PSA: San Bernardino City Election Forum For City Attorney and City Clerk Candidates September 27, 2011 7:00 p.m. 300 North D Street, San Bernardino

By Michael Reiter, Attorney at Law

There will be another candidate forum on September 27, 2011, sponsored by the San Bernardino Area Chamber of Commerce, for the candidates for San Bernardino City Attorney, incumbent City Attorney James F. “Jim” Penman and former Public Defender and County Supervisor David L. McKenna at 7 p.m., in the Council Chambers, 300 North D Street, San Bernardino, CA 92418.  At 8 p.m., there will be a forum for the City Clerk candidates, Gigi Hanna, Peggi Hazlett, William Valle, Amelia Sanchez-Lopez and Esther Jimenez.

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

Address: 300 E. State St. Suite 517

Redlands CA 92373-5235
Telephone: (909) 708-6055

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

By Michael Reiter, Attorney at Law

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

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

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

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

Address : 300 E. State St. Suite 517

Redlands CA 92373-5235
Telephone: (909) 708-6055

Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?

By Michael Reiter, Attorney at Law.

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.   Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.”  Government Code § 830(a).  A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition.  Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities?  The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced.  The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove.  Control can be more difficult.  In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act).  Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

Also, conditions of adjacent property can make public property hazardous.  In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that  “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835.  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action.  In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

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

A: 300 E. State St. #517
      Redlands, CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

How To Change A Code Enforcement Misdemeanor Into An Infraction

By Michael Reiter, Attorney at Law

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

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

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

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

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

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

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

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.

Address : 300 E. State St. #517
Redlands, CA 92373
Telephone: (909) 296-6708

The Number One Issue in the San Bernardino City Clerk’s Election in November 2011

By Michael Reiter, Attorney at Law

The City of San Bernardino City Clerk’s Office is currently responsible for maintaining and updating the Municipal Code.  While, as I discussed before, the online municipal code is not authoritative, and should not be relied on, good government dictates that cities maintain a fairly up-to-date online municipal code.  Yet, as of the date of this post, the online City of San Bernardino Municipal Code was last revised on November 2, 2009.  This may not be the number one issue in the San Bernardino City Clerk’s Election in November 2011 for the candidates, but it should be.

My recent dealings with the San Bernardino City Clerk’s Office, and indeed my dealings in almost five years as a Deputy City Attorney for the City of San Bernardino, have been good.  When I asked for a copy of the garage sale ordinance, it was emailed to me right away.  They also very promptly presented me with a copy of David L. McKenna’s campaign filings in person.  I recently filed a batch of Government Claims with the City Clerk’s Office, and the staff was professional and courteous.  This is contrast to other dealings with local public entities, such as found in my post, How Not To Handle Government Claims.   The retiring City Clerk, Rachel Clark, was always very nice to me during the duration of my time with the City and after.

However, in this day and age, the online San Bernardino Municipal Code should be online because it takes time away from staff to have to provide updated information not available online.   If the City Clerk’s Office is not open, the public should be able to find out about the current code.  Lastly, even though no one should rely on an online municipal code, nor can they rely on an out-of-date municipal code. If you cannot easily find the current law, how can a resident obey the law?

If the City Clerk’s Office does not have the resources to update the code online, then it should be sent out to a private company.  I am not sure when the codification came in-house, but the City Clerk’s Office handled codification during my entire tenure at the City Attorney’s Office.  Looking at the online code, this was not always the case:

San Bernardino Municipal Code section 1.01.010 Adoption.
Pursuant to the provisions of Sections 50022.1 through 50022.8 and 50022.10 of the Government Code, there is adopted the “San Bernardino Municipal Code” as published by Book Publishing Company, Seattle, Washington, together with those secondary codes adopted by reference as authorized by the California State Legislature, save and except those portions of the secondary codes as are deleted or modified by the provisions of the “San Bernardino Municipal Code.” (Ord. 3981 §1, 1980.)

As far as I can tell, Book Publishing Company or BPC was acquired in 2001, so it no longer exists.  Yet, the Municipal Code still lists it as the Code’s publisher, and as I discussed, it was not the Code’s publisher in 2001, and possibly even before.

In 2011, there is no excuse not to have an accurate online code with timely updates.  Hopefully, the next City Clerk will immediately rectify the situation

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

Address : 300 E. State St. Suite 517

                  Redlands CA 92373-5235
Telephone: (909) 708-6055

Anecdotal Evidence: More Larry Lee Signs Than Chas Kelley Signs Along Kendall Drive

By Michael Reiter, Attorney at Law.

While traveling north on Kendall Drive and also on Sheridan, I saw more Larry A. Lee yard signs then Chas Kelley signs. I am not sure that means anything, other than maybe Larry Lee had a head start on walking.

I am not sure of the genesis of Pastor Lee’s run, though there are a few scant clues on a Larry Lee door hanger that has been provided to me. The door hanger says, on the front: “Better things are yet to come. Better things are still to be done in the city. join me in making San Bernardino a place people want to move to. Help me make San Bernardino a place people are proud to be from and not ashamed of. It’s time for a change”

The back says “Larry Lee understands: The seriousness of the problems we face. The stewardship of our city’s resources and affairs. The necessity of interdependence.

“Larry Lee will: Represent the entire 5th ward and city passionately. Work hard on issues of jobs and the economy. Maintain and help to find ways to improve the safety and protection of our residents. Not support any new taxes and will fight to lower them, when and wherever possible. Larry Lee is a community servant at will lead with courage, veracity and fortitude.”

This is a “get to know you” piece, and there are no explicit swipes at Council Member Kelley. If I were to guess the motives present, I would focus on “It’s time for a change” and Pastor Lee’s understanding of the ” necessity of interdependence” suggesting those times when Council Member Kelley has voted differently then the current Council majority.

In other non- news, I also saw the first Esther Jimenez for City Clerk yard sign.