Land Use Law | Michael Reiter, Municipal Attorney with Milligan, Attorney, Beswick, Levine & Knox LLP Blog

Filed under City of Redlands, Land Use, Land Use Law Tagged with Michael Reiter Attorney at Law, redlands

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

October 17, 2012 Leave a comment

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

Filed under Administrative Citations, Amboy, Angelus Oaks, Arrowhead Suburban Farms, Baker, Baldwin Lake, Big Bear City, Big River, Bloomington, Bluewater, Cadiz, Cedar Glen, China Lake, City Clerk, City of Colton, City of Highland, City of Loma Linda, City of Redlands, City of Rialto, City of San Bernardino, City of Yucaipa, Code Enforcement, County of San Bernardino, Crafton, Crestline, Criminal Code Enforcement, Criminal Law, Daggett, Del Rosa, Del Rosa, Devore, Devore Heights, Earp, Forest Falls, Fort Irwin, Garage Sale / Yard Sale, Goffs, Helendale, Hinkley, Hodge, Johnson Valley, Joshua Tree, Kingston, Kramer Junction, Lake Arrowhead, Land Use, Land Use Law, Landers, Lenwood, Lucerne Valley, Lytle Creek, Mentone, Morongo Valley, Mount Baldy Village, Municipal Code, Municipal Law, Muscoy, Nebo Center, Newberry Springs, Nipton, Oak Glen, Oak Hills, Ordinance, Oro Grande, Phelan, Pinon Hills, Red Mountain, Rice, Rimforest, Running Springs, San Antonio Heights, San Bernardino, San Bernardino County, Searles Valley, Skyforest, Sugarloaf, Trona, Twentynine Palms Base, Twin Peaks, Valley of Enchantment, Wonder Valley, Wrightwood, Yermo Tagged with Code Enforcement, estate sale, garage sale, infraction, Michael Reiter Attorney at Law, misdemeanor, property sale, wobblette, yard sale

Friday Aside: A History of In-N-Out Burger in San Bernardino and environs

October 12, 2012 Leave a comment

I’ve written about In-N-Out Burger a few times, particularly in relation to trade dress. Someone reached my blog by asking “when did in n out open first in san bernardino ca.” If the searcher was seeking when the Fifth Street location (795 W. Fifth Street, San Bernardino) was built, that location was built in 2011, and opened at the end of 2011 (December 8, 2011). It replaced the Second Street location (the address was technically 190 Bungalow Court), which closed on December 7, 2011. The Second Street location was demolished after the State of California took possession on January 1, 2012. The State of California acquired the parcel through eminent domain for the Interstate 215 widening project. See Resolution CDC/2011-50 of the Community Development Commission of the City of San Bernardino.

The Bungalow Court location was there as long as I can remember, and consisted of a double drive through and no inside eating area. The location in south San Bernardino,was moved slightly to the north to 1065 E. Harriman Place during the creation of the HUB Project. There was an Owner Participation Agreement between In-N-Out and the Redevelopment Agency of the City of San Bernardino, acknowledged by Resolution 2001-317, approved by Mayor Valles on October 3, 2001. The old In-N-Out in North Loma Linda was also a double drive through. According to a letter dated January 23, 1997 from then-attorney (and now Judge) Cynthia Ludvigsen, the old In-N-Out was on the northwest corner of Rosewood Drive and Tippecanoe. The Highland store (28009 Greenspot Road, Highland, CA 92346) opened in 2012.
So, when did In-N-Out Burger open in San Bernardino? The area near Central City Mall was redeveloped in the 1970s. The Redevelopment Agency of the City of San Bernardino put out a photo survey of the downtown area before redevelopment, and if I recall correctly, the area on 2nd Street had houses in the early 1970s.

The In-N-Out website’s history section gives clues, but no answers. Obviously, the first one opened in 1948 in Baldwin Park, the same year that McDonald’s converted to a quick serve restaurant from a barbecue restaurant in San Bernardino. By 1958, there were five locations in the San Gabriel Valley. By 1973, In-N-Out had 13 locations, all in Los Angeles County, and all with two drive through lanes and no inside eating. In 1979, the first In-N-Out with a dining room opened in Ontario as restaurant number 21. The website adds that only 13 more no dining room locations were built after that. By 1988, In-N-Out had 50 stores in total, and in each of the core Southern California counties: Los Angeles, Orange, Riverside, San Bernardino and Ventura.I have In-N-Out Santa glasses from 1982 that I know we bought from the 190 Bungalow Court location, so that probably means that the original downtown San Bernardino In-N-Out Burger was built between 1973 and 1982. [Update: October 17, 2012. I couldn’t stand it any longer. According to In-N-Out’s customer service line, the store was opened on February 11, 1982].

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

Filed under City of Highland, City of Redlands, City of San Bernardino, Eminent Domain, Food, Friday Aside, Inland Empire, Land Use, Land Use, Land Use Law, Municipal Law, Real Property Law, Redevelopment, San Bernardino, San Bernardino County, Small Business Law Tagged with highland, In-N-Out, Loma Linda, San Bernardino

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

July 3, 2012 Leave a comment

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.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

By Michael Reiter, Attorney at Law.

Filed under Administrative Citations, City of Redlands, City of San Bernardino, Code Enforcement, 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

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

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.

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235

T: (909) 296-6708

By Michael Reiter, Attorney at Law.

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

Inspecting and Obtaining Copies of Building Permits and Building Plans in California

September 23, 2011 Leave a comment

I have been to multiple City Halls lately inspecting permits and plans, and obtaining copies of permits from local public agencies. Here is a primer on using the California Public Records Act to inspect building permits and plans, and to receive copies of permits.

As we have discussed before, the California Public Records Act is a way to inspect and obtain copies of documents. This works for permits, as well. Some forward-thinking cities have their permit systems online for anyone to inspect. Others require you to take the trip to City Hall to look at the physical files, either because there is no online system, or because some cities are not as resident-friendly as others.

Every city I have ever dealt allows the public to inspect permits without any prior notice, and without the necessity of sending them to the City Attorney’s Office. Likewise, getting copies of permits is easy, without the bureaucratic review process seen with many other Public Records Act Requests.

Health and Safety Code section19851 says that plans are open to inspection on premises of the building department as a public record. No copy of the plans may be duplicated in whole or part except:

with the written permission, which permission shall not be unreasonably withheld as specified in subdivision (f), of the certified, licensed or registered professional or his or her successor, if any, who signed the original documents and the written permission of the original or current owner of the building, or, if the building is part of a common interest development, with the written permission of the board of directors or governing body of the association established to manage the common interest development, or (2) by order of a proper court or upon the request of any state agency. California Health and Safety Code section 19851(a)(1).

There is also an argument that the plans are exempt from duplication pursuant to Government Code section 6254(k), the exemption part of the California Public Records Act that states: “(k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” The idea is that since federal law, 17 United States Code section 102(a)(8) protects architectural works, and “architectural works” is defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” 17 U.S.C. section 101. I think that argument fails (as to inspection, not copying) because I don’t think it is among the bundle of rights associated with copyright specifically 17 U.S.C. section 106.

Michael Reiter, Attorney at Law.

Address : 300 E. State St. #517

Redlands, CA 92373

Telephone: (909) 296-6708

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Filed under Building Permit, Building Permits, Building Permits and Plans, California Public Records Act, City of San Bernardino, Copyright, Inland Empire, Land Use, Land Use Law, Municipal Law, San Bernardino, San Bernardino County, Small Business Law Tagged with Building Permit, building-plans, California Health & Safety Code section 19851, California Public Records Act, copyright, Government Code section 6254(k), Michael Reiter Attorney at Law

Government Code section 6254.21 Being Used to Deny San Bernardino County Property Tax Information Over the Internet

July 5, 2011 Leave a comment

If you ever have searched the San Bernardino County Tax Collector’s database for property tax information, which also has relatively current property ownership and other information (including finding Assessor Parcel Numbers (APNs) from street addresses, and Assessor Parcel Maps, you might be confronted with this warning:

“Please Note – We no longer display addresses on this page per CA. Govt. Code Sect. 6254.21 If you need assistance determining the correct parcel number please call the County of San Bernardino Assessor’s Office at (909) 387-8307.”

Back when I was a Deputy City Attorney for the City of San Bernardino, the site used to give street addresses, and it was a great resource. Then, the notice displayed above was posted. If you need an address for an APN, you can call the Assessor’s Office, and eventually, someone who will give you their first name, but not their last, will tell you an address. Similarly, if you need to know the mailing address (where tax bills are sent), they will give that to you over the phone, too.

The Government Code section posted above is in the California Public Records Act. Does the section say that counties cannot display addresses on tax bills on the internet?

Government Code section 6254.21 reads, in its entirety:

(a) No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual.

(b) No person shall knowingly post the home address or telephone number of any elected or appointed official, or of the official’s residing spouse or child, on the Internet knowing that person is an elected or appointed official and intending to cause imminent great bodily harm that is likely to occur or threatening to cause imminent great bodily harm to that individual. A violation of this subdivision is a misdemeanor. A violation of this subdivision that leads to the bodily injury of the official, or his or her residing spouse or child, is a misdemeanor or a felony.

(c) (1) (A) No person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed official if that official has made a written demand of that person, business, or association to not disclose his or her home address or telephone number.

(B) A written demand made under this paragraph by a state constitutional officer, a mayor, or a Member of the Legislature, a city council, or a board of supervisors shall include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.

(C) A written demand made under this paragraph by an elected official shall be effective for four years, regardless of whether or not the official’s term has expired prior to the end of the four-year period.

(D) (i) A person, business, or association that receives the written demand of an elected or appointed official pursuant to this paragraph shall remove the official’s home address or telephone number from public display on the Internet, including information provided to cellular telephone applications, within 48 hours of delivery of the written demand, and shall continue to ensure that this information is not reposted on the same Internet Web site, subsidiary site, or any other Internet Web site maintained by the recipient of the written demand.

(ii) After receiving the elected or appointed official’s written demand, the person, business, or association shall not transfer the appointed or elected official’s home address or telephone number to any other person, business, or association through any other medium.

(iii) Clause (ii) shall not be deemed to prohibit a telephone corporation, as defined in Section 234 of the Public Utilities Code, or its affiliate, from transferring the elected or appointed official’ s home address or telephone number to any person, business, or association, if the transfer is authorized by federal or state law, regulation, order, or tariff, or necessary in the event of an emergency, or to collect a debt owed by the elected or appointed official to the telephone corporation or its affiliate.

(E) For purposes of this paragraph, “publicly post” or “publicly display” means to intentionally communicate or otherwise make available to the general public. (2) An official whose home address or telephone number is made public as a result of a violation of paragraph (1) may bring an action seeking injunctive or declarative relief in any court of competent jurisdiction. If a court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the official court costs and reasonable attorney’s fees. A fine not exceeding one thousand dollars ($1,000) may be imposed for a violation of the court’s order for an injunction or declarative relief obtained pursuant to this paragraph. (3) An elected or appointed official may designate in writing the official’s employer, a related governmental entity, or any voluntary professional association of similar officials to act, on behalf of that official, as that official’s agent with regard to making a written demand pursuant to this section. A written demand made by an agent pursuant to this paragraph shall include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.

(d) (1) No person, business, or association shall solicit, sell, or trade on the Internet the home address or telephone number of an elected or appointed official with the intent to cause imminent great bodily harm to the official or to any person residing at the official’s home address. (2) Notwithstanding any other law, an official whose home address or telephone number is solicited, sold, or traded in violation of paragraph (1) may bring an action in any court of competent jurisdiction. If a jury or court finds that a violation has occurred, it shall award damages to that official in an amount up to a maximum of three times the actual damages but in no case less than four thousand dollars ($4,000).

(e) An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official.

(f) For purposes of this section, “elected or appointed official” includes, but is not limited to, all of the following: (1) State constitutional officers. (2) Members of the Legislature. (3) Judges and court commissioners. (4) District attorneys. (5) Public defenders. (6) Members of a city council. (7) Members of a board of supervisors. (8) Appointees of the Governor. (9) Appointees of the Legislature. (10) Mayors. (11) City attorneys. (12) Police chiefs and sheriffs. (13) A public safety official, as defined in Section 6254.24. (14) State administrative law judges. (15) Federal judges and federal defenders. (16) Members of the United States Congress and appointees of the President.

(g) Nothing in this section is intended to preclude punishment instead under Sections 69, 76, or 422 of the Penal Code, or any other provision of law.

Thus, we apprehend the 1998 enactment [section 6254.21] as having been intended to prevent public agencies from posting on their public websites any list or directory of public officials’ home addresses and telephone numbers, without first obtaining each official’s written permission to be included in the listing. This apparent intent informs our conclusion.

So opined the California Attorney General in Opinion No. 06-802, May 20, 2008, 91 Ops. Cal. Atty. Gen. 19. However, the Attorney General, perhaps because of the more limited question the Office was asked to answer, opined:

We therefore conclude that, in the circumstances presented here-that is, where a county maintains a comprehensive database of property-related information that may incidentally contain the home addresses and telephone numbers of persons who are elected or appointed public officials, but who are not identifiable as such from the data-Government Code section 6254.21(a) does not require the county to obtain permission from those officials before transmitting the database over a limited-access network, such as an “intranet,” “extranet,” or “virtual private network.

A city attorney who shall not be named, who liked to say that an opinion of the California Attorney General is just “one attorney’s opinion.” However, I think this is the correct interpretation of the statute.

Milligan, Beswick, Levine & Knox, LLP

A: 1447 Ford St. #201

Redlands, CA 92374

T: (909) 296-6708

E: mreiter@mblklaw.org

Filed under California Public Records Act, City of Redlands, City of San Bernardino, County of San Bernardino, Land Use, Land Use Law, Municipal Law, Property Tax, Property Tax, Real Property Law Tagged with Government Code section 6254.21, Michael Reiter Attorney at Law, San Bernardino County, Tax Collector

Fireworks in the City of San Bernardino, California

July 1, 2011 1 Comment

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

Garage Sales and Yard Sales in the City of San Bernardino, California

June 30, 2011 6 Comments

When I was a Deputy City Attorney for the City of San Bernardino, a frequent complaint to code enforcement by residents, city staff, and elected officials, was yard sales in violation of the San Bernardino Municipal Code. Since I was Deputy City Attorney, the ordinance has been changed.

As of this post, the blurb on the City of San Bernardino’s website says: “GARAGE/YARD SALE You are allowed to have a yard sale on the 3rd weekend of every month (“weekend” means Friday, Saturday & Sunday). No signs are allowed to be posted on public property (i.e. utility poles). Citations may be issued if conducting yard sale on non-designated weekends. For more information they can call our number [909] 384-5205.”
That’s much better than when I was a city prosecutor. You could only have a garage sale every six months, and the big kicker was that you could not have a yard sale, unless it was in your back yard. You could have a garage sale, and that meant that the merchandise had to be in your garage. For many residents, this was impossible because their garage was full. As of this writing, that ordinance is still listed on the online municipal code, Chapter 5.68. It has been repealed, do not rely on it.

Unfortunately, the ordinance has not been codified online. You can get the codified version in the official copy of the Municipal Code in the City Clerk’s Office. I called the City Clerk’s Office to obtain a copy of MC-1344, the current ordinance. The deputy city clerk I spoke to said she could email me a copy of MC-1344 . She very promptly did. The ordinance, current as of this post, can be found here.

The highlights of the ordinance are as follows:

“Yard Sale” means the offer of sale of personal property open to the public conducted from or on a premise in any residential or commercial zone. The term “Yard Sale” includes, but is not limited to, all sales entitled advertised or called “garage sale,” “lawn sale,” “yard sale,” “porch sale'”, [sic] patio sale”, [sic] “estate sale”, [sic] “moving sale”,[sic] “flea market,” or “rummage”[sic] sale. San Bernardino Municipal Code section 8.14.010(E). [I typed it as found in the ordinance, including the unconventional switch from commas within the quotes, and the fact that rummage is quoted, but sale is not.]

Residents can’t have yard sales more than 12 times in a calendar year. San Bernardino Municipal Code section 8.14.020(A). Yard sales can’t be longer than three consecutive days. San Bernardino Municipal Code section 8.14.020(B). Yard sales can only be held during daylight hours (which aren’t defined). San Bernardino Municipal Code section 8.14.020(C). Yard sales can only be conducted the third weekend of the month (Friday, Saturday, Sunday). San Bernardino Municipal Code section 8.14.020(D).

Only Personal Property (“property which is owned utilized or maintained by an individual or members of a residence or family and acquired in the normal course of living in or maintaining a residence. It does not include new merchandise or merchandise which was purchased for resale or obtained on consignment.”) can be sold at a yard sale. No Personal Property can be displayed in the public right-of way (Public right-of-way is undefined, but probably means sidewalk and parkway, on lots with sidewalks and/or parkways, and certainly in the street). All “Personal Property
shall be arranged so that fire safety service and other officials may have access for inspection at all times during the sale.” San Bernardino Municipal Code section 8.14.030.

Signage: Three unlighted signs not exceeding four square feet, only during the sale, only on the Yard Sale real property, they may be posted 24 hours before the sale and removed after the sale. That last part contradicts the earlier sentence that “Such signs shall be displayed only during the period of the Yard Sale.” San Bernardino Municipal Code section 8.14.040(A). No more than four Directional signs, not larger than 2 square feet, may be placed on private property with the owner’s consent (but not in the public right-of-way). San Bernardino Municipal Code section 8.14.040(B) & (C).

Estate sales, as defined by the Code, are exempt from the limitations on frequency (12 times a month and the third weekend) and require a permit. San Bernardino Municipal Code section 8.14.050. Non-profits, as defined by the Code, are exempt from the limitations on frequency listed for estate sales if the sale is on property owned or leased by the non-profit, and do not require a permit. San Bernardino Municipal Code section 8.14.060.

The violation is a wobblette, an alternate misdemeanor or infraction. San Bernardino Municipal Code section 8.14.070. When I prosecuted Chapter 5.68, it was a straight misdemeanor.

There are some problems with this ordinance. It was cut and pasted from the previous Chapter 8.14. Estate sales require a permit, though no permit process appears in the ordinance. The ordinance defines “Department” and “Residential Zone” and then neglects to use those terms in the revised Chapter 8.14. The first sentence of section 8.14.030 uses the term yard sale instead of “Yard Sale,” creating ambiguity as to whether the definition of “Yard Sale” found in 8.14.010(E) applies.

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