More On Constitutionalist Nonsense

By Michael Reiter, Attorney at Law

One of the more relatively popular posts on this website is this post on  Constitutionalists.

From time to time, I run across them in either my Code Enforcement or my Civil Rights practices.

However, I don’t wish to debate the issues.  If you have a code enforcement issue, you must realize that the government has police powers to deal with code enforcement issues. The police powers are in the California Constitution:

“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI, § 7.) Often referred to as the “police power,” this constitutional authority of counties and cities to adopt local ordinances was described by the Supreme Court in Candid Enterprises, Inc. v. Grossmont Union High School District (1985) 29 Cal.3d 878, 885, as having the following broad scope
“Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. Apart from this limitation, the police power of a county or city under this provision is as broad as the police power exercisable by the legislature itself.” 85 Cal. Op. Att’y Gen. 21 (2002).

This is not up for debate. 

That does not mean that the police powers are unlimited. In particular, code enforcement often does not follow the law, whether it is the City’s own processes in the municipal code, a charter provision, California law when applicable, or the California or United States Constitution.

 

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.

A: 300 E. State Street, Suite 517

     Redlands, CA 92373
T: (909) 708-6055

Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law Part Two

By Michael Reiter, Attorney at Law

When I wrote the original Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law article, I did not have the benefit of an article from the San Bernardino Sun.  Here’s the ordinance, which is still in force:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

A story in the San Bernardino Daily Sun on April 20, 1955, Page 13, gives some background to the crime problem in San Bernardino about 15 years after it was already adopted.  The article had a photograph and was headlined “S.B. 20-30 Club Seeks To Reduce Car Thefts.”

Members of 20-30 Club No. 3 have taken on the project of helping to reduce car thefts in San Bernardino.

Hundreds of motorists Saturday will find yellow cardboard key replicas under their windshield wipers with a warning that “keys in the car” is a direct invitation to auto thieves.

“The project is one of the many efforts of the 20-30 Club to help in building a better community,” said Lloyd E. Harmon, second vice president and project chairman.

Club officers pointed to recent statistics indicating that 55 per cent of juvenile crimes in the theft of cars are aided and abetted by persons leaving their keys in cars.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

W: http://michaelreiterlaw.com

Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

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.

A: 1255 W. Colton Ave. Suite 104,
Redlands, CA 92374
T: (909) 708-6055

 

Assemblymember Cheryl Brown introduces AB 801 (2013) to deal with copper theft.

By Michael Reiter, Attorney at Law

Assemblymember Cheryl R. Brown introduced AB 801 four days ago, which strengthens the law regarding the theft of copper.  When I was an in-house municipal lawyer, particularly in Redlands, the theft of copper, including things like plaques from City parks was a big problem.  This bill is an attempt to further deal with this issue.  The bill is attempting to amend Business and Professions Code section 21608.5.

BILL NUMBER: AB 801	INTRODUCED
	BILL TEXT

INTRODUCED BY   Assembly Member Brown

                        FEBRUARY 21, 2013

   An act to amend Section 21608.5 of the Business and Professions
Code, relating to business.

	LEGISLATIVE COUNSEL'S DIGEST

   AB 801, as introduced, Brown. Junk dealers and recyclers:
nonferrous materials.
   Existing law requires junk dealers and recyclers, as defined, to
maintain written records of all sales and purchases made in the
course of their business, and makes a violation of the recordkeeping
requirements a misdemeanor. Existing law prohibits a junk dealer or
recycler from providing payment for nonferrous material, as defined,
unless the payment is made by cash or check, the check is mailed or
the cash or check is provided no earlier than 3 days after the date
of sale, and the dealer or recycler obtains a photograph or video of
the seller and certain other identifying information, as specified,
which information is to be retained by the dealer or recycler, as
part of the written record of purchases, for a specified period of
time.
   This bill would require junk dealers and recyclers to obtain
specified information before providing payment for nonferrous
materials marked with an indicia of ownership, as defined, and would
require that this information be retained as part of the written
record of purchases. Because a violation of the recordkeeping
requirement would be a crime, the bill would impose a state-mandated
local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 21608.5 of the Business and Professions Code is
amended to read:
   21608.5.  (a) A junk dealer or recycler in this state shall not
provide payment for nonferrous material unless, in addition to
meeting the written record requirements of Sections 21605 and 21606,
all of the following requirements are met:
   (1) The payment for the material is made by cash or check. The
check may be mailed to the seller at the address provided pursuant to
paragraph (3) or the cash or check may be collected by the seller
from the junk dealer or recycler on or after the third business day
after the date of sale.
   (2) At the time of sale, the junk dealer or recycler obtains a
clear photograph or video of the seller.
   (3) (A) Except as provided in subparagraph (B), the junk dealer or
recycler obtains a copy of the valid driver's license of the seller
containing a photograph and an address of the seller, a copy of a
state or federal government-issued identification card containing a
photograph and an address of the seller, a passport from any other
country in addition to another item of identification bearing an
address of the seller, or a Matricula Consular in addition to another
item of identification bearing an address of the seller.
   (B) If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office box, the
junk dealer or recycler shall obtain a copy of a driver's license or
identification card described in subparagraph (A), and a gas or
electric utility bill addressed to the seller at that alternative
address with a payment due date no more than two months prior to the
date of sale. For purposes of this paragraph, "alternative address"
means an address that is different from the address appearing on the
seller's driver's license or identification card.
   (4) The junk dealer or recycler obtains a clear photograph or
video of the nonferrous material being purchased.
   (5) The junk dealer or recycler shall preserve the information
obtained pursuant to this subdivision for a period of two years after
the date of sale.
   (6) (A) The junk dealer or recycler obtains a thumbprint of the
seller, as prescribed by the Department of Justice. The junk dealer
or recycler shall keep this thumbprint with the information obtained
under this subdivision and shall preserve the thumbprint in either
hardcopy or electronic format for a period of two years after the
date of sale.
   (B) Inspection or seizure of the thumbprint shall only be
performed by a peace officer acting within the scope of his or her
authority in response to a criminal search warrant signed by a
magistrate and served on the junk dealer or recycler by the peace
officer. Probable cause for the issuance of that warrant must be
based upon a theft specifically involving the transaction for which
the thumbprint was given. 
   (7) If the materials are marked with an indicia of ownership, the
junk dealer or recycler obtains a proof of ownership record,
including, but not limited to, a receipt from the indicated owner or
a bill of lading, from the person selling or delivering the materials
that shows that person has lawful possession or ownership of the
materials. Copies of these documents shall be maintained by the junk
dealer or recycler as part of the written record of the transaction.

   (b) Paragraph (1) of subdivision (a) shall not apply if, during
any three-month period commencing on or after the effective date of
this section, the junk dealer or recycler completes five or more
separate transactions per month, on five or more separate days per
month, with the seller and, in order for paragraph (1) of subdivision
(a) to continue to be inapplicable, the seller must continue to
complete five or more separate transactions per month with the junk
dealer or recycler.
   (c) This section shall not apply if, on the date of sale, the junk
dealer or recycler has on file or receives all of the following
information:
   (1) The name, physical business address, and business telephone
number of the seller's business.
   (2) The business license number or tax identification number of
the seller's business.
   (3) A copy of the valid driver's license of the person delivering
the nonferrous material on behalf of the seller to the junk dealer or
the recycler.
   (d) (1) This section shall not apply to the purchase of nonferrous
material having a value of not more than twenty dollars ($20) in a
single transaction, when the majority of the transaction is for the
redemption of beverage containers under the California Beverage
Container Recycling and Litter Reduction Act, as set forth in
Division 12.1 (commencing with Section 14500) of the Public Resources
Code.
   (2) Materials made of copper or copper alloys shall not be
purchased under this subdivision.
   (e) This section shall not apply to coin dealers or to automobile
dismantlers, as defined in Section 220 of the Vehicle Code.
   (f) For the purposes of this section,  "nonferrous
  the following te   rms have the following
meanings:  
   (1) "Indicia of ownership" means words, symbols, or registered
trademarks printed, stamped, etched, attached, or otherwise displayed
on the exterior surface of the materials that reasonably identify
the owner. 
   (2)     "Nonferrous  material" means
copper, copper alloys, stainless steel, or aluminum, but does not
include beverage containers, as defined in Section 14505 of the
Public Resources Code, that are subject to a redemption payment
pursuant to Section 14560 of the Public Resources Code.
   (g) This section is intended to occupy the entire field of law
related to junk dealer or recycler transactions involving nonferrous
material. However, a city or county ordinance, or a city and county
ordinance, relating to the subject matter of this section is not in
conflict with this section if the ordinance is passed by a two-thirds
vote and it can be demonstrated by clear and convincing evidence
that the ordinance is both necessary and addresses a unique problem
within and specific to the jurisdiction of the ordinance that cannot
effectively be addressed under this section.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law (and you’ll be fined $2 before P&As).

By Michael Reiter, Attorney at Law

When I was a Deputy City Attorney for the City of San Bernardino, I never once saw this section enforced, with its circa 1964 $2 fine:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

What’s the background on this law?

First, the 1941 ordinance, Ordinance 1652 is available online.  The ordinance repeals a variety of ordinances and adopts an overarching scheme for regulating traffic in the City of San Bernardino. Difficulty?  Article 4 has no section 14.  Another added difficulty, is that I didn’t see any similar language anywhere in the text of the ordinance. However, the language (especially the two dollars) sounds archaic.

The Municipal Code annotation is incorrect, because the section does not come from Ordinance 1652 as originally adopted.  Ordinance 2613 from 1964 amended Ordinance 1652 by adding section 14.  There is no legislative history or findings in the ordinance itself (and there are no minutes online), which reads in pertinent part:

 SECTION FOURTEEN: No person having charge or control of a
motor vehicle shall allow such vehicle to stand upon any street,
alley or parking lot upon which there is no attendant, when such
motor vehicle is unattended, without first locking the ignition
of said vehicle and removing the ignition key from such vehicle.
Any person convicted under this Section shall be punished
by a fine of not less nor more than Two Dollars ($ 2. 00); and such
person shall not be granted probation by the Court, nor shall the
Court suspend the execution of the sentence imposed upon such
person.

Ordinance 3880 (November 20, 1979) (not 1980 as shown in the annotations), Section 2 amended Section 14 to be titled SECTION FOURTEEN: Removal of Ignition Key.

The ordinance was codified in 1980, I believe, but I have not seen that ordinance.  It divided it into section (a) and (b), capitalization was changed, as was the reference to ($2.00) in section (b).

MC-460, Section 120, enacted May 15, 1985, amended the codified version, 10.16.140(a) to read:

A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.

The backup from the City Attorney’s Office included removing archaic laws, but apparently, section B remained.

Item 7i on the July 2, 2012 agenda included a re-adoption of this section as part of a cleanup regarding reorganized departments, however, upon watching the video of that meeting (there does not appear to be minutes available online), it was tabled on a 7-0 motion by Council Member Wendy J. McCammack because of the need for further reorganization by the City Manager.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

W: http://michaelreiterlaw.com

How To Use A Court Interpreter in San Bernardino Superior Court

By Michael Reiter, Attorney at Law

As long-time readers know, I am a member of the Hon. Joseph B. Campbell American Inn of Court.  Last night was a monthly meeting, and the program was one of the best since I became a member in the earlier part of the last decade.  The program included a skit that showed how interpreters were used in a criminal trial, both with American Sign Language interpreters and Spanish interpreters.  When I was a Deputy City Attorney for the City of San Bernardino, the court interpreters were invaluable in communicating with primarily monolingual Spanish speakers in code enforcement cases.  While the performers in the skit provided a great deal of information, here is some information derived from the hand outs:

How To Use a Court Interpreter

The interpreter is your voice in court.

So, it is important to . . .

Listen carefully to the interpreter.

Wait for the interpreter to finish talking before your answer.

Do not speak in English, even if you speak a little.  It is confusing for the judge.

Do not interrupt, even if someone in court says something bad about you.  You will get a chance to speak.

Take notes. If someone says something untrue, write it down.  Then when it is your turn to speak, you can tell the judge your side.

Source: How to Use a Court Interpreter, Superior Court of California, County of San Bernardino, pamphlet in English and Spanish, undated.

Additionally, a handout with the title of the presentation, “Lost in Translation” dated January 2013 says:

Our guest Spanish Language Interpreters ask that we, as attorneys and judicial officers, always keep the following things in mind . . .

- Don’t speak fast.

- Don’t use humor or figures of speech. [Note: The examples given were, "you're really in a pickle" or "bird of a different feather"]

- Don’t give the jury instruction on interpreters or modify it.

[Note: The interpreter referred to CALJIC Instruction 121 which reads:

"Some testimony may be given in <insert name or description of language other than English>. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff)."  The notes state: "The committee recommends that this instruction be given whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case, when the person requiring translation testifies, or both, at the court's discretion. If a transcript of a tape in a foreign language will be used, the court may modify this instruction. (See Ninth Circuit Manual of Model Jury Instructions, Criminal Cases, Instruction No. 2.8 (2003).) If the court chooses, the instruction may also be modified and given again at the end of the case, with all other instructions."

The interpreter presenting strongly objected to the part of the instruction which states: "If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note" undermined the certified interpreter's training and experience and emphasized that the instruction was not mandatory, and that the judicial officer could leave that objectionable line out of the instruction.]

- Always speak directly. [Note: attorneys should speak to the witness, and the witness should answer the attorney.  Do not speak to the interpreter directly].

- Beware of false cognates.

- Spanish is 30% longer than English.

- The Only person who never stops speaking during proceedings is the interpreter.

The American Sign Language interpreters said that they are required to provide a translation that included emotions such as shouting or sarcasm.  The Spanish language interpreters said that it was a matter of style for them to provide the translation in the same tone or volume.

Thank you to the leaders of the Inn for providing such an educational program, particularly Judge John Pacheco and Donna Connally, and to the court interpreters that helped us understand the process.

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.

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

Garage Sales and Yard Sales (and permits) in the Cities of Highland, Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Redlands, Yucaipa and unincorporated San Bernardino County

By Michael Reiter, Attorney at Law

People want to know how to get yard sale and garage sale permits in the East Valley, and they find this site because of this article about the City of San Bernardino’s yard sale ordinance.  Therefore, here is a chart to give a basic (but not complete) understanding of the rules and regulations regarding yard sales in the East Valley, here defined as the Cities of Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Highland, Redlands, Yucaipa and unincorporated San Bernardino County such as Muscoy, Mentone, Oak Glen, Devore, Arrowhead Suburban Farms, Devore Heights, and Del Rosa.  Per the City Clerk of Loma Linda, there is no yard sale ordinance in the City of Loma Linda as of 10/17/2012.  Note also that homeowners associations (HOAs) probably have additional restrictions (particularly East Highlands Ranch) which you should look into.

City/Unincorporated Permit Required Permit Cost Where? Duration
Colton Yes $2, except charity, nonprofit, religious Finance Department 3 d, 8am-8pm
Grand Terrace Yes (Except Exemptions) $5 Finance Department 3 d, 8am-8pm
Highland Yes $7 Finance Department 3 d, 8am-8pm
Loma Linda N/A N/A N/A N/A
Redlands Yes $2.50 Treasurer 3 d or 2d each over consecutive weekends; 8 am-8pm
Rialto Yes (Except Exemptions) $5.40 Finance Department 3d, daylight
San Bernardino No (anomoly regarding Estate Sales) N/A N/A 3d, daylight
Yucaipa After 1st sale $2.50 (sales 2-4) Front Desk, City Hall 3d, 8am-8 pm
Unincorporated San Bernardino County No (See SBCC section 84.25.030(e) unless exceed standards of 84.10. N/A N/A 3d, 8am-5 pm
City/Unincorporated Frequency Display Signage Exemptions Ordinance Codified At Violation
Colton 1/quarter Not in PROW During, onsite Court sales Ord 1483 (1975); 0-3-1989 (1989) Colton Municipal Code Chapter 5.45 Misdemeanor
Grand Terrace 2/yr Not in PROW 2 onsite, unlit, 4ft area, 5 day limit, not on PROW, trees, fences, utility poles, removed at end Court sales, charitable, nonprofit, religious Ord 35 (1980) Grand Terrace Municipal Code Chapter 5.40 Infraction
Highland 3/12 mo Safety 1 onsite doublesided, 6 ft area, 5′ tall, 24 hours before until end. Court sales Ord 239 (1998) Highland Municipal Code section 5.04.370 Infraction
Loma Linda N/A N/A N/A N/A None N/A N/A
Redlands 3/12 mo Not in PROW, safety, only during sale Court sales Prior Code secs 24001-10; Ord 2684 (2007), 2779 (2012), Redlands Municipal Code Chapter 5.68 Infraction
Rialto 4/calendar yr only first weekend in March, June, September and December Not in PROW, front or side yards 2 onsite, 4ft area, 4directional signs, prohibited in PROW, >864 sq in., with permission of property owner. Nonprofits, Ord 1416 (2008) Rialto Municipal Code Chapter 5.69 Infraction; misdemeanor for <3/yr
San Bernardino 12/yr only on 3rd weekend of mo Not in PROW, safety, only during sale 3 onsite unlit 24 hr prior until end; 4 Directional 2 sq ft  on private property w/consent Estate sales as to frequency nonprofits as to frequency Ord MC-1344 (2011) San Bernardino Municipal Code Chapter 8.14 Infraction/misdemanor (woblette)
Yucaipa 4/12 mo Not in PROW 1 onsite, not in PROW Court sales Ord 102 (1992) Yucaipa Municipal Code Chapter 5.22 Infraction
Unincorporated San Bernardino County 4/yr Not in PROW 2 onsite, 4ft area, 4 directional signs, prohibited in PROW, 864 sq in., w/permission of property owner. None Ord. 411 (2007) San Bernardino County Code  Chapter 84.10 Infraction; misdemeanor for >3/yr

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. BE SURE TO CHECK WITH THE INVOLVED CITIES FOR CURRENT LAW AND FEES.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055
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