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

OverDrive Media Console App for Iphone and Ipad: Bringing Library Books to the 21st Century in Redlands

By Michael Reiter, Attorney at Law.

As a small business owner in Redlands, California, I use technology to help deliver the best legal services to my clients.  One of the newest pieces of technology I have acquired is an Apple iPad 2. Though it is very similar to my iPhone, its size allows more than cursory internet browsing and book reading.  Obviously, because of the size, viewing video is better.

I discovered an app called OverDrive Media Console which allows you to borrow eBooks from public libraries and view them on your iPhone and iPad.

Browsing a book on iPhone is possible, but not ideal.  An Amazon Kindle works as an excellent stand-alone electronic reader, but they are just getting in to library lending, and an iPad 2 has some advantages over the Amazon Kindle (though the Kindle is a superior electronic reader).

If  you are a card holder at the A.K. Smiley Public Library, you can download books for two weeks or seven days depending on the title. You can also put books on hold if they already checked out, and you do not have to worry about your book being overdue.

Other Southern California libraries participate in the program, so you should check your public library’s website.  You can use OverDrive Media Console on your personal computer, iPhone and iPad.  The iPad app works the best (I haven’t downloaded the personal computer version) for me.  You also have to sign up for a free Adobe account for digital rights management.

Though the public domain titles in iBooks and the Kindle store are fine, it is nice to have a source to borrow current, copyright protected books.  Right now, the title selection (and the availability) is limited.  However, I was able to download and read David Meerman Scott’s The New Rules of Marketing & PR, Second Edition.  The book was very easy to read and had good, common sense advice.  The book is copyrighted 2010, so it is not yet out of date.

The OverDrive Media Console itself was similar to iBooks, though I tended to unintentionally turn pages.  I liked the night-reading mode.  If your library supports the OverDrive Media Console, I would recommend you download the application.

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

Is Devore in the City of San Bernardino? Or, how to find if San Bernardino County land is incorporated or unicorporated?

By Michael Reiter, Attorney at Law

One of the highest keyword requests regarding the search term “San Bernardino” is finding out what geographic locations are included in a particular jurisdiction. One such search is “Is Devore in the City of San Bernardino?”   Why would someone want to know if a particular place is in a certain jurisdiction?  Here are some reasons:

1. The amount of taxes.  Different locations in California can have different sales tax rates.  At this moment, the City of San Bernardino’s sales tax rate is 9%.  The City of Redlands’ rate is 8.75%  Similarly,the amount of transient occupancy tax.  This is sometimes called a “bed” tax, the amount a hotel or motel collects based on the lodging’s nightly rate.   There are often different rates between cities, and between incorporated areas and unincorporated areas.

2. Liability.  If someone tripped and fell on a sidewalk, or hit a pothole, that person would need to know which entity to file a government claim with, and should the claim be rejected, against which entity to sue in court.  Of course, sometimes it does not involve a government entity, and sometimes it involves more than one entity, so knowing where the public property is located is only part of the inquiry.  Government Code section 835 (discussed briefly here) requires ownership or control of the property.  Just because property is within an entity does not mean it belongs to the city or county.  It could belong to private entities or to another public agency, like a school district, a flood control district, a water agency, or a combination of agencies and private ownership.  When I was a Deputy City Attorney for the City of San Bernardino, I had a case where the location, according to conventional maps, was right on the border of the City of Highland and the City of San Bernardino.  When I was the Assistant City Attorney for the City of Redlands, I had a case that involved a City easement on Redlands Unified School District property, adjacent to private agricultural land.

3. Voting.  Obviously, someone cannot vote if they are not with the corporate limits of the municipality.

4. Business Licenses.

5. Which set of local laws apply.  This is important for land use, zoning and code enforcement law.

So, how do we find out if Devore is within the City of San Bernardino or unincorporated County of San Bernardino.   One good way used to be the website of the Local Agency Formation Commission of San Bernardino, commonly abbreviated as LAFCO (and pronounced Laugh Co).  LAFCOs are county-wide organizations governed by the Cortese-Knox-Hertzberg Local Government Act of 2000, found at Government Code section 56000, et seq.  However, LAFCO’s maps are currently unavailable as of this writing.  San Bernardino County LAFCO can tell you the jurisdiction or jurisdictions of a particular place.  An interested party can call them, or if you need a map, make a California Public Records Act request.  If an interested party makes a Public Records Act request, they should ask for a record.  Such as, “a map that shows the jurisdictional boundaries of x location.”  Remember, the California Public Records Act is for records, not for general information.  Agencies do not have to answer questions, though sometimes it is easier to do so and they will do so in lieu of producing a record.

That means that someone can try to find out by looking in the City of San Bernardino’s website, and the County of San Bernardino’s website.   On the City of San Bernardino’s website, we find the Ward map, which shows the current division of the City for each council member.   Devore is generally thought of being where the 215 and the 15 meet.  You can see on the Ward map that location is not in the City of San Bernardino.  If we are to believe Google Maps, which is far from determinative, it shows the shaded northwest border of the City of San Bernardino  a few parcels away from  Devore Road.

What about the County of San Bernardino?  The County has a Geographical Information Services (GIS) component to its Information Services Department.  I know I have used their mapping applications in the past, but they do not appear to be online at this time.

The short answer is, from my experience as a Deputy City Attorney in the San Bernardino City Attorney’s Office, from having gone to public school with people from Devore, and as a matter of common knowledge, Devore is in unincorporated San Bernardino County.

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

 

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

How to file a fictitious business name statement in California’s Riverside County and San Bernardino County

By Michael Reiter, Attorney at Law

One of the most popular searches right now is people trying to figure out how to file  a fictitious business name statement in California.  California Business and Professions Code section 17910 requires every person who regularly transacts business in the State of California to do all of the following:

1) File a fictitious business name statement within forty days of commencement of transacting business (California  Business and Professions Code section 17910(a));

2) File a new statement after any change in facts (California  Business and Professions Code section 17910(b)); and

3) File a new statement when refiling a fictitious business statement (California  Business and Professions Code section 17910(c)).

First, what is a fictitious business name?  It is sometimes called a “dba” or “DBA” which stands for “doing business as.”   For example, business entities are sometimes named something consumer unfriendly, such as XYZ Corporation.  To do business with the public, XYZ Corporation adopts the fictitious business name of Joe’s Hot Dog Stand.  They are “doing business as”  Joe’s Hot Dog Stand.  Here’s an example from the San Bernardino County fictitious business name records search page.   Last year, I purchased printing for my firm at Citrograph Printing Company in downtown Redlands.  But that’s not the legal entity that owns the business.  If you search the records, you find that Citrograph Printing Company is the DBA or fictitious business name of Citrograph, LLC.

What is the purpose of a fictitious business name statements in California?  One Court of Appeal said that the purpose is “is designed to make available to the public, and especially to creditors, the identities of persons who are doing business under fictitious names for the purpose of benefiting creditors”  J&J Builders Supply v. Caffin (1967) 248 Cal.App.2d 292, 295.  The advantage of using a fictitious business name for a business is that it lets you have a different name for the legal entity from the name of the business.  The advantage of the statutory scheme found in the California Business and Professions Code is it protects the public.  Fictitious business names do not create a separate legal entity.  Meller & Snyder v. R&T Properties, Inc. (1998) 62 Cal.App.4th 1303, 1311.

Putting aside who must file a statement, how do you file a statement in San Bernardino County and Riverside County?

In San Bernardino County, the place is the San Bernardino County Recorder-Clerk, specifically with the San Bernardino County Clerk.  The form can be found online here.  The San Bernardino County Recorder-Clerk is physically located at 222 W. Hospitality Lane, 1st Floor San Bernardino CA 92415-0022.   There is also a High Desert Office.  High Desert Government Center, 15900 Smoke Tree Street, Hesperia, CA 92345.  The website itself says that you should mail the application in with fees, but it is always better to do it in person, if possible, because you can get a stamped, filed copy.   After filing, you have to publish in accordance with California law.  As it says on the back of the form:

“Within 30 days after the fictitious business name statement has been filed with the county clerk, the statement must be published in a newspaper of general circulation in the county where the fictitious business name statement is filed. The newspaper selected should be one that circulates in the area where the business is to be conducted. The statement must be published once a week for four successive weeks with at least five days between each date of publication. An affidavit of publication must be filed with the county clerk where the fictitious business name statement was filed within 30 days after the completion of the publication. If a refiling is required because the prior statement has expired, the refiling need not be published unless there has been a change in the information required in the expired statement, provided the refiling is filed within 40 days of the date the statement expired.”

South of the San Bernardino County line in Riverside County, you file the statement with the Riverside County Assessor-County Clerk-Recorder, and more specifically the Riverside County Clerk.  According to this web page, you can file in person, by mail, or with the help of a the newspaper you are publishing in.  The Riverside County website states that the County Clerk has locations in Riverside (two), Temecula, Blythe, Hemet and Indio.

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