) (www):
Ahhh, my home town of Philadelphia. I evacuated from my home 6 years ago and moved out west, and don't regret it for a minute. Philadelphia has been in complete Democrat control since 1930, and the Democrats there have done just a brilliant job blaming their problems on Bish for the last 6 years and on Reagan throughout the 80's, and so forth. Truth is, Philly is beyond repair, and its murder rate is out of control for hundreds of reasons, little that have to do with inadequate gun control laws. Believe me, their laws are tough enough already where I never owned a gun that wasn't for deer hunting until I moved to New Mexico.

Here is my favorite part of the artice:


"Gun-violence numbers continue to mount and we will quickly be over 150 homicides before the month is out," Clarke said. "We think it's time to look at another strategy, and we're prepared to go to court."


Liberal Democrat brilliance at its apex. No judge can stop the out of control murder rate. The cops there need to crack down on criminals and almost declare martial law in some parts of that city. Of course, that won't happen. The criminals will be continually coddled, and Bush and Iraq will get blamed. (Yes, Mayor Street blamed the violence in Philadelphia on Iraq, don't act like I made it up. See here and here too.

Plus, you have to understand the mentality of the city. Mayor Wilson Goode ordered a helicopter to drop C-4 on a radical group called MOVE in 1985, and burned down 2 city blocks, about 100 homes. See here for the story. And, of course, he was re-elected two years later!!

The dopey politicos in my beloved but now good as dead hometown can go ahead with this nonsense, while the city is slowly abandoned by good and decent people like my entire family.
5.4.2007 2:04am
SP:
I have an idea - let's just appoint really smart people as judges, and they'll sort out all of our problems!
5.4.2007 2:16am
A. Zarkov (mail):
"Mayor Wilson Goode ordered a helicopter to drop C-4 on a radical group called MOVE in 1985, and burned down 2 city blocks, about 100 homes."

And I thought Philly was the city of brotherly love. Sounds a like Washington DC doesn't it? Next we'll here the mayor street say, "if you take out the killings, Philly actually has a very very low crime rate."
5.4.2007 2:23am
Kovarsky (mail):
But how far away is this from what the Supreme Court just did in Mass. EPA? I know that was a state compelling a government organ (an administrative agency) to regulate, and this is a govt organ (municipality) suing a state. But isn't the underlying concept at least analogous?

No, not in the slightest.
5.4.2007 3:07am
Kovarsky (mail):
O, and I'll mention that I think Mass v. EPA was wrongly decided on both issues.
5.4.2007 3:08am
Kovarsky (mail):
O, and I'll mention that I think Mass v. EPA was wrongly decided on both issues.
5.4.2007 3:08am
Ilya Somin:
There is some irony in this suit, as - at least according to federal constitutional law - local governments have only those powers that the state legislature delegates to them. Presumably, the Penn. state legislature could put an end to this charade simply by passing a law denying cities the right to file lawsuits like this one.
5.4.2007 5:00am
Kovarsky (mail):
Ilya, if I understand you correctly, a jerry smith opinion on that precise question is:

Hirtz v. Texas, 974 F.2d 663 (5th Cir. 1992) (Smith, J.)
5.4.2007 5:08am
non-native speaker:
Some democracies, like Hungary, provide for an action for an unconstitutional failure to legislate (e.g. http://www.uni-miskolc.hu/~wwwdrint/20063varnay1.htm). Is this more common in non-common law systems?


In the European Union, it is common that Member States are sued by the European Commission for failure to pass national legislation implementing European Directives. In this case, however, there is an obligation to pass such legislation. The EU case would be analogous to the one of Philadelphia if the General Assembly is obliged to pass legislation on gun control or, more precisely, if it is obliged to pass gun control legislation of a particular content.
5.4.2007 5:13am
Owen Hutchins (mail):
Philadelphia has been waiting for upwards of a year for the legislature to respond to requests for enabling laws to permit these bills. It is an excellent example of what I have long held; that unless responsible gun owners become part of the solution to the problems this and other cities face regarding gun violence, we will lose out to those that do not want guns at all. The combination of straw purchases and large numbers of handguns going "missing" from gun shop inventories are what are arming the criminals on the street.
5.4.2007 6:47am
A. Zarkov (mail):
"… that unless responsible gun owners become part of the solution to the problems this and other cities face regarding gun violence, we will lose out to those that do not want guns at all."

That's true, but what happens when the new laws don't fix the problem? Then you get pressure for more laws until you get an outright ban, which won't work either. As long as you have violent people around they are going to find a way to get weapons. Look at the UK. It has a gun ban, but still has increasing violence. Now the government is going after knives. While the UK as a whole has a smaller homicide rate than the US, Scotland has three times the rate of the US. I found this fact in the Interpol database a few years ago. Now Interpol has closed off the database to the public.

If you look at the National Victimization Survey from the US Bureau of Justice Statistics, you will see the violence primarily comes from the black and Hispanic communities. As more and more illegal Mexican immigrants pour into the US, our violence problem is going to continue to escalate. We got a temporary respite in the 1990s from increased incarceration, but that's ending now. The federal and state governments simply won't come to grips with these facts. So we get Bush telling us, "family values don't stop at the Rio Grande." With Congress planning for 100 million new immigrants over the next 20 years, you ain't seen nothing yet.
5.4.2007 7:30am
Nikki:
Hmm. Maybe the city of Pittsburgh can sue the state legislature and the governor for failing to adequately fund our transit system. (Plenty of money for new buses, no money for operating costs.)

Honestly, government in PA has always been screwed up and corrupt at every level, going back to at least the 19th C.
5.4.2007 7:59am
veteran:
"If you look at the National Victimization Survey from the US Bureau of Justice Statistics, you will see the violence primarily comes from the black and Hispanic communities."

"you ain't seen nothing yet."

I agree.

I lived in Texas, Philly, New York. I have worked in Richmond, Raleigh and Atlanta. My impression, anger and hate are the prevailing philosophies on the east coast.

I too, am headed back west. I think it is going to be ugly, very ugly.
5.4.2007 8:02am
PersonFromPorlock:
So, if the city does sue the state, doesn't that set the stage for the NRA to sue the city for failing to pass its version of sensible gun laws? Heck, they could do it right now!

Fortunately for Philadelphia, the NRA is much too serious an organization to have a sense of humor.
5.4.2007 9:13am
Sk (mail):
"Then the courts can just decide what makes the best sense, and that'll be that. No need for them to limit themselves to any areas specially removed from the political process by a constitutional provision"

I can't tell whether you are being funny or not...

Sk
5.4.2007 9:32am
pete (mail) (www):
Some enterprising Philadelphian needs to sue to the city council for being negligent in passing good sense legislation. With Philadelpia that should not be hard to do. Sueing the city over its residency requirement for city workers would be a good start since that has driven good cops, prosecuters, etc. out of the city workforce thus increasing the homicide rate.

I only lived there for a summer about 8 years ago, but the city was obviously poorly run. I hardly ever saw police on the street, there were neighborhoods where no law abiding citizen would leave their home at night, and the transit union shut the city down most of the time I was there.
5.4.2007 9:39am
Kevin P. (mail):
Owen Hutchins:

The combination of straw purchases and large numbers of handguns going "missing" from gun shop inventories are what are arming the criminals on the street.

Do you have any evidence for this? Something that does not come from the city or the Brady Campaign?
5.4.2007 10:00am
neilalice:
Dru, I was thinking the same thing you were.

It should be ludicrous and unthinkable for the city to bring a suit on these grounds. But it is very much thinkable due to the ever expanding nature of litigation and judicial review (or supremacy).

Take a look at Orin's piece about the Nebraska Supreme Court a few posts over from this one. If the Nebraska Supreme Court ever hooks up with the Philly litigants, we'll be able to do away with both the executive and legislative branches.

Talk about efficient government.
5.4.2007 10:30am
Special Guest:
Admin law 101 for the nonlawyers here: Federal agencies are mandated by Congress to regulate/take administrative action in certain areas. If they do not regulate, then they are in violation of the statute. If somebody with standing under that statute sues and win, then they can force the agency to take action. This is nothing more than requiring that the agency comply with the laws that govern it.
5.4.2007 10:46am
Felix Sulla (mail):
Let's get back to reality on this one folks. Even if the city files suit here (and who knows if they actually will) it will require them to then go on to convince a trial court and the Pennsylvania appellate courts that their extraordinarily novel theory of negligent failure to legislate is not a complete, utter, and silly fabrication. I suspect there is not a single state court system in the nation that would sustain such a theory. Frankly, it's just more amusing than anything else. Your guns are safe guys, Michael Moore and the Philly City Council aren't coming for them just yet.
5.4.2007 11:02am
TDPerkins (mail):
Federal agencies are mandated by Congress to regulate/take administrative action in certain areas. If they do not regulate, then they are in violation of the statute. If somebody with standing under that statute sues and win, then they can force the agency to take action. This is nothing more than requiring that the agency comply with the laws that govern it.


And part of the reasons we have agencies at all is that legislators cannot become expert enough in the diverse areas of technology to appropriately prescribe regulations concerning every area of life where nanny-staters feel there ought to be prescribed.

CO2 was judged no to be a pollutant by the EPA. This was reasnoable, it is not poisonous, it is a natural product of every oxygen respiring lifeform on earth. Human activities of all types contribute only 1/25 of the CO2 in the atmosphere, at most we could lower it by 4% if every human on earth shot themselves in the head.

So if the EPA is forced to regulate CO2 at all, it's regulation concerning it should read entire, "Do you what you need to. Carry on".

Yours, TDP, ml, msl, &pfpp
5.4.2007 11:48am
Tflan (mail):
This can be called "The State Inaction Doctrine"
5.4.2007 11:50am
TDPerkins (mail):
Your guns are safe guys, Michael Moore and the Philly City Council aren't coming for them just yet.


Oh they are coming for them, they've just been forced into some retrograde motions lately.

This Hail Mary should fall on deaf ears.

Yours, TDP, ml, msl &pfpp
5.4.2007 11:51am
David989 (mail):
By way of contrast, in ancient Athens legislators will frequently taken to court for passing illegal laws, with punishments including exile and death.
5.4.2007 12:24pm
Felix Sulla (mail):

Oh they are coming for them, they've just been forced into some retrograde motions lately.

This Hail Mary should fall on deaf ears.

Right. Hope you had a happy May Day!
5.4.2007 12:36pm
Brian G (mail) (www):
Has the "political question doctrine" gone the way of dodo bird?
5.4.2007 12:47pm
Milhouse (www):
I'm still waiting to hear about "contempt of the legislature", and "ultra vires". It seems to me that by purporting to sue the legislature in a court, the plaintiff is in contempt. And that any judge who entertained the motion would be ultra vires and also in contempt.
5.4.2007 12:56pm
Chris Bell (mail):
As non-native speaker and Anon NYC 2L pointed out, it's not unheard of or unworkable for legislatures to have a duty to legislate. You just have to point to a higher authority that requires the legilsature to act affirmatively. (Sort of the way the Constitution says that Congress shall create the judiciary, though Americans are less keen on affirmative duties.)

Now what higher authority these people think they will point to is beyond me, but its not totally crazy....
5.4.2007 1:05pm
RigelDog (mail):
"The combination of straw purchases and large numbers of handguns going "missing" from gun shop inventories are what are arming the criminals on the street."


"Do you have any evidence for this? Something that does not come from the city or the Brady Campaign?"

I know someone who has been working with various agencies (such as ATF) for the past five years in connection with programs aimed at eliminating illegal gun use and trafficking in the Philadelphia area. Straw purchases and thefts from gun shops are indeed a very large source of the illegal gun flow. Stopping illegal gun trafficking is very "sexy" right now and these agencies are highly motivated to figure out where these guns are coming from and how to stop them before they reach the criminals. This is what their investigations have been showing.
5.4.2007 1:10pm
David Drake (mail):
To echo Ilya's previous comment, here in Georgia local governments are completely creatures of the state, and the state legislature could, presumably, simply prohibit the city from bringing such litigation, if they aren't now prohibited now.

It would be interesting to hear from someone who knows how the City of Philadelphia relates to the Commonwealth.
5.4.2007 1:12pm
great unknown (mail):
Given the Philly logic, the PA legislature a fortiori has the right to compel Philadelphia to pass reasonable laws. And rescind unreasonable laws. And ... basically surrender home rule.

Of course, the definition of reasonable will be determined by the will of the majority of voters in PA.
5.4.2007 1:40pm
amliebsch:
CO2 was judged no to be a pollutant by the EPA. This was reasnoable, it is not poisonous, it is a natural product of every oxygen respiring lifeform on earth. Human activities of all types contribute only 1/25 of the CO2 in the atmosphere, at most we could lower it by 4% if every human on earth shot themselves in the head.

While most of your points are correct, CO2 is in fact a poisonous gas. Although it is not VERY poisonous, concentrations as low as 5% can be lethal.
5.4.2007 1:48pm
NickM (mail) (www):
I wonder what limits the PA Constitution would place on the legislature passing a bill to dissolve Philadelphia as a city (leaving it all unincorporated).

Nick
5.4.2007 1:57pm
Gary McGath (www):
It's been done before, successfully. In the Claremont decision, the New Hampshire Supreme Court ordered the legislature to provide state-level financial assistance to public schools.
5.4.2007 2:03pm
Larry2:

Admin law 101 for the nonlawyers here: Federal agencies are mandated by Congress to regulate/take administrative action in certain areas. If they do not regulate, then they are in violation of the statute. If somebody with standing under that statute sues and win, then they can force the agency to take action. This is nothing more than requiring that the agency comply with the laws that govern it.


I would think this administrative law principle would apply only to administrative agencies rather than to the state legislature. I have never researched the issue though.
5.4.2007 2:28pm
Special Guest:
Larry2 - That's what I meant to point out.
5.4.2007 2:58pm
anym_avey (mail):
While most of your points are correct, CO2 is in fact a poisonous gas. Although it is not VERY poisonous, concentrations as low as 5% can be lethal.


That's more of a suffocation effect IIRC, and not the usual definition of "poisonous". Poison implies the element of toxicity.
5.4.2007 3:14pm
TDPerkins (mail):
While most of your points are correct, CO2 is in fact a poisonous gas. Although it is not VERY poisonous, concentrations as low as 5% can be lethal.


If that is so, then the reasonable regulation would be aimed at not producing concentrations approaching some small fraction of 5%, say 0.5%. The atmosphere is naturally about 0.05% CO2, so raising the local ambient concentration tenfold would reasonably be allowed. I predict that would not satisfy the Global Warming (TM) crowd.

And with much the same same argument, water should be a regulated pollutant--it displaces air to cause death in organisms with lungs, and it is by far a more powerful greenhouse gas than CO2.

It's been done before, successfully. In the Claremont decision, the New Hampshire Supreme Court ordered the legislature to provide state-level financial assistance to public schools.


The New Hampshire Constitution creates an affirmative duty on the part of that state, if I recall, to equivalently fund education throughout the state. This was unpopular with wealthier school districts.

By contrast, there is a national constitutional duty not to interfere with legitimate firearms ownership, and the ATF, City of Phil. et. al., have amply demonstrated they are dedicated to interfering with legitimate firearms ownership.

As an anecdotal example, it's the ATF's job to get the few firearms dealers who knowingly sell to criminals into the correctional systems. Instead they are dedicated to closing dealers who don't catch that someone who was a legal purchaser who marked "Y" instead of "Yes" on a form.

Yours, TDP, ml, msl, &pfpp
5.4.2007 3:15pm
just me:
This is brilliant. Then, once the city council establishes the failure-to-legislate cause of action, Philly citizens can be upset that the council didn't act EARLIER, or that they are not similarly solving other problems in this neat way, and the citizens can then sue the councilmembers for failure-to-litigate-over-failure-to-legislate.

Let the fun begin!
5.4.2007 3:29pm
John A. Fleming (mail):
Wait, wait! Don't throw this out before thinking about this first.

Why isn't this any different than the tort laws that every other organization is subject to by law. If an organization is clearly warned about a hazard under its control or making, and is given expert testimony on possible mitigations, and then fails or refuses to implement any of these recommendations, it can and should be sued for negligence should injury occur.

So, the people elected these legislators, who decided that the financial risk of adverse judgement to the state is less than the cost of doing something. If the state then goes bankrupt because of an adverse financial judgement, whose fault is it but the people who voted in these irresponsible legislators? A few years of people suffering under a bankrupt government will certainly provide a powerful incentive for people to carefully vote, and hold the politicians feet to the fire, and demand that their government act responsibly.

So the judges and jury who hand down this tort judgement wouldn't be legislating from the bench, they would just be following the well-established tort law procedures.

The hidden lawyerly assumption here is that the State must be a Hobbesian sovereign, immune from the consequences of its decisions. But why must this be so? Why must the people through their legislators be allowed to negligently make decisions that cause or allow injury without the people facing the consequences? Especially when no other organization, public or private, is so indemnified.

It's only a silly novel theory if you assume a King can't be sued by his subjects.

Think of the State not as a sovereign, but the hired help, hired by the We the People to perform enumerated functions regarding public activities, and granted enumerated powers. Then, like any other organization, it should be subject to the same tort laws. We the People have long considered it to be a public good to have tort laws, as a powerful incentive to help convince organizations to safeguard the public. These laws should and must apply equally to our created government organizations. They are not special. They're just people hired to do a job. And like all human organizations, they need these powerful motivating incentives and consequences to help them perform diligently.

So just like judgements against companies are borne by the employees and shareholders, judgements against government organizations should be borne by government employees and We the People.
5.4.2007 3:35pm
Felix Sulla (mail):
Alright folks! Put the Kool-Aid down and back away from the "Post Comment" button! ;-)
5.4.2007 3:46pm
tsotha:
Gary M.,

Similar things have happened in Nevada. But usually the courts are able to latch on to some language in the state constituion addressing the issue, i.e. the Nevada court did away with a constitutional supermajority requirement based on an earlier clause addressing school funding. The question is whether or not there's anything in the Pennsylvania constitution that requires the legislature to address firearms in some capacity.
5.4.2007 3:49pm
Aultimer:
Take note that the primary election (the REAL election in Philly, since Republicans and third parties are hopeless) is in a few days. The suit is campaigning, not serious governing.
5.4.2007 3:51pm
Happyshooter:
The University of Michigan Law School teacher who got the City of Detroit to pay him big bucks to float a novel legal anti-gun suit. He was diverse and rode that gravy train hard.

The students in his class used to call him Sherwood behind his back, because 10 minutes of each class were spent telling us one of 1) How tough it is to be the black man in America; or 2) How great his life and life achievements were.

Down at the student level the rumor was that the U was pushing him for tenure as hard as they could but the faculty thought he was fluff and were resisting.

His attempt at a whole new method of banning guns through lawsuits crashed hard in the courts as soon as it got past the local trial judge who was politically aligned.

The lesson there is to be cautious in spending taxpayer money on odd suits just because a University darling says he has a great theory.
5.4.2007 4:01pm
WILL FREISMUTH:

IF "THEY" WERE INTERESTED IN STOPPING "STRAW MAN"
PURCHASES, EVERY FELON CAUGHT WITH A FIREARM WOULD
BE THE START OF A NEW FELONY INVESTIGATION.

WE HAVE INSTANT CHECKS HERE IN VA. AND EVERY YEAR
WE ARE TOLD HOW MANY PURCHASES ARE REFUSED BECAUSE
OF A FELONY OR RESTRAINING ORDER OR LOONINESS. AND
YET I CAN THINK OF ONLY ONE CASE IN THE PAST TWO
YEARS IN WHICH A "STRAW PURCHASER" WAS CONVICTED.

HE BOUGHT A PISTOL ON BEHALF OF A FRIEND WHO WAS
UNDER A RESTRAINING ORDER. THE FRIEND THEN SHOT HIS
EX-GIRL FRIEND MANY TIMES AND KILLED HER. THE PURCHASER
GOT LESS THAN TWO YEARS IF I REMEMBER CORRECTLY.

AS FAR AS I CAN TELL VERY FEW PEOPLE ARE SENT BACK TO
PRISON FOR ATTEMPTING TO BUY A GUN. WHY ISN'T THIS
AN AUTOMATIC PAROLE OR PROBATION VIOLATION AT THE
LEAST.

WILL
5.4.2007 5:02pm
RSwan (mail):
If the city could sue the state for failure to legislate, couldn't some enterprising citizen sue the city for some failure, like failure to protect after they got mugged? I am not a lawyer, but it seems to me the basic principle behind the lawsuit would be the same.
5.4.2007 7:21pm
Jack Diederich (mail) (www):
tsotha: "The question is whether or not there's anything in the Pennsylvania constitution that requires the legislature to address firearms in some capacity."

There is a small item in Article 1, Section 21 of the Constitution of Pennsylvania: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

But the purple state has turned a bit more blue lately so currently there are some proposals to require onerous regulations like annual fees, background checks, owner photos, and fingerprints.
5.4.2007 10:48pm