Administrative Civil Penalties | Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California

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

One is that certain cities (especially large charter cities) have changed their opinions 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.

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

Filed under Administrative Citations, Administrative Civil Penalties, City of San Bernardino, Code Enforcement, Constituational Rights, Municipal Code, Riverside, Riverside County, San Bernardino Tagged with Administrative Citations, City of Riverside, City of San Bernardino, Code Enforcement, code enforcement attorney, code enforcement attorneys, code enforcement lawyer

San Bernardino’s Code Enforcement Problems

May 14, 2012 Leave a comment

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

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

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

April 19, 2012 2 Comments

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.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

By Michael Reiter, Attorney at Law.

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

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

December 28, 2011 1 Comment

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.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

By Michael Reiter, Attorney at Law.

Filed under Administrative Citations, Administrative Civil Penalties, Code Enforcement, Constituational Rights, Fourteenth Amendment, Inland Empire, Land Use, Municipal Code, Municipal Law, Procedural Due Process, Real Property Law, Riverside, San Bernardino, San Bernardino County Tagged with Code Enforcement, Michael Reiter Attorney at Law, Muncipal Law, ordinances

How To Act In Front of A Code Enforcement Hearing Officer

December 13, 2011 Leave a comment

Many cities in California have shifted away from hearing boards for administrative hearings and hired hearing officers to hear appeals of administrative citations, administrative actions, and administrative civil penalties. Here are some general, common sense rules to follow when appearing before a hearing officer.

1. Be prepared. Bring all the relevant information, including current photographs, and any witnesses on your behalf. Draft an outline of remarks before the hearing.

2. Be respectful. There’s no point in being bombastic. When I was a Deputy City Attorney for the City of San Bernardino, I had the occasion to observe hundreds of hearings in front of a few different hearing officers. One well-known unlawful detainer attorney argued his way into a higher fine for his client.

3. If you are challenging any aspect of the hearing, make a record. Submit any objections to the process or hearing officer in writing.

4. As a corollary to be prepared, show up early, watch how the hearing is conducted, and obtain any rules adopted by the hearing officer or City in advance.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

Filed under Administrative Citations, Administrative Civil Penalties, City of Redlands, City of San Bernardino, Code Enforcement, Constituational Rights, Fourteenth Amendment, Inland Empire, Land Use, Municipal Code, Municipal Law, Procedural Due Process, Real Property Law, Riverside, San Bernardino, San Bernardino County Tagged with Code Enforcement, Michael Reiter Attorney at Law, Muncipal Law, ordinances

Fireworks in the City of San Bernardino, California

July 1, 2011 1 Comment

“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.

E: michael@michaelreiterlaw.com

A: 300 E. State St. Suite 517

Redlands CA 92373-5235

T: (909) 708-6055

Filed under Administrative Civil Penalties, City of Redlands, City of San Bernardino, Code Enforcement, Constituational Rights, County of San Bernardino, Criminal Law, Land Use, Land Use Law, Municipal Code, Municipal Law, Personal Injury Law, San Bernardino, San Bernardino County Tagged with Fire Department, Fireworks, Michael Reiter Attorney at Law, misdemeanor

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

May 25, 2011 Leave a comment

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.

E: michael@michaelreiterlaw.com

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708