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HomeMy WebLinkAbout2/9/2021 Item 1, CunninghamCunningham LAW GROUP February 5, 2021 Administrative Review Board c/o: City of San Luis Obispo Community Development 919 Palm Street San Luis Obispo, CA 93401 Re: Supplemental Brief Re: Kennedy Club Fitness Appeal Dear Board: 1830 Spring Street Paso Robles, CA 93446 805-369-2399 shauna@IawSLO.com jordan@IawSLO.com FAX: 805-369-2388 Regarding the appeal set for hearing on February 9, 2 02 1, please consider the following arguments with respect to Ordinance No. 1692 and the arguments raised by the City. A. Ordinance No. 1692 changed the Municipal Code, and these new Code subsections should not be given retroactive application to citations issued prior to their enactment. As the Board knows, the City passed an emergency ordinance, Ordinance No. 1692, on January 19, 2021. The City declared that Ordinance No. 1692, and its amendments to the Municipal Code, were to be applied retroactively (including to two citations issued to Kennedy Club Fitness in November and December 2020 that are appealed here). But California Supreme Court case law does not support retroactively applying this newly -amended ordinance, and to do so would violate the Ex Post Facto Clause of the U.S. Constitution. 1. California case law does not support retroactivity. The City relies upon Western Security Bank v. Superior Court (1997) 15 CalAth 236, to support its contention that Ordinance No. 1692 merely clarifies the existing Municipal Code and should apply retroactively. But this reliance is misplaced, as the City failed to cite and analyze a subsequent case published seven years later by the California Supreme Court. In McClung v. Employment Development Department (2004) 34 CalAth 467, the California Supreme Court clarified principles of statutory interpretation relative to the retroactive application of law. In the McClung opinion, the Court held that an amendment to FEHA making nonsupervisory employees liable for sex harassment effectuated a change in the law — despite the Legislature's express statement to the contrary — and further held that the amended statute did not apply retroactively. Id. In so doing, Justice Chin distinguished his own prior opinion in Western Security Bank. In McClung, the Court looked past the Legislature's statement that a new subdivision in FEHA was "declaratory of existing law" and held that the Legislature changed the law by expanding liability with a new statutory subsection. Id. at 471. The Court is not required to defer to the statement of legislative intent: "A declaration that a statutory amendment merely clarified the law cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms." Id. (internal citations omitted). Likewise here, Ordinance No. 1692 did not merely "clarify" existing sections of the Municipal Code, it amended the Code and, in so doing, created new liabilities and penalties. This is evident from its preamble language, the Council Agenda Report, and the fact that it added three new subsections (D, E, F) to the existing Municipal Code Section 2.24.100. Ordinance No. 1692's preamble language states "whereas, there is an immediate and urgent need for clarification and amendment of the City's emergency and administrative enforcement provisions". Similarly, the Council Agenda Report expressly refers to the new subsections as "amendments." On page 11 of Item 11, the Report states "the amendments to the safety enhancement zone provisions expressly designate violations of Chapter 2.24, or validly enacted County, State or Federal emergency measures issued under that Chapter, as subject to $1000 fines immediately upon declaration of emergency and for the duration of a declared emergency." Ordinance No. 1692, in Section 3, added three new subsections to Municipal Code Section 2.24.100. The first is subsection D, which defines (for the first time) a "rule or regulation issued pursuant to this chapter" as including, among other things, any duly adopted ordinance or resolution pertaining to a local emergency. The second is subsection E, which further defines (for the first time) a "rule or regulation issued pursuant to this chapter" as including "any emergency or public health measure, order or directive applicable in the City" issued by another government agency. Like in McClung, this is a change in law, not a mere clarification. Ordinance No. 1692 added three new subsections to a statute, which subsections previously did not exist. These new subsections expanded liability by explicitly incorporating public health orders issued by other government agencies, which the previous ordinance did not do. Because Ordinance No. 1692 amended the law, under McClung this Board must analyze whether it is appropriate to give these new Code subsections retroactive effect. "Generally, statutes operate prospectively only." McClung, at 475 (citations omitted). "The amended statute defines the law for the future, but it cannot define the law for the past." Id. at 474 (internal citation and quotation omitted). "The presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." Id. at 475. The Supreme Court in McClung refused to apply the new subdivision in FEHA retroactively, clarifying that "[n]either Western Security Bank nor California Emp. Com. v. Payne, holds that an erroneous statement that an amendment merely declares existing law is sufficient to overcome the strong presumption against retroactivity." Id. at 476. Further, the Court noted that giving the statute at issue retroactive application "would also raise constitutional implications." "An established rule of statutory construction requires us to construe statutes to avoid `constitutional infirmities."' Id. at 477. 2. The Ex Post Facto Clause prohibits retroactivity. Section 2.24.100 is a statute that is punitive, and applying it retroactively therefore is prohibited by the Ex Post Facto Clause of the U.S. Constitution. An amendment to a statute that is "punitive" cannot be applied retroactively under the Ex Post Facto Clause. Weaver v. Graham (1981) 450 U.S. 24, 29. The standard for whether an amendment is punitive is the "intent -effects" test. Russell v. Gregoire (9th Cir. 1997) 124 F.3d 1079, 1084. The primary question under this test is whether the law is punitive or civil. Smith v. Doe I (2003) 538 U.S. 84, 92. If the intention of the law was to impose punishment, "that ends the inquiry" and the statute is punitive. Id. Even if the intention was to enact "a regulatory scheme that is civil and nonpunitive," the court must further examine whether the statutory scheme is "so punitive either in purpose or effect as to negate the intention to deem it civil." Id. It is axiomatic that statutes that impose criminal liability and fines, like Section 2.24.100, are punitive in intent. "[C]ommonly understood definitions of punishment are intuitive: there is little dispute that additional jail time or extra fines are punishment." People v. High (2004) 119 Cal.App.01 1192. In accord, the Ninth Circuit has held that statutory amendments that impose fees or increase restitution costs are punitive under the Ex Post Facto Clause. United States v. Baggett (9th Cir. 1997) 125 F.3d 1319, 1322 (amendments that had the potential to increase the amount of restitution a defendant might have to pay were punitive); see also Wright v. Riveland (9th Cir. 2000) 219 F.3d 905, 915 (administrative "fees" imposed as a cost of incarceration were punitive). Section 2.24.100 provides that a violation "shall be a misdemeanor, punishable by a fine not in excess of five hundred dollars or by imprisonment for a period not to exceed six months, or both." It is clearly punitive under both California and federal law. Smith v. Doe I, 538 U.S. at 92; People v. High, 119 Cal.App.41h 1192. Applying these amendments retroactively violates the Ex Post Facto Clause, and the McClung precedent. 34 Cal.41h at 477 (statutes must be construed to avoid "constitutional infirmities"). Finally, the City cannot evade the Ex Post Facto Clause because it elected in this case to pursue administrative fines rather than criminal enforcement — because the effect of Section 2.24.100 is punitive. "The ex post facto effect of a law cannot be evaded by giving civil form to that which is essentially criminal." Burgess v. Salmon (1878) 97 U.S. 381, 385. Fines are "commonly understood" to be punitive in the case law. People v. High, 119 Cal.App. 0 1192. Even fees that are labeled as "civil" have been held to be punitive. See, e.g., United States v. Harper (1989) 490 U.S. 435, 438 ("civil" penalty to reimbursement government for Medicare fraud is punitive) (abrogated on other grounds by Hudson v. U.S. (1997) 522 U.S. 93); Wright, 219 F.3d at 916 ("cost of incarceration" fee is punitive); People v. High, 119 Cal.App. 4111 1192 (court construction penalty, equal to 50% of restitution fine, characterized by the state as a "user fee," is punitive). B. The Government Code imposes due process and notice requirements on all local emergency orders and regulations that were not met here. The Government Code imposes important due process and notice requirements for local emergency orders and regulations. Specifically, Government Code Section 8634 provides that "[d]uring a local emergency the governing body of a political subdivision ... may promulgate orders and regulations necessary to provide for the protection of life and property." Gov. Code Section 8634. "Such orders and regulations ... shall be in writing and shall be given widespread publicity and notice." Id. (emphasis added). The reason for these specific requirements is obvious: to give people adequate notice of emergency orders and regulations. With respect to Ordinance No. 1692, the Government Code requires "widespread publicity and notice" of an local emergency order or regulation. It is unequivocal. A city "may" promulgate orders, but such orders "shall" be in writing and "shall" be given widespread publicity and notice. Gov. Code Section 8634. Ordinance No. 1692 did not exist until January 19, 2021. It is therefore impossible that it could have been given the requisite "widespread publicity and notice" back in November and December 2020, when these citations were issued. Thus, applying it retroactively violates the Government Code Section 8634, as well as the Ex Post Facto Clause, and the McClung precedent. With respect to Resolution No. 11106, the Government Code explicitly requires that a city actually call an emergency order what it is supposed to be, i.e., a public health order or regulation must be called an "order" or a "regulation." Because it is a resolution in both name and in fact, it does not comply with the Government Code either. C. Resolution No. 11106 is not a "lawful rule or regulation issued pursuant to this chapter." Moreover, as argued in the prior appeal and re -stated herein for the record, Resolution No. 11106' does not constitute a "lawful rule or regulation issued pursuant to this chapter" within the intendment of San Luis Obispo Municipal Code Section 2.24. 1 00(b). The citation's "description of violation" states as follows: "Emergency Services. Violation -Penalty. Violation of required social distancing and reopening guidelines via state executive and public health orders and Resolution 11106 (2020 Series), adopted pursuant to SLOMC Ch. 9.22." The City thus predicated the alleged violations on Resolution No. 11106. 1. Under Section 2.24.100, "lawful rule or regulation issued pursuant to this chapter" refers to an rule or regulation issued by the Emergency Services Director and ratified by the city council pursuant to Chapter 2.24.060, and the Director has not issued any rule or regulation applicable to KCF. Chapter 2.24 of the Municipal Code, "Emergency Services," sets forth the basic structure of the City's emergency response. Section 2.24.060 details the position and duties of the "emergency services director." 2.24.060(A)(6)(a) provides that the emergency services director, during a proclamation of a local emergency, to: "make and issue rules and regulations on matters reasonably related to the protection of life and property as affected by such emergency; provided, however, such rules and regulations must be confirmed at the earliest practicable time by the city council." (Emphasis added.) Section 2.24.100 is the "Violation —Penalty" section of Chapter 2.24. As discussed previously, 2.24.100(b) provides for misdemeanor penalties if a person does "any act forbidden by any lawful rule or regulation issued pursuant to this chapter." The obvious construction of the City's Municipal Code language is that Section 2.24.100(b) penalizes the violation of a lawful rule or regulation issued by the City's emergency services director under his emergency powers granted by Section 2.24.060(A)(6)(a), provided that any such rule or regulation has been ratified by the council at the "earliest practicable time." The City's problem is that, as of now, the emergency services director has not issued any rule or regulation pertaining to KCF, and the council has not ratified any such rule or regulation. So there is nothing upon which to predicate a violation of Section 2.24.100.2 2. A resolution cannot be a "lawful rule or regulation issued pursuant to this chapter." a. Resolutions are not rules or regulations. Resolution No. 11106 (April 7, 2020) essentially proclaims the continuing existence of a local emergency and contains a number of recitals pertaining to the state of emergency. It is black letter law that resolutions are not laws or regulations. "The enactments of a city's legislative branch are known as ordinances and resolutions. Strictly speaking, there is a difference between the two. An ordinance in its primary and usual sense means a local law. It prescribes a rule of conduct prospective in operation, applicable generally to persons and things subject to the jurisdiction of the city. 'Resolution' denotes something less formal. It is the mere expression of the opinion of the legislative body concerning some administrative matter for the z The City cannot contend that the "Blueprint for a Safer Economy" is a "lawful rule[] or regulation[] issued pursuant to this chapter," because the state quite obviously does not act pursuant to Chapter 2.24 of the San Luis Obispo City Municipal Code. disposition of which it provides. Ordinarily it is of a temporary character, while an ordinance prescribes a permanent rule of conduct or of government." Central Manufacturing District v. Board of Supervisors (1960) 176 Cal App. 2d 850 (citation omitted). Thus, the difference between a resolution and an ordinance is substantive — both under case law and by "deliberate legislative definition" — and cannot be disregarded. Sausalito v. County ofMarin (1970) 12 Cal. App. 3d 550, 565-566. "A resolution is usually a mere declaration with respect to future purpose or proceedings of the board. An ordinance is a local law which is adopted with all the legal formality of a statute." Id. (citations omitted). The fact that Resolution No. 11106 is indeed a resolution is plainly evident from its language and structure. First, it is entitled a "Resolution." Second, the preamble uses the language consistent with a declaration by the City regarding a temporary condition (e.g., "a resolution of the city council proclaiming the continuing existence of a local emergency ..."). Third, it contains "whereas" clauses with "recitals" of various conditions related to the COVID- 19 pandemic, like a typical local resolution. Fourth, it uses the language "be it proclaimed and resolved," like a typical local resolution. The City's argues that this Board should treat Resolution as a "lawful rule or regulation," even though it is called a "resolution," it is structured like a resolution, it contains proclamations like a resolution, and it was adopted to address a temporary condition (the state of emergency) like a resolution. That is not legally sound, and the City thus far has cited ZERO authority in support of this argument. Moreover, counsel for the City admitted during the January 7 hearing before this Board that the process to adopt a Resolution is more truncated than the process to adopt an ordinance, and Resolution No. 11106 was adopted with the more truncated process. As such, Resolution No. 11106 simply does not constitute a "local law," "adopted with all the legal formality of a statute." Marin, 12 Cal. App. 3d at 566. It therefore should not be treated ex post facto as a "lawful rule[] or regulation[]" within the meaning of Section 2.24. 1 00(b). If the City wishes to fine or jail people for violating a law, it should pass an actual ordinance that clearly delineates the proscribed conduct, and then provide proof of that conduct to support its claim of violation. At the time it issued the citations on appeal, it had not done so. Alternatively, the City could have followed its own process set forth in Chapter 2.24.060, whereby the executive services director can issue a rule or regulation, which then must be ratified "at the soonest practicable time" by the city council, and then proceed with enforcement of such a rule or regulation if there are alleged violations. Even if the resolution was somehow construed to be a lawful rule or regulation — which it is not — it contains no language prohibiting indoor gym operations. The language of Resolution No. 11106 contains a series of recitals about the state of emergency. It then "proclaim[s] and resolve[s]" that a local emergency exists; that the City is incurring costs relating to COVID response; that the Emergency Services Director is authorized to take emergency actions; that the prior local emergency shall continue to exist until terminated by the City Council; and that the City purports to create a city wide safety enhancement zone (during which time "any violation of any public health order shall be subject to an immediate fine not to exceed one thousand dollars"). The City likely will argue that Section 6 somehow confers upon the City the plenary authority to cite its residents for any violation of any public health order under the Sun. There are a number of problems with this theory: First, the City was obligated to follow its own Municipal Code procedure before citing persons for violations under the statute that penalizes such violations (Section 2.24.100). As explained above, the City must have an emergency services director issue a rule or regulation that is then ratified by the council. Second, the language in Section 6 does not have the effect of a "local law" as explained above, because it is contained in a resolution and not an ordinance. Third, it is unclear at best whether the state's "Blueprint for a Safer Economy" even constitutes a "public health order." Fourth, the language in Section 6 is overbroad, in that it purports to criminalize violations of "any public health order" without limitation and without giving the public adequate notice of the proscribed conduct. This would violate due process, both in its overbreadth and its truncated procedure for enactment. Finally, with regard to due process and basic fairness, any ambiguity should be resolved in favor of KCF — not the City. It is the City that has the burden to prove the violation. The City neglected to follow its own Municipal Code procedure for the issuance of emergency rules and regulations. Conclusion For the foregoing reasons, and others to be presented at the continued hearing before the Administrative Review Board, KCF has not violated Municipal Code Section 2.24.100(b) and the citation should be dismissed. Sincerely, ZNNINGHAM LAW GROUP