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Land Use/Municipal Law/ Real Estate

More on Due Process: Thousand Oaks Case Parallels Massage Parlor Hearing Officer Case

I recently blogged about a City of Thousand Oaks case in which a hearing officer’s decision to impose a $2500 fine on a 23 year old man for an alleged violation of a “Social Host” ordinance (for allowing underage drinking in his home), was overturned.  The Superior Court judge reviewing the case ruled that the man’s Due Process rights had been violated by the way the hearing officer was selected, as well as a “lack of procedural due process during the hearing”.


The Thousand Oaks situation reminded me of a case that went to the California Supreme Court several years ago.  In Haas v County of San Bernardino, 27 Cal.4th 1017, 119 Cal.Rptr.2d 341 (2002), a well known attorney who specializes in representing the adult entertainment industry was able to successfully argue that a County’s practice of selecting and paying hearing officers on an ad hoc basis violated due process.  His client operated a massage parlor whose license was being revoked because a deputy sheriff had reported that one of his massage technicians had exposed her breasts and proposed a sexual act.


The Haas case eventually revolved not around the alleged wrongdoing but around the issue of the hearing officer that the County had hired to hear the appeal of the license revocation. The Supreme Court set forth the question and their response as follows:  “The question presented is whether a temporary administrative hearing officer has a pecuniary interest requiring disqualification when the government unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from future adjudicative work depends entirely on the government’s good will.  We conclude the answer is yes.”  


My reaction to Haas has always been a reluctant admiration of how an attorney, well versed in Constitutional law, can invoke the legal principle like Due Process to advance his client’s position, especially in a situation where the facts were likely clearly against his client on the merits.  The lesson is to be vigilantly aware of the importance of due process principles and the pivotal role they can play in the ultimate result of a dispute. A lot of folks may argue or think of this as just “procedure” or a “technicality”, but these can easily form the basis upon which the ultimate results can turn…


David H. Hirsch

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Ruling Based on City Social Host Ordinance Reversed for Alleged Failure to Follow Due Process

I previously blogged about public entities and how they are required to observe a number of rules that the private sector doesn’t need to worry about because of Constitutional principles that apply to the actions of governmental entities. This included "due process" considerations that come into play during the many "quasi-judicial" proceedings that public agencies conduct. When due process is required, participants in the hearing are entitled to certain procedural rights that are necessary in order to ensure a fair hearing. Included among these procedural rights is generally the right to a hearing in front of an impartial decision-maker.

The need to be careful and make sure due process rights are kept in mind was driven home recently by a trial court decision involving the City of Thousand Oaks. As reported on December 31, 2009 in the Ventura County Star newspaper, the case involved a 23 year old man who was fined under a city Social Host Ordinance that makes adults liable for underage drinking parties at their homes. He was cited after minors, including his 17 year old sister, were allegedly caught with beer inside his rented condo during a noisy party.

The City conducted an administrative hearing in which the man was found guilty and fined $2,500.. He then filed an appeal as permitted by State law to the Superior Court arguing that the hearing officer was unqualified. The City contracts with an independent business to conduct its hearings.

Ordering that a new hearing be conducted, the Judge ruled that "the process of selection of the hearing officer, and the lack of procedural due process during the hearing, require that the decision be overturned."

While there is surely more to the story than just what has been reported in the press, the lesson is that a failure to follow the necessary procedural issues can undermine an entity’s ability to enforce its laws and regulations and cause a reversal of an otherwise appropriate and valid result.

Stay tuned for my next blog entry, where I will discuss how the Thousand Oaks situation parallels a case involving hearing officers that was decided by the California Supreme Court a number of years ago…

David H. Hirsch

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Peculiarities of Public Sector Process

I recently had the privilege of teaching a class in Municipal Law at the Santa Barbara College of Law.  One thing that I found myself emphasizing to the students was how public entities have to observe a number of things that the private sector doesn’t need to worry about.  This isn’t just because of State or Federal laws that might apply to the entity, but also because of the fact that when a governmental entity acts it has to be aware of and make sure that it is conducting itself in accordance with Constitutional principles.  This comes up in a number of different contexts. 


For example, if a special district allows private groups to include announcements or messages in utility bills it has to be aware of the First Amendment, because it may be deemed to have opened up a “public forum” for free speech purposes.  Also, cities frequently regulate in areas that involve the First Amendment, whether it’s adopting sign regulations, regulating adult oriented businesses or seeking to restrict expressive conduct in public places, such as distributing leaflets or soliciting donations.  Based upon cases from all the way up to the U.S. Supreme Court, numerous legal concepts and rules apply to such regulations, and it gets very complex.


Also, consider for a moment how a body like a city council acts in a number of roles when it carries out its responsibilities.  It may be acting in an administrative capacity when it deals with a budget or a contract, or in a legislative capacity when adopting laws through the “police power” (Article XI, Section 7 of the State Constitution).  It may also be acting as a decision maker in what is called a “quasi-judicial” proceeding, applying existing laws or regulations to a set of facts, such as when it might be considering issuing or revoking a license or permit.  In such hearings both State and Federal cases have held that the participants are entitled to some degree of “due process” of law, and a number of procedural rights have to be afforded, such as having a fair hearing with an opportunity to present evidence and respond to evidence to impartial decision-makers.


Another area where there is a big difference between the public and private sectors is how the entity must deal with its employees, especially when imposing discipline.  Cases have held that permanent employees in a government employment system have a “property right” in their continued employment once they have passed their probationary period.  What that means, in a Constitutional sense, is that before they can be disciplined they have a right to procedural due process (again, an opportunity to present evidence, know what the charges against them are, and have it heard by an impartial decision-maker).  This type of requirement doesn’t apply to private sector employees, but applies to government employees based upon the 5th and 14th Amendments to the Constitution and the requirement that a person cannot be deprived of life, liberty or property without due process of law.

One of the things I told the students in the class, most of whom will be attorneys in private practice after they pass the bar, and not working as public sector lawyers, is that they need to be aware of these distinctions when representing private clients in their dealings with public agencies.  Often, a different set of principles and concepts will come into play than what would otherwise apply to a non-governmental entity.


Although I don’t necessarily agree, in the words of one of my law partners; for every simple private sector process, there is a far more complex, irrational but important public sector process.


– Posted by David H. Hirsch;



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SLO Attorney, SLO Lawyer, San Luis Obispo, Municipal Law

We’ve all seen real estate advertisements containing seemingly enticing statements such as “Property is under Williamson Act contract for low-low taxes!!” Unless you enjoy paying your hard-earned money to the government, the promises of low taxes sound encouraging. But what does having a Williamson Act contract on a property really mean?

Williamson Act contracts are a creature of the California Land Conservation Act of 1965 (Gov. Code §§ 51200 et seq.).  The Williamson Act was enacted to preserve agricultural lands and prime agricultural soils from “more profitable” commercial and residential development. Under the Williamson Act,  a property owner voluntarily enters into a land conservation (Williamson Act) contract with the County (the contract is generally approved so long as all land conservation conditions are met, such as meeting the minimum lot size which is dependant on soil quality). Once the County approves the contract, the contract is recorded in the official records. The Williamson Act contract then runs with the property and binds all future owners to its terms and conditions. Primarily, the contract restricts the subject property to agricultural-related uses only. As a result of these restrictions, property taxes are reduced. Williamson Act contracts are for a term of ten years and are self-renewing – after the tenth year the contract automatically renews for another ten year term unless the property owner terminates by filing either a notice of non-renewal or cancellation request with the County. The County may also file a notice of non-renewal for properties found in violation of their Williamson Act contract.

The County of San Luis Obispo has adopted detailed standards and guidelines that, among other things, set forth the “compatible” uses for properties under Williamson Act contracts. These standards and guidelines are now in the process of being revised. However, in general, the compatible uses are all agricultural-related with a preference for “food and fiber” production and the preservation of prime soils. Some examples of the compatible uses are crop production, grazing, ag-processing, and animal raising and keeping. Single family residences, farm worker housing, and ag-accessory structures are also allowed but are subject to certain restrictions and provisions that can be found in both the County’s Williamson Act Guidelines and in its land use ordinance. Uses such as commercial horse breeding and training have also been found to be compatible, though recreational and personal horse operations have not; in order for recreational horse operations to qualify, the property must have some other underlying agricultural use. It is absolutely critical to know exactly what uses are and are not allowed along with your intended use of the property before a Williamson Act property is purchased as these restrictions do not go away!!

The primary benefit of Williamson Act properties is usually their “low- taxes.” At times the tax benefit is marginal at best as the contract’s burdens outweigh its benefits. Although the potential benefits of having a property under a Williamson Act contract may sound appealing to a prospective purchaser at first, the restriction becomes an almost impossible hurdle to overcome if the owner later chooses to transfer a portion of the property that is less than the Williamson Act contract allows. Instead, in order to transfer the property, a property owner will need to either cancel the Williamson Act contract (10 year process) or transfer enough property to meet the minimum parcel requirements for all contracted land (which is sometimes impossible). Additionally, depending on a property’s location and zoning, its Williamson Act taxes may be almost identical to its unrestricted taxes. Before any Williamson Act property is purchased consult the County assessor to determine what the actual tax benefits are for the particular property.

Williamson Act contacts may add significant value to a property but due diligence must be exercised to ascertain exactly what that value truly is and how a Williamson Act contract affects a particular property. While Williamson Act contracts are somewhat standard each property is unique. Sometimes a Williamson Act contract can make an otherwise unaffordable property affordable and sometimes the contract does nothing but frustrate a property owner’s rights. Effort to determine such value and burden will certainly be rewarded in the end. We encourage all Williamson Act property owners and prospective purchasers of Williamson Act properties to talk to a lawyer about how their Williamson Act contract affects their property.

Please stay tuned for a discussion on recent State policy regarding commercial horse boarding and breeding operations and recreational operations, and how these operations fit into the Williamson Act. 

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Control vs. Compassion: California Cities Struggle With Conflicting Medical Marijuana Laws

As a result of recent developments and pending cases affecting this very issue, the ability of cities and counties to prohibit medical marijuana dispensaries will be the new focus in the controversy over medical marijuana, with a case involving the City of Anaheim’s ban on medical marijuana dispensaries, set for oral argument in a State Court of Appeals in August.  For now, the issue of whether Proposition 215, otherwise known as the Compassionate Use Act, is preempted by Federal law, as well as enforcement by the DEA has moved to the back burner.

In May, 2009 the U.S. Supreme Court declined to review a case involving the County of San Diego (Count of San Diego v. San Diego NORML).  The San Diegocase involved the requirement in statutes implementing Proposition 215 that counties in Californiaissue identification cards to qualified medical marijuana users.  The Counties of San Diego and San Bernardinochallenged the law on the basis that the Federal Controlled Substances Act preempted the State laws.  In July, 2008 the Fourth District Court of Appeals, in a narrow ruling focusing on just the ID card requirement, and not the broader issue of the validity of Proposition 215, and ruled that the State law pertaining to the ID card requirements was not preempted.  Subsequently, the California Supreme Court declined to review the case, and on May 18, 2009 the U.S. Supreme Court also denied Certiorari (US Supreme Court review) in the case.

The main issue for local agencies has been determining how it should regulate medical marijuana "dispensaries.”.  Many local agencies find that they are caught in the middle between Proposition 215, which exempts qualified medical marijuana users from criminal sanctions under State law, and the Federal Controlled Substances Act, which prohibits any use of marijuana whatsoever, medical or otherwise.  Dispensaries are often run as storefront operations, and local  law enforcement agencies often believe that the dispensaries are skirting the law, claiming to be “caregivers” to satisfy the requirements of Proposition 215 and it’s implementing statutes.   This last summer, the Attorney General’s Office weighed in, issuing guidelines in August, 2008. Unfortunately, the guidelines appear to make most storefront dispensaries inconsistent with State law.  Nonetheless, a great many dispensaries are in operation (for example, a recent article in the L.A. Times indicates that more than six hundred operate in that city alone!).


In any case, many cities throughout the State have struggled with how to deal with requests to open medical marijuana dispensaries.  Some agencies have taken a regulatory approach, permitting them, subject to compliance with various local permitting, zoning and performance standard type regulations.  Others have chosen to wait for clarification of the laws relating to medical marijuana, and have adopted moratoriums on the establishment of such dispensaries.  For example, in May, 2009, after receiving a request to open a dispensary the City of Guadelupe adopted such a moratorium.


In San Luis Obispo County there has been the well publicized federal prosecution of a Morro Bay dispensary operator. Recently, however, the Obama administration has indicated it will no longer conduct raids targeting such facilities.   Many other cities in the County have adopted bans on dispensaries, including Arroyo Grande, Pismo Beach, Grover Beach, and Paso Robles.    The City of Anaheim’s ban was challenged by a group called the Qualified Patients Association in 2007 and a trial court ruled in the City’s favor in February, 2008.  That case is currently pending in the 4th District Court of Appeals, with oral argument in the case scheduled for August 19, 2009.  This decision may significantly impact the manner in which our local agencies address the medical marijuana issue. So, stay tuned, as the drama over medical marijuana and the dilemma faced by cities and counties continues to unfold…

– Posted by David H. Hirsch, Attorney at Law

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Tim Carmel Elected As Cambria District Legal Counsel

By Kathe Tanner. "SLO County Roundup" in The Tribune. February 22, 2009.

Directors of the Cambria Community Services District unanimously selected Tim Carmel of the Carmel & Naccasha firm in San Luis Obispo as district legal counsel at their meeting Thursday.

Currently Arroyo Grande’s city attorney, Carmel served as attorney for the San Simeon Community Services District for more than a decade.

According to his firm’s Web site,, he also serves as district counsel for San Miguel Community Services District and Cayucos Sanitary District, and general counsel for San Miguelito Mutual Water Company, Morro Rock Mutual Water Company and Paso Robles Beach Water Association.

Click Here to read the full article in The Tribune.

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