The Administrative Hearing Officer in the City of San Bernardino, California: Origin of the Position And Legal Basis

By Michael Reiter, Attorney at Law

Many cities have Administrative Hearing Officers hear appeals and other due process hearings.  When I was a Deputy City Attorney for the City of San Bernardino, the City already had the process in place.  I helped draft the administrative citation ordinance for the City of Redlands when I was the Assistant City Attorney, and that included an administrative hearing officer.  I have also served as an administrative hearing officer, so I have some insight into the process.

Administrative hearing officers have taken over some of the duties once handled by city councils, planning commissions, or other appointed boards.  This post will explain the legal basis for the administrative hearing officer in the City of San Bernardino.

There are some due process considerations under the United States Constitution, including a line of cases from the 9th Circuit Court of Appeals.  I will discuss those some other time.

If you search the San Bernardino Municipal Code Index, at least the version online, you will find one entry for Hearing Officer under that term: San Bernardino Municipal Code section 8.80.103, in context of  storm water.  You will find one entry for Administrative Hearing Officer:  San Bernardino Municipal Code section 9.93.015.  You will also find other terms, such as Administrative Law Officer: San Bernardino Municipal Code section 9.92.020.  Also, you will find appeal of a hearing officer’s decision at San Bernardino Municipal Code section 6.14.100 (in the context of animal control administrative citations).  You can find the term Hearing Officers under the Chapter related to the Planning Commission and Board of Building Commissioners (referred to as the BBC when I was a Deputy City Attorney): San Bernardino Municipal Code sections  2.17.080 to 2.17.110.

However, when I became a Deputy City Attorney at the City of San Bernardino in 2001, the hearing officer’s powers largely derived from another section: San Bernardino Municipal Code section 8.30.050 Conduct of Hearing.  Enacted in 1991, it states (according to the version available online as of 5/25/2011):

The hearing to determine whether a nuisance exists shall be conducted by the City Administrator or his or her duly authorized representative, who shall act as the hearing officer. At the hearing, the City Administrator or his or her duly authorized representative shall consider all relevant evidence, including, but not limited to, applicable staff reports. He or she shall give any interested person a reasonable opportunity to be heard in conjunction therewith. Based upon the evidence so presented, the City Administrator or his or her duly authorized representative shall determine whether a nuisance within the meaning of this Chapter exists. The hearing shall not be conducted according to formal rules of evidence or procedure but shall be conducted in a manner generally complying with the Administrative Procedure Act at Government Code Section 11370, et seq.

When I started in February 2001, the Hearing Officer was an attorney with a contract with the City, selected by then-City Administrator Fred Wilson.  Along the way, the City Charter was amended by popular vote creating a City Manager, in a hybrid Strong Mayor/City Manager form of government.   Apparently, this code section was not cleaned up to amend it to read City Administrator.

In January 2002, Title 6 (concerning animals) was amended completely.  That included a provision allowing administrative citations (as opposed to field citations / notices to appear in San Bernardino Superior Court).  San Bernardino Municipal Code section 6.14.080(B):

Hearing Officer. The Mayor shall designate the Hearing Officer for the administrative citation hearing.

In September 2003, administrative citations were introduced for other parts of the San Bernardino Municipal Code (specifically Title (though the codified version says Chapter)  5, 8, 9 or 19 of the San Bernardino Municipal Code.  San Bernardino Municipal Code section 9.92.030.  However, the definition of Administrative Law Officer later changed to its current version in section 9.92.030:

9.92.020 Administrative Law Officer.  The position of Administrative Law Officer is hereby created. The appointment, qualifications, disqualification, and powers of the Administrative Law Officer shall be the same as those provided for the Administrative Hearing Officer as stated in San Bernardino Municipal Code Chapter 9.93.

Administrative Civil Penalties were added in 2008, and section 9.92.020 was amended.  The Administrative Civil Penalties Ordinance, found in Chapter 9.93 of the San Bernardino Municipal Code has this to say about the Administrative Hearing Officer:

Appointment and Qualifications of Administrative Hearing Officer. An Administrative Hearing Officer(s) shall be appointed by the Mayor and Common Council. The term of the Administrative Hearing Officer(s) shall be three (3) years. The number of Administrative Hearing Officer positions and compensation shall be approved by the Mayor and Common Council. The employment, performance evaluation, compensation and benefits of the Administrative Hearing Officer shall not be directly or indirectly conditioned upon the amount of Administrative Civil Penalties or Administrative Costs upheld, awarded, imposed, or assessed by the Administrative Hearing Officer. The Administrative Hearing Officer(s) shall be an attorney admitted and eligible to practice law in the State of California in accordance with State law, or a judge retired from the California court system, or a commissioner retired from the California court system.  San Bernardino Municipal Code section 9.93.090.

In practice, the same person (or more accurately, classes of people) conducts the nuisance hearings described in Chapter 8.30, the Animal Control administrative citation appeals in Chapter 6.14, the administrative citation appeals in Chapter 9.92, and the administrative civil penalty appeals in Chapter 9.93.  Therefore, the “appointment” process described in San Bernardino Municipal Code section 9.93.090 is used for all four kinds of hearings.

There are other administrative hearings associated with the City of San Bernardino (parking ticket appeals, seizures of transient merchant merchandise) that are not handled by the administrative hearing officer and appear elsewhere in the San Bernardino Municipal Code.

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

How to find the City of San Bernardino’s Transient Lodging Tax (elsewhere known as a bed tax or a transient occupancy tax)

By Michael Reiter, Attorney at Law

Someone found my blog looking for the City of San Bernardino’s “bed tax rate.”  You won’t find it using those terms. In my almost five years as a Deputy City Attorney in San Bernardino, litigation regarding the Transient Lodging Tax seemed ever present.

Revenue and Taxation is found in Title 3 of the San Bernardino Municipal Code.  The Transient Lodging Tax is found in Chapter 3.55 of the San Bernardino Municipal Code, commencing at San Bernardino Municipal Code section 3.55.010.  The rate is found in San Bernardino Municipal Code section 3.55.020(A):

For the privilege of occupancy in a hotel, each transient is subject to and shall pay a transient lodging tax in the amount of ten percent of the room rental charged by the operator.

The ordinance was added by the City of San Bernardino’s voters on November 5, 2002.  Chapter 3.52, the Uniform Transient Occupancy Tax of the San Bernardino Municipal Code was repealed by the Mayor and Common Council by Ordinance MC-1006, on November 17, 1997, and Chapter 3.54 was repealed by the Mayor and Common Council by Ordinance MC 1127, on July 15, 2002.

The legal background of these changes is found in various court cases.  Chapter 3.52 was struck down as unconstitutionally vague by the Court of Appeal, Fourth District, Division 2 on November 18, 1997.  City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997)  59 Cal.App.4th 237.   “In a published opinion, this court struck down the City’s original occupancy tax as unconstitutionally vague. The City then revised its occupancy tax, hoping to remedy the defects we had identified. In an unpublished opinion, [City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (June 22, 2000, E025364) ]  however, this court strongly suggested that the revised occupancy tax was still unconstitutionally vague. The City therefore revised its occupancy tax yet again.”  City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (2005)  (Not officially published, found at 2005 WL 3198904).   In 2005, the Court found that the revised transient lodging tax passed constitutional muster.

There is a happy ending, at least for the City.  In the 2005 unpublished opinion, the Court of Appeal had this to say: “Although the City had two strikes against it, it has at last hit a home run.”

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Trade Dress Confusion: In-N-Out versus Five Guys: A few more thoughts

By Michael Reiter, Attorney at Law

I visited the Five Guys in Redlands (technically, in the Donut Hole (unincorporated County of San Bernardino outside the City of Redlands’ sphere of influence), in the Redlands Town Center, near Nubi).  As a follow up to this post, I want to reiterate that no true Southern California will ever be confused between the trade dress of the two restaurants or the product.  Five Guys is no In-N-Out.  In-N-Out is cleaner, In-N-Out is simpler, In-N-Out’s food is better, In-N-Out’s food is much less expensive, and you can get In-N-Out in a drive through, and if you have a peanut allergy, In-N-Out is the way to go.

One of Five Guy’s founders, Jerry Murrell, told Inc. Magazine that the “burgers are made to order. That’s why we can’t do drive-thru’s [sic]– it takes too long.”  I’m glad the Snyders never came to that conclusion.  The only In-N-Out without a drive-through, I believe, is in Fisherman’s Wharf in San Francisco.  I can speculate on the legal reasoning and land use reasoning  for that decision, but I could find no source to confirm the reason.

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Can a California local public official sue for slander or libel (defamation)?

By Michael Reiter, Attorney at Law.

In California, do statements regarding a public official made during a public meeting and statements regarding a public official made in letters to the editor of a newspaper or other written materials that are publicly distributed give rise to a cause of action for defamation?  “Defamation” is used generically to include both libel (written) and slander (spoken).  The distinctions between the two are largely procedural, so I will use “defamation.”

It is very difficult for a public official to prevail on a claim that a statement made about the official at a council meeting, or in the press, is defamatory.  Statements made during local agency meetings, even if false, are privileged and do not constitute defamation.  Statements made in the press about a public official are generally not defamatory unless the official can show the statements were made with actual malice.

Any discussion of defamation involves two different levels of inquiry.  The first is whether a statement is defamatory.  Defamation is generally defined as a false and unprivileged publication (to a third party) which causes damages (Civil Code sections 45, 47).  Therefore, if a statement is true, or if it is privileged, then it is not defamation.  Second, even if a statement is not true, or not privileged, a public official may only be defamed if a false statement regarding the official is made with actual malice (that is, with knowledge that it is false, or with reckless disregard of its truth or falsity).  New York Times v. Sullivan (1964) 376 U.S. 254, 279-280.

The New York Times case, which discusses “actual malice,” involved an advertisement printed in the New York Times newspaper that contained certain false statements regarding civil rights-era Alabama.  The plaintiff in the New York Times case was a public official — the Montgomery, Alabama Police Department Commissioner.  In summary, the United States Supreme Court determined that although the statements published in the advertisement were false, they were not made with actual malice and therefore did not result in defamation.  The Supreme Court reasoned that the First Amendment protects false statements about public officials because “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”

Statements made at a local agency meeting are privileged under California law and therefore cannot constitute defamation.  (Civil Code section 47(b)).  The law states that a privileged publication “is one made . . . in any . . . legislative proceeding.”  The courts have read “any legislative proceeding” very broadly to include “all that is spoken or done in the course of legislative proceedings.”  Scott v. McDonnell Douglas Corporation (1974) 37 Cal.App.3d 277, 288.  In Scott, a letter distributed at a city council meeting charged the city manager with a lack of moral and ethical character.  The court found that the distribution was privileged.  The court’s reasoning was that the benefits of extended immunity outweigh a narrow reading of the privilege, “even though it countenances vehement, caustic and at times vigorous attacks on government officials.”  Id., quoting New York Times.  The immunity extends to interested members of the public who wish to address themselves to matters pending before a legislative body.  Id.

For example, if a speaker comments on a development and states that “this development will be approved because the entire agency governing body is taking bribes from the developer,” the statement, even if false, is privileged because it is relevant to the subject matter of the meeting.  Likewise, if a speaker, during public comments says that “the entire agency governing body is corrupt and is taking bribes from developers,” it is still relevant to the subject matter of the legislative proceeding because the Ralph M. Brown Act allows citizens to make public comments within the subject matter jurisdiction of the local agency, and specifically allows criticisms of the acts or omissions of the legislative body.  Therefore, such a comment is privileged and not actionable, even if false.

Letters to the editor that are not true, not privileged, and not an opinion, may be actionable as defamation if there is a false statement regarding a public official made by a speaker who has “actual malice.” The difference between an opinion and a “fact” (true or untrue) turns on a variety of factors.  Defamation “can be meaningfully applied only to statements that are capable of being proved as false or true.”  Savage v. Pacific Gas & Electric (1993) 21 Cal.App.4th 434, 445.  In one case, a newspaper reporter’s statement that a city council member was a crook and a crooked politician were found to be statements of opinion.  Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172.

The “actual malice” standard can be difficult to prove, but is not insurmountable.  Former San Francisco Mayor Joseph Alioto was able to prevail in a defamation action after suing the publishers of Look Magazine.  The magazine had published an article which falsely detailed dealings between the Mayor and members of the mafia.  The magazine was found to have published the article with actual malice, meaning a reckless disregard for the truth.  Alioto v. Cowles Communications (1977) 430 F.Supp. 1363.  However, it took Mayor Alioto eight years after the article was published to win the case and collect a judgment.

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W:http://michaelreiterlaw.com

OverDrive Media Console App for Iphone and Ipad: Bringing Library Books to the 21st Century in Redlands

By Michael Reiter, Attorney at Law.

As a small business owner in Redlands, California, I use technology to help deliver the best legal services to my clients.  One of the newest pieces of technology I have acquired is an Apple iPad 2. Though it is very similar to my iPhone, its size allows more than cursory internet browsing and book reading.  Obviously, because of the size, viewing video is better.

I discovered an app called OverDrive Media Console which allows you to borrow eBooks from public libraries and view them on your iPhone and iPad.

Browsing a book on iPhone is possible, but not ideal.  An Amazon Kindle works as an excellent stand-alone electronic reader, but they are just getting in to library lending, and an iPad 2 has some advantages over the Amazon Kindle (though the Kindle is a superior electronic reader).

If  you are a card holder at the A.K. Smiley Public Library, you can download books for two weeks or seven days depending on the title. You can also put books on hold if they already checked out, and you do not have to worry about your book being overdue.

Other Southern California libraries participate in the program, so you should check your public library’s website.  You can use OverDrive Media Console on your personal computer, iPhone and iPad.  The iPad app works the best (I haven’t downloaded the personal computer version) for me.  You also have to sign up for a free Adobe account for digital rights management.

Though the public domain titles in iBooks and the Kindle store are fine, it is nice to have a source to borrow current, copyright protected books.  Right now, the title selection (and the availability) is limited.  However, I was able to download and read David Meerman Scott’s The New Rules of Marketing & PR, Second Edition.  The book was very easy to read and had good, common sense advice.  The book is copyrighted 2010, so it is not yet out of date.

The OverDrive Media Console itself was similar to iBooks, though I tended to unintentionally turn pages.  I liked the night-reading mode.  If your library supports the OverDrive Media Console, I would recommend you download the application.

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

How can code enforcement laws be changed in San Bernardino and Riverside Counties?

By Michael Reiter, Attorney at Law.

How can code enforcement laws be changed in San Bernardino County and Riverside County?   There are legal and political answers to this question.

Ordinances can be adopted, amended or repealed by City Councils or Town Councils.  The exact manner can depend on the composition of the Council and whether it is a general law or charter law municipality.  Similarly, an election might be held to amend or repeal a particular ordinance.  The processes also depend on whether the municipality is governed by general law or governed by a charter.  That is the simple legal answer.

The political answer is that either an elected official, or perhaps an appointed official like a city manager, has to propose a new or modify or repeal and existing ordinance by following the process in the Government Code or the City Charter, as applicable.  Similarly, if elected officials will not take action, individuals or groups can qualify an initiative or referendum to change code enforcement laws.  That is the simple political answer.

When I was a Deputy City Attorney for the City of San Bernardino, someone in the north end of town received a citation for not taking his trash cans in promptly.  This was before the implementation of administrative citations.  He complained that he just wanted to pay the fine and not appear in court on a $100 citation.  I told him that I understood, but that it was a political issue, and that I did not have the authority, as a city lawyer, to change the ordinance.

The first step I would take if I wanted to change an existing code enforcement law would be to contact my city council member.  If I lived in a city with wards, I would contact that city council member.  If I lived in a city with at-large council members, I would call the council member I was most familiar.  If that didn’t work, I would call the Mayor.  If that did not work, I would then consider an initiative or referendum.

Should you hire a lawyer to have the municipal code changed?  Sometimes that is a cost-effective solution, or if not cost-effective, a way to change something you want changed.  However, no attorney will guarantee that you will get your money’s worth. Discuss it with an attorney skilled in dealing with municipalities.

There are two, more complex, legal and political ways that code enforcement laws can change in California.  Get the California Legislature to change state law preempting local law, or challenge an ordinance in court.  Most municipal ordinances are constitutions, but occassionlly,a court rules an ordinance is preempted by state law, outside the local agencies’ powers, or violates the United States or California 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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

      Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com

The Religous Land Use and Institutionalized Persons Act (RLUIPA) and Zoning in the Inland Empire

By Michael Reiter, Attorney at Law

What is the Religious Land Use and Institutionalized Persons Act (RLUIPA)?

RLUIPA was enacted by Congress in 2000.  RLUIPA states, regarding land use,  that the government may not “impose or implement a land use regulation in a manner that imposes a substantial burden” on religious exercise unless the government demonstrates that the imposition of that regulation (and its accompanying “burden”) is in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that interest.”  42 United States Code section 2000cc.  RLUIPA broadly defines the term “religious exercise,” to include “the use, building, or conversion of real property for the purpose of religious exercise.”  42 United States Code section 2000cc-5(7)(B).   The Ninth Circuit Court of Appeals held that “for a land use regulation to impose a ‘substantial burden’ it must be ‘oppressive’ to a ‘significantly great’ extent.  That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”  San Jose Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d 1024, 1034.

RLUIPA also states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 United States Code section 2000cc(b)(1).  The “equal terms” section requires the government to treat religious assembly uses in the same way it would a non-religious use.

RLUIPA adds a layer of federal regulation to local Inland Empire government’s land use authority.  In discretionary land use decisions involving religious uses, local governments need to be familiar with the requirements of RLUIPA.  When I was Assistant City Attorney for the City of Redlands, RLUIPA was an issue that arose from time to time in City Council and Planning Commission land use decision-making.

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 2011Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Inspection Warrant and Abatement Warrant Requirements for Inspecting Private Property in San Bernardino County, California

By Michael Reiter, Attorney at Law

Do code enforcement officers need a warrant to inspect private property in San Bernardino County (including incorporated cities and towns in San Bernardino)?  The best practice is to obtain an administrative warrant if the owner/occupant refuses consent to inspect.  Generally, an administrative warrant is not needed if the conditions can be observed from the public right-of-way, or an adjoining property (with permission), and no physical entry onto the property occurs.

When I was a Deputy City Attorney for the City of San Bernardino, California and the Assistant City Attorney for the City of Redlands, California, a good deal of my time was spent on code enforcement.  Both cities emphasized the need for a warrant to inspect and/or abate private property when permission to inspect was denied.  As a private attorney representing private citizens and business entities, some other Inland Empire cities are not as respectful of citizen’s constitutional rights.

Generally, if consent from the property owner and the occupant cannot be obtained before entering private property that is not open to the public, code enforcement officers should obtain an administrative inspection/abatement warrant from the San Bernardino County Superior Court.  Because the United States Constitution’s Fourth Amendment gives property owners and other occupants an expectation of privacy, an inspection warrant is needed.

The Ninth Circuit Court of Appeals, in Connor v. Santa Ana, held that police officers could not legally enter fenced, private property to abate a nuisance without a warrant, even though the property owner had been provided with extensive administrative hearings.  In the absence of a property owner’s and occupant’s consent, barring exigent (emergency) circumstances, government officials engaged in the inspection of private property or abatement of a public nuisance must have a warrant to enter that private property where such entry would invade a constitutionally protected privacy interest.

The Fourth Amendment provides a high degree of privacy protection to the “curtilage” of a residence, the land immediately surrounding and associated with the residence.  However, the United States Constitution allows authorities to inspect open fields at will.  The “open fields” exception only applies to completely unfenced, unimproved property.

Therefore, code enforcement officers may visually inspect private property from the public right-of-way, or from areas that are open to the public such as parking lots, or from private property upon which the officers have obtained consent from the property owner and/or the occupant, depending on the factual circumstances.

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Can a public agency make a California Public Records Act Request?

By Michael Reiter, Attorney at Law

Can a public agency make a California Public Records Act Request?   This question has been popular on this blog lately.  People have searched for it on two separate days a few days apart.

When I was a Deputy City Attorney for the City of San Bernardino, I handled a number of Federal Civil Rights cases against the City and the San Bernardino Police Department.  One case involved a man who had earlier had a 42 U.S.C. section 1983 civil rights case against the City of Riverside.  I called up a Deputy City Attorney for the City of Riverside I knew and asked how to get the depositions in the case.  She suggested that I make a California Public Records Act request.  I did so, and I received the depositions.

This is an easy question to answer because there is a published case on the subject.  “Our conclusion that the City is a “person” entitled to request documents from another governmental entity is the only rational and reasonable interpretation of the statute.”  Los Angeles Unified School District v. Superior Court (2007) 151 Cal.App.4th 759, 771.  The confusion comes because the statute  (California Government Code section 6252(c) reads: “(c) “Person” includes any natural person, corporation, partnership, limited liability company, firm, or association.”

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: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Can a renter be held responsible for violating the San Bernardino Municipal Code?

By Michael Reiter, Attorney at Law

Can a renter be held responsible for violating the San Bernardino Municipal Code related to property maintenance?  The short answer is yes.

When I was a Deputy City Attorney for the City of San Bernardino, I prosecuted many renters for property maintenance violations.  The City of San Bernardino’s property maintenance ordinance is found codified in Chapter 15.24 of the San Bernardino Municipal Code.

“Maintenance requirements for single family residences, multiresidential, commercial and industrial property. Any person owning, renting, occupying, managing, or otherwise having charge of any single family residence, multi-residential, commercial and industrial property shall maintain the property in accordance with the following minimum standards. Failure to comply with these minimum standards shall constitute a violation of this Code.”  San Bernardino Municipal Code section 15.24.040, emphasis added.

Often, a criminal defendant or someone who had been served an administrative citation or who had a notice of violation would ask why the City was prosecuting the renter instead of the owner.  The reply was that the City had the power under the Code to charge the renter or occupant.

Some people would say that their rental agreement or state law required the owner or landlord, or landlord’s agent to maintain the premises.  Those people (including lawyers) would be told, either by city lawyers, or by the administrative hearing officer, that those were legal obligations between the landlord and the tenant, not between the City and the tenant (or for that matter, between the City and the landlord).

What is the public policy behind this ordinance? The City of San Bernardino wants code compliant properties.  They seek to find the party most likely to bring about the transformation from code deficient to code compliant.  Often, that is the person actually living at the property, not the out-of-town or out-of-state landlord.  Sometimes, both the landlord and the tenant are cited.  It may not seem fair for the tenants are responsible, especially if there are contractual terms that require the landlord to provide property maintenance. However, the ordinance provides that the City can cite the tenant.

When I was a Deputy City Attorney, section 15.24.040 only applied to single family properties and duplexes and triplexes.  In 2009, (after I had become Assistant City Attorney for the City of Redlands) that section was merged with 15.24.050, which applied to commercial, industrial and multi-family residential properties.  I would suspect that tenants are not being cited for algae-covered pools in large complexes.  I would expect that there would be a defense to such a citation.  A much closer case would be a situation where an out-of-town landlord has designated one of the tenants as their “on-site manager” in exchange for a reduction of rent.  Often these people do not have apparent or express authority to make changes to the property, and they certainly do not have the means to make changes.  Arguably, if cited, those tenants were not managing or have real charge of the property, they were just the face of the landlord at the property, so that the landlord did not have to deal directly with the other tenants.

Therefore, for tenants faced with code enforcement citations or penalties in the City of San Bernardino, there is no defense of “just a tenant” to Chapter 15.24 violations, at least not in single-family residences.

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

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

      Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

W: http://michaelreiterlaw.com