San Bernardino’s Code Enforcement Problems

By Michael Reiter, Attorney at Law

The San Bernardino Sun had this Voice of the People letter, which appeared, I believe, in the print edition on May 11, 2012.

I wish San Bernardino would give me just 5 percent of the fines I could collect if I cited all the ordinances and laws not being enforced.Example: On Dec. 15, 2010, San Bernardino City Council passed an ordinance and code enforcement law on yard sales to help clean up the city and not have it look like a Third World city and help local businesses.

The ordinance states clearly: Only on the third weekend of the month will yard sales be permitted, and no new items may be sold at any of these sales. In addition there are to be no signs on street corners, phone poles, trees, cars, etc., except in the yard of the sale. There is to be a $300 fine for a first offense and $100 for each sign found – this is law.

Legitimate businesses that pay for permits, state and federal sales tax, business tax, code tax, OSHA inspections, liability insurance, licenses, and more in this town are struggling and being driven out of business by those selling new items in their yards or street corners. You can find this any day, but even more on holidays like Mother’s Day, Valentines Day, Christmas, and so on – people selling flowers, candy, baskets, toys, fruit, jerky, even clothes in these makeshift stands or sitting on an off-ramp with milk crates full of their goods.

These crates, by the way, are stamped clearly on the sides – if stolen the person in possession will be fined $250-$500 for each one. These losses are added to our food bills. Why does our city not enforce these laws and ordinances considering the huge income it will provide for the city as well as help keep our legitimate businesses here?

These ordinances have been in the newspapers, mailed to all homes, and talked about everywhere and they are still ignored and these people have zero respect for the law.

STEVE PORTIAS
San Bernardino

I wrote before (and I have excised it from the original post because the law changed):

When I was a Deputy City Attorney in San Bernardino, mobile food vendors (except for people selling paletas, which were permitted) were a common complaint.  These ranged from people selling flowers at freeway off-ramps (for some reason, they often had the same address on Union Street in Los Angeles . .. more on that some other time), to people selling roasted corn out of coolers, almost uniformly with mayo as the condiment.  I, along with other Deputy City Attorneys, prosecuted them under San Bernardino Municipal Code section 5.04.495.  The section was amended in 2004 by the Common Council to prohibit a transient merchant with a “valid City of San Bernardino Business Registration Certificate or Permit” from staying “at any location not listed on their Business Registration Certificate or Permit for more than five (5) minutes in a twenty-four (24) hour period.”  San Bernardino Municipal Code section 5.04.495(B).  The origin of that section was quite colorful.

. . .

Update 5/14/2012  The Mayor and Common Council passed MC-1363 in August 2011, changing the transient vendor ordinance, San Bernardino 5.04.495, to have an exception to allow food carts as allowed by the Development Code, 19.70.060(1) which says “food carts and produce stands may be permitted for one year initially, and renewed annually, subject to verification of compliance with conditions of approval and County permit requirements, as applicable.”  19.70.020(11) states that temporary uses, subject to a Temporary Use Permit, including  “Food carts, operated at fixed, pre-approved locations, in the Main Street Overlay District, at least 500 feet away from any restaurant and under current permits from the County Environmental Health Services Division.”  SBDC section 19.70.020(12) also allows produce stands in community gardens.

Mr. Portias is correct, even with the changes to the Transient Vendor ordinance, 5.04.495, the things complained of are illegal in San Bernardino.  Even though it is not codified, MC-1363, amending section 5.04.495(a) of the San Bernardino Code states:

5.04.495 Transient merchants/vendors and temporary businesses prohibited. A. It shall be unlawful for any person or persons to offer for sale, trade, or barter,
to create, to possess items to be sold, traded, or bartered, or to sell, trade, or barter any items including but not limited to manufactured items, homemade
items, packaged and unpackaged goods, commodities, food, agricultural products, vehicles, furniture, or any other item or to offer any service, from a
temporary stand, or other temporary location, upon any public street, alley, sidewalk, right-of-way, easement, or other public place, doorway of any room
or building, unenclosed building, building for which no certificate of occupancy has been issued, vacant lot, front or side yard, back yard (except as permitted
in chapter 5.68 of this title), driveway, parking lot, or parcel of land, either paved or unpaved, at any time, except as permitted pursuant to Chapter 19.70. San Bernardino Mayor and Common Council Ordinance MC-1363, passed August 1, 2011.

I also wrote about garage sales, in one of my more popular posts.  As of this writing, the Municipal Code is still not updated to show these changes (at least online), a fact I decried in this post.  I prosecuted many people for violating both ordinances, as well as other examples of visual blight.  I helped amend the previous version of 5.04.495 when I was a Deputy City Attorney to cover more categories.

The City of San Bernardino has the tools to deal with these issues.  In addition to Code Enforcement, at least when I was there, the Police Department would also enforce the transient vendor ordinance, as would the City Attorney Investigators.  Why are these ordinances not being enforced?

I would guess that to some degree, they are still being enforced, but anecdotal evidence suggests that they are not being enforced.  For example, as I drove down West Highland Avenue during two nights before Mother’s Day, and there were tons of people selling flowers for Mother’s Day, in addition to actual florist shops.
Mr. Portias is also correct in that there is money to be made in enforcement, with administrative citations and misdemeanor and infraction citations.  Whether it actually pays for code enforcement is debatable.

The political will to enforce the laws is there, the staffing may not be.  Though there were Code Enforcement officers, and sometimes City Attorney Investigators assigned to work weekends and nights, enforcement has not made a measurable dent.  Citing your way into compliance may not be feasible, because the city of San Bernardino (and I’m not talking about the entity, the City of San Bernardino) has changed from the vision of what long-time residents see for their City.  These kinds of vendors and constant yard sales are now the norm because people have decided that’s the kind of city they want to live in.

The vast majority of residents of the City of San Bernardino do not vote in municipal elections (12,466 voted for City Attorney in the 2011 primary). The 2010 Census counted 209,924 residents.  32 percent of the population are under 18, and thus ineligible to vote (67,176 people) leaving 142,748 voting age residents.  It is difficult to find statistics for non-citizens, but assuming that half of the 23.8 percent of foreign-born residents are not eligible to vote (11.9 percent) (23,092), that leaves 119,656 eligible voting age residents.  Assuming, 2000 people are felony parolees, that leaves 117,656 eligible voting age residents.  As of May 6, 2012, there are 71,833 registered voters in San Bernardino.  Of the people eligible to vote, thirty nine percent have chosen not to even register.  Of the people registered to vote, only 17 percent bothered to vote at the last major municipal election.

Code enforcement is a very important municipal function, particularly in an analysis of the broken window theory and what is important to a community.  However, the people actually making and enforcing the rules in San Bernardino reflect only six percent of the population, city-wide.  The vast majority of  people of San Bernardino, not the few who vote in City elections, have apparently decided this is the kind of city that they want to live in.

Does that mean that these rules shouldn’t be on the books, or not enforced?  It does not.  However, residents who want more code enforcement have to realize that the government will have difficulty imposing standards when the vast majority of people in a city, by voting with their feet (by having illegal garage sales, by illegally vending, and by patronizing these garage sales and vendors) in favor of these practices.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Do I Need A Building Permit?

By Michael Reiter, Attorney at Law

The answer usually is yes, you do need a building permit.  California, and in turn, local public entities, have adopted the California Building Code, which is a version of the International Building Code, formerly, and sometimes still called, the Uniform Building Code.  By now, most cities and towns in California should be using the 2010 Code, though the 2012 Code is being developed.  However, be cautioned that some municipalities are relying on older versions of the California Building Code, and the procedures were incorporated in the Uniform Administrative Code.  Check with your jurisdiction!
The California Building Code is difficult to find online, but it is codified in Title 24 of the California Code of Regulations.  The situation is much better than it used to be, when the copyright to the underlying model code prevented it from being offered inexpensively or free online.

Title 24, Part 2, Section 105 et seq. has the general requirement regarding permits.  It reads:

SECTION 105 PERMITS

105.1 Required. Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.

There are certain exemptions to this requirement:

105.2 Work exempt from permit. Exemptions from permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction. Permits shall not be required for the following:

Building:

1. One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet (11 m2).

2. Fences not over 6 feet (1829 mm) high.

3. Oil derricks.

4. Retaining walls that are not over 4 feet (1219 mm) in height measured from the bottom of the footing to the top of the wall, unless supporting a surcharge or impounding Class I, II or IIIA liquids.

5. Water tanks supported directly on grade if the capacity does not exceed 5,000 gallons (18 925 L) and the ratio of height to diameter or width does not exceed 2:1.

6. Sidewalks and driveways not more than 30 inches (762 mm) above adjacent grade, and not over any basement or story below and are not part of an accessible route.

7. Painting, papering, tiling, carpeting, cabinets, counter tops and similar finish work.

8. Temporary motion picture, television and theater stage sets and scenery.

9. Prefabricated swimming pools accessory to a Group R-3 occupancy that are less than 24 inches (610 mm) deep, do not exceed 5,000 gallons (18 925 L) and are installed entirely above ground.

10. Shade cloth structures constructed for nursery or agricultural purposes, not including service systems.

11. Swings and other playground equipment accessory to detached one- and two-family dwellings.

12. Window awnings supported by an exterior wall that do not project more than 54 inches (1372 mm) from the exterior wall and do not require additional support of Groups R-3 and U occupancies.

13. Nonfixed and movable fixtures, cases, racks, counters and partitions not over 5 feet 9 inches (1753 mm) in height.

Electrical:

Repairs and maintenance: Minor repair work, including the replacement of lamps or the connection of approved portable electrical equipment to approved permanently installed receptacles.

Radio and television transmitting stations: The provisions of this code shall not apply to electrical equipment used for radio and television transmissions, but do apply to equipment and wiring for a power supply and the installations of towers and antennas.

Temporary testing systems: A permit shall not be required for the installation of any temporary system required for the testing or servicing of electrical equipment or apparatus.

Gas:

1. Portable heating appliance.

2. Replacement of any minor part that does not alter approval of equipment or make such equipment unsafe.

Mechanical:

1. Portable heating appliance.

2. Portable ventilation equipment.

3. Portable cooling unit.

4. Steam, hot or chilled water piping within any heating or cooling equipment regulated by this code.

5. Replacement of any part that does not alter its approval or make it unsafe.

6. Portable evaporative cooler.

7. Self-contained refrigeration system containing 10 pounds (5 kg) or less of refrigerant and actuated by motors of 1 horsepower (746 W) or less.

Plumbing:

1. The stopping of leaks in drains, water, soil, waste or vent pipe, provided, however, that if any concealed trap, drain pipe, water, soil, waste or vent pipe becomes defective and it becomes necessary to remove and replace the same with the new material, such work shall be considered as new work and a permit shall be obtained and inspection made as provided in this code.

2. The clearing of stoppages or the repairing of leaks in pipes, valves or fixtures and the removal and reinstallation of water closets, provided such repairs do not involve or require the replacement or rearrangement of valves, pipes or fixtures.

However, the inquiry does not end here.  California Health and Safety Code section 17958.7  permits local changes to the California Building Code:

(a) Except as provided in Section 17922.6, the governing body of a city or county, before making any modifications or changes pursuant to Section 17958.5, shall make an express finding that such modifications or changes are reasonably necessary because of local climatic, geological or topographical conditions. Such a finding shall be available as a public record. A copy of those findings, together with the modification or change expressly marked and identified to which each finding refers, shall be filed with the California Building Standards Commission. No modification or change shall become effective or operative for any purpose until the finding and the modification or change have been filed with the California Building Standards Commission.

So, the answer to “Do I Need a Building Permit” requires you to look at the changes to the California Building Code in your local municipal code.  For example, one local City used to have a requirement that you needed a permit to pour a concrete patio slab, where it was otherwise exempt from the Uniform Building Code.  The City of Moreno Valley has modified the Code adding an exemption:

Moreno Valley Municipal Code section 8.20.010 reads in pertinent part:

    The California Building Code, 2010 Edition, based on the 2009 International Building Code as published by the International Code Council, excluding Chapter 29 and Chapter 34 and including Appendix H and the standards referred to therein, is adopted and made part of this title by reference with the following modifications:

. . .

E.   Chapter 1, Division II, Section 105.2, Building 2 is hereby amended to read as follows:

Fences not over six (6) feet high, masonry concrete block walls under four (4) feet, or combination masonry concrete block walls with wrought iron under four (4) feet high.

Note that the City Council or other approving body must make findings that the ” changes are reasonably necessary because of local climatic, geological or topographical conditions.”   However, the findings just have to be made and filed, they don’t actually need any basis in reality, apparently.  The City of San Jose, for example, removed the administrative appeal process in the California Building Code for revocation of permits.

So, the short answer is that many things that people do not obtain permits for, such as installing a new dishwasher, require permits, though there are some things such as tile work or painting that don’t require permits, unless they are prohibited by local agencies.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Locally Grown Strawberries in Redlands

By Michael Reiter, Attorney at Law.

I have written about local agriculture before (Growing and Selling Crops and Agricultural Products in the Inland Empire , Front Yard Fruit Stands in Redlands).  I have fond memories of strawberries from a farm in Highland, which no longer exists, Hamamura Farms.  Hamamura’s was at 28214 E. Third Street in Highland in the mid-1960s, and I remember visiting last in 1990, though its exact location escapes me.  The Highland Area Historical Society says that in 1952:

Ruth and Ronald Hamamura, and children Dennis, Roger, and Roy, arrived
from Honolulu, Hawaii, and purchased their East Third Street property.
They built a large glass green house for an exotic plant nursery. A
disastrous freeze that winter killed most of their unprotected stock.
Ronald went to work for Sears for fifteen years. The Hamamura’s had 10
acres, but no water, so they leased 15 acres from the Rozemas, their
neighbors to the west. In 1960, the Hamamuras sank a well on their own
ten acres and have since become outstanding strawberry producers in the
area. Also grown are Maui style onions and vegetables.

Roy Hamamura returned to Hawaii and grew strawberries in Maui. Hamamura’s ceased to exist in the 1990s, but local strawberries are still available in Mentone and Redlands.

You can still get locally grown strawberries in Redlands.  One such place is Jacinto Farms, which grows strawberries in Mentone and sells them at their two stores: the original at 2108 Mentone Boulevard, Mentone, CA and the (somewhat (January 27, 2012)) new location in Redlands, 1269 Brookside Avenue, in Redlands.

The Redlands location is a good example of adaptive reuse: it is a former gas station on Brookside, not too far from a Mobil station, and just down the road from the Stater Bros. on Alabama Street.  When I was Assistant City Attorney, residents on Magnolia were rightly complaining about the former gas station being vandalized, so it is good that it went from neighborhood eyesore to a place to buy local produce.

Jacinto Farms produces the citrus that Redlands and Mentone is famous for, but also has other seasonal fruits and vegetables.  Expect to pay Market Night prices, and they are conventionally grown, but the fruit is fresh and produced less than four miles away, according to the Jacinto Farms website.

I’ve eaten the strawberries from the Redlands “stand” three times, most recently about fifteen minutes ago.  They are much better than the imported (either from Oxnard or Mexico) strawberries that Stater Bros. had as a loss-leader recently. If you pass by on Brookside, take a look.  Right now, in addition to oranges, strawberries and avocados, they have lettuce, small artichokes, and onions, among other produce.  Though they are open until 6:30 p.m., the selection of non-oranges and avocados is much better at around noon.

Copyright 2012 Michael Reiter, Attorney at Law

 

Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement“, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

• An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
• The oaths taken by officer holders are invalid for some reason.
• For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
• The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
• Misuse of the Uniform Commercial Code.
• The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
• A misconception about the term “common law.”
• The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Finding Out Who Owns A Piece of Infrastructure, Part Two

By Michael Reiter, Attorney at Law.

When someone is injured because they tripped and fell on a sidewalk, or in a field, or near a school, the immediate answer to who was responsible is not always readily apparent.  For example, cities often claim that the sidewalk is jointly controlled with a homeowner.  Some cities will cross-complain against the homeowner or other landowner.  Some will just assert that the homeowner is responsible and wait for the person injured, typically the plaintiff, to make a claim or file suit against the property owner.  The public entities that I have worked for were reluctant to cross-complain against a single family landowner because it could create a political problem.  Sometimes, a plaintiff, for a variety of reasons, does not want to sue one organization or another.  Since economic damages are joint and severable, that may be a judgment call a plaintiff is willing to take.  Another reason may be that the plaintiff or the plaintiff’s lawyer has failed to comply with the Government Claims Act.  Then, the defendant may wish to file a Government Claim and then file a cross-complaint for indemnification.

Yestersday, I discussed the probable owners of a parcel behind my office including  the related infrastructure.  When we left off, we found clues that it was owned and/or controlled by SANBAG and possibly BNSF, the successor to AT&SF.

Redlands Industrial Spur Utility Pole Without Wires

Here are some pictures that I took.  This shows a close-up of one of the many utility poles on this portion of the Redlands Industrial Spur without wires.  There is no indication on the pole, that I could find, what it was used for, but on the cross arm, you can find some old insulators.

Here is a view of the line of utility poles that lack working wires on the Redlands Industrial Spur in this location:

Redlands Industrial Spur With Tracks and Utility Poles

You can see Mount San Antonio in the background, and my red office building roughly in the middle.  To the left is Redlands Boulevard, formerly Highway 99.  Whether it is dedicated public right of way or not, there is evidence that people use the area between the trees and the utility poles for walking.  I saw one person when I was back there.

Redlands Industrial Spur Track, Missing Ties

You can see the track is elevated from the rest of the parcel.   To the north (generally) of the tracks is a culvert.   There is evidence that the track shown above was washed out by flooding.  The rails remain, but the ties are resting a few feet below.

Most of the infrastructure out there does not have an indicia of ownership.   For example, the utility poles lack a number like you might see on the joint poles along West Colton Avenue.  One exception is at the utility box closest to Tennessee.  On its side it says:

BNSF Emergency Call

Does that mean that BNSF controls this parcel, or the infrastructure on the parcel?  Not necessarily, but it is evidence of the fact.  The have an easement for rail freight.  The property, according to the information discussed yesterday is owned by SANBAG.  They acquired it from the BNSF’s predecessor, AT&SF in 1993.  BNSF was not formed until 1996, yet the stencil says BNSF, not AT&SF.  There is a toll-free phone number under “Call” but it is difficult to read.

The basic investigation (site visit, review of easily obtainable information online) of the property suggests that this infrastructure is owned by SANBAG and/or BNSF, but additional investigation would need to be done, either through public available information, or through discovery if a lawsuit was filed to reach a definitive conclusion.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Finding Out Who Owns A Piece of Infrastructure, Part One

By Michael Reiter, Attorney at Law.

When someone is injured because they tripped and fell on a sidewalk, or in a field, or near a school, the immediate answer to who was responsible is not always readily apparent.  For example, cities often claim that the sidewalk is jointly controlled with a homeowner.  Some cities will cross-complain against the homeowner or other landowner.  Some will just assert that the homeowner is responsible and wait for the person injured, typically the plaintiff, to make a claim or file suit against the property owner.  Sometimes, a plaintiff, for a variety of reasons, does not want to sue one organization or another.  Since economic damages are joint and severable, that may be a judgment call a plaintiff is willing to take.  Another reason may be that the plaintiff or the plaintiff’s lawyer has failed to comply with the Government Claims Act.  Then, the defendant may wish to file a Government Claim and then file a cross-complaint for indemnification.

There are few better ways of learning a city, its businesses, and its infrastructure than by walking.  Since we are having such nice weather, particularly for early January, I took a break from my office and walked around the block.  I am on a block which is mostly on the Lugonia grid, but it is punctuated by the turn of the former State Highway 99, now Redlands Boulevard.  To walk around the block,  I walked out of the parking lot of Redlands Executive Suites, which it shares with Bakers Drive-Thru and Arby’s onto the sidewalk along the southern portion of Colton Avenue.  I took the sidewalk past Dynasty Suites, Taco Bell, past an Omnitrans bus shelter, past the Carl’s Jr. on the corner of Tennessee Street and West Colton Avenue.  I took the sidewalk south past the parking lot for Carl’s Jr. on Tennessee, past Michelle’s and Excel Automotive.

Once you pass Excel Automotive walking south on Tennessee, the sidewalk ends.  The pedestrian is faced with a small patch of asphalt and railroad tracks at grade, or to cross the tracks.  To the north of the tracks is a small drainage ditch.   Along the railroad tracks are  a series of what appear to be utility poles.  Most of them are not connected by wires.

I have investigated a variety of incidents and accidents over the year since becoming a lawyer.  That, coupled with being involved with public works contracts,  lobbying for grants from the United States Government, advising local municipal departments, and practicing code enforcement law, and boards, has left me fascinated with infrastructure, public and private.

The railroad lines behind my office are part of the Redlands Industrial Spur.  Having lived in the Inland Empire almost my entire life, save for college and law school, I do not ever recall seeing a train on these particular tracks, though I have seen trains on other portions of the spur, and I am told as recently as five years ago, trains were seen on the spur line.

While figuring out who owns what infrastructure can be difficult, you can find clues by looking at the infrastructure, by using the internet, by using the California Public Records Act, and by using other public information and databases.  One way to find evidence of ownership and control, rather than a definitive answer about ownership and control, is to use the Assessor’s Parcel Maps and to look at the San Bernardino County Tax Collector’s online ownership information.  The Assessor’s Parcel Maps are designed for ad valorem taxation purposes only, but they are commonly-used to help find out the owners of property.  Since the railroad tracks are near my office, I will use my office address to find the right map: 1255 W. Colton Ave, Redlands, California.

That address corresponds to San Bernardino County Assessor’s Parcel Number 0169-411-05.  That corresponds to Assessor’s Map Book 0169, Page 41.  The map shows a parcel with no parcel number (referring to Page 39), and it is labeled “A.T.&S.F. R.R.” for Atchison, Topeka and Santa Fe Railroad, the predecessor to BNSF.   That doesn’t mean that BNSF currently owns or controls the railroad track.

Looking at Assessor’s Map Book 0169, Page 31, we find more information.  This map shows the parcel which is one hundred feet across.  It says “Reserved Rail Freight” and Serv. Esmt.  It shows two parcel numbers, 02, and 04, corresponding to APN 0169-391-02 and APN 0169-391-04.  There is also a little portion south of the railroad designated as 0169-391-03, which we will look up as well.

Looking up 0169-391-02, the Tax Collector says that  the parcel owned by San Bernardino Associated Governments (commonly known as SANBAG), that the recording date is  March 30, 1993, and the document number is 9313704100043.  The tax collector says that the previous owner was “ATCHISON TOPEKA AND SANTA FE RR CO.”  To find out more information, one can obtain that document by going to the County Recorder.  The Tax Collector also gives an abbreviated version of the legal description: PAR NO 10 MAP 804 36 106.  Looking up 0169-391-04, it says that it is an easement,  with a legal description of “MAP 804 36 106 PARCEL NO 10A (RESERVED RAIL FREIGHT SERV ESMT) ***** SBE LAND CHG FOR 94 PG 13 *****” with a document number of  9500000000000,  a recording date of 3/1/1994.  This information would suggest, though does not conclusively prove, that this segment is owned by SANBAG, with an easement owned by BNSF for rail freight purposes.  A search of the internet finds SANBAG’s FY 2011-2012 budget which has this blurb about the Redlands Industrial Spur:

Redlands Passenger Rail
The Redlands Passenger Rail Project is planned to provide service operating between a proposed
San Bernardino Transit Center at Rialto Avenue and E Street in the City of San Bernardino and
the University of Redlands on the former AT&SF Redlands spur acquired by SANBAG in 1993.
A preliminary feasibility study was completed in Fiscal Year 2002/2003. A station area plan
study, completed in January 2007, identified the preferred station locations and recommended
the type of transit-supportive land use that should occur within a ½-mile radius of each station.
A consultant is currently under contract for preparation of environmental documents necessary
for each city to modify their land use around each station location in support of rail service.

What about that little parcel?  Looking up the parcel number it gives the legal description of  ” BARTON RO COM ON S LI NE 1/4 LOT 20 N 89 DEG 21 MIN W 74.43 FT FROM SE COR TH N 89 DEG 21 MIN W 77 FT TH N 27.76 FT TO S LI A T AND S F R/W TH S 70 DEG 44 MIN E 81.56 FT ALG SD R/W LI TO POB EX STATE HGWY .25 AC.”   That’s a small remnant parcel.  It was formerly owned by the “Grant Water Company,” and looking on Google Street View, it appears to be a former well.  The legal description mentions the “State Highway” meaning Redlands Boulevard.

Tomorrow, we will examine the evidence for ownership of the infrastructure along this section of the Redlands Industrial Spur.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

When Should You Contact A Lawyer For A Code Enforcement Problem?

By Michael Reiter, Attorney at Law.

Many California cities have departed from filing misdemeanor or infraction citations or complaints in their local Superior Court.  The reason why is that the Government Code provides a more efficient process with administrative citations.  For many situations, such as leaving your garbage cans out too long, it makes more sense to pay an administrative citation then to be arraigned on a criminal citation.   Further, with the ever-increasing amount of penalties piled upon criminal citations, it is also beneficial to the violator to only have to pay $100 for a ticket.  The city or town benefits because they get the entire fine, minus any processing fee from a third party administrator, versus getting roughly half of the base fine for the criminal citation.  In most cases, the alleged violator does not need an attorney.  Even when it is a criminal case, unless your time is exceedingly valuable or you will be out of the area at the time, it does not make sense to pay an attorney to appear on your behalf.

The number one way to get rid of a code enforcement problem is to come into compliance with the ordinance.  Sometimes that is not possible for financial, logistical, or other reasons.  However, an attorney is often the wrong tool to deal with financial problems, as the attorney’s fee will increase the cost to remedy the situation.  Sometimes an attorney can help with the process and explain the situation, and work with the agency to come up with a compliance plan.

However, with administrative civil penalties cases, where the city wants to charge the property owner up to a thousand dollars a day for a continuing violation, it may make sense to speak to an attorney sooner than later.  Once the citation becomes a lien against the property, depending on the implementing ordinance, it may be impossible for anyone — including a skilled attorney, to do anything about the situation.  Also, attorneys will not guarantee results, because with code enforcement,  the same City that cited the alleged violator that must be convinced to change their course.

Alleged code enforcement violators like to think that they are being singled out for selective enforcement, or some kind of discrimination is at hand.  Though that may be the case, having hundreds of junked cars on a property makes a selective enforcement case difficult to win.  Though code enforcement departments sometimes very technical interpretations of vague municipal codes that are problems, the majority of code enforcement cases are not based on animus towards the property owner.

For out-of town landlords and property holders, it sometimes helps to have an attorney who has dealt with a code enforcement department in the past.  Each code enforcement situation is different, and property owners and tenants should consult with an attorney about their particular situation.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

How To Act In Front of A Code Enforcement Hearing Officer

By Michael Reiter, Attorney at Law.

Many cities in California have shifted away from hearing boards for administrative hearings and hired hearing officers to hear appeals of administrative citations, administrative actions, and administrative civil penalties.  Here are some general, common sense rules to follow when appearing before a hearing officer.

1. Be prepared.  Bring all the relevant information, including current photographs, and any witnesses on your behalf.  Draft an outline of remarks before the hearing.

2. Be respectful.  There’s no point in being bombastic.  When I was a Deputy City Attorney for the City of San Bernardino, I had the occasion to observe hundreds of hearings in front of a few different hearing officers.  One well-known unlawful detainer attorney argued his way into a higher fine for his client.

3. If you are challenging any aspect of the hearing, make a record.  Submit any objections to the process or hearing officer in writing.

4. As a corollary to be prepared, show up early, watch how the hearing is conducted, and obtain any rules  adopted by the hearing officer or City in advance.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Possible Legal Issues of Joint Campaign Signs in the San Bernardino City Clerk and City Attorney November 2011 Elections

By Michael Reiter, Attorney at Law

This weekend, joint James F. Penman for City Attorney and Amelia Sanchez-Lopez for City Clerk signs popped up in San Bernardino.  Are there any issues in having joint signs?  I cannot remember a specific race that I can point to where there have been joint campaign signs, though a web search shows that they exist in other jurisdictions.  In local, non-partisan races, I can see such a move to be beneficial when a group of candidates want to run together as a reform slate, such as in a recall election, or a city council or school board election where a majority of the council or board can change in one election.

As far as legal issues, the ones that immediately pop into mind are sign code issues (being jointly responsible for the placement of your sign if it violates a sign ordinance (such as being in the public right-of-way).  Presumably, should that happen, both candidates could be held responsible for violating the code.   The other issue could be a campaign disclosure of in-kind contributions.  Say, for example, one well-known, well-financed candidate is paying for the sign, and the other, less-experienced, less well-funded candidate is piggybacking on the sign of the other.  There would need to be campaign disclosures of the in-kind contributions.

The only other issue that I can think of has created a joint sign that does not have the permission of the other candidate.  An example that I have seen online is when someone had a joint sign with a presidential candidate wherein the presidential campaign did not give permission for the sign.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

                     Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

How To Change A Code Enforcement Misdemeanor Into An Infraction

By Michael Reiter, Attorney at Law

When I was a Deputy City Attorney in San Bernardino and the Assistant City Attorney for the City of Redlands, many of the code sections I prosecuted were alternate misdemeanors/infractions, also known as wobblettes to distinguish them from alternate felony/misdemeanors, which are known as wobblers. Usually, the code section will designate punishment and note if the charge is an alternate misdemeanor/infraction, or a code will have a general penalty section. Typically, the city prosecutor will have prosecutorial discretion on how to charge the violation or how to plea it out. If it is a straight misdemeanor, and the code does not have a provision allowing prosecutorial discretion in reducing it to an infraction, the prosecutor does not have the ability to reduce the charge to an infraction. Similarly, if it is a straight infraction, which are never punishable by jail time, the city prosecutor does not have the ability to make the charge a misdemeanor. Why would someone want a misdemeanor instead of an infraction? Perhaps they served jail time, possibly on a bench warrant, possibly on some other charge, and they want credit for time served in lieu of a fine.

Can a court reduce a code enforcement misdemeanor to an infraction? I have seen it done in San Bernardino both to straight misdemeanors and alternative misdemeanor/infraction cases. Penal Code section 17(b) is the authority many criminal judges are familiar with regarding wobblers. But what about wobblettes? Penal Code section 17(d) reads:

A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.

Penal Code section 19.8 refers to a variety of California code sections, but does not reference Municipal Code violations. Penal Code section 19.8 does refer to other offenses made subject to 17(d) by the Legislature, but presumably that means the California Legislature, and not a legislative body like a city council.

Straight misdemeanors were difficult at times, particularly violations of the California Fire Code. Sometimes a barrier to settlement was not the punishment (as far as fines), but the fact that the charge was a misdemeanor. The work-around was finding an alternate violation for the same conduct.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com