By Mark Gutglueck
(December 15) The city of Upland on December 12 was rebuffed by San Bernardino Superior Court Judge Gerard Brown in its effort to criminalize an individual over a code enforcement matter. In this instance the individual cited and prosecuted was a lawyer with extensive holdings and resources within the city. The grounds for the prosecution have been brought into doubt, and with the city’s gambit to prosecute the matter as a criminal violation having failed, there now exists the possibility the city will face a potentially costly countersuit over the matter.
Because the lawyer is also the publisher of a local magazine and had been active in supporting candidates for city office during the last two election cycles, there are indicators of a political motivation behind the prosecution and the appearance that the city may have violated the lawyer’s First Amendment Rights, as well.
Marc Grossman is an Upland native who set up his law practice in Upland in 1998. His firm handles personal injury cases, family law, bankruptcies, general civil cases and criminal defense, practicing in both the state and federal courts. He has personally handled a number of noteworthy cases, the most recent and celebrated of which was his defense of Joseph Hall, the ten-year-old who shot and killed his father, Neo-Nazi Jeffrey Hall, in 2011. Marc Grossman is the son of David Grossman, another prominent Upland-based attorney of long standing.
Marc Grossman’s law office functions out of two locations in Upland, an 8,000 square foot main office at 100 North Euclid Avenue, formerly the Upland Bank/Pacific Western building, roughly a quarter of a mile from the Upland Civic Center, and an 11,000 square foot building at 525 North Central Avenue, at the corner of Central and Arrow Route. His firm employs 20 people, eight of whom are attorneys. Six of the attorneys work at the Euclid Avenue office and two work out of the Central and Arrow Route building. Three years ago, Grossman set up a precious metals trading business as a limited liability company with Romie Singh as its operator, locating it within a portion of the ground floor of the 525 North Central address. He and Singh applied for, paid for and received a business license from the city and set up shop. This year, in compliance with the city code, they paid to renew their business license for that operation which was known as AAA Gold & Check Cashing.
Roughly three months later, Grossman and Singh were contacted by the city and informed that the precious metals trading business was not permitted at that location under the city’s current zoning codes. He was faced with the option of shutting the business down, applying for a variance or in some fashion altering the business so that it conformed with the city’s code. After contemplating and examining their options, Grossman and Singh elected to operate the business as a second hand store, which was permitted under the city’s antiquated business and zoning code and would allow them to legally engage in the purchasing and sale of precious metals.
In May, facing the reality that the trade in gold and other precious metals was not as active or lucrative as they had hoped, Grossman and Romie Singh ended entirely that aspect of the business. Shortly thereafter, the city’s code enforcement division, accompanied by Upland police detective Jim Tseng inspected the downstairs operation at 525 North Central Avenue. On August 6, the city’s code enforcement division cited Grossman, as the proprietor of the second hand/pawn business, with three violations. Two of those citations were for business and professions code violations, including not having a second hand dealers license on display, which are subject to the jurisdiction of and prosecution by the county district attorney. The third misdemeanor citation was issued for not having an Upland business permit.
Grossman checked with Singh, who informed Grossman that though they had in fact paid for a renewal of the business license at that location and had a receipt from the city for the license, the city had as yet neglected to send the license to them.
Grossman checked with the city again, only to be informed that the third party company contracted to process business license applications and renewals had been instructed by detective Tseng to withhold it. Grossman informed the city that he and Romie considered the business license to be valid. Within the next few days, the city provided Grossman and Singh with the business license.
The district attorney’s office declined to file charges against Grossman. Nevertheless, the city proceeded with a prosecution of the charge that Grossman lacked a business license.
Muddling the issue was the city’s charge, which Grossman contested, that he shifted the location of the various business operations in the ground floor at the 525 Central Avenue location. The city asserted that any movement of operations within the building constituted a business relocation, requiring a license reapplication and set of inspections. In reality, Grossman maintained, any separation between different operations in his building are artificial and impermanent ones or are otherwise a fiction of certain city officials’ imaginations.
Perhaps the most disturbing element of the case the city brought against Grossman is the consideration that the action against him was accompanied by signals from City Hall that his involvement in city politics is frowned upon, at least by some city officials.
That political involvement, such as it is, consisted of his support, during the 2012 election, of Gino Filippi in the mayoral race, and during this year’s election, Filippi and Debbie Stone in their reelection bids and former city manager Stephen Dunn in his maiden political run. In addition to some monetary support, allowing his name to be used in endorsements and the use of his property for the posting of signs, Grossman provided Dunn with the opportunity to enunciate his proposals in the September edition of the monthly publication he owns, 909 Magazine.
Grossman was born and raised in Upland. He attended and graduated from Upland High School. He believes his status as a lifelong and committed resident of the city qualifies him, and the U.S. Constitution empowers him, to speak his mind with regard to his perception of who is best qualified to serve on the city council.
Despite his function as a contentious litigant or committed advocate for his clients in and out of a court room setting, Grossman insists that he has shunned personal attacks in his political involvement, seeking to participate by voicing his perspective in the collective marketplace of ideas.
He stated repeatedly that he has consistently eschewed being confrontational in his interaction with city officials and officialdom in general, basically because he is seeking to achieve financial success in his endeavors and does not perceive it to be in his own interest to provoke the ire of those with regulatory authority. He expressed bafflement at the motivation of the city in prosecuting him.
He takes it as a personal offense that he has been threatened for becoming politically active.
In discussing with the Sentinel his reaction to the city’s enforcement action against him, Grossman displayed a range of philosophical, intellectual, legal and emotive intensity, saying he wanted most “for this [the prosecution] to just go away” while insisting that he instinctively did not want to simply back down against a powerful adversary that was abusing its authority.
“My first reaction was, ‘They can’t be serious.’ But they were. I’m not at all sure of what it was that drove this. Don’t think that I didn’t try to just settle this, and not on my terms but theirs. I asked, ‘What is it you want me to do? Tell me and I’ll do it.’ But I got no clear answer back,” Grossman said. “They didn’t want to settle.”
Grossman called the citations “very upsetting. Though there were not charges filed in connection with the craziness about me moving suites, the city of Upland is proceeding with a misdemeanor prosecution of me because the corporation I own which operates the closed gold store did not have a city business license when I had the store opened for them to inspect. Romie, who runs the stores, had paid for the renewal many months earlier at the time it was due and the city cashed my check in February, though never sent me the license that I had paid for. After I got my citation, we discovered that Upland contracted out to a third party the mailing of the licenses and that the third party handler had been told by Detective Tseng to hold on to it, presumably while he was waiting for us to pick up our second hand dealers licenses, which we did. We never received it. We were entitled to it. We paid for it, and never received any notification from anyone about there being an issue. I did receive it almost instantly when I complained to the chief of police that I had not received it. I complained because to my complete astonishment I had just been given three misdemeanor citations for utter nonsense.”
With regard to the city splitting hairs over the precise location of business entities functioning out of his office, Grossman said, “There are not firm suite numbers and suite numbers are just made up by us out of convenience when we need it and to make sure mail is directed properly. When we do shuffle seats, we don’t change suite numbers so as to avoid the attorneys from having to do a notice of change of address. Thus, the notion that we misidentified our location by not updating a suite number is just nonsense since there is no suite number assigned to each unit except those we choose. On one hand they seem to suggest that we did something criminal by not having clearly marked suites but there is no indication that the citation was because of a change of address as opposed to not having the license present. If it were true that the citation was because I had moved, then why did they send me the license for the wrong address the day after the citation was issued? There was no change of suite numbers and there are no assigned suites for postal purposes. Short of providing a physical description of what part of the building I was in, what could the law have expected of me without any clarification? Certainly, a reading of the municipal code does not advise nor am I required to advise of the precise physical location beyond the street address. In this case, there was never a notice or request for me to get a new license and it is absurd that I would do this on my own for moving within my own building.”
Grossman pointed out that he had made a good faith effort all along to register his businesses and have them conform with the city’s zoning and other regulations and it was the city’s action – failing to deliver a business license he had paid for – that directly led to his criminal citation.
“Detective Tseng is the one who caused us not to get the license we were entitled to,” Grossman said. “We were never advised that Detective Tseng had told them not to send it to us and code enforcement only first became aware we did not have a license when they were let into the store and noticed it wasn’t hanging on the wall. The only notification that was ever given by anyone to anyone was our notification to the city that we hadn’t received the license we paid for. That notice we sent to the city came hours after the citation was issued and we were given our license immediately without taking any further action.”
Grossman said he deeply resents having been criminally charged. He suggested there was some individual abusing his or her authority at City Hall, out of incompetence, ignorance or corrupt motivation.
“Who is it that wanted to pick this fight with me?” he asked. “This was a mistake by Upland, not by me. It is entirely unheard of in the world of legitimate code enforcement to bring a criminal case for someone who is compliant. Is it my fault I did not complain about the city’s neglect earlier? I used to believe that there was no sinister desire to cause me harm. I have sent over a dozen emails to city officials to try to set things straight before Upland ended up making further mistakes that would cause me harm and cause me to have to defend myself. Though some have told me there is no such plot against me, it has become clear to me that I was being treated different by code enforcement than the other business owners who were second hand dealers.”
Rhetorically, Grossman asked, “Is this the way Upland still is?” His reference was to former mayor John Pomierski, who was indicted by the federal government and convicted of shaking down individuals with applications at City Hall.
”Being a lawyer in the community who knows how the system works and knows the nature of criminal code enforcement prosecutions, it is 100 percent clear that this decision is the product of corruption,” Grossman said.
One of the attorneys associated with his firm, Michael Vollandt, represented Grossman and filed a demurrer on his behalf. Judge Gerard Brown granted the demurrer, effectively dismissing the case against Grossman on December 12. Brown gave the city and its prosecutor, deputy city attorney Dan Peelman leave to amend the complaint within ten days. At press time, the city had not amended and refiled the complaint against Grossman.
Grossman said he did not believe the city will refile the case but said he recognizes that is possible. If the city does, Grossman predicted, one of two things will occur. Either the court will dismiss all of the charges against him on his attorney’s motion or the matter will go to trial and he will prevail, Grossman said. It is impossible, Grossman said, given the facts of the case that he will be convicted.
“I think it is worth noting that the complaint was dismissed by the judge,” he said. “The city has 10 days to try to amend it to state an actual complaint against me if they want to. I do not think it is possible for them to do so and even if they could tell some lie to state a complaint against me, we would prevail by demonstrating my factual innocence.’
Having prevailed in the criminal case against him, Grossman said a part of him just wants to accept that his ordeal is over so he can reestablish cordial relations with the officials in his home town, where he is trying to do business and prosper. He said he would rather not sue the city over what it just put him through and that he does not relish getting into a knockdown drag out fight with the city in which he is not the attorney but the plaintiff.
Nevertheless, Grossman said, he is contemplating his legal options. “I am unable to just turn the other cheek and let corruption bully me this way,” he said, indicating he will not be satisfied until “I have a defacto apology and acknowledgement from Upland that this is all based on their error.”
The only question, Grossman said, is “How much of my money am I going to spend and how much of the taxpayers’ money are they going to spend before that happens?”
Marsie Grady, the city of Upland’s lead code compliance officer, this week told the Sentinel she had no knowledge with regard to the case filed against Grossman or any of its specifics. The Sentinel, however, is in possession of two emails between Grady and Grossman with regard to the 525 North Central Avenue property.
Likewise, Upland Community Development Director Jeff Zwack, who oversees the city’s code enforcement function, spurned multiple invitations to discuss the Grossman prosecution.
City manager Rod Butler said he was unable to explain the rationale for escalating the citation of Grossman’s business to a criminal case. In general, Butler said, pursuing a criminal case against an individual or business deemed to be out of compliance with the city’s codes is an extraordinary occurrence in Upland, “It is never our first option to use criminal charges,” Butler said. Ratcheting a code enforcement case up to the level of a misdemeanor is justifiable, he said, “depending on the severity of he matter and how much effort we have to make to get compliance. If there is a lack of cooperation and the party is not responsive, then we might go to the option to pursue criminal charges. We try to gain compliance through normal means before we take it to the next level.”
When several email communications between Grossman and city staff demonstrating Grossman’s efforts to achieve compliance or that he had already obtained, reapplied for and paid for a business license during the relevant time frame were referenced, Butler said, “I don’t know very much about this case. I will have to decline to comment on the specifics.”
Butler acknowledged he knew that the district attorney’s office had declined to prosecute Grossman on two of the charges the city had cited him for and that Peelman had informed him that Judge Brown had dismissed the last remaining criminal count the city was using its own authority to prosecute. He said he and senior staff would be discussing their options with regard to amending the complaint “over the next week.”
As to Grossman’s view that he had been prosecuted out of some political or personal animus, Butler said, “I have had a couple of email exchanges with Mr. Grossman in regard to his comments about there being a political relationship to this case. I will be meeting with him and will give him a full hearing on that account. In the three months that I have been here [as city manager] I have not seen anything that would support his contention that there was any political retribution against him.”
By Mark Gutglueck