May | 2012 | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

The San Bernardino Sun had this Voice of the People letter, which appeared, I believe, in the print edition on May 11, 2012.

I wish San Bernardino would give me just 5 percent of the fines I could collect if I cited all the ordinances and laws not being enforced.Example: On Dec. 15, 2010, San Bernardino City Council passed an ordinance and code enforcement law on yard sales to help clean up the city and not have it look like a Third World city and help local businesses.

The ordinance states clearly: Only on the third weekend of the month will yard sales be permitted, and no new items may be sold at any of these sales. In addition there are to be no signs on street corners, phone poles, trees, cars, etc., except in the yard of the sale. There is to be a $300 fine for a first offense and $100 for each sign found – this is law.

Legitimate businesses that pay for permits, state and federal sales tax, business tax, code tax, OSHA inspections, liability insurance, licenses, and more in this town are struggling and being driven out of business by those selling new items in their yards or street corners. You can find this any day, but even more on holidays like Mother’s Day, Valentines Day, Christmas, and so on – people selling flowers, candy, baskets, toys, fruit, jerky, even clothes in these makeshift stands or sitting on an off-ramp with milk crates full of their goods.

These crates, by the way, are stamped clearly on the sides – if stolen the person in possession will be fined $250-$500 for each one. These losses are added to our food bills. Why does our city not enforce these laws and ordinances considering the huge income it will provide for the city as well as help keep our legitimate businesses here?

These ordinances have been in the newspapers, mailed to all homes, and talked about everywhere and they are still ignored and these people have zero respect for the law.

STEVE PORTIAS
San Bernardino

I wrote before (and I have excised it from the original post because the law changed):

When I was a Deputy City Attorney in San Bernardino, mobile food vendors (except for people selling paletas, which were permitted) were a common complaint. These ranged from people selling flowers at freeway off-ramps (for some reason, they often had the same address on Union Street in Los Angeles . .. more on that some other time), to people selling roasted corn out of coolers, almost uniformly with mayo as the condiment. I, along with other Deputy City Attorneys, prosecuted them under San Bernardino Municipal Code section 5.04.495. The section was amended in 2004 by the Common Council to prohibit a transient merchant with a “valid City of San Bernardino Business Registration Certificate or Permit” from staying “at any location not listed on their Business Registration Certificate or Permit for more than five (5) minutes in a twenty-four (24) hour period.” San Bernardino Municipal Code section 5.04.495(B). The origin of that section was quite colorful.

. . .

Update 5/14/2012 The Mayor and Common Council passed MC-1363 in August 2011, changing the transient vendor ordinance, San Bernardino 5.04.495, to have an exception to allow food carts as allowed by the Development Code, 19.70.060(1) which says “food carts and produce stands may be permitted for one year initially, and renewed annually, subject to verification of compliance with conditions of approval and County permit requirements, as applicable.” 19.70.020(11) states that temporary uses, subject to a Temporary Use Permit, including “Food carts, operated at fixed, pre-approved locations, in the Main Street Overlay District, at least 500 feet away from any restaurant and under current permits from the County Environmental Health Services Division.” SBDC section 19.70.020(12) also allows produce stands in community gardens.

Mr. Portias is correct, even with the changes to the Transient Vendor ordinance, 5.04.495, the things complained of are illegal in San Bernardino. Even though it is not codified, MC-1363, amending section 5.04.495(a) of the San Bernardino Code states:

5.04.495 Transient merchants/vendors and temporary businesses prohibited. A. It shall be unlawful for any person or persons to offer for sale, trade, or barter,
to create, to possess items to be sold, traded, or bartered, or to sell, trade, or barter any items including but not limited to manufactured items, homemade
items, packaged and unpackaged goods, commodities, food, agricultural products, vehicles, furniture, or any other item or to offer any service, from a
temporary stand, or other temporary location, upon any public street, alley, sidewalk, right-of-way, easement, or other public place, doorway of any room
or building, unenclosed building, building for which no certificate of occupancy has been issued, vacant lot, front or side yard, back yard (except as permitted
in chapter 5.68 of this title), driveway, parking lot, or parcel of land, either paved or unpaved, at any time, except as permitted pursuant to Chapter 19.70. San Bernardino Mayor and Common Council Ordinance MC-1363, passed August 1, 2011.

I also wrote about garage sales, in one of my more popular posts. As of this writing, the Municipal Code is still not updated to show these changes (at least online), a fact I decried in this post. I prosecuted many people for violating both ordinances, as well as other examples of visual blight. I helped amend the previous version of 5.04.495 when I was a Deputy City Attorney to cover more categories.

The City of San Bernardino has the tools to deal with these issues. In addition to Code Enforcement, at least when I was there, the Police Department would also enforce the transient vendor ordinance, as would the City Attorney Investigators. Why are these ordinances not being enforced?

I would guess that to some degree, they are still being enforced, but anecdotal evidence suggests that they are not being enforced. For example, as I drove down West Highland Avenue during two nights before Mother’s Day, and there were tons of people selling flowers for Mother’s Day, in addition to actual florist shops.
Mr. Portias is also correct in that there is money to be made in enforcement, with administrative citations and misdemeanor and infraction citations. Whether it actually pays for code enforcement is debatable.

The political will to enforce the laws is there, the staffing may not be. Though there were Code Enforcement officers, and sometimes City Attorney Investigators assigned to work weekends and nights, enforcement has not made a measurable dent. Citing your way into compliance may not be feasible, because the city of San Bernardino (and I’m not talking about the entity, the City of San Bernardino) has changed from the vision of what long-time residents see for their City. These kinds of vendors and constant yard sales are now the norm because people have decided that’s the kind of city they want to live in.

The vast majority of residents of the City of San Bernardino do not vote in municipal elections (12,466 voted for City Attorney in the 2011 primary). The 2010 Census counted 209,924 residents. 32 percent of the population are under 18, and thus ineligible to vote (67,176 people) leaving 142,748 voting age residents. It is difficult to find statistics for non-citizens, but assuming that half of the 23.8 percent of foreign-born residents are not eligible to vote (11.9 percent) (23,092), that leaves 119,656 eligible voting age residents. Assuming, 2000 people are felony parolees, that leaves 117,656 eligible voting age residents. As of May 6, 2012, there are 71,833 registered voters in San Bernardino. Of the people eligible to vote, thirty nine percent have chosen not to even register. Of the people registered to vote, only 17 percent bothered to vote at the last major municipal election.

Code enforcement is a very important municipal function, particularly in an analysis of the broken window theory and what is important to a community. However, the people actually making and enforcing the rules in San Bernardino reflect only six percent of the population, city-wide. The vast majority of people of San Bernardino, not the few who vote in City elections, have apparently decided this is the kind of city that they want to live in.

Does that mean that these rules shouldn’t be on the books, or not enforced? It does not. However, residents who want more code enforcement have to realize that the government will have difficulty imposing standards when the vast majority of people in a city, by voting with their feet (by having illegal garage sales, by illegally vending, and by patronizing these garage sales and vendors) in favor of these practices.

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

Filed under Administrative Citations, Administrative Civil Penalties, Code Enforcement, Criminal Code Enforcement, Garage Sale / Yard Sale, San Bernardino, Transient Vendors, Transient Vendors

Pete Aguilar For Congress (California Congressional District 31) Mailer Number One

May 4, 2012 Leave a comment

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.”

By Michael Reiter, Attorney at Law.

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

Friday Aside: Locally Grown Blueberries in Redlands

May 4, 2012 Leave a comment

I have written about local agriculture before ( Locally Grown Strawberries in Redlands, Growing and Selling Crops and Agricultural Products in the Inland Empire , Front Yard Fruit Stands in Redlands).

Last night, at Redlands’ Thursday Market Night, I had the locally produced blueberries from Soffel Farms in Redlands. I first heard about the blueberries in a Redlands Daily Facts article last year because they had you-pick blueberries. I asked the woman at the stand if they were going to do that again this year, and she said they were in a few weeks.

In addition to blueberries, they have raw honey, avocados, and oranges. They have a stand at 1545 East San Bernardino Avenue, Redlands, CA 92374 at the corner of Dearborn and San Bernardino Avenue, near the Redlands Sports Complex also known as the AYSO fields. I haven’t been there yet, but it appears on Google Street View that the entrance is on Dearborn.
According to the flier they are open 7 days a week, Monday through Friday 12 to 6 p.m and Saturday and Sunday from 9 to 5 p.m.

Filed under Agriculture, City of Redlands, Land Use, Land Use Law, Mentone Tagged with agriculture

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.

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 1 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.

E: michael@michaelreiterlaw.com

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

W: http://michaelreiterlaw.com

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.