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  Chapter 3.52, the Uniform Transient Occupancy Tax of the San Bernardino Municipal Code was repealed by the Mayor and Common Council by Ordinance MC-1006, on November 17, 1997, and Chapter 3.54 was repealed by the Mayor and Common Council by Ordinance MC 1127, on July 15, 2002.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 In an unpublished opinion, [City of San Bernardino Hotel/Motel Assn.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  In the 2005 unpublished opinion, the Court of Appeal had this to say: “Although the City had two strikes against it, it has at last hit a home run.”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

Gourmet Food Trucks in Riverside County and the City of Riverside

My post on Gourmet Food Trucks in San Bernardino County and the City of San Bernardino continues to be popular, so I thought I would add a follow-up about Riverside County and the City of Riverside.  The County’s Code, according to this Riverside Press-Enterprise story, prohibits food from being prepared on a truck, except for things like hot dogs (such as those outside the Riverside County Courthouses).  In effect, it allows “catering trucks” instead of gourmet food trucks.  The Council adopted Ordinance 7112 (an uncodified, unsigned version here) in January 2011 adding Chapter 5.36 of the Riverside Municipal Code.

There is an exception for special events.  Riverside Municipal Code section 5.36.090.

Cities often get pressure from bricks and mortar restaurants to prohibit gourmet food trucks, because they argue that gourmet food trucks are unfairly competing, because they do not have to pay expensive rent.  However, any argument that they do not have to pay a business license tax or registration tax is not correct.  Each truck must pay the proportional share in each jurisdiction it is doing business.  They have to collect and pay sales tax, too.

Copyright 2011 Michael Reiter, Attorney at Law

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

Growing and selling crops and agricultural products in Inland Empire Cities

By Michael Reiter, Attorney at Law

The San Francisco Chronicle has a story today on page A-1 about a property owner who has a pocket farm in Oakland.  The City of Oakland says that she needs a Conditional Use Permit to continue to sell her produce and livestock-derived food.  According to the same article, the City and County of San Francisco has already created new ordinances to deal with the urban farming trend in the Bay Area.

The Inland Empire has a rich history of agriculture, and unlike Oakland, still has agriculture.  According to the California Department of Agriculture,  of California’s 58 counties,   Riverside County was the 12th largest farm county in California in  2007, slipping to 13th in 2008.  Riverside’s crops were valued at $1,268,590,000.  The leading commodities for Riverside County in 2008 were nursery stock, milk, eggs, table grapes and hay.  San Bernardino County was the 17th largest farm county in California in 2007, slipping to 20th in 2008.  That probably is largely due to the dairies leaving Chino and South Ontario.  San Bernardino County’s crops were valued at $547,158,000 in 2008.  The leading commodities that year were milk, eggs, cattle and calves, replacement heifers and trees and shrubs.

By 2009, San Bernardino County had fallen to 25th out of  58 counties, with total production down to $355,379,000, with alfalfa becoming a top crop.  The march of urbanization made a significant dent in just two years.  The recession was probably the only thing preventing more losses.  Much prime agricultural land has been converted into housing.

When I was Assistant City Attorney for the City of Redlands, there was still significant agriculture in the City.  Some parts of the City and areas within the City’s sphere of influence were zoned agricultural.  In the A-1 Agricultural zone (one of a number of zones where agriculture is allowed by right) in Redlands, allows agricultural  uses  (only part of the section is quoted below, as shown by the ellipses):

“Apiaries, provided that no hives or boxes housing bees are kept closer than three hundred feet (300′) from any dwelling other than that occupied by the owner of the apiary;

Farms or ranches for the grazing, breeding or raising of not more than two (2) horses, cattle, goats or sheep per acre. . . .

Orchards, groves, nurseries, the raising of field crops, tree crops, berry crops, bush crops, truck gardening and commercial flower growing;. . . The sale of fruit, vegetables, produce, flowers and other similar products grown on the property; provided, however, that roadside stands used for such sales shall not exceed five hundred (500) square feet.”   Redlands Municipal Code section 18.20.030.  Other zones allow produce stands, either explicitly, or by reference to other zones.

In San Bernardino, where I was a Deputy City Attorney, there are only remnants of agriculture.   If you have a fast connection, or some spare time, you can find San Bernardino’s zoning map.  According to the City of San Bernadino’s Development Code, San Bernardino Municipal Code section 19.08.o20, agricultural production-crops, is allowed, subject to a development permit in the IH (Industrial Heavy) and IE (Industrial Extractive) zones.  Like the City of Oakland, agricultural uses are allowed in almost every residential zone in San Bernardino (except RSH, Residential Student Housing) with a Conditional Use Permit.  San Bernardino Municipal Code section 19.04.020.  “Agriculture” is defined as the ” use of land for farming, dairying, pasteurizing and grazing, horticulture, floriculture, viticulture, apiaries, animal and poultry husbandry, and accessory activities, including, but not limited to storage, harvesting, feeding or maintenance of equipment excluding stockyards, slaughtering or commercial food processing.”  San Bernardino Municipal Code section 19.02.050.   It is not immediately clear if that includes a produce stand.  That would probably be subject to the development permit or conditional use permit process.

The common sense advice is to check with your city, or if you are in an unincorporated area, Riverside or San Bernardino County before you start your mini-farm.  Also, there are other issues out there, such as legal non-conforming uses, non-zoning issues such as the keeping of animals, the need for a business registration certificate or a business license if you’re selling your produce or animal products, the possibility of County Health inspections and permits.  As with anything, you should get legal advice before starting instead of  facing a citation or a lawsuit alleging nuisance.  If you find yourself in trouble, find an attorney versed in land use or code enforcement, or both, depending on your situation.

Update 4/22/2011  The Mayor and Common Council had this agenda item on the 4/18/2011 meeting agenda.   According to the summary, the matter was sent to the Legislative Review Committee to review the proposal to allow food carts, coffee carts and vegetable stands.

Update 5/14/2012  The City of San Bernardino Mayor and Common Council passed MC-1363 in August 2011, changing the transient vendor ordinance 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.

 

Copyright 2011 Michael Reiter, Attorney at Law

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