Fireworks in the City of San Bernardino, California

By Michael Reiter, Attorney at Law

“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 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) 708-6055

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

By Michael Reiter, Attorney at Law

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  It has been repealed, do not rely on it.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.

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: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

Front Yard Fruit Stands in Redlands, California

By Michael Reiter, Attorney at Law

I am a native of the Inland Empire and some of my earliest memories are of Redlands, from the San Bernardino County Museum, to field trips to Kimberly Crest, and attending meetings in the Assembly Room of the A.K. Smiley Public Library.  I learned much more about Redlands as Assistant City Attorney from January 2006 to June 2010. My office as a private attorney is in Redlands.

You can’t really know a city until you have walked its streets, particularly its residential areas.  One of the perksof street level exploration of a city (other than noticing the infrastructure) is finding little gems.  One of the things that gives Redlands its character  is its history in agriculture, not just being the Washington Navel Orange capital of the world, but appreciating the still-large amount of active agriculture.  In addition to active agriculture, there are backyard remnants of groves and other fruit trees.  If you drive around Redlands, you can find many front yard fruit stands.  You can find a story on this phenomenon in the Press-Enterprise article published on March 5, 2010 titled “Citrus Sales are part of the tradition of Redlands, nothing beats fresh” by Jan Sears and Darrell R. Santschi.  As of the writing of this post, it is available online.  I am not going to link to it because newspaper links break very easily.

For example pomegranates grow very well in Redlands.  And even though they are very expensive in supermarkets, you can pick them up at some front yard fruit stands.
I know of no guide to these fruit stands.  As I discover their exact location, I will post their block location and produce.  I do not want to give exact locations, because the people providing the service are doing a great the public a favor, and if the Press-Enterprise story is any indication, running the stands is a hassle.  If anyone with a stand wants to make a comment, or grant me permission to put an exact location, I will publish it below.  If anyone does not want to be included, let me know as well.

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. #517 Redlands CA 92373-5235
T: (909) 708-6055

How to find the City of San Bernardino’s Transient Lodging Tax (elsewhere known as a bed tax or a transient occupancy tax)

By Michael Reiter, Attorney at Law

Someone found my blog looking for the City of San Bernardino’s “bed tax rate.”  You won’t find it using those terms. In my almost five years as a Deputy City Attorney in San Bernardino, litigation regarding the Transient Lodging Tax seemed ever present.

Revenue and Taxation is found in Title 3 of the San Bernardino Municipal Code.  The Transient Lodging Tax is found in Chapter 3.55 of the San Bernardino Municipal Code, commencing at San Bernardino Municipal Code section 3.55.010.  The rate is found in San Bernardino Municipal Code section 3.55.020(A):

For the privilege of occupancy in a hotel, each transient is subject to and shall pay a transient lodging tax in the amount of ten percent of the room rental charged by the operator.

The ordinance was added by the City of San Bernardino’s voters on November 5, 2002.  Chapter 3.52, the Uniform Transient Occupancy Tax of the San Bernardino Municipal Code was repealed by the Mayor and Common Council by Ordinance MC-1006, on November 17, 1997, and Chapter 3.54 was repealed by the Mayor and Common Council by Ordinance MC 1127, on July 15, 2002.

The legal background of these changes is found in various court cases.  Chapter 3.52 was struck down as unconstitutionally vague by the Court of Appeal, Fourth District, Division 2 on November 18, 1997.  City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997)  59 Cal.App.4th 237.   “In a published opinion, this court struck down the City’s original occupancy tax as unconstitutionally vague. The City then revised its occupancy tax, hoping to remedy the defects we had identified. In an unpublished opinion, [City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (June 22, 2000, E025364) ]  however, this court strongly suggested that the revised occupancy tax was still unconstitutionally vague. The City therefore revised its occupancy tax yet again.”  City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (2005)  (Not officially published, found at 2005 WL 3198904).   In 2005, the Court found that the revised transient lodging tax passed constitutional muster.

There is a happy ending, at least for the City.  In the 2005 unpublished opinion, the Court of Appeal had this to say: “Although the City had two strikes against it, it has at last hit a home run.”

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

E: michael@michaelreiterlaw.com

Trade Dress Confusion: In-N-Out versus Five Guys: A few more thoughts

By Michael Reiter, Attorney at Law

I visited the Five Guys in Redlands (technically, in the Donut Hole (unincorporated County of San Bernardino outside the City of Redlands’ sphere of influence), in the Redlands Town Center, near Nubi).  As a follow up to this post, I want to reiterate that no true Southern California will ever be confused between the trade dress of the two restaurants or the product.  Five Guys is no In-N-Out.  In-N-Out is cleaner, In-N-Out is simpler, In-N-Out’s food is better, In-N-Out’s food is much less expensive, and you can get In-N-Out in a drive through, and if you have a peanut allergy, In-N-Out is the way to go.

One of Five Guy’s founders, Jerry Murrell, told Inc. Magazine that the “burgers are made to order. That’s why we can’t do drive-thru’s [sic]– it takes too long.”  I’m glad the Snyders never came to that conclusion.  The only In-N-Out without a drive-through, I believe, is in Fisherman’s Wharf in San Francisco.  I can speculate on the legal reasoning and land use reasoning  for that decision, but I could find no source to confirm the reason.

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.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

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

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Inspection Warrant and Abatement Warrant Requirements for Inspecting Private Property in San Bernardino County, California

By Michael Reiter, Attorney at Law

Do code enforcement officers need a warrant to inspect private property in San Bernardino County (including incorporated cities and towns in San Bernardino)?  The best practice is to obtain an administrative warrant if the owner/occupant refuses consent to inspect.  Generally, an administrative warrant is not needed if the conditions can be observed from the public right-of-way, or an adjoining property (with permission), and no physical entry onto the property occurs.

When I was a Deputy City Attorney for the City of San Bernardino, California and the Assistant City Attorney for the City of Redlands, California, a good deal of my time was spent on code enforcement.  Both cities emphasized the need for a warrant to inspect and/or abate private property when permission to inspect was denied.  As a private attorney representing private citizens and business entities, some other Inland Empire cities are not as respectful of citizen’s constitutional rights.

Generally, if consent from the property owner and the occupant cannot be obtained before entering private property that is not open to the public, code enforcement officers should obtain an administrative inspection/abatement warrant from the San Bernardino County Superior Court.  Because the United States Constitution’s Fourth Amendment gives property owners and other occupants an expectation of privacy, an inspection warrant is needed.

The Ninth Circuit Court of Appeals, in Connor v. Santa Ana, held that police officers could not legally enter fenced, private property to abate a nuisance without a warrant, even though the property owner had been provided with extensive administrative hearings.  In the absence of a property owner’s and occupant’s consent, barring exigent (emergency) circumstances, government officials engaged in the inspection of private property or abatement of a public nuisance must have a warrant to enter that private property where such entry would invade a constitutionally protected privacy interest.

The Fourth Amendment provides a high degree of privacy protection to the “curtilage” of a residence, the land immediately surrounding and associated with the residence.  However, the United States Constitution allows authorities to inspect open fields at will.  The “open fields” exception only applies to completely unfenced, unimproved property.

Therefore, code enforcement officers may visually inspect private property from the public right-of-way, or from areas that are open to the public such as parking lots, or from private property upon which the officers have obtained consent from the property owner and/or the occupant, depending on the factual circumstances.

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

Can a renter be held responsible for violating the San Bernardino Municipal Code?

By Michael Reiter, Attorney at Law

Can a renter be held responsible for violating the San Bernardino Municipal Code related to property maintenance?  The short answer is yes.

When I was a Deputy City Attorney for the City of San Bernardino, I prosecuted many renters for property maintenance violations.  The City of San Bernardino’s property maintenance ordinance is found codified in Chapter 15.24 of the San Bernardino Municipal Code.

“Maintenance requirements for single family residences, multiresidential, commercial and industrial property. Any person owning, renting, occupying, managing, or otherwise having charge of any single family residence, multi-residential, commercial and industrial property shall maintain the property in accordance with the following minimum standards. Failure to comply with these minimum standards shall constitute a violation of this Code.”  San Bernardino Municipal Code section 15.24.040, emphasis added.

Often, a criminal defendant or someone who had been served an administrative citation or who had a notice of violation would ask why the City was prosecuting the renter instead of the owner.  The reply was that the City had the power under the Code to charge the renter or occupant.

Some people would say that their rental agreement or state law required the owner or landlord, or landlord’s agent to maintain the premises.  Those people (including lawyers) would be told, either by city lawyers, or by the administrative hearing officer, that those were legal obligations between the landlord and the tenant, not between the City and the tenant (or for that matter, between the City and the landlord).

What is the public policy behind this ordinance? The City of San Bernardino wants code compliant properties.  They seek to find the party most likely to bring about the transformation from code deficient to code compliant.  Often, that is the person actually living at the property, not the out-of-town or out-of-state landlord.  Sometimes, both the landlord and the tenant are cited.  It may not seem fair for the tenants are responsible, especially if there are contractual terms that require the landlord to provide property maintenance. However, the ordinance provides that the City can cite the tenant.

When I was a Deputy City Attorney, section 15.24.040 only applied to single family properties and duplexes and triplexes.  In 2009, (after I had become Assistant City Attorney for the City of Redlands) that section was merged with 15.24.050, which applied to commercial, industrial and multi-family residential properties.  I would suspect that tenants are not being cited for algae-covered pools in large complexes.  I would expect that there would be a defense to such a citation.  A much closer case would be a situation where an out-of-town landlord has designated one of the tenants as their “on-site manager” in exchange for a reduction of rent.  Often these people do not have apparent or express authority to make changes to the property, and they certainly do not have the means to make changes.  Arguably, if cited, those tenants were not managing or have real charge of the property, they were just the face of the landlord at the property, so that the landlord did not have to deal directly with the other tenants.

Therefore, for tenants faced with code enforcement citations or penalties in the City of San Bernardino, there is no defense of “just a tenant” to Chapter 15.24 violations, at least not in single-family residences.

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.
Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708