Privatized Prosecutions Are Coming To California

Across America there are harrowing tales of public agencies using private firms to enforce laws and ordinances. From the troubling IRS privatizing collections of past-due taxes, to the more sinister “alternatives to incarceration” industry, or the terrifying “ex-parte guardianship” scam, exploitative public/private partnerships abound. Often the potential for corruption and abuse is huge, as a supposedly impartial government service is farmed out to a private entity motivated by profit.

Abusive versions of privatization are yet another negative consequence of public sector unionization. When unionized government becomes too expensive for the taxpayers, less expensive private services come in to fill the void. These private services not only save taxpayers money (good), they become a profit center for the public agency (bad).

Now the privateers are spreading their public services into code enforcement.

An in-depth investigative report published on November 15th in the Desert Sun describes how two cities in Southern California are using a private law firm to prosecute property owners for code violations:

“Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes – like overgrown weeds, a junk-filled yard or selling popsicles without a business license – then billed them thousands of dollars to recoup expenses.”

The author describes the process:

“First, one of the city code enforcement officers will discover a property that is violating the municipal code in some way, often while investigating a complaint. The property owner is given at least one warning or citation, but likely more, and if the violation isn’t resolved, a city prosecutor files criminal charges at the Indio courthouse. The owners then go to court – often without a lawyer because they believe the stakes are low – and plead guilty to a few misdemeanors or infractions. Generally, the judge orders the owners to pay a fine or complete a short probation term, then the criminal case ends.

A few months later, the property owner receives a bill from Silver & Wright, citing the little-known city ordinances that were created after the law firm was hired. Property owners have 15 days to appeal or 45 days to write a cashier’s check to Silver & Wright and mail it to their offices in Irvine or Ontario.

If the bill isn’t paid in full, a lien may be levied against the property.

After three years, the tax collector can sell off the property to pay off the debt.”

Probably the worst aspect of this process is the inherent deceit. Apparently, when the property owners settle the matter in court, they have no idea that “a few months later” they are going to get a bill from a private law firm to pay for the cost of their prosecution. Not only are these payments monstrously out of proportion to the infractions, but if the surprised recipients contest these surprise billings, they are slapped with even higher bills. As reported:

“The family’s junky yard bill rose from $18,500 to $25,200, the parking sales bill rose from $3,200 to $5,100, the Halloween decoration bill rose from $2,700 to $4,200.”

Twenty five thousand dollars for having junk in your yard?!

To-date, reporters working for newspapers such as the Desert Sun have not been able to prove that the law firm shares the proceeds from their billings with the cities that hired them. “Attorney client privilege” is the argument that has prevented disclosure, even though this would otherwise be a routine public information act request to a public agency. But why wouldn’t they? Wade through Coachella’s code enforcement ordinances, focusing on “public nuisance abatement costs.”

This is the dark side of privatization. Private companies are hired by unionized government agencies that have an insatiable need for revenues to feed into their employee pension funds. Punitive fines and penalties are assessed by private companies motivated by profit, presumably with percentages of the proceeds shared with the public agency. Meanwhile, reform minded investigators have minimal capacity to expose the corruption because of “attorney client privilege.”

Watch out. This is just beginning. Merge an intrusive state with private company incentives for profit, mix in unprecedented and burgeoning technological means to monitor and control behavior, and you have tyranny.

Pasted below are the “nuisances” as defined by the City of Indio. Everything on the list is arguably a nuisance, but enforcement is often subjective. When does a code enforcement officer determine that a property is not “maintained” in a condition consistent with approved plans? When do they determine that terrain “interferes” with drainage, or a building is not occupied for an “unreasonable” amount of time? At what point does a building go from being adequately maintained to being “deteriorated” or in “disrepair,” or “damaged”? When does something become “unsightly,” when are yards “overgrown,” when does vegetation “substantially” encroach?

Perhaps when the code inspector knows that writing a violation will not bring collections of hundreds of dollars, but tens of thousands of dollars?

Indio, CA Code of Ordinances

CHAPTER 95A: NUISANCES

95A.104 DECLARATION OF A PUBLIC NUISANCE.

It is unlawful and is hereby declared to be a public nuisance for any person, business, homeowners’ association, corporation or entity owning, leasing, occupying, or having charge or possession of any land, parcel, building, structure or premises, in any location within the city, to maintain such premises in such a manner that any of the following conditions are found to exist, or cause or may cause a hazard to health, safety or general welfare:

(A) Any violation of a federal, state, or local law or ordinance, land use plan, rule, regulation, and/or any code adopted by reference in this code, or any nuisance known in equity.

(B) Any property not maintained or used in a condition consistent with the approved plans or conditions.

(C) Any land, terrain or configuration which interferes with the established drainage pattern over a property or from adjoining properties that may result in erosion and/or surface drainage problems that could be detrimental to the public health, safety, usability, or appearance to neighboring properties.

(D) Any building or structure left, not secured, not occupied, abandoned, partially or completely damaged or destroyed, or which is in a state of partial construction for an unreasonable period of time.

(E) Any building or structure erected, altered, expanded, maintained or used, contrary to the provisions of this code or any condition or requirement imposed upon the building or structure.

(F) Any building or structure not adequately maintained or which is deteriorated in any of the following ways:

(1) Peeling, discolored or patch painted with colors that do not match on the exterior of the structure;

(2) Missing, broken or boarded up windows;

(3) Roof or ceiling in disrepair;

(4) Damaged porch, balcony or stairways;

(5) Missing or damaged handrails or related safety equipment;

(6) Broken or missing window screens, if required;

(7) Broken or missing locks and latches on windows and doors;

(8) Facades, exterior stucco or decorative planters or any other portion of the exterior of a structure which is damaged or not adequately maintained.

(G) Bees and other stinging insects, either intentionally or not, in a place or condition that has, or may have the potential to bite, sting or harm humans or animals, unless otherwise permitted by the city.

(H) Any building or structure that is overcrowded with persons such that it unreasonably interferes with a neighboring resident’s right to access, use, or enjoyment of his or her property, or such that it impairs the general welfare of a neighboring resident, or provides inadequate sanitation for the number of occupants.

(I) Failure to secure and prevent public access to abandoned or vacant buildings, structures or portions thereof.

(J) Any fence, wall or gate in any of the following conditions:

(1) Installed without the proper permits;

(2) Installed or maintained contrary with the conditions set forth in the approved plans or permits;

(3) Damaged, broken, dilapidated, unsightly or not adequately maintained;

(4) Patch painted with colors that do not match;

(5) Patched or covered by plywood, metal, plastic, tarpaulin or other non approved materials;

(6) Constructed of metal or plywood garage doors;

(7) Broken or non-working emergency access gates or equipment.

(K) Landscaping, vegetation, trees, vacant land, and parkways or any portion thereof, in public view, in any of the following conditions:

(1) Lack of turf, planted material, decorative rock, bark, planted ground cover or coverings;

(2) Lawn or grass in excess of six inches in height or which is dead, decayed, diseased, or not adequately maintained, except that lawn or grass may not exceed 12 inches in height on parkways;

(3) Overgrown to a point which does, or has a potential to, harbor rats, vermin, excessive amounts of insects or other potential disease carriers;

(4) Obstructs vision of motorists or pedestrians or official traffic control devices;

(5) Encroaches onto, over, or upon any public right-of-way, including, but not limited to streets, alleys or sidewalks;

(6) Flowerbeds, planters, gardens and other decorative growing areas which contain overgrown, dead, decayed, diseased, or inadequately maintained flowers, bushes, hedges, ground coverings or vegetation;

(7) Flowerbeds, planters, gardens and other decorative growing areas which have become overrun with grass or weeds;

(8) Trees, bushes, hedges, and other vegetation which has become overgrown to a point where it substantially encroaches onto neighboring properties causing a substantial interference with the neighboring resident’s right to access, use or enjoyment of their property, or otherwise causes a hazard to health, safety or general welfare;

(9) Vacant land, fields or lots on which the vegetation is overgrown, or which contains or is likely to contain rats, vermin, trash, or illegal activity;

(10) Vacant land, fields or lots which is maintained in a condition which is a fire hazard, unsightly, or likely to invite mischievous or illegal activity;

(11) Trees which are dead, overgrown, not adequately maintained, or which have been declared hazardous or have been topped leaving only the tree trunk or tree stump, or have been declared to be hazardous by a certified arborist.

(L) Offensive or nauseating odor or smell created by garbage, recycling or garbage containers, dead animals or other odor causing substances or materials.

(M) Any of the following conditions on any property or portion thereof visible from public view:

(1) Lumber, trash, garbage, debris, refuse;

(2) Hazardous swimming pools, spas, ponds, bodies of water or excavations;

(3) Abandoned, broken or neglected equipment and machinery;

(4) Furniture, appliances, play equipment or other household fixtures, except for lawn furniture;

(5) Clotheslines, clothes or similar materials hanging or placed in front yards, side yards, porches, balconies or fencing, or otherwise in public view;

(6) Any type of item or material stored on a rooftop;

(7) Accumulation of litter, trash, boxes, or other items in front of doorways, on sidewalks, public walkways and other common areas used by the public;

(8) Accumulation of litter, trash, boxes or other items in parking lots, planters and other landscaped areas;

(9) Display, sale or use of merchandise, equipment, machinery or other items in, on, or blocking streets, sidewalks, walkways, parking lots, parking stalls or other common areas;

(10) Temporary service bins, dumpsters, or storage containers stored on a public street or on private property, except when associated with a permitted construction or remodeling project, stored in an approved trash enclosure, or completely stored out of public view;

(11) Garbage cans, trash cans, recycling containers and bins, bags and other trash collection devices in place beyond 24 hours before or after the scheduled trash day;

(12) Commercial garbage or recycling bins stored outside the dumpster enclosure;

(13) Accumulation of grease, oil or other hazardous liquids or materials on paved and unpaved surfaces, driveways, sidewalks, walkways or any other location;

(14) Tarpaulins or any unapproved screening materials used for any purpose other than in an emergency weather condition, or when attached to temporary construction fencing surrounding an approved and permitted construction project or public safety hazard;

(15) Portable devices or equipment, including but not limited to play equipment, located or stored on any street, sidewalk or public right-of-way;

(16) Holiday lights or decorations, excluding permitted flags, installed or displayed in front or side yards, or on a structure, except 30 days before and after December 25, and 14 days before or after the Fourth of July, Halloween, Easter and Thanksgiving;

(17) Storage of construction equipment, machinery or building materials other than during operations conducted under a valid building, grading or demolition permit;

(18) Cement mixers, construction trailers or other equipment parked more than four hours at a location other than the site of the construction project;

(19) Animal, fowl or bird feces kept in a visible location or in a condition that is or may become hazardous or nauseating;

(20) Foundations, retaining walls, planters, pools and other structures left on a property after a building or structure has been demolished or destroyed unless expressly authorized under this code or demolition permit.

(N) Any of the following conditions on parking lots, or vehicular or pedestrian access areas:

(1) Striping installed or maintained contrary to the conditions set forth in the approved plans or permit;

(2) Potholes, major cracks or other conditions which reflect inadequate or poor maintenance;

(3) Vehicular parking stall markings have become deteriorated or are nonexistent;

(4) Pedestrian walkway markings, if required, which are deteriorated or not clearly visible;

(5) Lack of the required number of handicap parking stalls or handicap walkways;

(6) Lack of the required handicap stall signage;

(7) Required curb markings or signs installed improperly;

(8) Required curb markings or signs not maintained in a clean, visible condition, or otherwise improperly maintained.

(O) Growth on palm trees, including but not limited to, dead or decayed palm fronds, noncommercial fruit, or flowers/pollen hanging from palm trees, except that dead California Fan Palm (Washington Filifera) fronds may remain in place and for the purpose of forming a skirt.

(P) Repairing, dismantling, or painting of any vehicle or motorized equipment visible from public view unless:

(1) The repairing or dismantling is conducted in an enclosed garage where the vehicle or equipment is registered to and owned by a person permanently residing on the property;

(2) The repairing or dismantling can be started and completed in less than 24 hours;

(3) The painting is done in an approved paint booth or in accordance with the allowed uses in the Fire Code. At no time can the painting be conducted in a residential district.

(Q) Repairing or dismantling of any vehicle or motorized equipment on vacant lots, residential, commercial or industrial parking lots, including those associated with auto repair or auto parts stores, or on any street or alley.

(R) Any swimming pool, spa, pond, fountain or other body of water which is unfiltered, polluted or not otherwise adequately maintained, or which creates a hazard to public safety, health or general welfare.

(S) Any outdoor burning of any trash, material, building, structure, matter of thing, unless authorized by the Fire Marshal or his of her authorized representative by the issuance of a permit; except wood, charcoal, or those materials normally associated with and used inside of a barbeque, fire pit, wood burning stove or other similar device specifically made and designed for the burning of such materials.

(T) Any property with dirty water, sewage or any other substance, including but not limited to, urine or other bodily matter, discolored water, contents of septic tanks, cesspools or privy vaults, which flows onto public or private property.

(U) Any property, building or structure, wall, fence, pavement, or walkway which is painted in an unreasonably offensive or garish manner, or in bright, fluorescent, or luminescent colors, which is out of harmony or conformity with the standards of adjacent properties.

(V) Maintenance of property in conditions that are detrimental to the public health, safety or general welfare or that constitutes a public nuisance as defined in Cal. Civ. Code §§ 3479 and 3480, including, but not limited to, anything dangerous to human life or detrimental to human health, or that lacks adequate ventilation, sanitation or plumbing facilities, or that constitutes a fire hazard.

(Ord. 1529, passed 3-5-08; Am. Ord. 1701, passed 10-19-16)