Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) have changed their opinions regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

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 2013 Michael Reiter, Attorney at Law

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

Dealing With Code Enforcement Agencies in San Bernardino County and Riverside County

By Michael Reiter, Attorney at Law

What should you do if you are faced with a code enforcement notice, an administrative citation or a criminal citation?

A lot of the response depends on the conditions of the property and the city or county involved.  I worked in two very different code enforcement environments.  When I was a Deputy City Attorney in the City of San Bernardino, almost fifty percent of my time was spent on code enforcement, (the rest was municipal law and civil litigation)  as was at least fifty percent of the time of another Deputy.  Additionally,  another Deputy had primary responsibility for Animal Control, and land use was generally separate, though for a period of time I reviewed every inspection notice involving mobile home inspections.  Code Enforcement is a priority for the City of San Bernardino.  Later, when I was Assistant City Attorney for the City of Redlands, code enforcement had been shuffled between three departments.

The official mantra of code enforcement is that cities and counties are looking for compliance, not fines.  Your results may vary in the wild.

What to do if you have a code enforcement notice (such as a “10 day Notice”)?

Do not ignore the notice, it will not go away.  Always try to comply with the notice, if possible.  A notice is much better than a citation.  Open a dialogue with the code enforcement officer.  Typically, the notice has a phone number.  If it doesn’t search for the main code enforcement number on Google, and then ask for the noticing officer.  If you complete the work within the time frame established on the notice, ask for a reinspection.  If you need more time, most reasonable code enforcement officers will give you more time if you are making progress.  They do not have to, but they typically will.

However, do not give the officer free reign to inspect your entire property.  You have a right to refuse a code enforcement officer’s request to enter your property.   Typically, they should be able to view the conditions on your property from the public right-of-way, or from adjoining property (if they have permission from the property owner).   If the code enforcement agency has an administrative warrant, you need to comply.

What should you do if you have an administrative citation?

Read the citation.  It should tell you how to contest the citation.  It may tell you that you need to correct a violation.  Generally, you should correct the violation before you meet with the hearing officer.  In the City of Riverside, you must pay to contest.  Additionally, the City of Riverside as of the writing of this post contracts out their code enforcement processing to an Orange County firm.  In the City of San Bernardino,  you can pay or contest.  San Bernardino Municipal Code section 9.92.070(A) and (B).  Either way, it probably makes sense to contest the citation.   You have an opportunity to ask the hearing officer for a reduction, particularly if you have corrected the situation.

What should you do if you have a criminal citation?

If you have an infraction or misdemeanor citation, you need to attend court at the arraignment.  You can plead guilty to the judge at the arraignment or if the agency sends an attorney, you can enter into a plea bargain agreement.  Or you can plead not guilty, and either a trial or a pretrial can be set.  Some cities will give you time to allow compliance, and then either dismiss the case, or have you plead guilty and pay a lesser fine at the end, or enter into a civil compromise.  You also have the option to contest the charges by having a trial set.  If it is an infraction, you do not have a right to a public defender or a jury trial.  If it is a misdemeanor, you do have the right to a public defender if you are sufficiently indigent, and a jury trial.

When should you hire a code enforcement attorney?  When the stakes are sufficiently high, or if you are being pushed around by a city or county.  For example, if you face multiple misdemeanors, you may face jail time.  If you are facing thousands of dollars in fines, or if the city or county is prosecuting you for the wrong reasons, hire an attorney skilled in code enforcement matters.

Copyright 2011-2 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.

Michael Reiter, Attorney at Law

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761

What is a San Bernardino County Code Enforcement Attorney and a Riverside County Code Enforcement Attorney?

By Michael Reiter, Attorney at Law

I have been involved in Code Enforcement for a long time now.  My first exposure was when I was working for the City of Santa Clara during law school at Santa Clara University School of Law.  Most of the code enforcement at that time was done by a Deputy City Attorney and involved drinking in public by Santa Clara University students.  Drinking in public is a common infraction or misdemeanor prohibited by cities’ municipal codes.  One of the reasons behind this is because it is not preempted by the State of California’s prohibition of being drunk in public.  Police officers can cite people with open containers of alcohol seen drinking alcohol or presumed to be drinking alcohol without proving that they were intoxicated.  However, generally, the term “Code Enforcement” means property maintenance.

My next brush with code enforcement came as an attorney for Legal Aid Society of San Bernardino.  A common defense for an unlawful detainer defendant is a lack of habitability.  Often, the tenant would complain to a code enforcement agency about the interior conditions of their house or apartment.  However, sometimes this could have disastrous results.  Either the tenant would complain about the conditions and it would have no effect on the unlawful detainer action, the tenant would get cited into court by the code enforcement agency for the problem, or in the absolute worst-case scenario, the conditions were so bad at the apartment or house that the code enforcement agency red tagged the unit, making the tenant homeless.

When I became a Deputy City Attorney for the City of San Bernardino in February 2001, my role changed from observer of code enforcement to assisting Code Enforcement.  I became a City Prosecutor, prosecuting violations of the San Bernardino Municipal Code in San Bernardino Superior Court, along with other Deputy City Attorneys.   I also co-advised the City of San Bernardino’s Code Enforcement Department (which previously was a Division, and would later become a Division again).  When I was Assistant City Attorney for the City of Redlands, I served a similar function, including prosecuting violations of the Redlands Municipal Code, advising staff at administrative hearings, and drafting code enforcement ordinances.

What does being a Code Enforcement Attorney mean in San Bernardino County and Riverside County?  In incorporated cities and towns in San Bernardino County and Riverside County, that means prosecuting violation of city or town ordinances, usually codified in the Municipal Code, or prosecuting violations of County ordinances codified in the San Bernardino County Code or the Riverside County Code.  It also means drafting new ordinances.  Some of these ordinances are new code enforcement tools, new prohibitions, or modifying existing ordinances to allow certain behavior or prohibit certain behavior.  Being a Code Enforcement Attorney also means representing staff in front of administrative hearing officers, both in post deprivation due process hearings, administrative citation hearings or administrative civil penalty hearings.  Code Enforcement Attorneys also review administrative warrant applications, review criminal citations for filing with the court, review proposed hearing orders, and other similar tasks.  Some of those tasks include training code enforcement officers about the law, including constitutional protections regarding inspections of private property.  Code Enforcement Attorneys help agencies respond to California Public Records Act requests.  Code Enforcement Attorneys also help defend cities and code enforcement officers from collateral attacks on the process, including quiet title actions to nullify code enforcement liens, requests for injunctions to stop code enforcement actions, and allegations of Federal Civil Rights violations pursuant to 42 United States Code section 1983.  Code Enforcement Attorneys also can file civil abatement actions, including nuisance actions, and receivership actions under the California Health and Safety Code.  In Redlands and San Bernardino, I was involved in all of those functions.

However, in addition to public Code Enforcement Attorneys, a Code Enforcement Attorney can protect the rights of the public.  As a private attorney, I have helped clients that are faced with demands from overly-aggressive code enforcement agencies.  When picking an attorney to help you on a code enforcement matter, it helps to find one that has experience on the other side, prosecuting violations of municipal codes.  Find someone with experience with the Public Records Act, because that’s an important tool in defending against a code enforcement action.  Find someone who is familiar with the political systems in play in the relevant entity, and who can give you realistic advice about your options.

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.

Michael Reiter is a partner with Cole Huber LLP

2855 E. Guasti Road, Suite 402

Ontario, CA 91761