August 19, 2014

PLF takes the lead in suit over Oakland’s systematic unfairness to landlords

OAKLAND, CA;  August 19, 2014:  Pacific Legal Foundation (PLF), a national property rights organization, today stepped in to lead a legal fight against Oakland’s unfair — and illegal — treatment of rental property owners who try to challenge arbitrary fees and liens.

PLF represents Thomas Lippman, an Oakland rental property owner.  He is suing the city for refusing to allow a legitimate, unbiased appeal process for fees issued over code citations.  Instead of establishing an independent hearing authority, the city assigns appeals to an appointee of the Building Services Division — the very agency that imposes the fees!

This systematic conflict of interest, favoring the city, violates state law — and flies in the face of a 2011 Alameda County Grand Jury report that slammed Oakland for mistreating rental property owners.  Read the Grand Jury report.

“Oakland imposes punitively high fees on property owners without ever giving them a fair hearing,” said PLF staff attorney Jonathan Wood.  “Justice forbids anyone from being a judge in his own case.  But Oakland violates this basic tenet of fairness by only allowing property owners to appeal their cases to someone appointed by the very agency they’re challenging.”

In his lawsuit, Mr. Lippman represented himself at the Alameda County Superior Court.  After an adverse ruling there, he turned to PLF for help.  Today, entering the case for the first time, PLF filed an opening appellate brief on Mr. Lippman’s behalf with the California First District Court of Appeal.  PLF represents Mr. Lippman free of charge, as with all PLF clients.

Oakland stacks the deck against landlords

“The Grand Jury reported in 2011 that Building Services had created ‘an atmosphere of hostility and intimidation toward property owners,’ ” said Wood.  “Lippman is a prime example of the victims of this hostility and intimidation.  He was given the runaround by Building Services investigators, who obstinately refused to listen to him.  When he was finally allowed to ‘appeal’ these fees — to a hearing officer appointed by the agency that imposed them — he was never allowed to present a defense.  What’s worse, the hearing officer sided with the investigator who, during the hearing, admitted that he couldn’t remember what happened.

“State law demands more protection for property owners’ rights.  State law guarantees property owners a right to an appeal to an independent reviewer, but Oakland still isn’t providing property owners a neutral appeal process that would give them a fair shake.  Mr. Lippman’s lawsuit is designed to force Oakland to adopt a fair and legally compliant appellate process, so that he and all property owners are protected from being shaken down by local agencies.”

Mr. Lippman sued because the city denied him a fair process to appeal more than $10,000 in fees and a lien that were imposed on him over several alleged code violations.  Code officials imposed them even though he fully and quickly corrected all the genuine problems (such as tenant-caused damage to doors, tiles and a soap dish).

In 2009, he tried to appeal through the method that the city provided at that time — by asking for review by the supervisor of the inspector who imposed the fees.  The appeal was perfunctorily denied.

Then, in 2011, the city changed its appeals process.  The change came after the Grand Jury’s scathing findings that Oakland’s code enforcement lacked discernible standards, that inspectors often gave wrong information, and that owners who appealed were punished with higher fines.

However, Oakland’s new process continued to be structured to favor the city, by allowing the Building Services Division — the agency that issues fees — to appoint the officer who would hear appeals.

Lippman appealed through this new process, and his appeal was again denied.

It was at this point that he filed his lawsuit in state court.  It points out that Oakland’s biased appeals process violates a state law — Section 1.8.8 of the California Building Code — which requires cities to establish independent appeal boards or have appeals heard by the city council.

Superior Court Judge Evelio Grillo ruled against Lippman, on two grounds.  He held that the structure of the appeals process is a matter of local concern, so state law on the issue does not govern a charter city like Oakland.  He also construed Section 1.8.8 as mandating merely some kind of appellate process, but not outlining specifics.

Fairness to property owners is a state-level mandate

“The trial court simply got it wrong when it read the protections for property owners’ rights out of state law,” said Wood.  “The protection of property owners from bureaucratic abuse is a basic statewide concern, a core responsibility of state government.  The state has addressed that concern by requiring cities to establish a neutral appeals process.

“Further, the state law that we cite — Section 1.8.8 of the state building code — is very specific in demanding that an independent board or the city council hear landowner appeals.  These protections resoundingly reject Oakland’s unfair process and condemn the sort of abuses that, according to the Grand Jury, have been all too common in Oakland.”

“I am very grateful to Pacific Legal Foundation for working with me in this important case for property rights,” said Thomas Lippman.  He notes that Oakland has a long pattern of mistreating landlords.

“I have owned property in Oakland for about 16 years,” Lippman said.  “During that time, I have had many interactions with the city’s code enforcement officials.  They typically will send a Notice of Violation with a compliance date but no specifics as to the exact violation.  Once the exact nature of the violation is discovered and you contact them to show the correction, they will send out a different inspector who will clear the first violation but notice a different violation on the property.  When that one gets corrected, they find another and this continues.

“If you don’t get the violation corrected to their satisfaction before their re-inspection date, they bill you $1,500 for the re-inspection,” Lippman continued.  “Under the old system, if you challenged the correctness of the violation, they would give you a hearing in front of the original inspector’s supervisor who would routinely deny the appeal.”

But the new system is also stacked against landlords.  “Therefore, I decided I needed to head to court — and force the city to provide for a credible appeals process in accordance with the California statutes.”

“Mr. Lippman is pursuing this case not just for himself, but for all property owners in California, to ensure fair treatment by code inspectors, and a fair appeal process when citations are issued,” said Wood.  “PLF is proud to take a leading role in this important effort to protect property rights and hold public officials accountable to the law.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading watchdog organization that litigates for limited government, property rights, individual rights, and free enterprise, in courts nationwide.  PLF represents all clients free of charge.

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About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit legal organization that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 39 states plus Washington, D.C., PLF represents clients in state and federal courts, with 12 victories out of 14 cases heard by the U.S. Supreme Court.

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