By Carlos Avalos
In a multitude of municipalities throughout Southern California controversy has attended code enforcement efforts. Some see the aesthetic and safety standards taken to be at the core of these codes as ones that enhance the quality and tenor of collective existence, and that has given the enforcers substantial license. But those codes are not always uniformly and evenly applied, and on occasion become a cudgel onerously wielded by officious bullies acting under the color of authority but outside the spirit of the common good.
Of late, those armed with code enforcement authority In Fontana seem intent on challenging their counterparts in Rancho Cucamonga, Upland and Hesperia – wherein the overstepping of that authority is legendary – to lay claim to being the San Bernardino County city bringing the most onerous vexation upon city residents.
Fontana Municipal Code sections 18-1 through 18-27 relate to the authority Fontana has given itself to dictate to the city’s residents that they come into compliance with what is assumed to be a shared aesthetic sensibility. The municipal code tells a person what he/she can and cannot do. Substantive law is the part of the law that creates, defines, and regulates rights. Procedural law is that body of law that delineates formal steps to be taken in enforcing legal rights.
Section 18-1 of the Fontana Municipal Code provides a list of nuanced regulations, from rat droppings to brown bushes. As one moves through 18-2, 18-3, 18-4, one sees that the rules and regulations are progressive and procedural in nature in that they specify the remedies for code violations and deadlines for effectuating them.
Section 18-3 relates to “involuntary” abatement which is the very first step in Fontana’s abatement process. For example, a Fontana code enforcement officer might come to a person house and notice garbage piled where it shouldn’t be, or weeds that are not cut. The officer will then post a letter on the person’s house to take a certain action, i.e., redress or abate the perceived problem, which in some fashion falls under the rubric of the municipal code. On this letter that a code enforcement officer leaves, a time frame in which the person or address cited has to fix the issue at hand is specified. If the person owning or residing at the address where citation is made does not fix or abate the alleged problem by the specified deadline, a so-called final notice from the code enforcement division will be issued to that address.
Fontana’s municipal code does not specify a time limit with regard to such final notices; the notice does alert the homeowner, property owner, resident, renter or lessee that the situation is going to start costing him or her money. This is basically standard procedure and fits the mold of many municipalities and their code enforcement processes. If at that step in the process the person cited does not voluntarily abate, he or she is invited to what is called a public nuisance hearing. Upon showing up at the public nuisance hearing, the individual is given an opportunity to state a case in defense. This includes presenting evidence, make a case that there is no nuisance or problem to abate, or that the called-for remedy is not based in law. Virtually never is such a defense accepted. If such a claim by the person cited is made, he or she is invited through a letter into the city manager’s office or the office of the city manager’s designee to deal with the issue. The Fontana Municipal Code gives specific instruction on the form of the letter and that it must be both posted on the garage of a residence cited and it must be certified mailed. Fontana municipal code 18-6-7-8-9 and 18-10 all center around that process. This service of notice requirement is intended to ensure there is no confusion on the part of the responsible property owner, renter or lessee with regard to the issues cited.
At this point, there has been no official determination that a public nuisance exists. It is at the public nuisance hearing in the city manager’s office, also referred to as an administrative hearing, where the forum for such a determination is provided. That hearing is considered by the city to be the cited person’s “day in court.” If the city manager upholds the code enforcement officer’s assertion that a violation has occurred, an order is issued. The order is served upon the landowner or responsible resident, renter or lessee. The person issued the order is given a short period – generally around ten days – within which to voluntarily comply with abating the nuisance or problem.
Clark Cavanaugh and his wife, Fontana residents both, were fined $20,000 dollars for having excessive leaves on their property, running a business out of their house, having two boxes by their water heater, debris on the side of their home, and a few other code violations. The Cavanaughs were cited with eight violations in total. In seeking to exhaust their rights under the protocol available to them, the Cavanaughs examined their due process remedies and wrote a letter to appeal the citation to the city office where such appeals are heard. In theory, they should have been afforded a hearing. Nine days later, the Cavanaughs received a letter stating that the way they submitted their appeal letter was not up to city standards. The city’s reasoning was that Clark and his wife put all of the information of the appeal on one page. The City of Fontana wanted each appeal on the individual matters cited submitted individually. The Cavanaughs went to City Hall and in dealing with the city clerk’s office directly marshaled each citation and filled out a complete appeal form for each. Clark insisted upon the city clerk stamping his copy to prove that he filed it. Thenceforward, the Cavanaughs did not hear from the City of Fontana. The city did not then nor ever set up an appeal hearing or process any of the appeals on any of the citations, which at that point called for the imposition of some $4,000 worth of fines. The Cavanaughs were not afforded the right to appeal, which is in direct violation of their civil rights, as well as the municipal code under which the city was proceeding against them.
The Sentinel has learned of roughly forty audio-recorded accounts of Fontana residents that are similar to the Cavanaughs’ story. Mr. Cavanaugh said that he is beyond concerned and is appalled and worried over the issue. He said his experience is minor compared to what has occurred to others, including those that have been documented in the audio-recordings. The Sentinel is in the process of getting access to digital remakes of those recordings.
There is a provision in FMC 18-25 that allows the city to take a criminal action concurrent to the code enforcement issue. But the criminal action concurrent has to be justified by some type of emergency to make an end run around the due process of law sections. These sections are important because they create due process for an individual. The point is if someone’s due process is not afforded to them, there better be a critical reason why, such as to save or preserve human life.
This is completely understandable. A city should be allowed to make emergency criminal actions toward someone if justified, and there is a provision for that in the municipal code. What the Sentinel has found that was odd was that in all the cases the Sentinel came across during a three-year time period, all criminal actions brought were done prior to and without the exhaustion of all of the due process steps in the municipal code.
This has raised the question as to why the city is defaulting to criminal cases in every instance of a code enforcement violation. It is not certain whether this approach originated with the City of Fontana, its police department, or the law firm representing the city. One theory as to why the city’s attorneys are bringing these criminal actions is that the city is entitled to abatement awards under 37/7/83.5 of the California Government Code. Such monetary awards go to the prevailing party. The motivation appears transparent: Charge someone with a criminal action for a code enforcement violation and receive the money.
It can be safely assumed that Fontana’s goal in telling a person that he or she faces a fine or assessment of a certain amount is to serve him or her with a tacit warning that any further contact with the city’s code enforcement division or its self-appointed hearing officers is going to result in the individual being assessed or fined even more money. The citizen is then given the option to settle or to keep the trial and charade going. The Sentinel researched and found that 22 out of 24 people agreed to settle. The Cavanaughs and one other person did not. Both elected to take the matter to a criminal trial.
Fontana appears to be at a crossroads, one where the cities of Upland, Hesperia and Rancho Cucamonga arrived at previously.
In Rancho Cucamonga, beginning in 2003, that city began a code enforcement crusade against Guillermo Reyes, a city resident who used his side and front yard as a staging area for recyclables – cans and bottles – he collected and cashed in to augment his income. Reyes took the citation he had received to heart and began to empty and remove the bins. He did not act quickly enough, according to the city, which began legal action, in time appointing a receiver, giving him license to proceed toward abating the nuisance on Reyes’ property. Unrestrained, the receiver borrowed about $120,000 against the property to effectuate the clean up and pay himself. The original loan application called for an annual percentage rate of 11.21%, and imposed monthly payments of $775 on Reyes, who at that point was a retired senior citizen with no source of income other than his recycling efforts. The $775 monthly payments were to continue for 120 months, whereupon a balloon payment of $93,775 would be due, payable on May 1, 2016. Reyes never signed any of the documents relating to the borrowing against his home, which he once owned free and clear. With no income stream, he was unable to pay the loan, he was declared to be in default and he was evicted. From that point on, Guillermo Reyes became a denizen of the streets, pushing a shopping cart about Rancho Cucamonga, homeless and nearly blind. On a bitter cold day in January 2011, Guillermo Reyes expired, having collapsed on the sidewalk from exposure to the elements.
In Hesperia, that city undertook a code enforcement action against Esther Duran and her daughter, Janet, charging them with having too many animals on their property where they ran a temporary rescue shelter for horses that would otherwise have been sent to slaughterhouses for euthanization or processing for the dog food or glue manufacturing industries. The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage. Based upon the violations the city said the Durans were engaged in, they were slapped with fines totaling $129,000, which resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired Upland-based attorney, Louis Fazzi, who removed the matter to U.S. District Court, where he alleged the city was engaging in an unconstitutional abridgment of the Durans’ rights. In April 2012, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper. At that point the hunters became the hunted and the Durans appeared to be on the brink of prevailing in a landmark case that would potentially establish that the administrative citation process that not only Hesperia but most cities engage in is unconstitutional and actionable. While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents.
In Upland, the City in 2014 began criminal proceedings against Fernand Bogman, a city resident who had ceased watering lawn as the three-year running drought gripped all of California. The city and its enforcement attorney, Dan Perlman, sought to force the issue to prove that the city’s code enforcement power is absolute. Despite the city’s threat to have him jailed, Perlman and his attorney, Mark Grossman, stood their ground, with Bogman asserting that it was immoral to profligately use water during times of such an acute shortage. At that point Perlman became a cause célèbre, with local press coverage sparking Los Angeles television and radio stations to report on the city’s attempt to bully him, followed by television reports of the matter throughout the state and then national coverage. Shortly thereafter, California Governor Jerry Brown mandated water conservation measures statewide that mirrored the action Bogman had taken on his own. In the span of six short weeks, Upland had gone from threatening to jail any of its residents who did not water their lawns to threatening to jail one who did water the lawns. The city and its officials became laughingstock.
Meanwhile, back in Fontana, audio recordings of every code enforcement hearing were requisitioned through the Public Information Request Act. Mr. Cavanaugh was given the recordings. Cavanaugh explained to the Sentinel that in fact he was given all the information necessary to hang the city in court because the city did not know exactly why he was requesting the information. Cavanaugh believes that had Fontana city officials known why he was requesting this information, they would not have given it to him. He also told the Sentinel that once those officials realized the degree to which he had advanced in being able to demonstrate how unconstitutional the city’s code enforcement procedure is, they locked up and stopped giving him information.
Cavanaugh believes he has stumbled onto serious illegal activity on the part of the City of Fontana, the police department, and its code enforcement department. Mr. Cavanaugh believes that more information needs to be dug up, but that the city is now vulnerable to a civil suit brought against it under the Racketeer Influenced and Corrupt Organizations Act. The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes which they ordered others to do or assisted them in doing, closing a perceived loophole that allowed a person or persons who instructed someone else to carry out a criminal act to be exempt from the trial because he, she or they did not actually commit the crime personally.
Mr. Cavanaugh stated that Fontana is trying to settle this case before it gets to the public, because there is major corruption and violation of peoples civil rights going on now and previously in Fontana.
By Carlos Avalos