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

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

Inspecting and Obtaining Copies of Building Permits and Building Plans in California

By Michael Reiter, Attorney at Law.

I have been to multiple City Halls lately inspecting permits and plans, and obtaining copies of permits from local public agencies.  Here is a primer on using the California Public Records Act to inspect building permits and plans, and to receive copies of permits.

As we have discussed before, the California Public Records Act is a way to inspect and obtain copies of documents.  This works for permits, as well.  Some forward-thinking cities have their permit systems online for anyone to inspect.  Others require you to take the trip to City Hall to look at the physical files, either because there is no online system, or because some cities are not as resident-friendly as others.

Every city I have ever dealt allows the public to inspect permits without any prior notice, and without the necessity of sending them to the City Attorney’s Office.  Likewise, getting copies of permits is easy, without the bureaucratic review process seen with many other Public Records Act Requests.

Health and Safety Code section19851 says that plans are open to inspection on premises of the building department as a public record.  No copy of the plans may be duplicated in whole or part except:

with the written permission, which permission shall not be unreasonably withheld as specified in subdivision (f), of the certified, licensed or registered professional or his or her successor, if any, who signed the original documents and the written permission of the original or current owner of the building, or, if the building is part of a common interest development, with the written permission of the board of directors or governing body of the association established to manage the common interest development, or (2) by order of a proper court or upon the request of any state agency.  California Health and Safety Code section 19851(a)(1).

There is also an argument that the plans are exempt from duplication pursuant to Government Code section 6254(k), the exemption part of the California Public Records Act that states: “(k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”    The idea is that since federal law, 17 United States Code section 102(a)(8) protects architectural works, and “architectural works” is defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”  17 U.S.C. section 101.  I think that argument fails (as to inspection, not copying) because I don’t think it is among the bundle of rights associated with copyright specifically 17 U.S.C. section 106.

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

Use of the California Public Records Act for Opposition Research

By Michael Reiter, Attorney at Law.

The California Public Records Act (as well as the disclosures required by the Political Reform Act, adjudicative court records)  provides an important tool for gathering information about political rivals.   Below is a brief overview of the kinds of records that are available to the public, and what can be learned from the types of information.

1. Permit and Property Records.  An opponent may be able to find administrative citations, notices of violation, building permits (or no building permits) by making a California Public Records Act request by a parcel number or street address.  Some cities will take the view that code enforcement records are criminal investigatory files and refuse to disclose.  However, I have found that most cities will disclose this information, with some redactions with the name of reporting parties.  Building permits themselves are relatively non-controversial, and will be inspected.

2. Contracts with government entities, particularly entities that are not

3.  Litigation with a public entity.  This can be a treasure trove of information about the inner workings of government.  Depositions are a good source because they are largely unfiltered.  Also ask for any government claims, as they may not show up if no lawsuit is filed.

4.  Minutes.  Opponents can use these to establish a record of voting or non-voting.

5. Electronic mail.  Though many public entities have policies of deleting email within a certain amount of time, electronic mail is often very candid and can provide powerful ammunition.

6. Constituent correspondence.   You can find specific complaints about public officials and contact the complainants.

7. Correspondence with staff, including electronic mail.  Is the political rival abusing staff?  Find out by requesting correspondence on matters of importance to the elected official, particularly on matters that have dragged on for a long period of time because of red tape or the involvement of other government agencies.

8. Campaign disclosures.  These often have little nuggets of  information.  For example, sometimes candidates keep committees open long after the election.  One reason is because they made a loan of personal funds to themselves, and they hope to some day get paid back when they run a successful campaign in the future.  Form 700 Statement of Economic Interests, whether for a candidate or an elected or appointed public official, have valuable information about potential campaign opponents.

9. Web browsing information.  This may be subject to some exemptions, the agency may claim that these are not records, and they may be deleted fairly regularly.  Request these records early and often.

9. There are many, many more areas which might be helpful.   These requests need to be made regularly and not during election season.  Records can be destroyed in compliance with California law, so the record you most want may not be there when you need it.  Also, the California Public Records Act’s time provisions can be a disadvantage to obtaining records in a timely fashion.

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 Make a California Public Records Act Request in San Bernardino County, SANBAG Edition, Part 4

By Michael Reiter, Attorney at Law

This is the fifth post in my multi-part series about How to make a California Public Records Act.  In the first entry, I discussed the basics of making a request.  In the second entry, I talked about the use of the California Public Records Act by journalists.  In the third entry, I discussed making a California Public Records Act request with SANBAG for a particular purchase order disclosed on one of their agendas.  In the fourth entry, I discussed receiving the initial response to my California Public Records Act request.  In the fifth entry, SANBAG told me the records were ready for inspection.

The original request can be found here.  I had to be in San Bernardino for other matters yesterday, so I decided to pop over to SANBAG headquarters at 1170 W. 3rd Street, 2nd Floor, San Bernardino, CA 92410-1715. That, of course, is in the historic Santa Fe Depot in San Bernardino.   I first arrived at around 1:15 p.m.   There was some drama in the parking lot about someone’s car getting broken into, and there was a San Bernardino Police Officer, and a Community Service Officer taking the report.

There are a series of signs that point you to SANBAG from the eastern parking lot.  You are directed trackside, near the Amtrak platform.  You are directed to turn right into what at the moment is a large vacant room.  I didn’t see any signage, but since it’s on the second floor, I found an elevator and took it to the second floor.  I explained to the receptionist the purpose of my visit.  When I first arrived, the person in charge of  the response was still at lunch.  I left to go to my other engagements.

I returned around 3:45 p.m.  The documents were available for my review.  They included this document, which was the document I requested.   Also, they included some other documents, including the law firm’s proposal in response to the Request for Proposals (RFP) dated 11/22/2010, the Request for Proposals dated September 3, 2010, the Request for Proposal authorization on agenda Item 20 on SANBAG’s 9/1/2010 agenda, the staff report for the January 5, 2011 awarding the contract to the law firm.  I asked for copies of the document I requested, and was charged thirty cents.

The document requested is a purchase order for Right of Way Acquisition for the E Street sbX project. SANBAG is the condemning agency on behalf of Omnitrans. This purchase order includes a sole source justification pursuant to SANBAG Policy 11000, Contracting and Procurement Policy. The justification is “unique qualifications” The justification given is “[The law firm] has previously provided legal services related to the acquisition of sbX right of way to SANBAG. They are also the firm that was unanimously selected by SANBAG’s consultant selection team to provide legal services to SANBAG for the acquisition of sbX right of way. This purchase order will allow the [the law firm's] team to begin immediately due to the tight timeline with which Omnitrans requires possession of the right of way.”

The response included a 12/1/2010 agenda item, that showed at least two other purchase orders from the same firm.  I am going to request them next.

When I was Assistant City Attorney for the City of Redlands, I became familiar with the City of Redlands purchasing ordinance.  That particular skill was valuable in reviewing this California Public Records Act response.

Purchase Order P11129 was for $40,000.  The items on the 12/1/2010 agenda are two purchase orders for the same firm. Purchase Order P10270, dated 8/18/2010 is for $9,543.75.  Purchase Order P11020 dated 9/2/2010 is for $25,000.  Combined, that’s $75,543.75 to the same firm before the contract was awarded pursuant to the RFP process, all for legal services related to sbX Right of Way acquisition.

As stated above, SANBAG’s Board of Directors adopted a purchasing policy on January 3, 1997.  It was last revised on 10/6/2010, Revision Number 12.  It’s not clear if this is the most recent policy, but it’s the one on their website.

Policy 11000, Revision 12, effective 10/6/2010  states that its purpose is setting out “contracting and procurement standards to guide the selection of the most qualified firms to perform services to the best advantage of the Agency. It provides guidance to SANBAG staff with respect to policy considerations adopted by the SANBAG Board of Directors.”  SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section I.
“A. Professional Services Contracts
1. SANBAG may, from time to time, enter into agreements with private firms or other agencies to perform ongoing services. Such contracts are geared toward the performance of specific functions on a continuing or as-needed basis, as opposed to the completion of a clearly specific scope of work or preparation of a discrete work product. Examples of professional services contracts are for legislative advocacy, legal counsel, program management, and construction management.
2. When selecting private firms to perform such services, this type of contract must be awarded on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services at a fair and reasonable price to SANBAG. Such selection shall take into consideration prior experience of the firm and/or representatives, understanding of work to be completed, knowledge of the working environment, and particular skills and expertise of the firm and/or representatives proposed for the function.” SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section IV, Subsection A.

In this case, the services involved are legal services.

Policy 1100o also governs the use of purchase orders by SANBAG staff without prior Board of Directors approval:

“E. Purchase Orders
1. The purchase order procedures are developed for efficiency in processing transactions where services and supplies are clearly specified and provide for expedient delivery of products and services. Purchase orders are binding documents that establish a vendor’s acceptance of the offer and mutually agreed upon terms and conditions, expected performance, and consideration for performance.
2. Products and services for amounts less than $50,000 in any fiscal year, other than purchase and lease of real property and employment contracts, may be purchased using purchase order procedures.
3. The Executive Director, or his/her designee, is authorized to approve Purchase Orders up to an amount of $50,000. Purchase Orders over $50,000 or exceeding a cumulative amount of $50,000 in any fiscal year requires approval by the Board of Directors.
4. All procurements for supplies and services approved by the Executive Director, or his/her designee, in excess of $5,000 shall be routinely reported to the Board of Directors.”  SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section IV, Subsection E (Emphasis mine).

Here, the appearance is that $75,543.75 in purchase orders was awarded by staff in the same fiscal year (according to this, SANBAG has a July 1 to June 30 fiscal year) to the same firm.  However, the other two purchase orders need to be examined to reach any conclusions.  The policy says that cumulative purchase orders over $50,000 in a fiscal year have to be approved by the Board of Directors, but it appears that these three purchase orders were only reported to the Board of Directors.

The next issue is “sole source.”

SANBAG Policy 11000 states:

“D. Sole Source Process
In those specific instances when it may be necessary or prudent to enter into sole source contracts, specific approval shall be required.
1. All sole source contracts shall be governed by the following guidelines:
a. Sole source contracts may be recommended for approval upon a finding of appropriateness and that it is in the best interest of the agency to do so.
b. Contracts may be recommended for approval on a sole source selection based upon a requirement for unique qualifications, the existence of significant time constraints, and/or in certain instances of demonstrated experience.
c. Any recommendation for approval of a contract for which a competitive process has not been completed shall contain justification for the lack of competition.
d. Any recommendation to the Board of Directors for sole source procurement must be specifically called out in the agenda item and shall be placed on the discussion calendar.
2. The Executive Director, or his/her designee, is authorized to approve sole source procurements up to $50,000, using the guidelines outlined in this section. Such sole source procurements shall be routinely reported to the Board of Directors.  SANBAG Policy 11000, Revision 12, effective 10/6/2010, Section VII, Subsection D.

The sole source justification is listed as “Unique Qualifications” and the justification is “”[The law firm] has previously provided legal services related to the acquisition of sbX right of way to SANBAG. They are also the firm that was unanimously selected by SANBAG’s consultant selection team to provide legal services to SANBAG for the acquisition of sbX right of way. This purchase order will allow the [the law firm's] team to begin immediately due to the tight timeline with which Omnitrans requires possession of the right of way.”

I will continue to blog about the California Public Records Act process as it unfolds with these requests.

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 Make a California Public Records Act Request in San Bernardino County, SANBAG Edition, Part 3

By Michael Reiter, Attorney at Law

This is the fifth post in my multi-part series about How to make a California Public Records Act.  In the first entry, I discussed the basics of making a request.  In the second entry, I talked about the use of the California Public Records Act by journalists.  In the third entry, I discussed making a California Public Records Act request with SANBAG for a particular purchase order disclosed on one of their agendas.  In the fourth entry, I discussed receiving the initial response to my California Public Records Act request.

Today, at 8:55 a.m., I received electronic mail stating that I could review documents responsive to my request.  The response was, in pertinent part, actually ” The information you requested to [be] inspected is now available.  You may come to our office between the hours of 8:30 a.m. and 4:30 p.m. to view the [requested]  information.”

The original request can be found here.

The California Public Records Act  requires “Public records are open to inspection at all times during the office hours of the state or local agency and every person has a
right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”  Government Code section 6253(a).   Presumably, SANBAG’s office hours are 8:30 a.m to 4:30 p.m.

The email doesn’t list where “our office” is, but it is easily obtainable on SANBAG’s website: 1170 W. 3rd Street, 2nd Floor, San Bernardino, CA 92410-1715. That, of course, is in the historic Santa Fe Depot in San Bernardino.

How about the timing of the response?  The California Public Records Act requires “Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.”  California Government Code section 6253(b) [emphasis mine].   The original request was made on April 19, 2011, the records are being made available on April 27, 2011.  Of course, section b of Government Code 6253(b) applies to copies.  In my original request, I asked to inspect the records.  In 89 Ops.Cal.Atty.Gen. 39 (2006), the California Attorney General said that “unless some exemption applies, they must be made promptly available for inspection and copying by members of the public.”  Therefore, the Attorney General’s interpretation of California Government Code section 6253(b) is that records must be made promptly available for both inspection and copying.  Of course, as a wise City Attorney once told me, Opinions of the California Attorney General are not binding precedent on the court, (or as he said “that’s just one lawyer’s opinion), courts and litigants can use the information as persuasive authority.  Of course promptly is not defined, and if an agency provides responsive records in eight days, most courts would find that constitutes “promptly.”

However, the term “promptly” must be examined in relation to the documents requested.  I asked for a purchase order and a sole source justification, if it existed.  The purchase order was listed on a Brown Act agenda by date and title.  While it makes sense to have a government attorney inspect all documents for exceptions to the act, this particular kind of document is the sort that should be put on a list as  “always disclose.”  Also, in my opinion after a decade as a municipal lawyer, certain things don’t need to be reviewed by an attorney and should be automatically disclosed: building permits, municipal codes, ordinances, resolutions, minutes, agendas, and purchase orders.

Generally, the agency has 10 days from receipt of the request to determine whether the request “seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”  California Government Code section 6253(b).  Arguably, though it says “copies” it applies to inspections for the reasons noted above.  SANBAG reviewed the record and promptly notify me that the records were available for inspection.  Because the electronic mail quoted in pertinent part above didn’t say anything was withheld or redacted, I will assume that the entire purchase order and sole source justification, if any, will be provided for my inspection.

I will continue to blog about the California Public Records Act process as it unfolds with this request.

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

Finding a building permit (or lack thereof) in the City of San Bernardino

Someone came to my blog searching for McDonalds Second Street.  I found out why when I drove past the McDonalds at 699 W. Second Street in San Bernardino yesterday and it was being demolished.  I was surprised because even though the In-N-Out Burger on Second Street is moving to Fifth Street because of the widening of the 215 Freeway, it is still open.   Let’s say you want to find a permit from the City of San Bernardino to see what is happening at a particular property.  The City uses an online service called Velocity Hall.  You can search for City permits on any particular property.  The link is accessible through the City’s website or http://www.velocityhall.com

I used Google to find the street address, 699 W. Second Street.  I looked at the permit marked “Demo” for demolition.  When I was a Deputy City Attorney, I was familiar with the demolition permit process, because when Code Enforcement demolished a building pursuant to Hearing Order and a demolition warrant from the San Bernardino Superior Court, Code Enforcement would obtain a demolition permit in conjunction with a contractor who would demolish a building.  Perhaps the most difficult was the years-long saga of demolishing the Ice House at 300-340 North I Street for a variety of reasons.

Here is the permit for the demolition of the McDonalds:

Case / Application / Permit Number                 D1100002
Type / Classification                 DEMO
DCOM: Demo Commercial
BLDG: Building
Address                 699 W 2ND ST
SAN BERNARDINO, CA
Parcel Number                 0134341240000
File Date                 2011-02-14
Status                 ISSUED
Status Date                 N/A
Valuation                 $17,000.00
Fees                 $583.42
Payments                 $583.42
Balance                 $0.00
Description                 Demo of existing McDonalds Restaurant

So, you can see that this is a demolition of the McDonalds Restaurant at 699 W. 2nd Street, San Bernardino County Assessor’s Parcel Number 0134-341-24, that it was issued on February 14, 2011 (I saw the demolition yesterday evening on April 15, 2011, and that it cost $583.42.

Other than a demolition, what is happening at the property?  On April 14, 2011, the applicant applied for a temporary meter pole.

Detail

Inspections    Status    Payment History

Case / Application / Permit Number                 B1100931
Type / Classification                 BLDG
E: ELECTRICAL ONLY
BLDG: Building
Address                 699 W 2ND ST
SAN BERNARDINO, CA
Parcel Number                 0134341240000
File Date                 2011-04-14
Status                 APPLIED
Status Date                 N/A
Valuation                 $0.00
Fees                 $0.00
Payments                 $0.00
Balance                 $0.00
Description                 INSTALL OF A TEMP METER POLE AND A 50 AMP PANEL ON A SECOND POLE.

View Map (Click the “Back” button on the browser to return to Permit Manager.)

Contacts

Name                 JUNE A GROTHE CONSTRUCTION INC
Business                 N/A
Relationship                 APPLICANT
Phone                 N/A
Name                 JUNE A GROTHE CONSTRUCTION INC
Business                 N/A
Relationship                 CONTRACTOR
Phone                 N/A
We see that June A Grothe Construction Inc is the contractor.  Usually, during construction, a contractor gets a temporary power pole to aid in the construction of the power.  JG Construction is a Chino-based contractor, according to their website.

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