NEWSLETTER

I. LABOR

THE LEGISLATURE BROADENS THE VOLUNTEER LABOR EXCEPTION TO THE PREVAILING WAGES REQUIREMENT FOR PUBLIC WORKS

By: Elena Q. Gerli, Esq.

Until recently, the statutory volunteer labor exception to the requirement of payment of prevailing wages on public works was very narrow. Section 1720.4 of the Labor Code provided that the exception could only apply if all of the following requirements were met: (a) the work was performed "entirely out of volunteer labor;" (b) the structure or facility would be used exclusively or primarily by private nonprofit community organizations; (c) the work would not have an adverse impact on employment; and (d) the Department of Industrial Relations (DIR) had approved the work as meeting the requirements of subdivisions (a) through (c). See also 8 CCR § 16003 (setting forth the procedural steps to obtain volunteer labor exception approval from the DIR).

The narrow version of the volunteer labor exception of section 1720.4 was repealed. An amended, and broader, version of section 1720.4 was enacted as an urgency statute for the purpose of encouraging "citizen initiative and volunteer action in state service and to eliminate all legal disincentives and impediments to volunteering on public works projects [. . .]." (AB 2690, 2003-2004 Session, sec. 3.)

The amended volunteer labor exception became effective on August 30, 2004. It applies retroactively to covered works concluded on or after January 1, 2002, and is to remain in effect until January 1, 2009. § 1720.4(b), (c).

Amended section 1720.4 exempts any work performed by volunteers and volunteer supervisors on public works from the payment of prevailing wages. § 1720.4(a)(1)-(3).

Under the amended statute, "volunteer" means a person who performs work for civic, charitable, or humanitarian reasons for a charitable organization (a public agency or 501(c)(3) corporation [An agency qualified under section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization.]) without any compensation, or expectation of compensation. § 1720.4(a)(1).

A volunteer's services must be rendered "freely and without pressure and coercion, direct or implied, from an employer." § 1720.4(a)(1)(A).

An employer may provide volunteers with "reasonable meals, lodging, transportation, and incidental expenses or nominal nonmonetary awards," so long as these are not in lieu of compensation. § 1720.4(a)(1)(B).

A volunteer does not include someone who is either (i) employed to perform "construction, alteration, demolition, installation, repair, or maintenance work" on the same project, or (ii) employed by a contractor, other than a 501(c)(3) corporation, who is receiving payment for "construction, alteration, demolition, installation, repair, or maintenance work" on the same project. § 1720.4(a)(1)(C).

A "volunteer coordinator" is an individual who is paid by a 501(c)(3) corporation to coordinate the work of volunteers. The coordinator may perform some volunteer work on the project, and still not be required to be paid prevailing wages, so long as his or her primary responsibility is to supervise the volunteers. § 1720.4(a)(2).

Any work performed by members of the California Conservation Corps or by members of a certified Community Conservation Corps is also exempt from payment of prevailing wages. § 1720.4(a)(3); see also Pub. Res. Code § 14507.5 (certification by the California Conservation Corps).

II. ADMINISTRATION

ADMINISTRATIVE PROCEEDINGS AND THE NEED FOR FORMAL "FINDINGS"

By: Paul R. Coble, Esq.

The need for an administrative decision making body - i.e., a city council, an appointed commission, etc. -- to make findings in support of its adjudicatory decision derives from two principal sources: (1) the requirement implicit inCode of Civil Procedure, §1094.5 (Code of Civil Procedure, §1094.5 is the statute that allows an administrative claimant to seek review of an administrative decision by a court), and (2) judge-made law based on procedural due process requirements that findings be clear enough to (a) inform the parties of the reasons for a decision, so that they can decide whether additional proceedings are warranted, and (b) to enable the reviewing court to determine whether the law was correctly applied.

The seminal case on administrative findings is Topanga Ass'n for a Scenic Community v. County of Los Angeles ( (1974) 11 Cal.3d 506, 113 Cal.Rptr. 836; Santa Monica Beach, Ltd. v. Superior Court, (1999) 19 Cal. 4th 952.). In this case, the California Supreme Court held that CCP, §1094.5 implicitly requires an administrative agency rendering an adjudicatory decision to set forth findings that bridge the analytic gap between raw evidence and the decision or order. The Supreme Court emphasized that these findings serve several functions: They (1) facilitate orderly analysis by the agency, (2) enable a reviewing court to trace and examine the agency's analysis, (3) enable parties to the administrative decision to determine whether and on what basis to seek judicial review, and (4) serve a public relations function by demonstrating that administrative decision-making is careful, reasoned and equitable.

The findings and decision should, of course, be in writing. The document should contain a statement describing the proceeding and it should name the parties involved and their legal representatives. It should list the dates of each hearing and list each council or commission member who participated in the process and any member who was disqualified (Members may be disqualified from hearing a matter due to a financial interest in the outcome (Government Code §87100), or because of actual predisposition or bias in favor of or against one party or another (Mennig v. City Council, (1978) 86 Cal. App. 3d 341).

The document should list each charge involved in the proceeding, including the specific rule and/or statute involved and the descriptive language of that rule and/or statute. The document should also contain a narrative section that describes, in neutral terms and in a chronological sequence, the facts at issue in the administrative proceeding. If there were any issues which were undisputed by the parties, they should be set forth in the document. In addition, the specific issues considered and decided should be identified.

The document should then address each issue separately and set forth the specific evidence (whether it was oral or documentary) that was considered as to each issue. The document should set forth the source of each item of evidence. For example:

Officer X testified that he saw Officer Y do Z;

The time sheet submitted by the City showed that Officer D worked 8 hours on January 4, 1995.

After setting forth the evidence that was considered on each issue, the document should set forth the findings as to the credibility of lack of credibility of testimony and documents. Any contradictions and/or inconsistencies within an individual witness' testimony should be noted, just as contradictions or inconsistencies between various witnesses' testimony should be noted. Where contradictions or inconsistencies are noted, the document should set forth which testimony the decision makers found to be the most credible and why they so found.

Based on the factual findings (as supported by specific evidence), the council or commission must then identify its legal findings with respect to each issue it decides. As an example:

Based on the testimony of Officer X, the commission finds that Officer Y did not arrive at the bar until after it was locked and secured and therefore, he was not inside the bar at the time of the incident. Based on this finding, the commission determines that Officer Y did not tamper with or destroy any evidence inside the bar.

Finally, the document must contain the decision with respect to each issue and indicate whether the action or decision at issue should be upheld or modified. In this regard, it is usually within the discretion of an administrative body to uphold, reduce/mitigate or overturn the decision or action at issue in the administrative hearing.

III. CONSTITUTIONAL LAW

PROHIBITING EXPRESSIVE ACTIVITY ON RETAIL PROPERTY

By: Thien-Vu L. Ngo, Esq.

This article discusses the issue of whether law enforcement authorities are obligated to arrest noncompliant third parties engaging in expressive activity on retail premises. For the purposes of this article, "expressive activity" means the dissemination of ideas and information (e.g., speech, leafletting, distribution of religious materials, gathering of signatures for a petition). It is first necessary to explain the law surrounding this issue.

THE GENERAL RULE: PUBLIC PROPERTY

In order to determine whether expressive activity is protected, the type of communication medium must first be classified. There are three categories of fora used by the United States Supreme Court for purposes of First Amendment analysis: (1) traditional public forum (i.e., places long held to be public like sidewalks and parks); (2) designated (limited) public forum; and (3) nonpublic forum. The general rule is that the First Amendment limits only governmental action and does not apply to actions by owners of private property used for purely private purposes. The First Amendment does not usually compel a private property owner to permit free speech activities on his or her property against his or her wishes. As such, the owner may expel such persons as trespassers. However, there are specific situations when private property is categorized as quasi-public property subject to the constraints of First Amendment limitations.

QUASI-PUBLIC PROPERTY

Typically, the First Amendment does not force a private property owner to permit free speech activities and allows the owner the right to expel such persons as trespassers. However, there are certain situations where the property of a private property owner can be treated, for First Amendment purposes, as public property. For example, if a privately owned property has a public use servitude (e.g., a sidewalk), then the property is considered a public forum subject to First Amendment protection. Venetian Casino v. Local Executive Board, Las Vegas, 257 F. 3d 937, 948 (2001). The question turns on whether and to what extent the private property owner has so structured the enterprise as to have created the functional equivalent of a public forum.

For instance, in the case of Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910, 592 P.2d 341, 347, 153 Cal. Rtpr. 854, 860 (1979), the court stated that large retail shopping centers act as an invaluable public forum for free expression. This case involved the privately owned Pruneyard Shopping Center which covers approximately twenty-one (21) acres of which five (5) is devoted to parking and sixteen (16) occupied by walkways, plazas, sidewalks, and buildings that contain more than sixty-five (65) specialty shops, ten (10) restaurants, and a movie theater. Id. The Pruneyard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. Id. It has a policy not to permit any visitor or tenant to engage in any expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. Id.

Several high school students sought to solicit support for their opposition to a United Nations resolution against "Zionism." Id. They set up a card table in a corner of Pruneyard's central courtyard, distributed pamphlets and asked passersby to sign petitions. Id. Soon after the students had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated Pruneyard regulations. Id. The students immediately left the premises and later filed a lawsuit against the Pruneyard Shopping Center. Id.

The California Supreme Court held that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Id. It concluded that the students were entitled to conduct their activity on the Pruneyard Shopping Center property. Id. The Court's reasoning was that although one owns property, he may not do with it as he pleases any more than he may act in accordance with his personal desires. Id. at 907, 592 P.2d at 345, 153 Cal. Rtpr. at 858. As the interest of society justifies restraints upon individual conduct, so, also, does it justify restraints upon the use to which property may be devoted. Id. It was not intended by constitutional provisions protecting individual property rights to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. Id. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. Id.

Basically, the Pruneyard case states that shopping centers, malls and the like, which are considered public gathering places for social discourse may not act to suppress activity such as political petitioning so long as the conduct does not interfere with the passage to and fro of other patrons, or otherwise interfere with the orderly conduct of business. Court decisions following the Pruneyard case looks to the extent in which a retail premise is so structured as to have created the functional equivalent of the traditional town square. However, regardless of the First Amendment constraints placed on retail premise owners, a retail premise owner is entitled to protect his/her business interests by establishing reasonable restrictions on time, place, and manner of the expressive activity. Appropriate time, place, and manner restrictions are discussed in further detail later in this article.

Further case developments provide guidance relating to the issue of when a retail premise acts as an invaluable public forum for expressive activity.

Standalone Structures.

In contrast to shopping centers which mimic the downtown or central business district, retail premises which are "standalone stores," although open to the public, is not public meeting places where society has special interests in using it as such. Trader Joe's Company v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 437, 86 Cal. Rptr. 2d 442, 452 (1999). The property owners of these structures are not subject to the constraints of the First Amendment and may prohibit expressive activity on their premises.

A "standalone" premise is described by the courts as one that is free standing, independent of other structures with its own parking structure or facility. Costco Companies v. Gallant, 96 Cal. App. 4th 740, 755, 117 Cal. Rtpr. 2d 344, 355 (2002). The structure is generally not connected to or contiguous with other commercial premises such as in a mall or shopping center, and does not hold itself out to the public as the sort of quasi-public gathering place or "town square." Id. The court in Trader Joe's Company involved a specialty store, 11,000 square feet, standalone structure that was not part of a shopping center and did not share property with any other retailer, one entrance, one parking lot exclusively for use by customers and employees. Trader Joe's Company v. Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 428, 86 Cal. Rptr. 2d 442, 446 (1999). The court concluded that the societal interest in using that particular Trader Joe's as a forum for exercising free speech and petitioning activities does not outweigh Trader Joe's interest in exercising exclusive control over the issue of its private property. Id. at 437, 86 Cal. Rptr. at 451.

Please be advised that the "standalone" status is only one factor in determining whether a premise is a quasi-public forum such that expression should be allowed. Ultimately, the analysis falls back on the Pruneyard balancing test which weighs the nature of the premises against the competing interests of the public and the property owner. The courts will look to the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property's occupants. Id. at 432, 86 Cal. Rptr. at 448. Only when the public's interest in free expression outweighs the owner's interest in controlling access to the property is expressive activity permitted. Id. The less an owner has opened up the property for use by the general public, the less the owner's rights are diminished by the constitutional rights of those who use it. In cases where a premise is considered a standalone, there is no duty on the property owner or his agent to allow petitioning, voter registration, political campaigning or any other types of expressive activities and thus, the property owner has a right to prohibit expressive activity on their property.

Individual Retail Premises Within Larger Commercial Developments.

Like standalone stores, certain individual retail premises within larger commercial developments, although open to the public, are not public meeting places where society has a special interest in using it as such. The property owners of these structure, like the standalone structures are not subject to the constraints of the First Amendment and may prohibit expressive activity on their premises.

In Albertson's, Inc. v. Young, 107 Cal. App. 4th 106, 131 Cal. Rtpr. 2d 721 (2003), Albertson's grocery store brought an action to prevent defendants from soliciting and gathering signatures for petitions. The Court stated that, "smaller privately owned commercial establishments that do not assume the societal role of a town center may prohibit expressive activity unrelated to the business." The Court further stated that, "whether private property is to be considered quasi-public property subject to the exercise of constitutional rights of free speech and assembly depends in part on the nature, purpose, and primary use of the property and the relationship between the idea sought to be presented and the purpose of the property's occupant." Id. The Court compared Pruneyard (a shopping center) with Trader Joe's (a single structure) noting that Trader Joe's was a single use store, containing no plazas, walkways, or central courtyards for patrons to congregate and spend time together. Further there was no restaurant or any place for patrons to sit and eat and that customers came for a single purpose, to buy goods. Id. at 120, Cal. Rtpr. 2d at 732.

The Albertson's store was a single structure without plazas, walkways, or central courtyards for patrons to congregate and spend time together. Id. Further, there was no restaurant or any place for patrons to sit and eat (customers came for a single purpose, to buy goods) nor a theater or other form of entertainment. Id. The Court stated that, "a location will be considered a quasi-public forum only when it is the functional equivalent of a traditional public forum as a place where people choose to come and meet and talk and spend time." Id. at 121, Cal. Rptr. 2d at 733. Key to this court's analysis was whether the property owners offer the "open and unrestricted invitation to the public to congregate freely within the property (functional equivalence of . . . a traditional public forum--the downtown or central business district)." Id. The court ruled that the location of the Albertson's store does not contain the character of a traditional public forum for purposes of free expression. Id. at 127, Cal. Rptr. 2d at 738. Therefore, Albertson's, like standalone structures, is not subject to the constraints of the First Amendment and may prohibit expressive activity on their premises.

EXCEPTION TO RULE RELATING TO STANDALONE STRUCTURES AND INDIVIDUAL RETAIL PREMISES WITHIN LARGER COMMERCIAL DEVELOPMENTS: LABOR UNION ACTIVITIES

Generally, a person who refuses or fails to leave land, real property, or structures belonging to or lawfully occupied by another, upon being requested to leave by a law enforcement officer or the owner is guilty of trespass. Cal. Pen. Code § 602 (o) (2004). More specifically, any person who intentionally interferes with a lawful business or occupation carried on by the owner or agent of a business establishment by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner's agent, is guilty of a misdemeanor. Cal. Pen. Code § 602.1 (2004). However, the trespass offense and the offense involving the intentional interference with a business establishment do not apply to persons engaged in lawful labor union activities that are permitted to be carried out on the property by state or federal law. Cal. Pen. Code § 602 (o) (2004).

TIME, PLACE, AND MANNER RESTRICTIONS

For retail premises categorized as quasi-public forums, the California Supreme Court makes it clear that although owners of quasi-public forums may not prohibit protected expressive activity, they may restrict expressive activity by adopting reasonable time, place, and manner restrictions that will minimize any interference with its commercial functions. Union of Needletrades, Indus. & Textile Employees, AFL-CIO v. Superior Court, 56 Cal. App. 4th 996, 1009-10, 65 Cal. Rtpr. 2d 838 (1997). Time, place, manner restrictions are reasonable when they are: (1) content neutral; (2) narrowly tailored to serve a significant interest; and (3) leave ample alternative means of communication. Id. In either case, those engaging in protected expressive activity may not interfere with the passage to and from of other patrons, or otherwise interfere with the orderly conduct of business.

In promulgating time, place, and manner rules governing when, where, and how a group may exercise expressive rights, a retail premise owner is constitutionally permitted to protect important rights of substance such as freedom from disruption of normal business operations and freedom from interference with customer convenience. Id. at 1009-10, 65 Cal. Rtpr. 2d at 838. For instance, the owner may impose reasonable, objective limitations on the number of persons who can be present, and those persons can be required to be in a certain area to limit disruption. Id. There is a large amount of case law discussing the validity of specific time, place, and manner restrictions. We have not included any of those cases as that discussion is beyond the scope of this article.

OBLIGATION TO ARREST NONCOMPLIANT THIRD PARTIES

Noncompliant third parties engaging in expressive activity on retail premises at a minimum violate California Penal Code section 602 (k) which makes it a violation for persons intentionally interfering with the use of any lawful business or occupation carried on by the owner of the land, the owner's agent or by the person in lawful possession. The next issue of discussion is whether law enforcement authorities are obligated to arrest noncompliant third parties without requiring retail store managers to make a citizen's arrest. We are of the opinion that law enforcement officials are not obligated to arrest noncompliant third parties engaging in expressive activity on retail premises.

California Government Code section 845 states that, "Neither a public entity nor a public employee is liable for failure to ... provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service. California Government Code section 846 states that, "Neither a public entity nor a public employee is liable for injury caused by failure to make an arrest or by the failure to retain an arrested person in custody. Further, section 818.2 of the Government Code states that a public entity is not liable for injury caused by the failure to enforce any law. There is no authority that expressly makes arrests by law enforcement authorities a mandatory duty. As a result, law enforcement officials are not obligated to arrest third parties who do not comply with the policies of retail premises.

CONCLUSION

As demonstrated in the various cases regarding the constitutionality of the right to prohibit expressive activity, there is not enough case law available for this office to craft a single formula that could be applied to every possible conceivable fact pattern. The balance test provided in the Pruneyard case and factors developed in subsequent cases are to be applied on a case by case basis. Please contact this office if you have any questions.

VI. FIRM NEWS

ATTORNEY SPOTLIGHT:

DAN L. PEELMAN

Mr. Peelman recently became a full time associate of Jones & Mayer. Prior to coming on full time, Mr. Peelman served of counsel to both the Law Offices of Mayer & Coble and Jones & Mayer for approximately twelve years. During that period of time he has been a Deputy City Prosecutor for the Cities of Downey, Manhattan Beach, Rolling Hills Estates, West Covina, Upland and Rancho Cucamonga. As various cities' deputy city prosecutor, Mr. Peelman has represented cities in matters at the appellate level. Additionally, Mr. Peelman has extensive personnel complaint investigative experience and has conducted numerous personnel investigations for law enforcement agencies.

While attending the University of LaVerne College of Law, Mr. Peelman was the Editor-in-Chief of the Law Review.

Mr. Peelman retired from the Los Angeles Police Department after 21 years of law enforcement experience (17 years with LAPD and 4 years with Charlottesville, Virginia Police Department). While with the LAPD, Mr. Peelman's assignments included being the Officer-in-Charge of the Legal Research Unit, Discovery Unit, and he was assigned as the Department Associate Advocate with Internal Affairs Division.

ANNOUNCEMENTS:

Jones & Mayer was recently selected by the City of Costa Mesa to perform contract city attorney services. Kimberly Hall Barlow will be its City Attorney when the contract takes effect

UPCOMING SPEAKING ENGAGEMENTS:

Martin J. Mayer, Esq.

October 6, 2004

California Association of Law Enforcement Background Investigators Annual Conference. South Lake Tahoe, California

November 8, 2004

National Office of Traffic & Safety - Police Traffic Services Seminar, "Police Pursuits." Palm Desert, California

November 9, 2004

Professional Pubic Safety Seminars, "Law Enforcement Officer Safety Act of 2004." Washington State Training Center

November 14, 2004

International Association of Chiefs of Police (IACP): Psychological Services Section, "Legal Update:" Legal Officers Section, "Top 10 Police Employment Issues Confronting Chiefs:" Workshop, "Fitness for Duty Evaluations: The Doctor v. The Attorney."