Public BLAWG's blog

Cities' Closure of Medical Marijuana Dispensaries Is Not Discrimination Under Americans with Disabilities Act

Public BLAWG — Tue, 29 May 2012 15:20:59 +0000

May 29, 2012, by Krysten Hicks, Ruthann G. Ziegler

The Ninth Circuit Court of Appeals recently issued an opinion declaring that the federal Americans with Disabilities Act ("ADA") does not protect medical marijuana users claiming discrimination based on their use of marijuana. In James v. City of Costa Mesa, the Court held that doctor-recommended marijuana use, authorized by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA. (No. 10-55769, May 21, 2012.) This ruling highlights the continued conflict between state and federal law over the use of marijuana for medical purposes, and recognizes that marijuana has no legitimate use under federal law.

Plaintiffs sought to prevent the efforts by the cities of Costa Mesa and Lake Forest ("Cities") to close medical marijuana collectives; plaintiffs' theory was that the Cities’ actions of closing the collectives interfered with plaintiffs’ access to medical marijuana. Plaintiffs further alleged that the closure of the collectives amounted to discrimination in the provision of public services, thus violating the ADA.

The Supreme Court Grants Review of the Controversial CEQA Decision Berkeley Hillside Preservation v. City of Berkeley

Public BLAWG — Wed, 23 May 2012 22:25:44 +0000

May 23, 2012, by Frank R. Petrilli

The Supreme Court has voted unanimously to grant review of the First District Court of Appeal's controversial decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The case involved the application of an exception to the use of categorical exemptions under CEQA for projects that could result in significant environmental impacts due to "unusual circumstances." The First District held that because a "fair argument" could be made that a residential project in the Berkeley hills could create significant environmental impacts based on evidence submitted by the project's opponents, the City of Berkeley could not rely upon a categorical exemption under CEQA regardless of whether those impacts were in fact due to "unusual circumstances." This holding cast substantial doubt on the ability of agencies to continue to rely upon categorical exemptions any time a project opponent submits evidence of potentially significant impacts. The First District also ignored well-settled precedent which requires both a finding that there is a reasonable possibility of significant environmental impacts and that the impacts would be due to unusual circumstances associated with the project. Now that the Supreme Court has granted review, the decision has been superseded which should come as welcome news for both public agencies and private developers alike.

Amrit Kulkarni and Julia Bond of Meyers Nave represent the Real Party in Interest in this case and were responsible for drafting the successful petition for review.

EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment Decisions

Public BLAWG — Fri, 11 May 2012 17:29:16 +0000

May 11, 2012, by Michael C. Hughes, Hannibal Paul Odisho

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII). The Enforcement Guidance clarifies and updates the EEOC's longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns.

Use of Tolling Agreements Upheld in CEQA Cases

Public BLAWG — Wed, 25 Apr 2012 21:40:22 +0000

April 25, 2012, by Peter S. Hayes, Frank R. Petrilli

The California Environmental Quality Act ("CEQA") imposes very short time limits – some as short as 30 days – to commence litigation to challenge environmental review. Parties in CEQA disputes frequently rely upon tolling agreements to put costly litigation "on hold" while they pursue settlement. Until now, no court had ever ruled on whether such tolling agreements are permissible under CEQA. In Salmon Protection and Watershed Network v. County of Marin (2012) __ Cal.App.4th __ (April 20, 2012), the First District Court of Appeal decided that question in the affirmative.

In Salmon Protection, a non-profit environmental group (whose acronym, "SPAWN," is a colorful addition to the roster of cleverly named CEQA plaintiffs) filed a petition for writ of mandate challenging an EIR prepared by the County of Marin for a general plan update that the County had certified in 2007. The suit was filed in 2010, long after expiration of the normally applicable statute of limitations, due to a series of tolling agreements entered into by the parties while settlement negotiations were ongoing. Concerned about the risk of a possible injunction, a local group of property owners filed a complaint in intervention and requested that the court dismiss the lawsuit as untimely based on the (novel) argument that CEQA's statute of limitations are mandatory and jurisdictional, and that the tolling agreements were therefore illegal and without effect. Alternatively, the property owners argued that Government Code section 65009, which imposes similarly short statute of limitations periods for challenges under the State Planning and Zoning Law, precluded the parties from agreeing to toll the limitations periods. The Court of Appeal disagreed. Finding that tolling agreements further important public policies and are not contrary to CEQA, the Court concluded that the tolling agreements at issue were valid and effective. Click here to read the full opinion.

The decision should come as a relief to public agencies and others throughout the State. Although few doubted the ultimate outcome, the case was sufficiently contentious to warrant amici briefs from the California League of Cities, the Sierra Club, the California Building Industry Association, and others.

State Law Forbids Employers From Requesting Social Media Passwords From Job Applicants

Public BLAWG — Mon, 23 Apr 2012 23:01:29 +0000

April 23, 2012, by Meyers Nave

This month, Maryland became the first state to pass a law that prohibits an employer from requesting or requiring job applicants to hand over username and passwords for social media websites, such as Facebook and Twitter.

Maryland passed Senate Bill 433 and House Bill 964, which forbid employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information. However, the law also protects employers by prohibiting employees from downloading employer proprietary information to personal accounts and allowing employers to require that employees provide password and login information for company email accounts.

The law takes effect October 1, 2012, and may be found here.

Watch Out Red Light Violators!

Public BLAWG — Fri, 06 Apr 2012 21:08:47 +0000

April 6, 2012, by Lala Kahramanian

On November 21, 2008, a citation was issued charging defendant Steven Gray with violating Vehicle Code section 21453, subdivision (a) for failing to stop for a red signal at the intersection of Washington Boulevard and Helms Avenue in Culver City. An Automatic Traffic Enforcement System (ATES) recorded the violation. Gray was arraigned and pleaded not guilty. The defense made a pre-trial motion to dismiss based on Culver City’s alleged failure to provide the 30-day warning notice period and public announcement requirements of Vehicle Code section 21455.5, subdivision (b) before ATES equipment was installed at Washington Boulevard and Helms Avenue. Culver City stipulated that “Culver City has only conducted such warning notices and public announcements prior to the commencement of the entire program in Culver City in 1998, and that no such notices or announcements were done specifically for the intersection (at the intersection of Washington Boulevard and Helm[s] Avenue, Culver City) at which defendant was photographed allegedly running a red light.” The trial court denied Gray’s motion to dismiss. At conclusion of the trial, the court found that the ATES-produced evidence was admissible, found Gray guilty of the charge, and ordered Gray to pay a fine. Gray appealed the decision.

Denial of Mobile Home Park’s Application for Rent Increase is Upheld Because Rent Control Ordinance Properly Balanced the Rights of the Park Owner and the Tenants

Public BLAWG — Wed, 28 Mar 2012 17:33:31 +0000

March 28, 2012, by Lala Kahramanian

Appellant Besaro Mobile Home Park, LLC (“Besaro”) operated a mobile home park in the City of Fremont (“the City”). In 1987, the City adopted a rent control ordinance to address the unique attributes of mobile home ownership and park management. In 2009, Besaro filed an application for a major rent increase under the ordinance. Although Besaro admitted that it was currently receiving a fair rate of return on its investment, it argued that the rents should be consistent with general market conditions. The application was denied following an administrative hearing and the superior court denied Besaro’s petition for writ of administrative mandate. In the appeal, Besaro argued that the denial of the major rent increase was contrary to the ordinance and violated its rights under the California Constitution.

Acceptance of Final Demand In Condemnation Did Not Give Rise To Litigation Expenses

Public BLAWG — Tue, 13 Mar 2012 20:14:03 +0000

March 13, 2012, by Claudia J. Gorham

Some states require the government to pay for all of the costs incurred by a property owner when it condemns land, however, California Eminent Domain Law only requires a public agency to pay for attorney's fees and litigation expenses when a court finds "that the offer of the plaintiff [public entity] was unreasonable and that the demand of the defendant [the property owner] was reasonable viewed in the light of the evidence admitted [at trial] and the compensation awarded [judgment]. . . ." (Cal. Code of Civil Procedure section 1250.410.) In a recent case, Cal. Dept. of Transportation v. Menigoz, the State accepted the property owners' statutory "final demand" several days before the scheduled trial date, resulting in a stipulated judgment. Upon the judgment being entered, the property owners' moved for their litigation expenses (attorneys' fees, experts' fees, trial preparation costs, etc.). The court granted the motion, in part, because the parties had spent considerable expense in preparing for trial.

Amount of Money Public Agency Willing to Pay For Real Property Is Permitted In Closed-Session

Public BLAWG — Wed, 22 Feb 2012 00:16:52 +0000

February 21, 2012, by Claudia J. Gorham

California's Attorney General, Kamala D. Harris, has issued an opinion which confirms that the real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act permits discussion in closed session of: (1) the amount of consideration that the local agency is willing to pay or accepting exchange for the real property rights to be acquired or transferred in the particular transaction [the negotiator's authority regarding the price]; (2) the form, manner, and timing of how that consideration will be paid; and (3) items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential [the negotiator's authority regarding the terms of payment].

Cite: 2011DJDAR 18488, Filed December 27, 2011

Names of Officers Involved in Officer-Involved Shooting Must be Disclosed Absent Showing of Interests Served by Nondisclosure

Public BLAWG — Sat, 11 Feb 2012 00:25:24 +0000

February 10, 2012, by Lala Kahramanian

On February 7, 2012, the California Court of Appeal for the Second Appellate District upheld a trial court’s decision that release of officers’ names involved in an officer-involved shooting did not amount to an unwarranted invasion of privacy. Los Angeles Times Communications, LLC ("the Times") submitted a request to the City of Long Beach under the California Public Records Act (CPRA) seeking the names of police officers involved in a 2010 officer-involved shooting in Long Beach, and the names of all officers involved in shootings in Long Beach for the preceding five years. The Long Beach Police Officers Association (LBPOA) brought an action against the City of Long Beach, the Long Beach Police Department and the Chief of Police seeking to enjoin disclosure of the names. In support of its request, LBPOA averred that a shooting review which takes place after an officer-involved shooting can lead to findings resulting in an internal affairs investigation. LBPOA also expressed safety concerns about releasing the names of shooting officers. The Times moved to intervene and filed an opposition.