Best Best & Krieger News Feed

The Courts, the Hill and the FCC - A Year in Review and Setting the Stage for 2017

12 Dec 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Gail Karish will participate in a live 60-minute webinar entitled "The Courts, the Hill and the FCC - A Year in Review and Setting the Stage for 2017." The panel of experts will assess how 2016 affected policy and practice on key communications issues and will provide their views of what may be coming in 2017 - and how local governments can prepare.

When
Monday, Dec. 12
11 a.m. - Noon (PST) / 2 - 3 p.m. (EST)

For more information or to register, click here.

[VIDEO] Free BB&K Webinar Series: Prop. 64 - Legalized Marijuana: Challenges and Choices

30 Nov 2016 00:00:00 -0800

Free Webinar Series on Proposition 64
On Nov. 8, California voters approved Proposition 64, legalizing recreational use of marijuana. Prop. 64 promises to usher in a new era, with the growth of the recreational marijuana industry and changing attitudes toward marijuana use, and with it, new challenges and opportunities for local governments, regulators, local staff, and the entrepreneurs and landowners who will be vital to the growth of the new industry. For the past several years, Best Best & Krieger has worked hard to keep itself on the cutting edge of marijuana issues, drafting dozens of regulations and working with public agency clients to create marijuana policies that serve their best interests. Now, BB&K is introducing a webinar series to map out this brave new world.

First Webinar - Nov. 30
"The Basics - Cultivating New Regulations and Confronting New Challenges Presented by Marijuana Legalization"
In this first installment, BB&K attorneys Victor Ponto and Jordan Ferguson walked through the Prop. 64 basics: What the law does, what is allowed and not allowed, how local governments can regulate, and the timelines for implementation.

Who Should Attend:

Elected officials
City managers
Planning directors
Finance directors
Police department officials
Fire department officials
Building inspectors
City staff at all levels who may be involved in permitting, enforcement, or policy
Landowners or landlords
HOA members
Entrepreneurs hoping to enter the marijuana industry

When
Wednesday, Nov. 30
10:30 - 11:30 a.m. PST

Click here for questions.

Future Prop. 64 Webinar Topics - Dates to be Announced Soon:

Employer Implications of Prop. 64
Tax and Ballot Measure Implications
Land Use and CEQA Implications
Public Safety Implications

Materials
Prop 64: The Basics - Cultivating New Regulations and Confronting New Challenges Presented By Marijuana Legalization

To view a recording of the webinar, click here.

Marijuana Legalization Creates New Challenges and Choices for Local Governments in California

17 Nov 2016 00:00:00 -0800

On Election Day, Californians approved Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized recreational use of marijuana for adults. The marijuana industry in California is likely on the precipice of explosive growth, with recreational retailers, dispensaries, cultivation operations, manufacturers, testing laboratories and delivery services primed to open for business and take advantage of the new market. While Best Best & Krieger has already worked with clients to write dozens of ordinances and regulations dealing with both medical and recreational marijuana, many cities and counties have yet to act to regulate recreational marijuana.

As of Nov. 9, AUMA will not only permit recreational use of marijuana by adults, but it will also allow indoor cultivation of up to six marijuana plants in any private residence or accessory structure. While AUMA allows local governments to “reasonably regulate” indoor cultivation — such as through requiring a permit prior to cultivating — the law will no longer allow an outright ban on indoor cultivation in private residences or accessory structures. AUMA does, however, maintain local authority to regulate or ban all outdoor cultivation and all commercial marijuana activity, including dispensaries, manufacturers, testing laboratories and delivery services, as well as any other marijuana businesses that may spring up to meet new market demands.

AUMA also creates a statewide licensing and regulatory system for commercial marijuana activities, and requires that the Bureau of Marijuana Control begin issuing licenses before Jan. 1, 2018. This means that, while recreational use and indoor cultivation are already legal throughout California, in most situations recreational dispensaries, delivery services and other commercial marijuana businesses cannot open their doors until the State begins issuing licenses. AUMA also imposes a 15 percent sales tax and a cultivation tax of $9.25 per ounce for flowers and $2.75 per ounce for leaves, with exceptions for medical marijuana sales and cultivation.

Local governments should review their current regulations and consider enacting regulations surrounding recreational use of marijuana. Some marijuana uses may already be creating new issues in communities across the State, whether in the form of nuisances caused by recreational users, or in the more serious forms of fires, explosions or other structural damage caused by improperly designed or operated indoor cultivation areas. In addition to regulating the personal, medical and commercial uses of marijuana, local governments should reexamine their smoking ordinances, begin to consider the potential risks of unregulated cultivation in private homes and think about how they, as employers, will handle the legalization of recreational marijuana.

Beyond that, local governments should consider the opportunities created by recreational marijuana legalization, including the AUMA imposition of local taxes on any allowed marijuana use. As California ushers in a new era and a new industry, local governments should keep their eyes open for opportunities that best serve their interests. For some cities, that will mean banning as many marijuana uses as they can. For others, it will mean opening their doors to some, or even all, marijuana businesses to benefit from potential tax revenue or to place themselves on the cutting edge of an emerging industry.

BB&K will be offering a free webinar series on the challenges and choices presented by Prop 64. The first in the series, “The Basics - Cultivating New Regulations and Confronting New Challenges Presented by Marijuana Legalization,” is scheduled for Nov. 30 at 10:30 a.m. PST. For more information and to register, click here. You may also contact the attorney author of this Legal Alert listed at the right in the firm’s Municipal Law group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Request to Hear Police Video Case Denied by California Supreme Court

02 Nov 2016 00:00:00 -0800

The California Supreme Court has decided to not reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records, and thus that they cannot be shielded from public view. The Court’s decision relates to an ongoing battle between the City of Eureka and the North Coast Journal over public access to video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against an officer.

The decision by the Supreme Court simply declined to de-publish the previous ruling in the case, meaning the appellate court’s decision stands and can be cited as precedent going forward. The appellate court concluded that video of an arrest captured by a patrol car’s dashboard camera is not a confidential “personnel” record, and thus is not protected by Pitchess statutes. As a result, the court ordered a portion of the arrest video in question be released to a local reporter.

The court determined video footage of an arrest is not information traditionally considered subject to a Pitchess motion, such as confidential citizen complaints and any internal investigations of an officer, but rather is information which would form the basis of a criminal complaint against an officer. Because an arrest video does not relate to an officer’s “advancement, appraisal, or discipline,” it is not a “personnel record” for purposes of Pitchess statutes. The court held only records generated in connection with appraisal or discipline are protected from disclosure, not records that may eventually result in appraisal or discipline. Thus, though an arrest video may lead to an internal investigation, only records produced as part of any investigation would be protected by Pitchess statutes.

The appellate court expressed no opinion on whether the arrest video would be considered a public record under the California Public Records Act, leaving that an open question for the moment.

This case narrows the options of a law enforcement agency seeking to keep video taken in the field from disclosure. While the case itself arguably furthers efforts to promote transparency in law enforcement, the widespread effects of holding these records are not protected by Pitchess statutes remains to be seen. Law enforcement agencies can no longer claim these records are part of a confidential personnel record — yet footage taken by dashboard or body worn cameras may still be exempt from disclosure under the Public Records Act or other provisions of California law. Prior to disclosing any record that may contain sensitive or confidential information, law enforcement agencies should seek advice from their attorneys to determine the best course of action. Compliance with Public Records Act requests must be carefully conducted and scrutinized, both to ensure complete disclosure and to assure that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed.

For more information regarding this new decision and how it impacts your agency or public safety department, please contact the attorney author of this Legal Alert listed at the right in the firm’s Public Safety group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

LCC Annual Conference

05 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 League of California Cities’ Annual Conference in Long Beach, Calif.

BB&K Speakers

Ruben Duran: “Understanding Public Service Ethics Laws and Principles (AB 1234 Training)”
Wednesday, Oct. 5
9 - 11 a.m.

Alisha Winterswyk: “Complying with CEQA, Brown Act, and Other Public Noticing Requirements”
Thursday, Oct. 6
8 - 9:30 a.m.

Ryan Baron: “Energy Reliability: Understanding the Natural Gas and Electricity Nexus”
Thursday, Oct. 6
Noon

Gail Karish and Christy Marie Lopez: “The Advance of Wireless Infrastructure”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Isabel Safie and Katrina Veldkamp: “Reducing Pension and OPEB Costs”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Jordan Ferguson: “What Municipalities Can Do About the Coming Drone-pocalypse”
Friday, Oct. 7
10:30 - 11:45 a.m.

When
Wednesday, Oct. 5 - Friday, Oct. 7

Where
Long Beach Convention Center
300 E Ocean Blvd
Long Beach, CA 90802

For more information or to register, click here.

Cities Mull Means to Smoke Out Tax Revenue from Recreational Weed

12 Sep 2016 00:00:00 -0800

As cities across California prepare for the legalization of recreational marijuana use with the likely passage of Proposition 64 in November, Best Best & Krieger LLP Partner Jeffrey Dunn discussed cities’ options with the Los Angeles Business Journal.

“We’re seeing much more interest from cities in revenue generation,” Jeffrey said.

Cities must also prepare now for the law taking full effect in January 2018, Jeffrey told the newspaper. “Cities got caught off-guard when medical marijuana dispensaries suddenly exploded here in Southern California,” he said. “Many received complaints from citizens and other businesses about the dispensaries suddenly appearing, and they reacted reflexively with moratoria and bans.”

To read the full article, originally published in the Sept. 12, 2016 Los Angeles Business Journal, click here (subscription required).

FAA’s New Drone Rules Go Into Effect

01 Sep 2016 00:00:00 -0800

New rules governing the use of small unmanned aircraft systems went into effect on Monday. The changes, which in principle reflect the draft version released in February 2015, will allow commercial operators to begin using drones domestically, within specific parameters, and will likely speed up the process for government operators as well. The new rule will:

Regulate drones weighing less than 55 pounds that are conducting “non-hobbyist operations,”
Require pilots to keep drones within visual line-of-sight,
Require pilots to operate only during daylight hours or twilight if the drone has anti-collision lighting, and
Impose height and speed restrictions.

The provisions of the new rule – formally known as Part 107 – are designed to minimize risks to other aircraft and people and property on the ground. The regulations also prohibit flights over people on the ground who are not participating in the operation, a large obstacle to many potential uses the FAA is already considering how to remove. Draft rules for operation over people are said to be in development already, though it will likely be more than a year before any such regulations are finalized. Ultimately, the regulations preclude some of the most commonly considered uses of the technology – no Amazon drone deliveries and no pizza by plane would be allowed – but open up commercial possibilities that were previously excluded entirely. The rule also indicates the FAA may waive some restrictions if an operator proves the proposed flight will be conducted safely under different terms.

Under the now-effective rule, drone pilots must be at least 16 years old and pass a general aeronautical knowledge test conducted at an FAA-approved center or hold a Part 61 pilot certificate, or be directly observed by someone with a certificate. Commercial operators are not required to comply with current airworthiness standards or aircraft certification to operate. The FAA is issuing “recommended privacy guidelines” as part of required drone registration, but the rules do not address the privacy issues presented by drones, and the agency indicates the issue will be addressed through future rulemaking.

The rule does not cover hobbyist use of drones, but it does allow for the possibility of streamlining governmental uses so long as compliance with Part 107 is maintained. Government operators are still required to obtain differential authorization – through either a Section 333 waiver or a Certificate of Authorization – but the FAA appears to be streamlining any such applications that comply in principle with the new rules. This means that many government applications may be approved in an expedited manner so long as the proposed use involves flying during daylight hours, below 400 feet, and avoids flying over populated areas or specific persons not involved in the operation.

This rule going into effect is the beginning of a new chapter in the mainstreaming of drones, an industry that experts indicate could generate more than $82 billion for the U.S. economy and create more than 100,000 new jobs over the next decade. The current rule promises to ensure the skies become a lot more crowded in years to come, and forthcoming regulations may make it even easier for commercial users and government operators to take to the air.

For more information regarding this new rule for your agency or public safety department, please contact the attorney author of this Legal Alert listed at the right in the firm’s Public Safety group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Ninth Circuit Upholds Ban on Mobile Ads in Los Angeles, Other California Cities

24 Aug 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Victoria Hester was interviewed by Legal Newsline on the U.S. Ninth Circuit Court of Appeal’s decision to uphold ordinances that ban mobile billboards.

“The court determined that in targeting 'advertising,' the ordinances regulated the manner (not the content) of the affected speech, and were narrowly tailored to achieve significant government interests," Victoria told Legal Newsline.

“The policymakers cite traffic control, public safety, and aesthetics as reasons for adopting the ordinances,” Victoria said.

To read the full article, which was posted Aug. 1, 2016 to Legal Newsline, click here.

California Appellate Court Holds Police Video of Arrest Not Protected Under “Pitchess”

21 Jul 2016 00:00:00 -0800

The California Court of Appeal has ruled in City of Eureka v. Superior Court (Greenson) that a police “dash cam” video of an arrest does not become a protected “police personnel record” under Pitchess just because it might later be used by the police department in connection with a citizen complaint against an officer related to that arrest. The court made clear that only a record generated as part of an internal investigation is protected by Pitchess, not a record or recording considered in that process.

The growing use of video cameras in police work, including automobile dashboard-mounted cameras in patrol cars and police body-worn cameras, has generated widespread interest in public access to this often compelling evidence. Balanced against the interest in public access are concerns for the privacy rights of those involved in the incidents captured on video, including suspects, witnesses, bystanders and the police themselves.

In December 2012, Eureka police officer Laird and other officers arrested a minor, identified as H.M. The minor’s arrest involved a chase and concluded with the minor either falling or being taken to the ground. Some of the activity was captured on the police car’s dashboard video camera. The minor was charged in the Juvenile Court, but that charge was dropped. Then, a citizen lodged a complaint regarding the officers’ handling of the arrest of the minor, leading to a statutorily required police internal investigation. As that was in process, the district attorney charged Laird with misdemeanor assault on the minor and making a false report. After prosecution and defense experts reviewed the video of the arrest and concluded that Laird acted reasonably, the prosecution dropped the case against the officer.

Seven months later, Greenson, a local reporter who had written stories concerning the incident and its aftermath, filed a request with the City under the Public Records Act (Government Code § 6250) to obtain the video. The City declined the request citing the personnel file and investigative record exemptions under the Act. Greenson then turned to the Juvenile Court seeking the video in its file under a provision of the Welfare & Institutions Code authorizing limited disclosure of juvenile records. The County Probation department objected and the City joined in this judicial process and asserted the confidentiality of the video under the protection provided by Pitchess process for “police personnel records.” The minor waived his right to confidentiality of the video, removing that particular consideration. The court eventually ordered the video released, ruling that it was not a confidential “police personnel record” under Pitchess. The City appealed.

The appellate court upheld the lower court’s ruling that the video was not a confidential “police personnel record” protected from disclosure under Pitchess. The court pointed out that just because the video became part of the internal investigation or was used as part of that investigation did not convert it into a confidential “police personnel record.” Rather, the video was part of the initial incident report that led to the charge against the minor and later the charges against the officer.

Notably, the appellate court did not address the City’s Public Records Act exemption, because that was not raised and considered by the court below.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Ninth Circuit Upholds Cities’ Regulation of Mobile Billboards

13 Jul 2016 00:00:00 -0800

Municipal ordinances prohibiting mobile billboard advertising were recently upheld by a federal appeals court. The U.S. Ninth Circuit Court of Appeals found that the ordinances withstood First Amendment scrutiny as content-neutral, reasonable, time, place and manner restrictions on speech.

Between 2010 and 2012, the California Legislature enacted a series of amendments to the Vehicle Code empowering municipalities to regulate two types of mobile billboard advertising: advertisements affixed to portable, non-motorized wheeled vehicles, and advertisements attached to motorized vehicles. In response, five cities (Los Angeles, Santa Clarita, Rancho Cucamonga and Loma Linda) passed nearly identical ordinances banning both types of mobile billboards and permitting public officials to exact civil penalties and impound vehicles in violation. Los Angeles passed an ordinance prohibiting advertising signs painted or affixed to motorized vehicles that extend beyond the overall length, width or height of the vehicle, or make the vehicle unsafe to be driven. The other four ordinances make it unlawful to park a “mobile billboard advertising display” on any public street within city limits.

Local business owners who use mobile billboards to advertise sued the cities, claiming that the ordinances are facially invalid because they violate the freedom of speech guaranteed by First Amendment.

Although regulations affecting speech in traditionally public fora, such as sidewalks and city streets, are presumed to be invalid, government may impose reasonable time, place, and manner restrictions, if the regulation is content-neutral and narrowly tailored to serve a significant governmental interest. The plaintiffs argued that, because the ordinances at issue target only “advertising” and not other forms of speech, the ordinances are content-based. The court disagreed.

Distinguishing Reed v. Town of Gilbert — a 2015 U.S. Supreme Court case that struck down a city ordinance that regulated directional signs differently from other signs — the court held that the mobile billboard ordinances were content-neutral. In an opinion issued July 7, the court explained that, because the word “advertising” refers to the activity of displaying a message to the public, not to any particular content that may be displayed, a regulation targeting advertising is not content based on its face.

In contrast to the ordinance at issue in Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment. The court held that the ordinances were narrowly tailored to significant government interests in traffic control, public safety and aesthetics. In fact, the court held that the cities’ interest in aesthetics alone justifies the ordinances because the ordinances directly serve the stated interest. In addition, the ordinances left open adequate alternative opportunities for advertising — the plaintiffs were free to display the same advertising in a different manner.

The case is Lone Star Security & Video v. City of Los Angeles et al. (Case Nos. 14-55014 and 14-55050).

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.