legaleagles

Three-Pronged Attack Challenges Prop. 13's Two-Thirds Requirement

ow, 31 years after the passage of Prop. 13 (Articles 13A and 13B of the State Constitution), in a 29-page petition for a writ of mandate filed directly in the California Supreme Court, ex-UCLA Chancellor Charles Young has petitioned the court to invalidate Prop. 13's requirement that any new or increased state taxes be passed by a two-thirds vote of each House of the Legislature and signed into law by the Governor.

He has sued as nominal respondents (defendants in name only) in his petition the Secretary of the California State Senate and the Chief Clerk of the California State Assembly, neither of whom has any direct interest in defeating Young's petition.

Young claims that Prop. 13's restriction on the state's taxing power (the necessity of a super-majority vote to enact new or increased state taxes) unconstitutionally impairs the Legislature's ability to do its fundamental job of running the state and spending its money.

Seeing that the line‑up of parties in the Young lawsuit left the state's taxpayers, at best, with lukewarm representation, the Howard Jarvis Taxpayers Association (HJTA) applied for leave to enter the fray by way of a complaint in intervention.

If granted, HJTA would have the "Standing" necessary to assert the legal arguments needed to defeat Young's petition.

Young also claims that the two-thirds super‑majority vote provision of Prop. 13 robs the Governor of his veto power since it is the same two-thirds vote needed to override a veto, making the exercise of a veto an idle act.

The lawsuit also asserts that the provisions of Article IV, Section 12(d), added to the State Constitution in 1933 as the result of passage that year of Proposition I, requiring two-thirds vote of both Houses of the Legislature to pass a budget, likewise cannot stand because of its super-majority vote requirement.

The theory of Young's claims is that the super-majority vote requirement on passing a budget and raising taxes is so Draconian that, legally, it would take more than a mere constitutional amendment to enact such a requirement.

According to Young, in order to impose such a requirement on the Legislature it would take a constitutional convention called to "revise" the whole Constitution because the two-thirds vote requirement "deprives the Legislature of its foundational constitutionalpower to adopt a budget and increase taxes by a simple majority of each House."

Further, since each of the challenged Articles effected a "revision" of the Constitution without the necessary constitutional convention, they are illegal and void.

As explained by HJTA in its petition (citing case law), a "revision of the Constitution, as opposed to an amendment, is an enactment which is so extensive in its provisions as to change directly the substantial entirety of the Constitution...(or make)... far-reaching changes in the nature of our governmental plan."

"All political power is inherent in the people. Government is instituted for their protection, security and benefit, and they have the right to alter or reform it when the public good may require... (CA Const. Art. II, Section 1)...The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." (CA Const., Article II, Section 8).

"Quantitatively, each challenged enactment touched on only one subject and affected only one Article of the Constitution (taxes and budget). Qualitatively, neither enactment took from the Legislature its role of adopting the state budget or fixing state taxes. The people, by increasing the vote threshold for passing a particular type of legislation which they deemed potentially menacing to their protection, security and benefit were acting well within the authority they reserved for themselves under Article II, Sections I and 8."

I can guarantee (having been there) that the reason for the restriction on state tax-raising was to preserve the benefits of Prop. 13's local property tax reduction against the "menace" of increased state taxes. Apparently it has worked.

The Howard Jarvis Taxpayers Association can also be reached through their website.

Back-off Bachrach

pending Appellate Court case challenges the Bachrach rule which imposes "strict liability" on apartment owners for Housing Code violations. Strict liability means liability based on the existence of a violation alone, without proof of notice, knowledge or fault of the owner!

Bachrach proponents claim part of the justification for imposing this strict liability is that the punishment sought is minimal. The state takes credit for light punishment of "regulatory" violations as a trade‑off for not having to prove a normal criminal case (guilty knowledge).

However, there is no rule requiring that "defendants shall be allowed probation" in every case. If you add up the potential punishment for one owner's 51 misdemeanors (12 months each) you get a "25 to life" possibility. Light punishment is no justification for strict liability imposition in this case.

The massive amount of alleged violations justifies claiming hazard to the 100 or so tenants of the building, thereby justifying their classification as strict liability offenses. But the threshold for strict liability could be the smallest tear in a rug, crack in tile, or torn down sign, and could lead to a strict liability Housing Code violation conviction.

It doesn't matter who caused the violation, how long it had been present, what efforts had been made to correct it, how many times the same problem had been corrected in the past, the owner's knowledge of the problem, or the owner's ability to correct it (what if parts are unavailable?).

In Bachrach, the court describes strict liability crimes. "Criminal liability without fault has been applied to criminal statutes enacted for the public morals, health, peace and safety. Such statutes deal with offenses of a regulatory nature and are enforceable irrespective of criminal intent or criminal negligence."

Apartment buildings, unlike drug stores and markets, do not cater to the public. They are places of interaction between "private" tenants and landlords.

Comparing living conditions to mislabeled drug dispensing or tainted food sales is understandable if customers, say at Walgreens, are allowed to mix-up their own concoctions, or to participate in preparing and packaging food. They are not. Here, the culprit is strictly the vendor. In the housing context, however, many violations (removal of smoke detectors, punching of holes in walls, allowing mold to build‑up in showers, etc., things that owners rarely participate in) are strictly the fault of tenants and many times unknown to landlords.

The Bachrach rule works unfairly in the Housing Code violation context. It should be challenged and changed. The California Apartment Law Information Foundation has agreed to file an Amicus Brief in a pending case. Let's win one for owners' rights and fairness.

Inspection Access and Prospect Process

INSPECTION ACCESS

It has been awhile since the “L.A. Times" discontinued its Real Estate Section and Kevin Postema's Apartment Life Q & A column. The questions continue apace as we have gotten two letters from AAGLA members recently.

Q: I would appreciate it if you would further clarify a new category concerning entry into a tenant's apartment, namely, that of the entry of a city inspector. Upon notice from the City of Los Angeles Code Enforcement Agency (better known to most members as SCEP, or the Systematic Code Enforcement Agency) that a city inspection is scheduled of tenants' apartments, we ask each tenant to complete and sign a form allowing an inspector to enter his or her apartment. In some cases, they refuse.

Are we correct in not allowing entry to the inspector where the tenant signs a statement refusing entry?

A: YES (and "H_ ‑ ," YES.)

Absent an administrative warrant (court order) commanding you to allow entry, an inspector has no right to invade a tenant's privacy to snoop for "defects" without their permission. Even you, as the owner, have very limited rights of entry.

California Civil Code Section 1954 describes the type of notice that must be given in each instance.

1. In case of emergency.

2. To make necessary or agreed repairs, etc., or to exhibit the apartment to prospective purchasers, workers, etc., or to perform an 'initial inspection' on a move‑out.

3. When a tenant has abandoned the unit.

4. Pursuant to a court order.

Administrative warrants are obtainable upon application by an inspector without any showing of "probable cause" that a "defect" exists, as is the case in any other type of criminal investigation. However, it just adds one more step to the inspection process.

You could save yourself some time and paperwork by using AAGLA's "Standard Month‑To‑Month Rental Agreement," which states in Paragraph 9: "If you circle 'Yes' in Section 0, you consent to unannounced entry of your apartment by government inspectors without your presence." Many tenants decline to circle 'Yes' in Section 0, meaning that you are not authorized to permit any entry not specifically permitted.

PROSPECT PROCESS

Q: We're all tired of prospects coming with a stack of sheets (presumably applications for other buildings) wanting to look at an apartment.

At the end of the conversation they say, "We have a few other places to look at. Can we have an application?"

Is there anything wrong with requiring a tip of $5 to the manager for showing the apartment? This would defray some of the trouble, distraction, and wear-and-tear on the apartment by cutting down on the trampling traffic.

It also would make prospects decide a heck of a lot faster. Of course, this needs to be an industry‑wide practice to work. Look at the banking industry. They charge for anything and everything.

A: The only problem we see with the idea is that it could run afoul of laws that severely restrict money that can be taken up front when renting an apartment. The maximum amount of a credit checking fee is about $39 per applicant. The maximum amount of a security deposit (two times the monthly rent for an unfurnished unit, three times for furnished) is set by law.

Our general rule is that every cent taken in addition to the first month's rent must be treated as security and handled as provided by law.

Now, is there a worry about the $5 tip? Probably not, especially if no rental deal is made, but the money had best be reported as income by the manager.

Court of Appeal Mandates Snooping?

recent decision by the California Court of Appeal, Stone vs. Center Trust Retail Properties, turns "premises liability" of owners on its head. Under a "commercial" lease, if a landlord has the right to inspect leased premises (a right denied to owners by law in residential tenancies), or if a landlord has obtained entry of an unlawful detainer judgment for possession in either case, commercial or residential, the landlord now has an affirmative obligation, periodically, on pain of civil liability to anyone injured on the premises, to inspect and correct any defective condition, even before any turnover of possession (eviction) by the Sheriff and while the tenant still remains in actual and peaceful possession.

Not discussed by the court is the fact that a tenant may object to what could amount to "snooping," and threaten to protect the premises of which he or she is in possession by resorting to police assistance or force.

What this decision means is that landlords, given this new post-judgment obligation to inspect, can be liable for injuries on leased premises even though the lease or rental agreement gives the tenant who is in possession the exclusive liability for invitee-injuries.

The problem is that the Court of Appeal does not appreciate the limited nature of a judgment for possession. It does not equal actual possession, which could, and generally does, take three or four weeks to obtain with the Sheriff's assistance.

Stone involved injuries to a patron of a restaurant operation subject to an eviction judgment. But, the inspection obligation imposed on the landlord covers even residential property owners once an eviction judgment is entered.

What the court has endorsed is a form of "self help," mandating an intrusive entry by a landlord. The entry is required not withstanding any objection a tenant in possession may have.

In a landmark 1969 decision (Dailuso vs. Boone), the California Supreme Court held that: "...one in peaceable possession of real property may recover... for injuries to his person and goods caused by the forcible entry of one who is, or claims to be, the lawful owner or possessor, and defendant's title or right of possession is no defense to such action."

What do those words mean? They mean that no one, not even the owner, may invade another person's rented, leased or actual premises without legal assistance. Self helpers need not apply. The Stone decision changes the rule.

In the Dailuso case, Boone came to Dailuso, his neighboring ranch owner, and said, basically, our border fence is way over on my side and it should be moved. A survey was done and confirmed the increased size of the Dailuso property at the expense of the Boone ranch.

Boone said that he was going to move the fence. In effect, Dailuso said, "if you do, I'll have a heart attack." Boone moved the fence and Dailuso, literally, had a heart attack and then sued.

After a $15,000 judgment in Dailuso's favor, Boone appealed and argued that the trial court never decided who was the owner of the disputed property. Boone claimed that if he was the owner of property illegally fenced in by Dailuso and sought to be recaptured by him, he had a complete defense to Dailuso's personal injury claim.

In affirming the $15,000 judgment in Dailuso's favor, the Supreme Court said: "We intend by our holding today to give to a plaintiff in peaceable possession of land a right to recover, in tort, for damages for injuries to his person and goods against one forcibly entering the land."

To which we add: "No matter who owns the land."

From the foregoing, it is clear that the provisions of Civil Code Section 1954, which provide, in part: "A landlord may enter the dwelling unit only in the following cases..." do not control when a mere judgment for possession has been entered.

No subsequent cases described in the statute allow for periodic inspections. Unless there is a known defect in the premises, which the landlord has the right to enter and repair, one facing any objection by a tenant to entry of a rental unit, residential or commercial, would be well advised to wait to enter until actual possession has been turned over by the Sheriff, or there is abandonment or agreement to enter.

The Stone decision mandates a landlord obligation, if he or she holds a judgment for possession, to enter leased property, periodically, just to snoop around.

Stalkers and Assaulters Shown the Door

California Apartment Law Information Foundation Report

By: Trevor A. Grimm, AAGLA General Counsel, and Craig Murdoh, Esq.

o all stalkers, perpetrators of domestic violence and sexual assaulters, there's a new law in town. Much of the credit for this law goes to the good work of AAGLA's Sacramento lobbyist, Steve Carlson. If one of your renters fits into one of the above categories, they may very well lose a roommate! The law was passed as an urgency statute "necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into effect immediate effect."

Although there are other scenarios, the law is designed to allow a battered co‑tenant (probably a wife or girlfriend, unless they are Kung Fu kickboxers like my yellow-belted wife), on certain conditions, to move from leased property without having to worry about continuing liability under a lease.

To use the law, the following conditions must be met.

The vacating tenant or their household member must give a written notice that they are the victim of domestic violence, sexual assault or stalking and that they intend to terminate their tenancy. A copy of either a temporary restraining order, an emergency protective order or a written report by a peace officer must be attached to the notice.

The notice must be given to the landlord within 60 days of the act. The abused co‑tenant is still liable for rent for 30 days from the date of giving the notice. On expiration of the 30-day notice, any leasehold liability ends.

The law extends 30-day termination notice rights to long-term leases. It is, however, hard to imagine a landlord who would demand that a battered wife remain in possession on pain of a lawsuit for unpaid rent for the balance of a lease. The sound and fury of spousal battering would seem to be something to be avoided at all costs, lest the owner lose good neighboring tenants. To help landlords, get rid of the "bad guy/girl" who has not departed with the victim, the law makes acts of domestic violence, sexual abuse or stalking nuisances, and, as such, grounds for eviction of the perp.

Remember, the grounds for eviction still must be proven. If rent has been paid to the end of the month in which the notice is given, a prorated amount is due for the following month if any of the 30 day's rent remains unpaid.

Grimm is the CEO and Mordoh is Senior Attorney of the California Apartment Law Information Foundation (CAL/F). Since its inception, CALIF has pursued its dual goals of providing an informational base for owners and renters on the workings of landlord‑tenant law in California, and challenging state and local municipalities when they take actions that infringe upon the constitutionally‑guaranteed property and civil rights of California residents. CALIF is qualified to receive tax‑deductible contributions under IRC Section 501 (c) (3) and can be t reached at 213-251-9665.

AAGLA AND HOWARD JARVIS TAXPAYERS ASSOCIATION WIN BIG — CITY OF L.A. IS ALL WET

By: Trevor A. Grimm, AAGLA General Counsel

Legal authority for the DWP to make annual transfers of surplus money from its Water Reserve Fund to the city's Reserve Fund (and then to its General Fund) is found in the city's 1925 charter. Annual transfers began in the 1927‑28 fiscal year and, with few exceptions, have continued to date.

Initially, the transfers were used to repay the city for the money it spent on setting up the water system's infrastructure, money raised by the sale of general obligation bonds. The bonds were paid off by 1960. In 2007, in response to a "validation action" brought by the city to obtain "legal cover" for its annual proposed transfer (the city had doubts about its legality), AAGLA and the Howard Jarvis Taxpayers Association joined forces to challenge the proposed transfer of "surplus" money collected in the fiscal year 2005-6... and we won!

According to a Stipulation of Facts entered into by the parties to the lawsuit, entitled City of L.A. vs. All Persons... the total operating revenue from the water system in the '05-'06 fiscal year was about "$598 million." According to a "deal" struck with the L.A. City Council, the city is entitled to 5% of that amount for its General Fund (municipal pay, pensions, perks, posts), or about $30 million.

But, since the DWP now is entitled to recoup the $30 million annually, what is the justification for any new water rate increases? Just what effect does the application of the "surplus" to the DWP budget have on the rates charged? The following is an open letter to the General Manager of the DWP from AAGLA President, John Schulhof.

Dear Sir:

As you know, the City just lost at trial in a case entitled City of Los Angeles vs. All Persons..., a suit brought by the City seeking Court validation of a proposed transfer of $29,931,000 from DWP's Water Reserve Fund to the City's Reserve Fund (for eventual transfer to the City's General Fund).

Per a deal cut with the City Council, the proposed transfer is equal to 5% of the total operating revenue of the Water System ($598,625,000) for the fiscal year 7/1105‑6/30/06. By its terms, the Ordinance authorizing the transfer makes the transfer contingent on the City obtaining its judicial "validation," a judgment confirming its legality. Given the failure of the City to obtain such validation, reportedly some $30 million is "frozen" in a DWP bank account.

We have had these questions, hand delivered to your office, and we ask that you provide us with answers to these questions for publication by us to AAGLA and HJTA members.

1. During any fiscal year, DWP may not make a transfer to the City of money from the Water System that exceeds its net income from the Water System, true?

2. What was the amount of DWP's net income from the Water System for the fiscal year 7/1/2005-6/30/2006?

3. Articles 13C and 13D of the State Constitution, (Proposition 218) prohibit the DWP from charging more for the production and delivery of water to its customers than it takes to recoup the cost to it of providing and delivering the water. Given the existence of "net income" from the Water System for the 2005‑2006 fiscal year, isn't it a fact that the charges made to customers for that fiscal year were set illegally high?

4. Will you apply the "frozen" money to reduce rates charged to customers for the delivery and production of water?

5. How much has DWP spent on this litigation to date?

We have many more questions for you, but we ask for this information in hopes of convincing the City Council to drop this expensive litigation and instruct you to apply all "frozen" funds to reduce the rates charged to DWP customers for water services.

Thank you

John Schulhof, President

L.A. Attempts $30-Million Heist

By: Trevor A. Grimm, AAGLA General Counsel

n April 9, 2007, the city of L.A., on behalf of itself and its Department of Water and Power (DWP), sued all DWP customers in a "validation action," seeking court approval of a proposed $30-million transfer of "surplus money" from the DWP to the city's General Fund.

The transferred money would be spent on pay, pensions, perks, etc., for all city workers. The proposed transfer is allegedly "surplus money" brought in by DWP in fiscal year 2005-2006, and sought to be paid over to the city for fiscal year 2006-07.

In fiscal year 2006‑07, DWP took in another "extra" $30 million, and is holding on to it until the outcome of this case.

AAGLA and the Howard Jarvis Taxpayers Association (HJTA) are contesting the proposed transfer and are, as this article is written, awaiting the results of the trial that ended on March 27, 2008.

If the decision is to validate the proposed transfer, no further claims of illegality will be possible and there will be no change in the annual process. (Let's call it a "cookie jar" heist.) The city says that this crumby deal has been going on the past 80 years. Transfers of this type originally were used to pay off general obligation bonds sold by the city to finance building its water system. The bonds were re-paid in full in 1960, but the annual transfers of different amounts at different times are continuing, nonetheless.

Since 1971, by ordinance, the DWP pays the city 5% of its gross operating revenue, over $598 million, for the prior year, not to exceed its net income. Obviously, DWP must be able to determine its net income before it pays over any amount to the city. And, under Prop. 218, that net income cannot occur if the money is used to provide services or reduce rates.

If the proposed transfer is not validated under Prop. 218: "(1) Revenues derived from the fee or charge shall not exceed the funds required to provide the property-related service."

How, you may ask, can the city demand an increase in water rates over the next three years amounting to 9% when this is going on? That's 9% more of illegal money that must be returned in order to stop the heist!

Offensive Sex Offender Law Must be Changed

enal Code Section (PC) 409.40 (a), a form provided by the California Department of Justice (DOJ), may be used by a member of the public to find out if anyone named on the form is required to register with the D0.1 as a convicted sex offender. The form has space for up to six names that may be checked.

Under the PC 408.40 (d) (1), the information disclosed only may be used to protect a person at risk, but "person at risk" is not defined in the law. (When you talk of sexual predators and murderers isn't everyone "at risk?")

PC 409.40 (d) (2) (E) and (G) say that use of any of the information disclosed relating to "Employment... Housing or accommodations...is prohibited."

Under PC 409.40 (d) (4) (A), any use of prohibited information may subject the user to a $25,000 penalty, plus damages.

According to a front page story in the January 19, 2008, issue of the Daily News, the family of a raped and murdered tenant was awarded $10.8 million in damages against an apartment owner and manager of a building where the deceased had lived.

The claim was that the act, not as yet subject to any criminal prosecution, was committed by a convicted felon, a sex offender, who was hired by the owner and management company as a handyman.

The article does not mention whether or not the killer's name was on the DOJ list, disclosing California registered sex offenders, but the claim of the victim's family was that the owner/management company should have known of the past record of the person to whom they entrusted the keys to all of the units in the building. The jury bought the claim...big time.

What the source of the information was that should have put the owner/management company on notice of the potential threat posed by the handyman is not mentioned. Under the law, a refusal to rent to or employ a sex offender on the DOJ list puts a property owner at risk of a judge or jury imposing severe penalties and damages for that.

What is the purpose of the DOJ list? Is it to make obtaining rental housing easier for sex offenders? Is it to make owners pay if they use prohibited information to decide whether rent or hire to someone?

The DOJ web site is intended to give people (including rental property owners) notice of the identity of the sex offenders so they can protect "persons at risk," vulnerable women and children, from the threat posed by sex offenders. But how do you offer protection when you cannot use the DOJ information?

AAGLA just got its first call from an owner with a resident manager who made the DOJ list and was discovered by a neighbor. The list notation was that the manager had violated California Penal Code Section 288 (a).

"Any person who willfully and lewdly commits and lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."

The complainant has minor children, but can the owner fire the manger or evict him? Is firing or evicting the equivalent of a prohibited denial of housing accommodations or employment?

And, what is the owner's obligation to disclose this known fact to other tenants or applicants? There is no disclosure mandated in the law, but, assuming a future tenant molestation by the manger, would the owner be able to convince anyone that he or she exercised reasonable care for the safety of a molested tenant if no disclosure had been made?

One amusing sidelight to the story of the "listed" manager is that the owner gave the complainant the option to move without penalty. The complainant said that he checked the DOJ website in the owner's zip code where he wanted to reside and there were DOJ registrants everywhere! (Maybe, that is the ultimate answer. There is nowhere completely safe to go to.)

1. Perhaps, we could craft an "Assumption of Risk" clause for our Rental Agreements that would require tenants and applicants to check the DOJ web site for registrants and then decide whether to rent or remain in occupancy.

For example, "To All Signatories: If you do not check the DOJ web site for the existence of tenants who are DOJ registrants, or if you do check DOJ web site and find one or more neighbors on the list and continue in occupancy, you, and anyone living with you, are barred from any recovery against the owner and/or manager for injuries or damages from any act by such a DOJ registrant. Since, by law, the owner may not deny housing accommodations or employment to a sex offender registered on the DOJ web site, your are obligated to protect yourself and your family from any injury or damage caused by such DOJ registrant and, by this Rental Agreement, you voluntarily accept such obligation. You may move without penalty."

Of course, a weakness with the Assumption of Risk approach is that minor children who get attacked cannot be bound by any such agreement.

2. Perhaps, we can achieve passage of a law prohibiting insurance carriers from excluding or limiting coverage of an owner or property manager for acts committed by tenants or employees known to be sex offenders by virtue of the DOJ list.

3. What if disclosure results in the registered offender getting physically attacked? Assume a situation where there is no dispute by the attacker about his motivation. "Yes, I learned he was a registered sex offender from the owner and I went after him because I don't want him going after my kids." 4. What if tenants start posting Prop. 65‑type "toxic tenant" notices to let the world know the names and addresses of all DOJ registered co‑tenant sex offenders in the building? Would that cause a riot?

5. Most all rental or employment applications now include a question to the effect of: "Have you ever been convicted of a felony?" (Because we do not rent to or hire felons?)

6. We need a public outcry about this problem and a clear public policy to the effect that sex offender registration may be grounds for a refusal to hire or rent. What else is registration for? Almost all California tenants and landlords should be in favor of such a policy.

7. We submit that the state either should indemnify rental property owners for any liability incurred by virtue of obedience to a law that subjects them to an ongoing threat of liability, a law prohibiting them from denying housing or employment to known sex offenders, or statutorily absolve rental property owners from any such liability.

8. We received one good suggestion on how to handle this situation. An owner might well sit down with any tenant or employee who is disclosed on the DOJ list and advise that registrant that he or she probably would be much better off if relocating somewhere else.

CPRP Challenges Rent Control

AGLA is sponsoring a statewide ballot initiative to prevent government from taking private property through eminent domain (condemnation) proceedings to turn over to private users (developers) for the purpose of collecting higher taxes.

Do you know of, or have any information about, any abuse of eminent domain by government? If so, please send us your horror story today.

Write to Californians for Property Rights Protection (CPRP, address below). The committee is set up to get the initiative qualified for the ballot, and passed, so CPRP might use your information in the election campaign to come. Thank you in advance for your anticipated cooperation.

The Committee for Property Rights Protection (CPRP) anti-KELO (eminent domain)/anti-rent control initiative, would phase out rent control over time. The initiative is not designed to send the old and the infirm into the streets waving 30-day notices of rent increases (to whatever the fair rental value should be), or 30‑day notices to quit.

It calls for a gradual phase-out of rent controls. Rent controls end permanently when there is a voluntary vacancy or a "just cause" eviction. With the help of property owners like you, CPRP is within striking distance of qualifying its initiative for the June 2008, ballot.

The "help" you have given includes dollar-donating and signature-gathering, and CPRP thanks you for it! To get an initiative on the statewide ballot, some 700,000 valid signatures must be gathered on petitions bearing the full initiative and filed with the Secretary of State.

In order to ensure that enough valid signatures are gathered, election consultants urge collection of about one‑third more signatures to make up for any invalid ones collected. For example, we already have some "celebrities" like Mickey Mouse signing petitions.

As a result, CPRP is faced with filing about one million signatures to guarantee the initiative gets on the ballot. The only way to achieve the signature goal is to form a partnership between volunteer signature gatherers and paid professionals (at a cost of between $1.50 and $2 per signature). On two occasions in the-1960s, Howard Jarvis tried to qualify Prop. 13 by using volunteers only and failed. As we all know, by forming a partnership with professional signature gatherers in 1978, Howard's third effort was the charm.

Why is this attack on rent control joined with an attack on government's power to take property from one private owner and give it to another? Isn't it the same thing by a different name (eminent domain vs. rent control)? Either way the rightful owner of real property is denied its "VALUE," whether that be economic value is in the form of lost rent and/or lost expectation of appreciation in the future, or subjective value as with Mrs. Kelo who said, "Voluntarily, I wouldn't sell my property for any amount, period."

In law school we learn that ownership of real property actually is ownership of a bundle or rights, like a bundle of twigs. Among other things, unless prevented by some use or zoning ordinance, an owner can: occupy property, permit others to occupy it, defend property against trespassers, sell property for what the market dictates, rent property on the same basis, improve property to the extent desired, encumber property in the amount obtainable, reconfigure property, market property, mine property, farm property with any legal crop, convey property, transfer an interest in property, will property to his or her beneficiaries, and/or just sit on the property, protected by Prop. 13, until civilization catches up with it and it appreciates out-of-sight.

Now, to the extent that any of these rights exist on Day One and do not exist on Day Two, absent some gift or sale by the owner, someone has taken that right as sure as Mrs. Kelo's home was taken when the eminent domain private developer bulldozers came to drive her away.

A "taking" is a taking, pure and simple, and a prohibition on the taking of a private property right to benefit another private person is the subject of the CPRP Initiative. One day you have something and, without any action on your part, the next day you don't. If that case does not involve a taking, how did the first owner involuntarily lose the right?

It is true that the type of taking involved in Mrs. Kelo's eminent domain case is slightly different. Such a taking must be accompanied by the payment to the property owner of "just compensation" for the property right taken, meaning some amount fixed by negotiation, jury verdict or judicial decision.

Now, compare an eminent domain/just compensation taking with a rent control taking (a taking of the right to rent or lease property for fair rental value). Rent control is not dependent on the payment to the property owner of just compensation by the beneficiary of the taking. In fact, it is not dependent on the payment of any compensation to the owner at all, just or otherwise!

What is the effect of rent control? According to Walter Block, writing in The Concise Encyclopedia of Economics, "[E]conornists are virtually unanimous in the conclusion that rent controls are destructive." He continues: "In a...poll of 211 economists... slightly more than 98 percent... agree that a 'ceiling on rents reduces the quantity and quality of the housing available."

To the extent that rent control dissuades builders from building apartments for fear of being subjected to rent controls at some point in the future, it produces exactly the opposite result from what it is billed as doing, i.e. providing affordable housing for renters.

We know from experience with gas prices that when there is a less of something and more demand the prices goes up. Well, for every unbuilt unit and every rent‑controlled unit there is a cost increase for tenants in the uncontrolled rental market. Along with rental property owners, they are losers too.

Probably the best line in the Block article, an article which squashes any semblance of sanity in the rent control corner, is the following: "Swedish economist (and socialist) Assar Lindbeck, asserted, 'In many cases rent control appears to be the most efficient technique presently known to destroy a city — except bombing.’”

Well CPRP is here to stop the bombing and the rent control bomb-throwers. Please do what you can to support its efforts... there will be a long and heated campaign by the controllers to defeat the CPRP initiative and to keep their power of control.

The City of Burbank has published information about the city's new secondhand smoke control law, which became effective on May 12, 2007. The publication makes it appear that in apartment buildings only areas "open to the public" are covered. It says, "Smoking is prohibited... in any outdoor dining area, any outdoor service line or waiting area, any outdoor shopping area or shopping center, within 20 feet of any entrance or open window of any building open to the public, and on any sidewalk in the Downtown area." At first glance, it looks like apartment buildings, which are not "open to the public," are excluded from these prohibitions. Wrong! Apartment buildings are covered by the ordinance as follows: "Smoking is prohibited in all enclosed common areas and within five (5) feet of entrances, exits, walkways and hallways in residential development projects, including apartments... except within smoking areas designated pursuant to Section 17-705. Common areas are those areas that are accessible to all residents living in the development, including but not limited to hallways, stairways, elevators, lobbies, laundry rooms, trash rooms, recreation rooms and gyms." The ordinance does allow some smoking: "Common area does not include swimming pools, decks, patios, yard areas, play areas, driveways, parking lots and garages, or private balconies or patios tha•t are not generally accessible to other residents," unless the owner or operator has declared such areas to be "non‑smoking" areas. Also, tenants may smoke in their own units, unless the owner designates them units as no smoking units. For a copy of the explanatory material, go to www.burbankca.org/planningsmokingfaq3shtml.

On August 3, 2007, the Mayor of Los Angeles signed an ordinance extending the no‑smoking ban in certain locations in public parks and beaches to prohibit smoking and the disposal of all tobacco products in all L.A. city parks. There still are certain designated smoking areas by the Autry National Center, the Greek Theater, and the Los Angeles Zoo, including some golf courses. Given the growth of "no smoking' laws, here is a proposal for a new ad campaign by the California Association of Realtors: "If you want to smoke, buy a house!"

Explaining the California Property Owners and Farmland Protection Act
(CPOFPA)

The following statement is from "Californians for Property Rights Protection" (CPRP), a committee formed to qualify and pass CPOFPA on the June 2008, California ballot.

By the time this article is published, CPOFPA, a new proposed Constitutional Initiative measure, should be through the administrative process (reviewed by the Attorney General and issued a Title and Summary) and ready to "hit the streets" for signature-gathering purposes.

Over one million signatures are required to ensure that the measure obtains the required 763,789 valid signatures necessary to qualify it for the June 2008, ballot.

If passed by the voters, the CPOFPA will permanently phase out rent control laws in the State of California. The CPOFPA wipes out "taking" of private property for the purpose of conferring economic benefits on another private individual.

The only "takings" allowed are for stated public purposes like the building of roads, hospitals, levees, etc., and on payment of just compensation in an amount set by a court or jury.

As you know, the most egregious example of private property "taking" for the purpose of conferring economic benefits on other private individuals is rent control... and, that taking omits "just compensation." It is, in fact, without any compensation whatsoever!

And, if it is legal to limit the price for which you can rent your property, how can you stop government from limiting the price for which you can sell your home or other property? (Reportedly, one such sale‑price‑limiting law was passed in Denver, Colorado, but repealed. In another state, a City Council passed a law, also repealed, which prohibited owners from occupying their own rental units.)

The answer is simple: Except in the case of a limited number of stated public purposes, you can prevent the "taking" of the economic benefit of your private property by enacting this state constitutional amendment known as CPOFPA.

It prohibits any action by government that "limits the price a private owner may charge another person to purchase, occupy or use his or her property."

In other words, it cuts out government's right to take and bestow the benefit of your property on another private individual, developer or otherwise.

Single‑family homeowners, apartment owners, farmers and other property owning groups are uniting as this article is being published to stop government private‑property‑taking ventures. But qualification of CPOFPA for the ballot is expensive: $1.7 million worth of expensive.

How do we raise that kind of money? Is $50 per rent-controlled unit too much? I don't think so.

We raise it by obtaining checks and pledges from those concerned about the power of government to sop up the economic benefit of private property like yours for its own money‑making purposes. (Since the KELO decision, moneymaking, say from future increased taxation receipts, is the only justification government needs to condemn private property and sell it to a private developer.)

And, the cost of qualification and passage of CPOFPA is but a drop in the bucket as far as the money lost by apartment owners from rent control restrictions is concerned.

CPRP is looking for six-figure pledges from those who want to be on its Executive Committee. Otherwise, CPRP is looking for donations or pledges in any amount to qualify and pass CPOFPA. (Pledges become effective and irrevocable when the $1.7 million necessary qualification money is raised or pledged.)

The CPOFPA is the best chance to get rent control on the fair path to elimination. It does not prohibit or rescind rent control, but rationally phases in permanent decontrol for all units voluntarily vacated after the effective date of the Act.

It is an extension of the Costa-Hawkins Act, which gave us temporary decontrol after a voluntary vacancy followed by recontrol once the unit was rerented. This is the best, fairest way to get rid of rent control permanently without displacing any rent-controlled tenants. Please contribute or pledge money to this important and even‑handed effort and obtain contributions and pledges of as much qualification money as possible. This is your chance to change the law so that government cannot pick and choose who will benefit from your private property.

(The preceding article is proposed for publication by members of the California Housing Providers Coalition.) P.S.: Click here to download the pledge form, fill it in, and mail it back to CPRP. ASAP! Thank you.

Lawline: How to Compensate Resident Managers

Questions are posed regularly about wages and hours for apartment managers. Here is some general information that answers some frequently posed questions.

Q: My ex-resident manager claims to be owed wages for 24 hours per day given that she was available at the premises 24 hours per day to cover management duties. Do I owe for such "work?"

A: No. That "available" time, unless you agreed to pay for such time in your AAGLA management contract, does not qualify as "hours worked." (See Section 3 of the contract.) California Industrial Welfare Commission Order 5‑2001 regulating wages, hours and working conditions of the Public Housekeeping Industry (which includes apartment house operations), provides in Section 2(k):

"Hours worked means the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so and in the case of an employee who is required to reside on the employment premises, that time spent carrying out assigned duties shall be counted as hours worked...(and no other time)."

A: At least twice monthly. Section 7 — Records of Order 52001 provides, in part.

"B. Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item."

Q: What if I want to swap checks with the manager, paying full minimum wage for all hours worked and charge rent at two-thirds of the rental value of the apartment. Is that Ok?

A: Yes. Section 10 (c) "…lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for... lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: $423.51/$626.49, depending if there is one manager or a couple both employed."

In the event of check swapping, where the manager receives 100% of the minimum wage for all hours worked and pays rent for the apartment, the maximum rent that can be charged is: "Section 10 (e) If as a condition of employment, the employee must live at the place of employment…the employer may not charge rent in excess of the values stated herein." Although the section does use the term "ordinary rental value (not values"), it is our opinion that the rent is limited to the $423.51/$626.49 "values" listed (which change to $451.89/$668.46 in 2008).

Order 5‑2001, which must be posted on the premises and reasonably available for employee review, can be obtained from: Division of Labor Standards Enforcement, Department of Industrial Relations, State of California, 320 W. 4t 5t., #450, L.A., CA 90013, telephone 213620‑6330, or Industrial Welfare Commission, P.O. Box 420603, San Francisco, CA 94142‑0603.

AAGLA's Legal Eagles at Work

California Apartment Law Information Foundation Report

CPRP Challenges Rent Control

Explaining the California Property Owners and Farmland Protection Act (CPOFPA)

Lawline: How to Compensate Resident Managers

Explaining the California Property Owners and Farmland Protection Act
(CPOFPA)