Governor Brown Signs Brown Lawn Bill By Assembly Member Brown

By Michael Reiter Attorney at Law

You may have seen the articles about the new California law that permits dead lawns during the drought. Here is the text of AB1, introduced by Assembly Member Cheryl Brown (D-San Bernardino):

ENROLLED   JUNE 29, 2015
PASSED  IN  SENATE  JUNE 22, 2015
PASSED  IN  ASSEMBLY  JUNE 25, 2015
AMENDED  IN  SENATE  JUNE 16, 2015
CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION
ASSEMBLY BILL No. 1

Introduced by Assembly Member Brown
(Coauthor: Senator Nielsen)
December 01, 2014

An act to add Section 8627.7 to the Government Code, relating to water.

LEGISLATIVE COUNSEL’S DIGEST

AB 1, Brown. Drought: local governments: fines.
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use or unreasonable method of use of water be prevented. Existing law, the California Emergency Services Act, sets forth the emergency powers of the Governor under its provisions and empowers the Governor to proclaim a state of emergency for certain conditions, including drought.
This bill would prohibit a city, county, or city and county from imposing a fine under any ordinance for a failure to water a lawn or having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions.

DIGEST KEY

Vote: majority   Appropriation: no   Fiscal Committee: no   Local Program: no  


BILL TEXT

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

The Legislature finds and declares both of the following:

(a) That this act is in furtherance of the policy contained in Section 2 of Article X of the California Constitution.
(b) The prohibition on imposing fines for failing to water a lawn or for having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 2 of this act shall apply to charter cities.

SEC. 2.

Section 8627.7 is added to the Government Code, to read:

8627.7.

(a) During a period for which the Governor has issued a proclamation of a state of emergency under this chapter based on drought conditions, a city, county, or city and county shall not impose a fine under any ordinance for a failure to water a lawn or for having a brown lawn.

(b) A violation of this section is not subject to the criminal penalties set forth in Section 8665.

What does this mean?  It means that cities, counties, and the state’s only City and County (San Francisco) cannot impose a fine under existing property maintenance ordinances during the drought. The Senate Floor analysis expressly states this applies to charter cities:

 Apply to charter cities because the prohibition of fines imposed for

failing to water a lawn or having a brown lawn during a period for which the

Governor has issued a proclamation of a state of emergency based on

drought conditions is a matter of statewide concern and not a municipal

affair, as that term is used in Section 5 of Article XI of the California

Constitution.

It passed the Assembly by a vote of 80-0  on June 25, 2015. The bill passed the California Senate by a vote of 37 Yes, 0 No, and 3 No Votes Recorded (Senators Hall, Morrell and Pavley). Senator Isidore Hall III is a Democrat representing the South Bay of Los Angeles (35th District), Senator Mike Morrell is a Republican serving the 23rd Senatorial District including Rancho Cucamonga, Redlands and San Bernardino, and Senator Fran Pavley is a Democrat representing 27th District representing parts of Los Angeles and Ventura Counties.

The legislative history tells us which cities were seen by Assembly Member Brown as the most egregious violators:

From the Assembly Floor Analysis June 24, 2015:

In the most severe situation provided by the author, a homeowner in the City of Upland faced

misdemeanor charges for “failing to follow city code, and properly maintaining his front yard

and parkway space,” according to the Inland Valley Daily Bulletin, stemming from the

homeowner’s decision to stop watering his lawn in August of 2013.  As of January 2015, that

homeowner planned to go to trial, and faced, according to the Inland Valley Daily Bulletin,

up to $4,000 in fines, or six months in jail.  The homeowner was offered a deal several times

to reduce the amount of the fine if he corrected the issue, but he opted instead to go to trial.

Assembly Member Brown also singled out the cities of Glendale and San Bernardino.

In a nightmare for municipal lawyers trying to find this section for years in the future, this law was placed in Title 2 (Government of the State of California), Division 1 (General), Chapter 7 (California Emergency Services Act), Article 13 (State of Emergency). I understand why (because it deals with the declaration of the drought emergency), but it probably would have been more visible elsewhere.

The Senate Analysis states supporters “argue that this bill is straight-forward and provides a

common sense measure to ensure households are not penalized for conserving water.”

What will a defense to an administrative citation or criminal citation for unmaintained landscaping look like?  Hopefully, local public entities will voluntarily stop citing brown lawns during the drought.  However, if they don’t, a criminal demurrer, or an appeal of an administrative citation should do the trick.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 798-3300

Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

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., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

 

Garage Sales and Yard Sales (and permits) in the Cities of Highland, Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Redlands, Yucaipa and unincorporated San Bernardino County

By Michael Reiter, Attorney at Law

People want to know how to get yard sale and garage sale permits in the East Valley, and they find this site because of this article about the City of San Bernardino’s yard sale ordinance.  Therefore, here is a chart to give a basic (but not complete) understanding of the rules and regulations regarding yard sales in the East Valley, here defined as the Cities of Colton, Rialto, San Bernardino, Grand Terrace, Loma Linda, Highland, Redlands, Yucaipa and unincorporated San Bernardino County such as Muscoy, Mentone, Oak Glen, Devore, Arrowhead Suburban Farms, Devore Heights, and Del Rosa.  Per the City Clerk of Loma Linda, there is no yard sale ordinance in the City of Loma Linda as of 10/17/2012.  Note also that homeowners associations (HOAs) probably have additional restrictions (particularly East Highlands Ranch) which you should look into.

City/Unincorporated Permit Required Permit Cost Where? Duration
Colton Yes $2, except charity, nonprofit, religious Finance Department 3 d, 8am-8pm
Grand Terrace Yes (Except Exemptions) $5 Finance Department 3 d, 8am-8pm
Highland Yes $7 Finance Department 3 d, 8am-8pm
Loma Linda N/A N/A N/A N/A
Redlands Yes $2.50 Treasurer 3 d or 2d each over consecutive weekends; 8 am-8pm
Rialto Yes (Except Exemptions) $5.40 Finance Department 3d, daylight
San Bernardino No (anomoly regarding Estate Sales) N/A N/A 3d, daylight
Yucaipa After 1st sale $2.50 (sales 2-4) Front Desk, City Hall 3d, 8am-8 pm
Unincorporated San Bernardino County No (See SBCC section 84.25.030(e) unless exceed standards of 84.10. N/A N/A 3d, 8am-5 pm
City/Unincorporated Frequency Display Signage Exemptions Ordinance Codified At Violation
Colton 1/quarter Not in PROW During, onsite Court sales Ord 1483 (1975); 0-3-1989 (1989) Colton Municipal Code Chapter 5.45 Misdemeanor
Grand Terrace 2/yr Not in PROW 2 onsite, unlit, 4ft area, 5 day limit, not on PROW, trees, fences, utility poles, removed at end Court sales, charitable, nonprofit, religious Ord 35 (1980) Grand Terrace Municipal Code Chapter 5.40 Infraction
Highland 3/12 mo Safety 1 onsite doublesided, 6 ft area, 5′ tall, 24 hours before until end. Court sales Ord 239 (1998) Highland Municipal Code section 5.04.370 Infraction
Loma Linda N/A N/A N/A N/A None N/A N/A
Redlands 3/12 mo Not in PROW, safety, only during sale Court sales Prior Code secs 24001-10; Ord 2684 (2007), 2779 (2012), Redlands Municipal Code Chapter 5.68 Infraction
Rialto 4/calendar yr only first weekend in March, June, September and December Not in PROW, front or side yards 2 onsite, 4ft area, 4directional signs, prohibited in PROW, >864 sq in., with permission of property owner. Nonprofits, Ord 1416 (2008) Rialto Municipal Code Chapter 5.69 Infraction; misdemeanor for <3/yr
San Bernardino 12/yr only on 3rd weekend of mo Not in PROW, safety, only during sale 3 onsite unlit 24 hr prior until end; 4 Directional 2 sq ft  on private property w/consent Estate sales as to frequency nonprofits as to frequency Ord MC-1344 (2011) San Bernardino Municipal Code Chapter 8.14 Infraction/misdemanor (woblette)
Yucaipa 4/12 mo Not in PROW 1 onsite, not in PROW Court sales Ord 102 (1992) Yucaipa Municipal Code Chapter 5.22 Infraction
Unincorporated San Bernardino County 4/yr Not in PROW 2 onsite, 4ft area, 4 directional signs, prohibited in PROW, 864 sq in., w/permission of property owner. None Ord. 411 (2007) San Bernardino County Code  Chapter 84.10 Infraction; misdemeanor for >3/yr

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. BE SURE TO CHECK WITH THE INVOLVED CITIES FOR CURRENT LAW AND FEES.

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

Fireworks in the City of San Bernardino, California (2012 Update)

By Michael Reiter, Attorney at Law

Happy Independence Day!

“Safe and Sane” fireworks are legally sold in the City of San Bernardino.  All fireworks are generally prohibited above the 210 Freeway in San Bernardino and near Perris Hill.  The City of San Bernardino Fire Department has a map and information about fireworks in this brochure.   Of course, all fireworks not approved by the State Fire Marshal are illegal in California.  Misusing legal fireworks (for example, making bottle rockets) is illegal in San Bernardino.

The San Bernardino Fire Department, particularly the Fire Prevention,  is out in force during the Fourth of July.  They have a variety of San Bernardino Municipal Code and California laws to enforce.  Even if you are not afraid of prosecution, fireworks are a leading cause of injury and property damage.

The San Bernardino City Fire Blog has some tips about fireworks.

A version of this post was published in 2011.

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., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

San Bernardino’s Code Enforcement Problems

By Michael Reiter, Attorney at Law

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.

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., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

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

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

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

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

When Should You Contact A Lawyer For A Code Enforcement Problem?

By Michael Reiter, Attorney at Law.

Many California cities have departed from filing misdemeanor or infraction citations or complaints in their local Superior Court.  The reason why is that the Government Code provides a more efficient process with administrative citations.  For many situations, such as leaving your garbage cans out too long, it makes more sense to pay an administrative citation then to be arraigned on a criminal citation.   Further, with the ever-increasing amount of penalties piled upon criminal citations, it is also beneficial to the violator to only have to pay $100 for a ticket.  The city or town benefits because they get the entire fine, minus any processing fee from a third party administrator, versus getting roughly half of the base fine for the criminal citation.  In most cases, the alleged violator does not need an attorney.  Even when it is a criminal case, unless your time is exceedingly valuable or you will be out of the area at the time, it does not make sense to pay an attorney to appear on your behalf.

The number one way to get rid of a code enforcement problem is to come into compliance with the ordinance.  Sometimes that is not possible for financial, logistical, or other reasons.  However, an attorney is often the wrong tool to deal with financial problems, as the attorney’s fee will increase the cost to remedy the situation.  Sometimes an attorney can help with the process and explain the situation, and work with the agency to come up with a compliance plan.

However, with administrative civil penalties cases, where the city wants to charge the property owner up to a thousand dollars a day for a continuing violation, it may make sense to speak to an attorney sooner than later.  Once the citation becomes a lien against the property, depending on the implementing ordinance, it may be impossible for anyone — including a skilled attorney, to do anything about the situation.  Also, attorneys will not guarantee results, because with code enforcement,  the same City that cited the alleged violator that must be convinced to change their course.

Alleged code enforcement violators like to think that they are being singled out for selective enforcement, or some kind of discrimination is at hand.  Though that may be the case, having hundreds of junked cars on a property makes a selective enforcement case difficult to win.  Though code enforcement departments sometimes very technical interpretations of vague municipal codes that are problems, the majority of code enforcement cases are not based on animus towards the property owner.

For out-of town landlords and property holders, it sometimes helps to have an attorney who has dealt with a code enforcement department in the past.  Each code enforcement situation is different, and property owners and tenants should consult with an attorney about their particular 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.

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