Cities too often impose crippling fines on struggling homeowners. What can be done to change the system?
Ramona Morales was almost 80 years old and had worked multiple jobs her whole life to support her kids and eventually buy a little property of her own, which she rented out to bring in extra income. She had no history of code violations until one tenant decided to keep chickens in the backyard of a ranch-style home Morales owned in the Southern California desert city of Indio. That renter’s fondness for his birds ended up costing Morales almost $6,000.
Why so much money for a few chickens? Morales paid a $225 fine in court, pleading guilty to a criminal charge of violating a city ordinance against keeping farm animals on a residential property, even after persuading the tenant to find a better place for the yard birds. But though she thought that was the end of her pesky ordeal, it wasn’t.
Morales was soon hit with a bill from a private law firm hired by the city to prosecute her case. The total—$5,659. The city and the Silver & Wright law firm called the bill “prosecution fees,” to which the firm said it was entitled “to recover the loss of taxpayer resources that were required to get Morales to comply with the law.”
Ultimately, Morales—who had to borrow that cash from her son, a United States Marine—got her money back. In 2018, the city of Indio settled a class action lawsuit she had initiated with representation from the Virginia-based nonprofit public interest law firm Institute for Justice. Indio agreed to pay back the “prosecution fees'' to Morales and three other plaintiffs—though the city did not admit any wrongdoing.
Silver & Wright was not part of the lawsuit. The firm says that though it assisted in “hundreds” of nuisance abatement cases, the firm and the city tried to recover legal costs in only 9 percent of those cases. The firm also says that it makes no money from the prosecution fees it pursues, and that normal hourly rates are its “sole source of compensation.”
The others in the lawsuit included a Coachella man who was hit with a $31,000 bill for building an addition to his house without a permit. He brought the house up to local codes, paid a $900 criminal fine—and then got a whopping bill from Silver & Wright.
Also in the lawsuit, a Coachella woman who was billed $26,000 after she was prosecuted for having a messy yard. The private law firm put a lien on her house when she was unable to pay. And finally, the owner of a development company, who was prosecuted for allowing overgrown vegetation and stray litter on an Indio vacant lot, joined the suit when he got a $7,700 bill for legal fees.
The class action lawsuit followed an investigative series by Palm Springs newspaper the Desert Sun, which uncovered 18 cases of residents hit with various code violations, who were charged a total of $122,000 in prosecution fees in the Coachella Valley region.
Coachella Valley dwellers are not alone in being subjected to seemingly excessive fines and fees over violations of municipal codes in California. While municipal code enforcement is meant to be, in the words of the New York-based Cities for Responsible Investment and Strategic Enforcement, “an important government tool designed to keep neighborhoods and the people who live in them safe and healthy,” it doesn’t always work out that way.
In January, 71-year-old Wanda Clark’s home in the Sacramento neighborhood of Oak Park was torn down. Working as a janitor on the county payroll, she purchased the home in 1995 for $150,000 and, she says, has never missed a mortgage payment and is up-to-date on her property taxes. She has raised more than 20 children in the three-bedroom home over the years, including her own children, grandchildren, and even great-grandchildren.
Not surprisingly, the house needed more space. In 2005 she qualified for a home equity loan to build an addition with two more bedrooms and a bathroom over her garage. She paid a contractor $35,000 for the project. Unfortunately, she unwittingly hired an unlicensed contractor who took her money, never finished the job, and later died. (According to a report by the National District Attorneys Association, older homeowners are among the most frequent targets of home improvement contracting fraud.)
In 2012, the city of Sacramento ordered Clark to repair her home—or demolish it. She spent a decade fighting the city, running up thousands of dollars in fees and fines. In 2021, the city placed her home into receivership, intending to sell it out from under her, a sale from which she would receive none of the proceeds unless she could somehow come up with $175,000 to pay fees, fines and attorney costs.
Clark, however, had the backing of several community groups, including the Greater Sacramento chapter of the NAACP. Chapter President Brenda Wiliams told the Sacramento Observer newspaper the organization felt compelled to help.
“We want to make sure that what’s happening to Ms. Clark doesn’t happen to anybody else. I also want to make it clear that we as Black folks, we care about our Black seniors. We are family oriented, we take care of each other,” Williams told the Observer.
Clark reached a deal with the city to get out from under the financial burden—if she agreed to demolish her own house. But she would retain ownership of the underlying property and now, with help from local groups such as the Sacramento Housing Alliance, and Habitat for Humanity of Greater Sacramento, she plans to build a new home on the land.
"It's a sweet victory because I don't have to worry about the City of Sacramento, I don't have to worry about receivership, now I just have to worry about what I'm going to put here, and my plan is to live back here again," Clark told KXTV News in Sacramento.
But such victories appear to be quite rare.
The city of Sacramento has filed lawsuits against 94 property owners for code violations such as being a “public nuisance” or “general blight” since 2010, according to a Sacramento Bee investigation. During the COVID-19 pandemic, the city has filed a dozen receivership petitions against homeowners—petitions which, if granted, would give the city the right to seize or even demolish their homes, according to a Bee report.
Linda Siegrest, a diabteic and double-amputee, and her husband Bruce—a veteran—were on the receiving end of one such petition. The couple got a notice in 2017 ordering them to remove some debris and an inoperable pickup truck from their front yard. The couple told the Bee that they got the job done in 2018.
But in 2021 the city filed for receivership over their home, and a judge granted the request. A lawyer from Bay Area Receivership Group (BARG) now has control of the property. BARG says that the city has been “unsuccessful” in its attempts to force the couple to comply, and that the couple are hoarders who keep “dozens of cats.” As a result, “the property has become a nuisance to the entire neighborhood.”
But the Siegrests complained that the receiver threw away much of their property including their bed, furniture, washing machine and dryer. And that wasn’t all. As of Sept. 30, 2021, the BARG lawyer had billed the couple $126,000, according to the Bee report. If the couple couldn’t pay, the receiver could sell the house out from under them.
The Bee also reported the case of Daniel Alstatt, a senior citizen who was cited for multiple violations due to several vehicles and car parts stored in his yard. That was 2014. Alstatt removed the offending vehicles and other items, according to the Bee report. But the city considered the violations to be ongoing, and continued to charge him daily fines. By 2022, Alstatt, on a fixed income with no attorney, owed the city well over half a million dollars.
Officials in Humboldt County, with 14 percent of the state’s cannabis licenses (second only to Los Angeles County’s 19 percent), have a clear and legitimate interest in curbing the illegal cultivation of the plant. But how far can they go?
The county imposes fines of $10,000 per day for code violations that involve unlicensed cannabis operations. In November of 2018 alone, the Humboldt County Code Enforcement Unit slapped 37 cannabis growers with notice that they would owe the daily fines until they corrected various land use and building code violations.
According to an investigation by reporter Kym Kemp—who operates the news site Redheaded Blackbelt, devoted to local Emerald Triangle (Humboldt, Mendocino and Trinity counties) coverage—Doug and Corrine Thomas purchased a property in Humboldt County in 2021, relocating from Southern California after their home there was destroyed in a wildfire. The couple are retired, but remain highly active as activists and fundraisers for autism-related causes (their adult twin children have autism).
But just 10 days after closing escrow on their new dream home, the Thomases—who told Kemp they had never even seen a cannabis plant, much less grown one—found a notice on their front gate, accusing them of violating the county’s Commercial Medical Marijuana Land Use Ordinance. They had 10 days to tear down the three-story barn on the property they now owned, and to get rid of anything that could conceivably be used to grow cannabis—including garden pots they planned to use for growing their own food.
The potential fines if they failed to comply? More than $1 million.
Turns out the previous owners of the property were running an illegal cannabis operation that had been raided twice—but never hit with an “abatement” notice—before the co-owner fled the state to duck criminal charges, according to Kemp’s report.
The City of Oakland’s Building Services Division got so out of control that in 2011, the Alameda County Grand Jury issued a scathing report on the division’s problems. The grand jurors declared themselves so “appalled” by the outlandish fines and other abuses it found in its investigation that they recommended stripping Building Services of its authority to enforce the municipal codes.
In one case cataloged by the grand jury, a homeowner was slammed with more than $18,000 in fines and fees due to “trash and debris” as well as “blight” in the yard. This trash, debris and blight turned out to be childrens’ toys. In another, a home was cited for being vacant with damages to interior walls and ceilings—even though the house was simply in the process of being sold. The city placed a $50,000 lien on the property less than a month after the notice was issued. The new owners were forced to pay the fees for the previous owner’s violations before the city would lift the lien.
In a similar case, the owner of a property being sold did, in fact, pay off all fees and liens for a “permit violation” (unspecified by the grand jury). But two weeks later, the city hit the new owner with the same liens and fees, a sum of $29,000.
In 2018, about a year after the Desert Sun published its four-part investigation, the legislature passed—and Gov. Jerry Brown signed—a bipartisan bill sponsored by Chad Hayes, a Republican Assembly member from Yucca Valley, and Coachella Democrat Eduardo Garcia that banned cities from collecting prosecution fees. Democratic Senator Scott Wiener of San Francisco also signed on as a co-author of the new legislation.
Under the bill, AB 2495, local governments could no longer stick criminal defendants with the bill for investigating and prosecuting their own cases, a practice the two Assembly members called “policing for profit.”
The bill specifically singled out “a criminal violation of a local ordinance” as a case for which the fees could no longer be collected. The bill does not affect the collection of criminal fines for code violations. Nor does it prevent cities and counties from collecting fees for tax code and probation violations, and other offenses that go beyond the category of “nuisance.”
Though the bill was presented on a bipartisan basis, it did create a sharp divide between city governments and the state. The California League of Cities vigorously lobbied against the bill, saying that the law effectively shifts the financial burden for criminal prosecutions onto local taxpayers, discouraging cities from enforcing local ordinances that attempt to keep negligent landlords and slumlords in compliance with the law.
“When prior notices and other efforts to get voluntary compliance fail, a city’s most effective and quickest tool to gain compliance and protect occupants is criminal prosecution,” wrote lobbyists for the League of Cities in a letter to Mayes.
Are the exorbitant fees charged by some California municipalities even constitutional? In a 2004 essay, University of California Hastings College of Law professor Vikram David Amar, along with labor lawyer David Reis, argued that they may not be, thanks to the Eighth Amendment to the U.S. Constitution.
The Eighth Amendment, most often cited for its prohibition against “cruel and unusual punishments,” also bars the imposition of “excessive fines.” But as Amar and Reis noted, the U.S. Supreme Court never issued a ruling interpreting the “excessive fines” clause until 1989, when it decided that a fine can only be “excessive” when directly imposed by the government. According to the two legal experts, fees collected by a private entity, such as a private law firm, may fall outside the Eighth Amendment prohibition on excessive fines.
In a 1993 case, the high court further clarified its interpretation of the Eighth Amendment. To be “excessive,” a fine must be “a monetary punishment,” not simply compensation for expenses, the court held. That ruling would seem to place the collection of “prosecution fees” outside the Constitution's prohibition. But the multiplying daily fines for code violations, as a “punishment,” could be banned by the Constitution. In the end, the legal scholars speculated, the Supreme Court will have to make that decision.
“It seems to us that it's only a matter of time before this issue lands squarely before the nation's highest courts,” Amar and Reis wrote.