Municipal Law « Michael Reiter, Attorney at Law Blog

This post has a both a legal and a political bent, so let me start with the legal side. I have written in the past about blind operators (specifically, in this post dated July 11, 2011):

I was a file clerk/runner for Milligan and Beswick in San Bernardino over twenty years ago. Part of my job was to file pleadings with the court. I became fairly intimate with the building at 351 North Arrowhead Avenue. In the early 1990s, there were no metal detectors at the court. You could easily run into the court and then back out.

I would sometimes get lunch for people in the office from the courthouse cafeteria. It was run by a blind operator. I would also sometimes buy snacks from the other blind operator (his sight was only somewhat impaired). I remember buying popcorn, peanut M&Ms and six ounce Pepsi Colas in bottles (which by the early 1990s were not easy to come by) from the operator located next to the main stairway in the old courthouse. I recall that he also sold hot dogs of the sort you could find in a movie theater.

Flash forward to 2012. I first heard the story you will find bellow a few months ago, but here it is featured in the first Pete Aguilar for Congress mailer (that I have seen, anyway).

On the front is a picture of Redlands Mayor Pete Aguilar standing with his hands in his pockets in front of the San Bernardino County Courthouse at 351 North Arrowhead Avenue in San Bernardino. The caption says “Pete Aguilar Learned Valuable Lessons in This Building” the bottom says “Learn more about Pete at www.peteaguilar.com“

On the second page of the four page flier it says: “PETE AGUILAR. Mayor. Democrat. Business Owner.”

The second and third page has a picture of Pete Aguilar talking to three people in what appears to be a cafeteria. The third page has the following pull quotes from Mayor Pete Aguilar:

“My FIRST JOB, as a teenager, was bussing tables and washing dishes at the San Bernardino County Courthouse Cafeteria.

“My grandfather, who was legally blind, managed the facility and manned the cash register. He taught me the values of hard work, playing by the rules and helping others.

“Washington has lost those values. Today, our politicians would rather pick fights than solve problems.

“I’m running for Congress to help small businesses, create jobs and protect Medicare for our seniors. That’s the change that middle-class families need in Washington.”

- Pete Aguilar

I first met Pete Aguilar after he was appointed to the Redlands City Council after the departure of Susan Peppler, when he went to meet staff. I was at the Council Meeting at which he was appointed, and I believe I sat either behind him and his wife Alisha and his very young (at the time) son Palmer, or in front of them. That particular meeting was one of the most interesting I had ever attended, but that’s a post for a different time. However, it appears we may have had a brush with each other decades earlier in the basement of the San Bernardino County Courthouse.

The final page is a picture of Pete Aguilar and his family, Palmer, Evan and Alisha. The text says “Pete Aguilar, Leadership on Your Side” and “Pete Aguilar is a small business owner, Mayor of Redlands and a fourth generation resident of the Inland Empire. He and his wife Alisha live in Redlands with their sons Evan and Palmer.”

Filed under City Council, City of Fontana, City of Rancho Cucamonga, City of Redlands, City of San Bernardino, Municipal Law, San Bernardino, San Bernardino County Incorporated Cities and Towns Tagged with California Congressional District 31, Congress, Pete Aguilar

HIPPA Creates No Private Right of Action for Violation of the Privacy Rule

May 3, 2012 Leave a comment

When I was Assistant City Attorney for the City of Redlands, I had the unenviable task of making sense of the HIPAA Privacy Rule, which is found at 45 CFR Part 160 and Subparts A and E of Part 164. One thing that should be mentioned is this:

HIPAA itself does not provide for a private right of action, see 65 Fed.Reg. 82601 (Dec. 28, 2000)(“Under HIPAA, individuals do not have a right to court action.”) Webb v. Smart Document Solutions, LLC (9th Cir. 2007) 499 F.3d. 1078, 1082.

There may be some relief in state unfair competition law, but not in federal law, and not as the basis for a 42 U.S.C. section 1983 case. Therefore, it may be difficult to find an attorney, outside of a class action, to take a case if someone violates the HIPAA privacy rule.

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

T: (909) 708-6055

Filed under 42 United States Code section 1983, City of Redlands, Civil Rights, Constituational Rights, Federal Court, Municipal Law, Personal Injury Law Tagged with HIPPA

Do I Need A Building Permit?

May 2, 2012 Leave a comment

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.

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

T: (909) 708-6055

Filed under Building Permit, Building Permits, City of Moreno Valley, City of Redlands, Code Enforcement, Land Use Law, Municipal Law, Ordinance, Riverside County, San Bernardino County Incorporated Cities and Towns Tagged with California Health and Safety Code section 17958.7, City of San Jose

City of Burbank Police Department: Recent Discrimination Verdicts

May 1, 2012 Leave a comment

Last August, I wrote this post regarding alleged misconduct by the City of Burbank regarding discrimination against African-Americans:

Here is a paragraph I found while doing some research on the Internet. It is from the Complaint, Page 14, Lines 1-4, Rodriguez et al. v. Burbank Police Department et al., Los Angeles Superior Court Case BC414602, Filed May 28, 2009.

It should be noted that, as of the date of the filing of the within complaint, no African-American employee in the entire history of the Burbank PD has ever been promoted above the title of “police officer.” No African-American detectives. No African-American sergeants. No African-American Lieutenants or Captains. Never.”

Usually, sentence fragments are to be avoided in formal writing. But this simple paragraph forcefully delivers one of the themes of the case.

The purpose of the post was not about the merits of the case, but about what I found to be an effective piece of writing by an attorney. However, yet again, I stumbled upon another City of Burbank case in the Verdicts and Settlements database of Westlaw (and I really wasn’t looking for it). The cite is JVR No. 1204110010, 2012 WL 1199439, and the case is called Taylor v. City of Burbank. The verdict was $1,290,000, and it says the City of Burbank is looking to appeal. The similarity, at least superficial, to the Rodriguez case above, as shown in this small excerpt in the Verdicts and Settlements item:

The former deputy chief for the Burbank Police Department alleged that the City terminated his employment to retaliate against him after he raised concerns of harassment and discrimination within the police department, as well as his refusal to terminate African-American and Hispanic employees because of their race.

In trying to confirm the facts about Taylor v. City of Burbank, I found this article from the Burbank Leader dated April 6, 2012 by Maria Hsin, in which the City of Burbank lost a case filed by a detective, Steve Karagiosian. The jury verdict was $150,000. From the article: “The detective who filed the lawsuit, Steve Karagiosian, testified in Los Angeles County Superior Court that detectives and sergeants in the Police Department regularly used derogatory terms — such as “towel heads” — in referring to Armenians.”

The Karagiosian case is the same case as quoted above, Rodriguez et al. v. Burbank Police Department et al., Los Angeles Superior Court Case BC414602, Filed May 28, 2009. Steve Karagiosian is one of the “et als” in that case. They appear to be trying the cases separately.

In an unpublished case found at 2012 WL 646338, filed February 27, 2012, the Second District, Division 4 Court of Appeal made a ruling in some of the cases. The initial complaint, as stated before, was filed on May 28, 2009 by Omar Rodriguez, Cindy Guillen-Gomez, Steve Karagiosian, Elfego Rodriguez and Jamal Childs. Summary Judgment was entered against Elfego Rodriguez in July 2010. The Court of Appeal concluded that “Elfego Rodriguez’s “contentions are without merit and that the trial court did not err in granting the motion for summary judgment.”

Officer Guillen’s trial is set for this month, and Lt. Omar Rodriguez’s trial is in federal court. The saga of the City of Burbank and the Burbank Police Department appears too complex to summarize in one post, but I thought an update was in order regarding that quote I highlighted last year.

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

T: (909) 708-6055

Filed under City Attorney, City of Burbank, Civil Rights, Federal Court, Los Angeles County, Municipal Law Tagged with City of Burbank

Finding Statements of Economic Interests Online at the Fair Political Practices Commission Website

April 26, 2012 Leave a comment

The Fair Political Practices Commission website has a page (which is remarkably difficult to find) which has state and local Form 700s, the Statements of Economic Interests. There are local (city council member and mayoral) filings for 2010 at the site, but as of now, no 2011 (filed in 2012) filings at the state site. You’ll have to go to the local entity to pick up a 2011 form for city council members, or other local public agency fillers.

The site gives this information:

One of the key themes of the Political Reform Act of 1974, is that documents such as SEIs and campaign statements are filed at the most decentralized level. This made sense at a time when it was easier to walk down to the City Clerk’s office, but with the Internet, there is greater access to these documents if they are maintained on a single website. The Commission hopes you find this resource useful. Please continue to check back as we update these pages.

Due to privacy concerns and out of an abundance of caution, the SEIs posted on the Commission’s website have the address, telephone and signature blocks redacted. Copies of the original forms are available for review or duplication.

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

T: (909) 708-6055

Filed under City Council, Municipal Law, Political Reform Act Tagged with Form 700, FPPC

Releases for Gross Negligence In the Context of Sports or Recreational Programs or Services are Void In California

April 25, 2012 Leave a comment

Most people have been asked to sign releases at various times, particularly for participation of their children in youth activities. Are they valid? They can be in many cases. But in certain cases, they may be void if there is a public policy reason or statute. For example, Civil Code section 1668 prohibits contracts which “have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” Further, case law in California has prohibited releases of future gross negligence as being void against public policy. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758.

There is an entire inquiry into whether a release is valid, which I won’t discuss here today. Suffice it to say, you should consult with a personal injury attorney even if there is a release, because it is a technical question. Most, if not all, personal injury attorneys provide a free consultation in personal injury cases.

In the City of San Barbara case, mentioned above, the mother of a developmentally disabled 14 year-old signed a release purporting to release the City of Santa Barbara and its employees from liability for “any negligent act” related to the child’s participation in a summer camp, run by the City, for developmentally disabled children. The child drowned, and the parents filed suit.

We conclude . . . that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy. Applying that general rule in the case now before us, we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.

My Torts Professor, Kenneth Manaster, drummed in our heads that “gross negligence” was not a term that we should bandy about, and of course he said it in 1995 or 1996, eleven years before City of Santa Barbara. There is a sort of “folk law” idea of what gross negligence is, perhaps informed by the law of other, non-California states. In the City of Santa Barbara case, the California Supreme Court distinguishes between ordinary negligence and gross negligence:

We begin by defining the terms that underlie the issue presented. “Ordinary negligence”—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. (See, e.g., Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869, 118 P.2d 465 (Donnelly ).)

“Gross negligence” long has been defined in California and other jurisdictions as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn ), and cases cited; accord, Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240, 244 Cal.Rptr. 714 (Colich ); Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052–1053, 236 Cal.Rptr. 526; see also, e.g., Prosser & Keeton, The Law of Torts (5th ed.1984) § 34, pp. 211–212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p. 296.) City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 753-54, 161 P.3d 1095, 1099 (2007).

The procedural posture of the City of Santa Barbara was somewhat unusual. The City moved for Summary Judgment, lost, and appealed immediately. The case was set for trial, and then the City settled before the trial started for $2,000,000.

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

T: (909) 708-6055

Filed under City Council, Dangerous Condition of Public Property, Government Claims, Gross Negligence, Municipal Law, Personal Injury Law, Release Tagged with gross negligence, Michael Reiter Attorney at Law, public policy, Santa Clara University School of Law

What Municipal (Local City and Town) Offices are Up for Election in San Bernardino County in November 6, 2012?

April 23, 2012 Leave a comment

In short, it is an election year for everyone except the City of San Bernardino. Many local cities consolidate their election to either the Presidential election and the Congressional Midterm Elections, because it costs less.

Starting with the High Desert, the City of Adelanto is electing two Council Members; Apple Valley, two Town Council Members; Barstow is electing the Mayor, the City Clerk, City Treasurer, and two City Council Members, Hesperia, two Council Members, Needles is electing two Council Members and the Mayor, Twentynine Palms is electing two Council Members. Rounding out the High Desert is Victorville, electing three Council Members, and Yucca Valley electing two Town Council Members.
In the San Bernardino Mountains, the City of Big Bear Lake is electing two City Council Members

In the Southwest of San Bernardino County, Chino is electing two City Council Members, and Chino Hills, the same number.

In the East-end of San Bernardino, the City of Colton is electing City Council Members in two districts, 3 and 5; the City Clerk and City Treasurer, and the Blue Mountain City, Grand Terrace, is electing three Council Members. Fontana, which either is the western part of the East Valley, or the Western part of the West-end, is electing two City Council members. Highland is electing two Council Members, the adjoining City of Redlands has two Council Member seats up for election, and City Clerk and City Treasurer. Rialto has a mayoral election, City Clerk, City Treasurer, and two Council Member seats. Lastly, Yucaipa is electing three Council Members.

In the West-end, Montclair is electing two Council Members; Ontario is electing Mayor, City Clerk, City Treasurer, and two Council Members; Rancho Cucamonga, land of Victoria Gardens, is electing its City Clerk, City Treasurer, and two Council Members; Upland, is electing one Council Member, the Mayor and Treasurer.

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

T: (909) 708-6055

Filed under City Clerk, City Council, City of Adelanto, City of Barstow, City of Big Bear Lake, City of Chino, City of Chino Hills, City of Colton, City of Fontana, City of Grand Terrace, City of Hesperia, City of Highland, City of Loma Linda, City of Montclair, City of Needles, City of Ontario, City of Rancho Cucamonga, City of Redlands, City of Rialto, City of Twentynine Palms, City of Upland, City of Victorville, City of Yucaipa, City Treasurer, County of San Bernardino, Elections, Municipal Law, San Bernardino County, Town of Apple Valley, Town of Yucca Valley Tagged with Elections 2012, Michael Reiter Attorney at Law

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

April 19, 2012 Leave a comment

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.

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

T: (909) 708-6055

Filed under 42 United States Code section 1983, Administrative Citations, Administrative Civil Penalties, Administrative Warrant, Building Permit, Charter, City Attorney, Civil Procedure, Civil Rights, Code Enforcement, Constituational Rights, Equal Protection, Federal Court, Fifth Amendment, Fourteenth Amendment, Land Use, Municipal Law, Procedural Due Process, Real Property Law Tagged with allodial title, Constitutionalism, Michael Reiter Attorney at Law

California Law and Campaigning in Uniform

February 20, 2012 Leave a comment

Recently, a Sheriff of the largest County in California appeared in a video supporting a candidate for District Attorney while in uniform. The candidate is currently the elected City Attorney of the second largest City in the United States.

In general:

No officer or employee of a local agency shall participate in political activities of any kind while in uniform. Government Code section 3206.

Firefighters, in the Firefighters Procedural Bill of Rights Act:

Except as otherwise provided in Chapter 9.5 (commencing with Section 3201), or whenever on duty or in uniform, no firefighter shall be prohibited from engaging, or be coerced or required to engage, in political activity. Government Code section 3252(a).

Public Safety Officers are specifically mentioned in the Public Safety Officers Procedural Bill of Rights Act :

Except as otherwise provided by law, or whenever on duty or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to engage, in political activity. Government Code section 3302(a).

One published case interprets Government Code section 3206. That case is California Common Cause v. Duffy (1987) 200 Cal.App.3d 730. In that case, then-San Diego County Sheriff John F. Duffy was sued by taxpayers for illegal expenditures of public funds and the use of on-duty personnel in political campaigning. Duffy was distributing post cards that had strong anti-Chief Justice Rose Bird messages. 18,000 postcards were distributed through the San Diego Sheriff’s Department. Duffy told deputies that they “could distribute the postcards while on duty to citizens who requested them.” Id. at 739. At least 25 deputies in uniform participated. Id.

In addition to the statutory prohibitions found in Government Code section 3206 and 3302, the court noted that the San Diego Sheriff’s Policy Manual prohibited political activities in uniform. California Common Cause at 746.

More recently, the Stanislaus County Grand Jury found that:

[The] Stanislaus County Sheriff violated California Government Code section 3206 by
attending political functions, while in uniform, on at least two separate occasions. Stanislaus County Civil Grand Jury, Case #11-10C.

In a letter to then-Assistant Sheriff of Orange County dated February 21, 2008, a then-Senior Assistant Attorney General and the District Attorney of Orange County opined that while “violation of Government Code section 3206 is not a crime, it is a violation of law that could be the subject of a civil suit or other proceeding against an office holder including and up to removal from office.” The Assistant Sheriff appeared at a San Clemente City Council meeting in full uniform, including his side arm, on November 20, 2007 and addressed the Council, in the opinion of the attorneys, on political topics. The strongly worded letter concluded “you are hereby advised and directed to avoid such practices in the future and as interim head of the Sheriff’s Department to ensure that the members of your Department do so as well.”

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

T: (909) 708-6055