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.
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Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog 