Opinions Published in 1998

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OPINION NUMBER

98-1005 (PDF)
A county may maintain by electronic means a docket in the criminal proceedings of all trial courts within the county.

98-1003 (PDF)
A person whose employment requires that he operate a motorcycle and whose medical condition makes the wearing of a safety helmet a physical and functional hazard is not exempt from wearing a safety helmet while operating a motorcycle for work-related purposes.

98-1001
A county board of supervisors may enter into an agreement with the subdividers of a parcel of property that would require the installation of a larger storm drain system than necessary for the particular subdivision, with the county reimbursing the subdividers for the additional cost, even though a member of the board of supervisors has an ownership interest in the parcel.

98- 906 (PDF)
A company providing general engineering and construction services may employ a licensed geologist to perform necessary geological work as part of its contractual responsibilities to remove a leaking petroleum underground storage tank.

98- 901 (PDF)
Claims for senior citizens' exemptions from assessment of a parcel tax levied by a school district are subject to inspection by members of the general public.

98- 814 (PDF)
The duly authorized representative of a city may examine all the sales and use tax records of the State Board of Equalization relating to the board's determination of the amount of local sales and use tax revenues to be distributed to the city.

98- 809
The County Counsel of Colusa County may not continue to employ the services of a paralegal who is serving simultaneously as the president of the recognized employee organization of county employees of which she is a member, where no realistic accommodation is available.

98- 807
With respect to the issuance of revenue bonds under Article 2 of the Joint Exercise of Powers Act:
1) The ordinance by which a party to a joint powers agreement authorizes the issuance of revenue bonds must generally identify the projects to be funded and the revenue sources to be relied upon; it is not sufficient for the ordinance to refer to a list of potential projects and revenue sources.
2) Each party to a joint powers agreement that will receive proceeds from particular revenue bonds must adopt an authorizing ordinance prior to the sale of the bonds.
3) The proceeds of the bond sale may not be used to finance projects not identified in the bond indenture.
4) A joint powers agency may not use the bond revenues to finance loans to or purchases instruments of indebtedness from its members except for unfunded pension liabilities and delinquent property taxes and assessments.
5) A joint powers agency may not allow a public entity to become a "limited" or "associated" member of the agency without becoming a party to the agreement creating the agency.

98- 806
The county emergency medical services agency, and not the county board of supervisors, has the authority to designate the location of trauma facilities in the county.

98- 805
A county service area established for the purpose of road maintenance is required to assess landowners on a proportional rather than uniform basis when it imposes a charge for maintenance services.

98- 804
The regulations adopted by the California Integrated Waste Management Board do not prohibit a county from claiming a categorical exemption from the requirements of the California Environmental Quality Act with respect to its adoption of a countywide waste management plan.

98- 802
The members of the City Council of the City of Hesperia may simultaneously serve as the governing board of the Hesperia Fire Protection District and the Hesperia County Water District.

98- 711
1) A commercial salmon vessel permit does not constitute personal property of the permit holder so as to allow its sale without transfer of the vessel owned by the permit holder.
2) The Department of Fish and Game's refusal to renew a commercial salmon vessel permit if the renewal application is received or postmarked after the expiration of the permit does not violate the constitutional due process rights of the permit holder.
3) The holder of an expired commercial salmon vessel permit may appeal to the Fish and Game Commission for reinstatement of the permit.

98-707
The positions of police chief and city manager of the City of San Jacinto are incompatible public offices.

98- 710
1) Depending upon the individual circumstances, a public entity may be immune from liability for injuries arising from skateboarding that occurs on public property outside the confines of a skateboard park.
2) A public entity's immunity from liability for injuries arising from skateboarding that occurs on public property outside the confines of a skateboard park would not be affected by the entity posting notices stating that skateboarding constitutes a hazardous recreational activity.

98-704
Funds obtained as "in lieu" fees for park or recreational purposes as a condition of approval of a subdivision map may be used (1) to purchase an existing theatre where a variety of cultural activities, including concerts, dance recitals, and art shows, would be exhibited, (2) to purchase land on which a theatre would be constructed to exhibit a variety of cultural activities, or (3) to fund the construction of a theatre that would exhibit a variety of cultural activities on land dedicated for park or recreational purposes.

98- 702 (PDF)
A ward of the juvenile court (Welf. & Inst. Code, § 602) who is ordered to serve time in the county jail upon reaching the age of 18 as part of the court's dispositional order is not entitled to work or good behavior extra time credits (Pen. Code, § 4019).

98- 611 (PDF)
A corporate entity licensed as a health care service plan may not enter into an agreement with a network of providers of cosmetic medical services, a specialty not covered by any of the entity's health benefit plans, according to the terms of which the entity would (1) refer its enrollees to a participating provider, or to a provider selected by the enrollee from a directory of participating providers, for medical services at a discounted rate and (2) collect and forward to the provider the fees for such services after deducting an "administrative fee."

98- 604
A probationary teacher for the 1997-1998 school year may not be employed by the school district as a probationary teacher for the 1998-1999 school year or as a permanent teacher for the 1999-2000 school year if the teacher's spouse became a school board member during the 1997-1998 school year.

98- 505
1) A prosecution for fraudulent voting requires proof of specific intent; such proof need not be by direct and positive evidence, but may be inferred from circumstantial evidence.
2) The statute of limitations for fraudulent voting commences upon the discovery or completion of the offense, whichever is later.
3) Statements of admission alone are not sufficient to support a conviction for fraudulent voting of a person who unlawfully registers to vote or who, being unlawfully registered, votes in an election; however, slight or circumstantial evidence is all that is necessary to establish that a crime has been committed.

98- 504
A school district is not required to allow a pupil or a pupil's parent or guardian to be represented at an expulsion hearing by a non-attorney such as an "educational advocate" or "administrative law advisor," but it may allow such representation under duly adopted rules and regulations.

98-503
1) An historic Gold Rush "pioneer" cemetery that was dedicated to public use is subject to the management and control of a county board of supervisors if it is located in unincorporated territory and was acquired or dedicated as a public cemetery pursuant to present or preexisting law and such use has not been terminated.
2) The rights of members of the public to visit an historic Gold Rush "pioneer" cemetery dedicated to public use that is under the management and control of a county board of supervisors are subject to reasonable regulations adopted by the county board of supervisors to protect public peace and safety.

98- 501
A city may prohibit the making of turns onto designated public streets in either business or residential areas within its jurisdiction during selected hours when no traffic safety issue is involved.

98-406
1) The deadline for a community redevelopment agency to transfer to a housing authority "excess surplus" money in its Low and Moderate Income Housing Fund identified as of July 1, 1994, was January 1, 1995.
2) Health and Safety Code section 33334.2 does not permit a community redevelopment agency to spend money in its Low and Moderate Income Housing Fund outside the boundaries of the community.
3) When a community redevelopment agency uses a nonprofit corporation to administer its housing activities, the corporation is required to comply with the same laws and regulations as the agency, including open meeting laws, acquisition and relocation requirements, and public bidding and prevailing wage statutes.
4) If a community redevelopment agency's activities with respect to the use of money in its Low and Moderate Income Housing Fund are not permitted by state law, bond holders, affected individuals or organizations, taxpayers, and the Attorney General may institute legal proceedings to require a redevelopment agency's compliance with state law.

98- 405
A former member of a city council who participated in the planning, discussions, and city approval necessary to implement a city loan program for developing businesses within the city is thereafter precluded from acquiring a loan under the program.

98- 401
A city council may not execute a contract with a corporation for the purchase of equipment if one of the council members and her spouse own less than 3 percent of the stock of the corporation, the spouse has been employed by the corporation for more than 3 years, and the spouse's salary from the corporation exceeds 5 percent of the total annual income of the member and the spouse.

98- 306
California statutes specifying accreditation by the Western Association of Schools and Colleges, or other regional accrediting organizations, do not unlawfully discriminate against alternative accreditation agencies.

98- 304
Corporations Code section 318, requiring the Secretary of State to maintain a registry of women and minorities to serve on corporate boards of directors, is not rendered unconstitutional by the recent adoption of section 31 of article I of the Constitution.

98- 303
1) A joint powers agency may not be established by a city and a nonprofit public benefit corporation created by the city.
2) A joint powers agency established by a city and another local agency may not impose development impact fees on the development of property in a geographic area that is not within the boundaries of any of the contracting parties.

98-302
A county supervisor may be employed by the county housing authority commission to serve as its secretary and executive director.

98- 212
The Department of Alcoholic Beverage Control may but is not required to revoke a liquor license for a third violation of selling alcohol to a minor within a 36-month period.

98- 209
The Employment Development Department has the authority to collect interest on penalties imposed for the failure to pay amounts due and owning and for the failure to file reports and forms in a timely manner.

98- 208
Nextel Communications, Inc. and Recomm Communications, Inc. are not, by virtue of a single complaint of alleged unlawful deceptive practice, unlawfully holding or exercising their corporate franchises.

98- 204 (PDF)
Prior to the filing of a criminal complaint, law enforcement agencies may destroy interview notes containing witness statements that have been transferred to a formal report.

98- 202
The State Architect's interpretation of the "strike edge clearance" accessibility requirement of the California Building Standards Code is not an interpretation that may be appealed by a hotel owner to the Building Standards Commission.

98- 201
Glendale Nissan, Inc. is not, by virtue of a single complaint of alleged unlawful deceptive practice, unlawfully holding or exercising its corporate franchise.

98- 108
A bail agent may, upon request of the surety liable for the undertaking, arrest a defendant and transport him to a court, magistrate, sheriff, or police, as directed. Although a bail agent has no explicit statutory authority to carry a loaded firearm when performing his duties, he is not precluded from doing so in limited circumstances. Like any person who does not have a permit to carry a firearm, he may carry a loaded firearm while engaged in the act of making or attempting to make a lawful arrest of the defendant.

98- 107
A violation of the San Francisco Charter proscribing conflicts of interest and incompatible activities by an officer of the City and County of San Francisco does not work a forfeiture of office.

98- 105
1) Insects are ineligible for listing as a threatened or endangered species under the California Endangered Species Act.
2) A landowner may destroy a plant on his property that is listed as threatened or endangered under the California Endangered Species Act when (1) federal approval has been given, (2) approval by the Department of Fish and Game has been given, (3) incidental to a properly permitted surface mining operation, (4) incidental to routine and ongoing agricultural activities that occur while specified management practices are followed, (5) due to inadvertent or ordinarily negligent acts during lawful, routine, and ongoing agricultural operations, (6) incidental to state agency projects under findings of the Department of Fish and Game, (7) incidental to specified emergency projects, or (8) incidental to certain agricultural operations, timber operations, mining assessment work, and the clearing of specified property under the Native Plant Protection Act.
3) If a landowner has not been notified by the Department of Fish and Game under the Native Plant Protection Act of the presence of a rare or endangered native plant, the landowner is not required to provide notice to the department of his intent to destroy such a plant when carrying out an authorized agricultural operation, management practice, or fire control activity. 4) A biologist or other scientist is not required to have a permit under the California Endangered Species Act to conduct a survey for the presence or absence or absence of any listed plant or animal species if the survey activities do not involve the trapping, catching, capturing, possessing or killing of such species.

98-104
If a physician pays a portion of the expenses of a clinical laboratory that is located in the office of another physician and orders laboratory tests from the laboratory but is not physically present when the tests are performed, the physician may not charge a patient a fee for the tests in addition to the fee charged by the laboratory.

98- 103
A residential project built and owned by a county community development commission to be used as low-income rental units is exempt from a school district's levy of school impact fees.

98- 101
The state is required to provide indemnification and defense for an appointee to a state board, commission, or committee with respect to activities performed within the appointee's designated duties if the appointee exercises a portion of the sovereignty of the state and thus is a state "officer." Appointees who are state "employees" would also be entitled to indemnification and defense. Whether an appointee is a state employee must be determined on a case-by-case basis by applying factors specified in section 220 of the Restatement Second of Agency.

97-1216
1) The proposed merger between Pacific Enterprises and Enova Corporation should not by itself adversely affect competition in the markets for interstate gas or wholesale electricity.
2) The merger may eliminate the discipling effect of San Diego Gas & Electric as a potential competitor in the partially regulated intrastate gas transmission market. We recommend that the Commission consider requiring the merged entity to auction offsetting volumes of transportation rights within that system.

97-1214
The governing board of a high school district may refuse to use school funds to pay for the annual cleaning and repair of football equipment if the athletes and their parents have privately raised funds to cover these expenses so long as the raising of such private funds is voluntary; otherwise, the district would have the duty to pay for these annual expenses if it maintains a football program.

97-1212
A former elective member of a community college district governing board, who served eight years (1989-1997) in office and four years (1980-1984) as a faculty member of the district, is not eligible for district-paid retiree medical benefits if the district requires a minimum of ten years of employment in order for district-paid retiree medical benefits to vest.

97-1210
A county is required to provide indemnification and defense for grand jurors sued for statements made within the scope of their reporting duties that are contained in a final grand jury report.

97-1209
When a tentative map has been validly "deemed approved" under the Subdivision Map Act by the failure of the legislative body of a city or county to take timely action to approve, conditionally approve, or disapprove it, such map is entitled to be treated in the same manner as a tentative map that has been approved by a vote of the legislative body, provided that the map complies with all applicable provisions of the Subdivision Map Act and local ordinances enacted thereunder.

97-1208
When the retail seller of a hearing aid fails to adjust or replace the device so that it is specifically fit for the particular needs of the buyer and the transaction is deemed rescinded, the seller may not retain any portion of the total amount paid on the basis that such part payment was for fitting the device or other ancillary service or for one or more of the component parts that the seller refuses to take back.

97-1207
1) Members of the legislative body of a local public agency may not ask questions or make statements while attending a meeting of a standing committee of the legislative body "as observers."
2) Members of the legislative body of a local public agency may not sit in special chairs on the dais while attending a meeting of a standing committee of the legislative body "as observers."

97-1205
The County of San Mateo has the authority to impose a 0.5 percent transactions and use tax for the support of public elementary and secondary education, community colleges, parks, recreation, and libraries, which tax would be used to fund these activities in incorporated as well as unincorporated areas of the county. However, prior approval by two-thirds of the electorate is necessary.

97-1203
With respect to a real property lease and water purchase agreement between a city and a general partnership which requires renegotiation of the rental rate and water fees every five years in accordance with guidelines specified in the agreement, and a general partner is thereafter elected to the city council, the city council at the end of a five-year period (1) may not approve a change in the rent or fees, (2) may not allow the rent or fee changes to be decided by a third-party arbitrator in accordance with an arbitration clause contained in the agreement, (3) may not allow the agreement to remain in effect with the previously set rent and fees, but (4) may approve a change in the rent and fees upon transfer of the council member's proscribed interest to another general partner, family member, unrelated third person, or trust.

97-1202
If a federal patent conveying government property into private ownership describes the property being conveyed in terms of multiple, contiguous "lots" depicted on an official United States Government Survey Map, each lot does not constitute a distinct legal parcel that a county must recognize for purposes of the California Subdivision Map Act.

97-1201
The owner of a bar, restaurant, or tavern may not allow smoking in his or her establishment merely by opening all doors and windows during the hours of employment.

97-1106
1) A county is financially responsible for the costs of analyzing a body fluid specimen obtained from a person arrested for being under the influence of a controlled substance by a California Highway Patrol officer in unincorporated territory of the county if funds in the special account established pursuant to law for such payment are unavailable.
2) A county is not financially responsible for the costs of analyzing a body fluid specimen obtained from a person arrested for being under the influence of a controlled substance by a city police officer within a city. If funds in the special account established pursuant to law for such payment are unavailable, the city is financially responsible for the costs.

97-1105
1) Except in certain circumstances relating to a student body association, an auxiliary organization of a community college district is required to reimburse the district for services district employees perform under the direction or on behalf of the auxiliary organization.
2) The chancellor of the California community colleges does not have the authority to "forgive" an auxiliary organization's reimbursement payment relating to a community college district's past practice of providing district employee services without reimbursement.
3) The chancellor of the California community colleges has the authority to recommend deferring the payment of reimbursement by an auxiliary organization for any appropriate reason, including that community college district officials believed in "good faith" that reimbursement was not required.
4) Reimbursement by an auxiliary organization may be in the form of non-monetary benefits that the auxiliary organization provides to a community college district, such as increased community awareness or other such benefits that are agreed upon by district officials and the auxiliary organization.

97-1104
1) The method by which the Vallejo Sanitation and Flood Control District calculates the monthly user fees charged for the operation and maintenance of its storm drainage system does not meet constitutional requirements.
2) The Vallejo Sanitation and Flood Control District is required to obtain prior voter approval when revising the methodology by which it calculates its storm drainage system monthly user fees, resulting in an increased amount being charged certain persons.

97-1103
1) Does the appointment power of an elected mayor of a general law city extend to appointments (a) to regional boards, commissions, and committees, (b) that a city ordinance requires to be made by the city council, and (c) to subcommittees of the city council?
2) Does the city council have the authority to direct the mayor to appoint a particular person in any of the above-described circumstances?

97-1102
Granting leave to sue in quo warranto in the present circumstances would not serve the public interest in determining whether a trustee of a newly formed school district may continue to serve as a trustee of a reorganized district until it is dissolved where a statutory prohibition against such dual office holding has been waived by the State Board of Education and only a matter of months remain before the reorganized district is dissolved.

97-1101
The $200 fee paid by a person granted probation for a crime of domestic violence does not constitute a "fine, penalty, or forfeiture" to which penalty assessment provisions apply.

97-1011
A city, with the approval of its airport commission and advice of its airport director, may enter into a contract with a for-profit corporation formed by the city and in which the city is the sole shareholder, even though a city airport commissioner and the airport director serve on the board of directors of the corporation.

97-1009
Merchandise must be advertised as "secondhand or used" if it is used, worn, or sampled for a short time by a consumer and then returned in like-new condition pursuant to the retailer's policy allowing returns of merchandise at the customer's discretion, unless such use, wearing, or sampling is for inspection purposes only.

97-1008
1) Residence within a high school district is a qualification for election to the governing board of the district.
2) Whether defendant complied with the residence qualification for election to the governing board of a high school district presents substantial issues of fact and law.
3) Continued residence within a high school district is required during the entire term of office of a governing board member.
4) Whether defendant has complied with the residence requirement for continued service as a governing board member of a high school district presents substantial issues of fact and law.

97-1007
1) Continued residence within a high school district is required during the entire term of office of a governing board member.
2) Whether defendant has ceased to comply with the residence requirement for continued service as a governing board member of a high school district presents a substantial issue of fact and law.

97-1006
1) A county sheriff is authorized to investigate criminal acts alleged to have occurred at a state correctional facility.
2) A county sheriff may decline to investigate criminal acts alleged to have occurred at a state correctional facility when, for example, the crime report is patently frivolous, a preliminary investigation shows the allegations to be without merit, or he has an agreement that another law enforcement agency having jurisdiction over the matter will carry out the appropriate investigation.

97-1005
The owner of a mobile home park, the owner of an apartment complex, and the homeowners' association of a condominium project may prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door.

97-1001
1) A school district has the authority to establish a school within the geographical and attendance boundaries of another school district only if the school is located on a site immediately adjacent to a school site within the district's boundaries.
2) A school district has the authority to establish a charter school within the geographical and attendance boundaries of another school district.
3) A school district would not be liable for the actions of a school established within its geographical and attendance boundaries by another school district.

97- 906
1) A city or county may form an infrastructure financing district under which incremental increases in property taxes are allocated to finance public capital facilities associated with the district.
2) If formation of the infrastructure financing district is delayed until after the facilities to be financed are wholly or partially constructed, only those facilities that were not completed and provided for use by the city or county prior to formation of the district may be financed through incremental increases in property taxes.

97- 901
The Real Estate Commissioner is not required to take adverse action against a real estate licensee due solely to the licensee's acceptance of a fee for the referral of a client to a mortgage lender in violation of the federal Real Estate Settlement Procedures Act of 1974, provided that the licensee discloses the receipt of the referral fee and complies with all other applicable California laws.

97- 816
The Director of Toxic Substances Control may prohibit a non-peace officer employee from carrying a firearm while at work, including an employee who has a license to carry a firearm.

97- 815
1) A county may incorporate the land use designations and other provisions of its zoning ordinances into its general plan.
2) If a county incorporates the land use designations and other provisions of its zoning ordinances into its general plan, it may repeal its zoning ordinances and replace them with a single ordinance that requires all land use activity in the county to conform to its general plan including the incorporated zoning ordinances.

97- 809
1) A private nonprofit religious school may deny admission to a student solely on the basis that the student's religious beliefs are inconsistent with the religious beliefs of the school.
2) A city may lease a public building to a private nonprofit religious school without requiring that the school be open to all religious beliefs of prospective students.
3) A city may not refuse to lease a public building to a private nonprofit religious school solely on the basis that the school is not open to all religious beliefs of prospective students.

97- 713
In addition to its receipt of a designated portion of the Del Mar Track parimutuel wagering handle, the City of Del Mar may not impose an admissions tax on events held at the Del Mar Fairgrounds that do not involve live horse racing or satellite wagering.

97-711
While a charter school operates independently from the existing school district structure as a method to accomplish specified purposes, it may not be formed as a legal entity separate from the school district that granted the charter.

96-1011 (PDF)
A bingo player may use an electronic aid in conjunction with traditional bingo cards to notify him when a game has been won.

96-1003 (PDF)
As conducted by the California State Lottery Commission, Super Lotto, with the exception of the Bonus 7 and Match 3-of-6 features, is a lottery game; Fantasy 5 is a lottery game; Scratchers is a lottery game; Daily 3 is an unlawful banking game.