NEWSLETTER

Table Of Contents I. FEDERAL LITIGATION By Martin J. Mayer, Esq. II. MEDICAL MARIJUANA By Martin J. Mayer, Esq. III. FIREFIGHTER’S BILL OF RIGHTS By Paul R. Coble, Esq. IV. CONFLICT OF INTEREST CODE UPDATE 2008 By Richard L. Adams, Esq. V. LEGISLATIVE UPDATES 2008 STATUTES By Jeremy J. Rytky VI. GROUP HOUSING By Krista MacNevin Jee FIRM ANNOUNCEMENTS ADDITIONS TO THE FIRM

ATTORNEY SPOTLIGHT •  We are very pleased to announce that in August of 2007, ELIZABETH R. FEFFER was appointed Judge to the Los Angeles Superior Court. •  MARTIN J. MAYER has been appointed as General Counsel to the California State Coroners' Association. •  KIMBERLY H. BARLOW is now President of the Orange County City Attorneys' Association. FIRM ANNOUNCEMENTS • SEMINARS– JUNE 4 • UPCOMING SPEAKING ENGAGEMENTS ADDITIONS TO THE FIRM •  RICHARD L. ADAMS •  JEREMY J. RYTKY

I. FEDERAL LITIGATION

STATUS OF LITIGATION REGARDING POTENTIAL
RELEASE OF 40,000 STATE PRISONERS

By: Martin J. Mayer

The law firm of Jones and Mayer represent thirty-seven elected sheriffs, twelve chief probation officers and seventeen municipal police chiefs as interveners in federal litigation involving the potential release of thousands of State prisoners by a three-judge court. The following is a status report regarding this litigation.

History

Two class action law suits (Coleman v. California and Plata v. California) have been active in the federal court for the past 12 to 17 years involving allegations that the constitutional rights of inmates, to receive adequate medical and/or mental health care, have been violated by the state of California.Part of the suit is based on the claim that overcrowding in the system contributes to the constitutional deprivation.The California Department of Corrections and Rehabilitation (CDCR) currently has approximately 175,000 inmates in a system designed to hold approximately 83,000.

In June, 2007, the Chief Justice of theNinth Circuit U.S. Court of Appeal appointed a Three Judge Court to hold hearings and decide whether or not to issue a prisoner release order which would involve both the release of potentially, 40,000 inmates and the imposition of a cap on the remaining number of inmates in the state system.The effect of the cap would be to prevent the transfer of any other inmates to the state system until the number of inmates dropped below the cap.

In August of 2007, at the request of the Governor and Attorney General of California, a group of individuals and entities decided to file motions to intervene, in support of the defendants (the State of California and Governor Arnold Schwarzenegger),the hearings before the Three Judge Court.to thePrison Litigation Reform Act (PLRA), thoseare entitled to intervene and, therefore, become active parties in the litigation, include those who run correctional institutions, those who fund such institutions, those who prosecute offenders, and those who would be impacted by such an order.

Litigation Activity and Accomplishments

Immediately thereafter,respective attorneys filed motions to allow participation ofvarious intervenersthe litigation and the motionswere granted.of the primary purposes of the interveners, according to the PLRA,to provide the Court with information as to the impact a prisoner release orderhave on local communities and the criminal justice system, and what alternatives exist which could be implemented in lieu of such an order.

On September 24, 2007, the Three Judge Court held a hearing involving all parties and subsequently issued an order bifurcating the process.The Court ruled that Phase I of the process would decide first, whether overcrowding contributed to the constitutional deprivations and second, whether any alternatives existed to the prisoner release order which would alleviate those deprivations.At the same time, however, the Court ruled that the defendant/interveners would not permitted to participate in Phase I, although the Court allowed the California Correctional Peace Officers Association (CCPOA), which intervened on behalf of the inmates, to participate fully in Phase I.One major justification by the Court for this exclusion was that the defendant State of California and the Governor would adequately represent the interests of the defendant/interveners.

The attorneys for the Law Enforcement interveners, the prosecutors and the state legislators joined together and filed a motion urging the Court to reconsider its decision,a variety of reasons, including the obvious fact that exclusion from Phase I was exclusion from the most significant part of the process and was in violation of the law.The Court refused to reconsider and continued to exclude those interveners.Additionally, the Court ordered the defendant/interveners to respond to discovery demands but refused to allow the defendant/interveners to propound discovery.

The Court then appointed a Settlement Referee and Settlement Consultant to conduct meetings in an effort to arrive at some negotiated agreement to resolve the dispute.Defendant/interveners participated in those discussions, intoa voice in the process,also filed objections with the Court regarding the process being imposed on the defendant/interveners.Court continued to refuse to allow/interveners to have full participation in the process.

As a result, the respective attorneys, again as a group, filed a Petition for a Writ of Mandate with the Ninth Circuit U. S. Court of Appeal challenging the exclusion of their clients, the defendant/interveners.The Ninth Circuit granted the writ , statingdefendant/intervenersset forth significant issues which needed to be addressed.Shortly thereafter, the Three Judge Court issued an order staying the proceedings.

While all this was occurring, the attorneys for the defendant/interveners were directed by the Court to prepare and submit settlement proposals setting forth meaningful alternatives to a prisoner release order.The three groups wereto, prepare, secure approval from clients, and submit the proposals to the Settlement Referee and Settlement Consultant, within five (5) days!Once again, the attorneys for the defendant/interveners worked in a collaborative manner and accomplished the task.

The proposals focused on reducing entry into the prison system, through increased involvement by probation departments, and developing re-entry facilities, programs and supervision to deal with the releasing of inmates back into the communities.Subsequently, the Settlement Referee and Consultant informed counsel for the defendant/interveners that the ideas were well received by the Three Judge Court.

Current Status

As a result of the writ petitiongranted, further discussions were held with the Settlement Referee and Settlement Consultant in an effort to secure full participation by the defendant/interveners.Agreement was reached at that level and, as part of the agreement, the defendant/interveners filed an additional motion to the Three Judgeto reconsider their earlier decision,the interveners from Phase I.

One of the primary issues raised in this motion was that the State of California and the Governor were not representing the interests of the local defendant/interveners, as evidenced by the announcement by the Governor that he proposed releasing 22,000 felons in order to reduce the state budget deficit.That motion was granted by the Court and the defendant/interveners are, finally, full participants in the litigation. On February 26, 2008, pursuant to an order from the federal courts, all parties met to prepare a discovery plan and set a date for trial of the matter.

At this same time, the amount of funding pledged by the six associations has been exhausted, as a result of the need to fight to secure participation by the defendant/interveners - a fight never anticipated by the parties.The associations must now decide whether to continue to fund the litigation or withdraw from participation.Withdrawal would mean that the local interests of sheriffs, chief probation officers and municipal police chiefs would not be presented to, nor considered by, the Court in deciding whether or notissue a prisoner release order.That decision must be made by the boards of directors of the six associations and only time will tell what will be that decision.

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II. MEDICAL MARIJUANA

THE USE OF MEDICAL MARIJUANA AND ONE'S JOB

By: Martin J. Mayer, Esq.

Your employee goes to your Human Resources department and informs them that he has been advised by his doctor to use a particularin order toa medical condition from which he suffers.He informs the HR department that he will consume the drug while off duty and it will not interfere with his job performance. When informed of this, you terminate the employee stating that you don't approve of the use of that particular medication.

On January 24, 2008 the California Supreme Court, in a 5-2 decision,that under certain circumstances such action is lawful, despite the fact that the recommended drug is legal under the laws of California.In the case of Ross v. Ragingwire Telecommunications, Inc. , 132 Cal.App. 4th 590, the Court held that firing the employeenot a violation of the employee's right of privacy, it is not wrongful termination,is it discriminatory under the California Fair Employment and Housing Act (FEHA, Gov. Code 12900 et seq.), if the recommended medication is marijuana.

Plaintiff Gary Ross suffers from back injuries sustained while serving in the United States Air Force.is undisputed that his physician recommended the use of marijuana, pursuant to California's Compassionate Use Act (H&S Code 11362.5), which was implemented following the passage of Proposition 215 by the voters of California. Neither his disability, nor his use of medical marijuana, interfered with his ability to perform all of the essential functions of his job.Because of his medical condition he is a qualified individual with a disabilityFEHA and, as such, an employer must make reasonable accommodations for his disability.

When Ross was hired he was required to submit to a medical examination whicha drug test.He informed the clinic of his use of medical marijuana, and provided a recommendation from his physician.After the test proved positive for marijuana, he was terminated from employment.He sued alleging the claims referenced above.The superior court granted the employer/defendant's demurrer and dismissed the suit.The Court of Appeal upheld the lower court and the California Supreme Court affirmed that decision.

FEHA

Pursuant to FEHA, it is "an unlawful employment practice ... for an employer, because of the physical disability [or] medical condition ... of any person, to refuse to hire or employ the person .. or to bar or tothe person from employment...."The Court held that "the FEHA inferentially requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations."Plaintiff argued that would include allowing him to use marijuana for medicinal purposes.

Plaintiff argued that "just as it would violate FEHA to fire an employee who uses insulin or Zoloft, it violated [the] statute to terminate an employee who uses a medicine deemed legal by the California electorate upon the recommendation of his physician."

The Supreme Court disagreed, stating that "Plaintiff's position might have merit is the Compassionate Use Act gave marijuana the same status as any legal prescription drug.But the act's effect is not so broad.No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users."The Court further states that "the FEHA does not require employers to accommodate the use of illegal drugs."

Pre-Employment Drug Testing

The Court noted that marijuana use conflicts with the employer's policies which prohibit the use of illegal drugs by its employees.In referring to an earlier California Supreme Court decision, Loder v. City of Glendale (1997) 14 Cal. 4th 846, the Court stated that "the employer's legitimate concern about the use of illegal drugs ... also led us ... to reject the claim that pre-employment drug testing violated the job applicant's state constitutional right to privacy."

The Court further held thatvoters were "free to view the possibility of beneficial medical use..." of marijuana and, therefore, exempt those users from criminal prosecution - under state law - when the drug was recommended by their doctors.However, said the Court, that "did not compel the voters to take the additional step of requiring employers to accommodate marijuana use by their employees."The act speaks exclusively to the criminal law and does not effect employment law.

Medical Marijuana and the Law

As pointed out by the Court, use and possession of marijuana is still prohibited under the federal law.It is, in fact, still illegal under California law, and only creates a defense against prosecutioncertain circumstances.Also, as the Court noted, "the voters did not give medical users of marijuana complete immunity from criminal law."

There are still prohibitions against driving under the influence of marijuana, even if used for medical purposes.Neither, said the Court,"the measure ... purport to change the laws affecting public intoxication with controlled substances or the law addressing controlled substances in such places as schools and parks..." or in.Additionally, "police officers can still arrest anyone for marijuana offenses.Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor's approval. " (Emphasis in original.)

Conclusion

There are ongoing disputes raised as a result of the passage of Proposition 215.Those disputeswhether the drug must be returned to the defendant after a possession charge is dismissed under the Proposition; are dispensaries, as opposed to collectives which are referred to in the enabling legislation, legal under state or federal law; can cities lawfully issue business licenses and permits for marijuana dispensaries; and so forth.

However, one issue which is now resolved is that an employer can refuse to hire a person who uses marijuana -because it is still illegal under our federal law.As such, employers - both public and private - can still decide that they do not want to employ individuals who choose to violate the law.

In an area such as this, it is imperative that one seeks legal advice before undertaking any action since it, obviously, can and may lead to litigation.

BALANCE AND CONTEXT

PBOR has been in effect for thirty-one years, and there has been time for judicial interpretation and practical experience for those tasked with implementation and application of these rights and procedures. As noted earlier, there was much concern at the outset about whether PBOR was going to impair or even end the ability of law enforcement management to hold officers accountable for their actions and to uphold the standard of conduct expected by the public. But with time and experience, these concerns have largely been put to rest.

This does not mean that issues do not still arise, or that violations of PBOR cannot or do not occur. Rather, in the larger context of California law enforcement, there exists an understanding and respect for PBOR borne of the fact that nearly all supervisors and managers have grown up in their police careers with PBOR as a reality of their lives.

Out of that process of maturation and adaption has come the understanding in law enforcement that the exercise and respect for procedural rights does not impair the ability of management to ascertain the truth of the matter and to hold personnel accountable to the standard of conduct.

TRAINING

The key to successful adaptation in the fire service to FBOR is:

•  Training of Managers; when the rights under FBOR apply and when they do not; the oversight of internal investigations which are impacted or governed by FBOR; insuring periodic in-house training of supervisors and key staff, etc.

•  Training of First Line Supervision; critical link as this is often the level of the organization at which “intake” and complaint initiation takes place; first line supervision is the level at which most violations of PBOR have been shown to occur.

•  Inclusion of Unions; the agencies approach to implementation and application of FBOR should be an open book; inclusion of union representatives in management and supervisory training helps ensure that at least everyone is receiving the same message, and the union knows where management is coming from in its interpretation and application of the law.

Law enforcement is typically the “complaint intensive” environment in emergency services, and police supervisors are accordingly more accustomed to dealing with disciplinary and PBOR issues on a relatively frequent basis. Given the more hierarchal nature of the police service, first line supervision may more easily stand apart from, and be least informal with, subordinate personnel.

Conversely, the nature of the fire service, at least at the line level, tends to be less hierarchal and more informal, and therefore may mitigate in favor of the need for closer and more frequent training of the captain and battalion chief levels to reinforce and awareness of when that informality needs to yield to the procedural rights and structure required by FBOR.

But experience on the law enforcement side has shown that with the reinforcement of training with appropriate content and periodicity, respect for these rights and adherence to the law is enhanced, and violations of these procedurals rights are held to a minimum.

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III. FIREFIGHTERS BILL OF RIGHTS ACT

It's Going To Be All Right

In 2007 the California Legislature passed Assembly Bill 220 enacting the Firefighters Procedural Bill of Rights Act, found at Govt. Code §3250, et seq. . The Act, already commonly known as FBOR, became effective January 1, 2008.

Any new and significant enactment is bound to create some concern and initial confusion. Certainly FBOR has been no exception, with numerous interested parties holding forth on various issues and problems, both real and imagined. However, on an arm's distance look it can be seen that FBOR closely – indeed, in many instances identically – parallels the provisions of the Public Safety Officer's Procedural Bill of Rights Act (“PBOR”), found at Govt. Code §3300, et seq. . Inasmuch as PBOR has been in effect since 1977, and in view of the close parallels between the two Acts, reason would suggest that instruction can be drawn, and reliance placed upon, the now over thirty years of experience in state and local government with the interpretation and application of the antecedent PBOR as a means of guiding ourselves in the interpretation and application of the new Act, FBOR.

From a personal perspective, I remember well the early days of dealing with PBOR. As a young LAPD sergeant only a couple of months after PBOR became effective, I recall all too well the feeling that our lives as supervisors and managers were bound up in a proverbial Gordian Knot of incomprehensible rules and procedures, leaving us feeling as though we could barely clear our throat without violating some officer's rights under PBOR. However, time and experience – as well as the plethora of case law generated by my alma mater , LAPD – has shown that these “rules” are easily understood, and not difficult to apply. More importantly, respect for and adherence to these “rules” does not impair fulfillment of the two fundamental purposes of an internal disciplinary process; to ascertain the truth of the matter and to uphold the relevant standard of conduct.

THE ADMINISTRATIVE APPEAL RIGHT

A distinction between PBOR and FBOR that has given rise to some concern and discussion is the language under §3254.5 which provides that:

An administrative appeal instituted by a firefighter under this chapter shall be conducted in conformance with rules and procedures adopted by the employing department or licensing or certifying agency that are in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2.

The reference is to the State's Administrative Procedures Act (APA), found at Govt. Code §11500, et seq. . Similar language is not found in PBOR.

The concern and question is whether this reference in FBOR to the APA constitutes a mandate for local agencies to adopt and utilize the APA, including the discovery processes found at §§ 11507.6 and 11507.7, as well as the mandate to utilize the Office of Administrative Appeals and an Administrative Law Judge found at §11502.

While there is some ambiguity in the reference in §3254.5 to the APA, the more widely held view at this time is that local procedures simply have to comport with the overall standards of the APA, but leaving it to local agency discretion as to whether to expressly adopt the APA. Had the Legislature intended §3254.5 to mandate application of the APA to local agency administrative appeals, it could have and presumably would have so stated. And if such was the intent of the Legislature, the statute would not include the words “... rules and procedures adopted by the employing department ...”

Therefore, and until or unless there is either Legislative or judicial guidance to the contrary, the approach recommended is to regard §3254.5 as not mandating adoption of the APA, but rather that local agencies ensure that their post-discipline administrative appeals procedures comport with the trial-like evidentiary standards of the APA.

CONCLUSION

FBOR represents a new area of law, and new responsibilities for the fire service and for agencies employing fire fighters. But while there will be a learning curve for supervisors and managers, guidance can be found and should be sought from the parallel provisions of PBOR. Initial training, with regular follow-ups, will ensure smooth adaption to and implementation of FBOR, with the assurance that at the end of the proverbial day, “It's going to be all right.”

As always, we urge that you confer with your agency's legal counsel before taking action based on information set forth in this Client Alert.If you wish to discuss the case in greater detail with the author, please feel free to contact Mr. Coble at (714) 446 - 1400 or by e-mail at prc@jones-mayer.com.

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IV. CONFLICT OF INTEREST CODE UPDATE 2008

CONFLICT OF INTEREST CODE UPDATE 2008

By: Richard L. Adams

Once again it is time to review the City's Conflict of Interest Codes. Government Code § 87306.5 requires that all local agencies review their respective Conflict of Interest Codes for changes of circumstances, in every even numbered year. Therefore, it is necessary this year to review the current Codes and the present personnel structure to see if there have been any changes since the last review in the year 2006.

One should look for the creation of any new positions since the last review and any relevant changes in the duties assigned to existing positions. In addition, any positions that no longer exist, should be identified and removed from the Codes. The positions that need to be identified in the Conflict of Interest Code are those that involve the making, or participation in the making, of decisions which may foreseeably have a material effect on any financial interest.

If there have been no changes, a written statement to that effect must be prepared and submitted to the review body (City Council) on or before October 1, 2008. If there are any changes, the Council also needs to be notified of same, on or before October 1, 2008, and the Codes will need to be amended to reflect the changes and presented to the City Council for adoption within ninety (90) days of the written statement.

Should you have any questions or need assistance, please do not hesitate to give us a call.

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V. LEGISLATIVE UPDATES

2008 STATUTES

By: Jeremy J. Rytky

Each year the California Legislature passes hundreds of laws. It would be impossible to cover each and every law in detail, so what follows is a brief synopsis of several laws that effect local government. If you have any questions on how these laws impact your agency, or on other laws not addressed here, please feel free to contact our office.

SB 1090 Ballot Designation Requirements.

SB 768 Misuse of Voter Registration Information .

SB 343 Local Agencies: Open Meetings: Documents.

AB 1430 Political Reform Act of 1974: Contribution Limits.

AB 404 Political Reform Act of 1974: Disclosure.

AB 1678 Public Officials: Conflicts of Interest.

This law enacts a four-year statute of limitations to commence action to void a contract in violation of existing law that prohibits public officials from having a financial interest in a contract entered into by the public official in his or her official capacity, or by any board or body of which he or she is a member. The four year time frame runs from the time the plaintiff discovered, or in the exercise of reasonable care should have discovered, the violation.

AB 1168 Public Records Act: Social Security Numbers.

SB 271 Criminal Street Gangs: Injunctions.

SB 2 Local Planning.

SB 698 Eminent Domain.

SB 582 Charitable Solicitations.

AB 1260 Notice: Taxes, Fees, Assessments and Charges.

•  Notice of a proposed increase in a fee or charge for a property-related service may be provided either in the regular billing statement or any other mailing to the address where the bill is sent.

•  Notice of a proposed new fee or charge for a property related service may be mailed to the address where the proposed service will be provided, or provided in accordance with the paragraph above, if the agency is currently providing an existing property-related service to the address.

•  Notice must also be provided to the record owner of the property if the owner is located at a different address than the billing address, if the agency desires to preserve the right to record or enforce a lien on the property.

•  When county protests, the agency must count one protest per parcel whether filed by either owner or tenant.

AB 1208 Improvement Districts.

•  Clarifies that a property-based assessment district may not overlap with another property-based assessment district (however, it may overlap with another type of assessment district). Business districts are allowed to overlap with other business districts.

•  Deletes existing law that declares that PBID formation petitions serve as the equivalent to the constitutionally required weighted ballot election, and instead replaces that section of law with the requirement that property or business owners sign both petitions and ballots.

•  Requires that, for business assessment districts, the notice, protest and hearing procedure comply with the Brown Act.

•  Specifies that a resolution of intention (to form or amend a district) shall be: 1) Published in a newspaper of general circulation in the city once at least 7 days before the public meeting; and 2) Mailed by first class mail, at least 10 days before the public meeting, to each business owner or property owner affected by the proposed modification.

Lastly, existing law requires two-thirds of property owners or two-thirds of business owners to submit a written petition for formation of a district. This measure clarifies this by now requiring property owners paying more than two-thirds of the proposed assessment or by business owners paying more than the two-thirds of the proposed assessment to submit a written petition.

SB 161 Public Works Contracts: Internet Submissions.

AB 1531 Vehicles: Disabled Parking.

AB 321 Vehicles: Prima Facie Speed Limits: Schools.

AB 1589 Vehicles: Reports: Reexaminations: Removal.

This law allows peace officers, traffic officers, or parking employees to remove vehicles that display license plates that have been issued to other vehicles, forged, counterfeited, or are otherwise being used inappropriately.

AB 468 Vehicles: Abandoned Vehicle Abatement.

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VI. GROUP HOUSING

Group Homes

By: Krista MacNevin Jee

How and whether to regulate “group homes” is a sensitive subject as of late, for communities throughout California . On the one hand, when run well, these residential settings have always offered handicapped and disabled individuals the opportunity to integrate into and to contribute to a community, as well as to live independently. On the other hand, there has been a recent proliferation of group living arrangements that are not well-run and are more often characterized by property owners looking only to make a profit, by manipulating the characterizations applied to their residents in order to take unfair advantage of the protections offered to handicapped or disabled individuals. Cities have clamored for a way to control the latter situation, but must do so in line with both federal and state laws relative to disabled and handicapped individuals. This article will summarize some of the major legal concepts, as well as common misconceptions and possible approaches.

First, cities cannot regulate individuals or their living arrangements based upon the status of individuals as handicapped or disabled. The federal Fair Housing Amendments Act (“FHA”) protects disabled and handicapped individuals from discrimination in housing, including prohibiting local zoning regulations that distinguish between individuals on the basis of their disability or handicap. In particular, the FHA recognizes recovering substance abuse addicts as “disabled” or “handicapped” for purposes of protection from discrimination in housing under the Act and prohibits discrimination of such individuals in decisions, rules or policies of cities. Cities are also prohibited by federal law from distinguishing between related and unrelated individuals residing together. For instance, cities could not prohibit certain renters from locating in residential zones simply based on the fact that the renters are not related to each other.

Generally, the above provisions ensure that any group of individuals, whether related or unrelated, is the functional equivalent of a “family” (essentially living together as a single housekeeping unit), then that group of individuals must be treated as a family for city zoning purposes.

Second, cities may regulate maximum occupancy under federal law. 42 U.S.C. § 3607 (b)(1) (FHA specifically exempts from its regulations “any reasonable local, State or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling”). However, under California law, this is preempted by mandatory maximum occupancy standards required under state law.

Third, State law requires that certain residential facilities, serving six or fewer persons, be treated as a family, that they be permitted in residential zones and that they cannot be required to obtain a conditional use permit, variance or other zoning clearance. See, e.g. , Cal. Health & Safety Code § 11834.23. These facilities include “community care facilities,” as defined under state law. There are often misconceptions regarding what types of group living arrangements are protected by this preemption. Many assume that this applies to any residential facility serving six or fewer, and often “group home” owners or advocates claim this interpretation. However, the above preemption only applies to facilities licensed by the state or county.

Determining whether this preemption applies becomes particularly tricky when considering “sober living” homes. An alcohol and drug recovery facility is not required to be licensed if it provides no care or supervision. Cal. Health & Safety Code § 11834.21. Therefore, if a sober living type group home provides no care or supervision to its residents, then it is not required to obtain a license and is not entitled to the protection of the preemption. The same would be true of any other unlicensed facilities or group homes.

In addition, not all substance abusers qualify as disabled or handicapped. For instance, those who are currently engaged in the use of illegal drugs are not disabled. 29 C.F.R. § 1630.3. Only those who are not currently engaged in the use of drugs and have “successfully completed a supervised drug rehabilitation program,” are “participating in a supervised rehabilitation program,” or have “otherwise been rehabilitated successfully” qualify as disabled or handicapped for purposes of the FHA. Id.

One way to regulate group uses is to focus on the nature of the use. For instance, those facilities that are run by individuals attempting to profit and take advantage of federal and state protections for disabled and handicapped individuals may not actually function like a family and are not truly group homes in the traditional sense of a group that lives together as a single housekeeping unit. Therefore, regulation of such uses , which are not consistent with residential zones, would not be a regulation of disabled or handicapped individuals.

However, in any regulation of residential uses, including all design standards, reasonable accommodation must be afforded to disabled or handicapped individuals to the extent they demonstrate that the application of, even generally applicable, standards to them is a hardship. 42 U.S.C. § 3604 (f)(3)(B). Whether this is done by administrative process or adopted code regulations is up to individual cities, although a formally adopted city policy, particularly a codified one, would usually be the more prudent choice.

This is, of course, only a general overview of some primary concepts in a complicated area of the law. Any city adopting or modifying its zoning regulations which would impact group living arrangements should carefully consider all of the applicable legal requirements.

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VII. ADDITIONS TO THE FIRM

ATTORNEY SPOTLIGHT:

RICHARD L. ADAMS II, ESQ .

ADMITTED

EDUCATION

PRACTICE

Mr. Adams is a highly respected transactional attorney, with extensive experience in the representation of Public Agencies. In 1989 his private practice transitioned into public agency law, when he became a deputy city attorney for the City of Pomona . Mr. Adams currently serves as the City Attorney for the City of South Pasadena and has served as Assistant City Attorney for both the City of Pomona and the City of Bell Gardens and has served as the City Attorney for the City of Pico Rivera .

Mr. Adams has extensive experience in all areas of public agency law practice, including land use matters, personnel issues, telecommunication law, election law, public contract law, public safety issues, collective bargaining and general administrative litigation.

Mr. Adams served for many years as the legal counsel to the Pomona Planning Commission, and has handled numerous City Council and Planning Commission meetings. He has experience in a variety of land use, CEQA and Brown Act issues. Additionally, he has assisted on a number of redevelopment transactions, and has a diverse background in numerous public agency contract matters.

Mr. Adams has conducted work shops for a number of clients on such matters as AB 1234 Ethics Training, Brown Act compliance, disciplinary procedures, conflicts of interest and drafting of ordinances and resolutions.

Mr. Adams has addressed issues of cable television performance and franchise compliance. He has successfully negotiated new franchises and/or transfer agreements for the Cities of Pomona, South Gate , Pico Rivera and La Puente . He also has successfully handled litigation matters against two of California 's major utility companies, the Southern California Edison Company and Southern California Gas Company. Through his negotiating skills, Mr. Adams was able to recover nearly $100,000.00 in revenues for the City of Pomona . Additionally, Mr.has provided legal counsel to the Pomona Utility Services and Public Works Departments on a variety of transactional, bid procedure and interagency relations matters.

RECOGNITION

PUBLIC AND COMMUNITY SERVICE

ADDITIONAL CREDENTIALS AND TRAINING

JEREMY J. RYTKY, ESQ.

ADMITTED

EDUCATION

PRACTICE

Jeremy J. Rytky joined the law offices of Jones & Mayer in November 2007. Mr. Rytky serves as a deputy city attorney for the cities of Costa Mesa , Fullerton , La Habra , South Pasadena , Westminster and Whittier . His primary areas of practice include municipal law, transactional law, and civil litigation. Mr. Rytky = s duties include drafting and revising municipal code sections, drafting and reviewing agreements, handling conflict of interest (PRA and 1090) matters, preparing legal opinions and analysis on a variety of issues affecting public entities, and providing litigation support by drafting pre-trial motions, handling discovery matters, and arguing law and motion. He also performs legal research, drafts opinions for law enforcement agencies, and performs city prosecutorial duties.

Mr. Rytky graduated in the top 8% of his class from Whittier College School of Law in May 2007. While at law school he earned a Dean's Merit Scholarship for academic excellence and a CALI Award in Corporations.

During law school Mr. Rytky externed for Justice William F. Rylaarsdam at the California Court of Appeal in Santa Ana . While there he researched and wrote memorandum and opinions on various areas of law. He also attended oral arguments and writ conferences.

Mr. Rytky was also a law clerk for the Whittier Area Cooperative Special Education Program (WACSEP). Among his duties were drafting documents including closing briefs, settlement agreements, and complaint responses to the California Department of Education. He also counseled staff and participated in numerous mediations which resulted in positive settlements for the school districts in litigation.

Mr. Rytky earned his Bachelor of Arts in History from Whittier College in 2004.

From 1998 to 2001 Mr. Rytky served in the United States Marine Corp. During his enlistment he served with Weapons Company 1/1 as a Machine Gunner and Headquarters Company 1 st Marines as Regimental Legal Clerk and was meritoriously promoted ahead of peers.

In addition, Mr. Rytky regularly volunteers for the Legal Aid Society and is involved with the California State Bar Litigation Section's Legal London Program.

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FIRM ANNOUNCEMENTS

For Martin J. Mayer, Esq.

For Gregory P. Palmer, Esq.

• UPCOMING SEMINARS COVERING THE FOLLOWING SUBJECTS:

ADULT ORIENTED BUSINESS ENFORCEMENT AND RECEIVERSHIPS

June 4, 2008 Costa Mesa

Please watch for further details in the April Issue of the Jones & Mayer Newsletter.