Ishal v. City of Los Angeles

Filed 11/30/05 Ishal v. City of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MASHALLAH ISHAL, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B178023 (Los Angeles County Super. Ct. No. BS086754)

APPEAL from a judgment of the Superior Court of Los Angeles County.

David Yaffee, Judge. Affirmed.

Robert Cooper for Plaintiff and Appellant.

Rockhard Delgaldillo, City Attorney, Mark F. Burton, Senior Assistant City Attorney, Kjehl T. Johansen, Supervising Deputy City Attorney, and Martin R. Boags, Deputy City Attorney, for Defendants and Respondents.

The City of Los Angeles (City) fined Mashallah Ishal for false alarms in his store. He refused to pay the fine and, as a result, the City revoked his alarm permit. He incorrectly assumes that this revocation constitutes a taking as that term is used in the Takings Clause of the Fifth Amendment to the United States Constitution. He also incorrectly argues that the ordinance imposing a fine for false alarms is unconstitutionally vague. We affirm the trial court’s denial of Ishal’s petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Los Angeles requires a permit to use an alarm system. (Los Angeles Mun. Code^[1] § 176.223 and former section 103.206.) The ordinance has been amended since the City fined Ishal, but for purposes of this appeal the ordinance in effect at the time Ishal was fined is applied. Former section 103.206, subdivision (c) provided: “The Board may suspend or revoke a permit of any permittee whose alarm system has experienced within a twelve month period more than ten (10) responses by the Department which did not require police services for any purpose other than deactivation of the alarm. Failure to pay a service charge within sixty (60) days of billing shall be grounds for revocation of a permit.”

In a verified petition for mandamus, Ishal alleged that he is the sole proprietor of a general merchandise retail store. The City of Los Angeles “initially alleged that, from December 18, 2001 and until October 4, 2002, ten false alarms occurred at Petitioner’s premises in violation of Los Angeles Municipal Code (“LAMC”) § 103.206(c). 103.206(c). On October 7, 2002, Respondents billed Petitioner for those ten false alarms at the rate of $95.00 per alleged incident.” Then charges for the first two false alarms were waived and Ishal was billed $760.00. On November 4, 2002, Ishal was billed $190 for two additional false alarms that allegedly occurred on October 11th and 13th 2002. Revocation proceedings were initiated against Ishal and Ishal raised various defenses.

Exhibits attached to the petition indicate that on December 2, 2002, Ishal was given notice that “The Board of Police Commissioners shall revoke your Alarm System police permit for failure to pay service charge within sixty (60) days of billing.” The notice indicated that the amount of charge was $760. A similar notice was sent on January 6, 2003, indicating the amount of the unpaid charges was $190.00.

An accusation sent to Ishal stated that “You are hereby notified that it is the intention of the Board to revoke your Alarm Subscriber police permit. This intent is based upon the fact that you have failed to pay false alarm charges or to provide satisfactory evidence that the alarms were not false . . . .” The accusation further indicates Ishal failed to pay $760. Ishal responded to the accusation and included several defenses. The notice of hearing provided: “To disclaim a false alarm call you most provide proof to the Hearing Examiner showing that the call(s) in question qualify for waiver because of actual break-ins, alarm activations caused by acts of nature, or situations beyond your reasonable control.” At the hearing, Ishal raised several constitutional claims. The hearing officer found cause to revoke Ishal’s alarm system permit based on his failure to pay $760.

Another accusation with respect to the $190 in fees was mailed on May 6, 2003. There was some confusion over whether Ishal submitted a defense to that accusation. On August 20, 2003, Ishal’s alarm subscriber permit was revoked based on the failure to pay $190. On September 29, 2003, a letter was sent to Ishal indicating that his permit was revoked based on his failure to pay $760.

The trial court denied Ishal’s petition for mandamus and Ishal appealed.

DISCUSSION

The Takings Clause of the Fifth Amendment provides “[N]or shall private property be taken for public use, without just compensation.” This clause applies to the states through the Fourteenth Amendment. (Dolan v. City of Tigard (1994) 512 U.S. 374, 384.) “When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner. . . .” (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 321-323.)

In addition to a categorical taking, a regulatory taking may also fall within the purview of the Takings Clause. (NJD, Ltd. v. City of San Dimas (2003) 110 Cal.App.4th 1428, 1434-1435 (NJD).) Land use regulation that significantly impinges on the property owners’ ability to use their property may require compensation under the takings clause. However, a land use regulation does not effect a taking if it substantially advances a legitimate state interests and does not deny an owner economically viable use of the land. (Agins v. City of Tiburon (1980) 447 U.S. 255, 260.) “Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” (NJD, supra, 110 Cal.App.4th at p. 1436.)

The threshold requirement for a valid Takings Clause claim is the existence of a taking. (Adams v. U.S. (Fed. Cir. 2004) 391 F.3d 1212, 1218.) To prevail, Ishal must show that the government took property in which he had an interest. (Hodel v. Virginia Surface Mining & Recl. Assn. (1981) 452 U.S. 264, 294.) It is undisputed that that there was no physical taking of Ishal’s land.

It appears that Ishal is claiming the revocation of his permit constituted the property taken by the City. He argues “because the alarm ordinance allows the city to revoke the alarm permit even if the permit holder did not cause a false alarm, the alarm ordinance violates the federal constitution’s Taking Clause.” (Capitalization altered from original.) He further contends “the City revoked a permit that was required as a condition precedent for Ishal to operate his business in the City . . . .”

Ishal’s argument rests on a faulty premise – that he was unable to operate his business without the alarm permit. The only support Ishal cites for his statement is former section 103.206, subdivision (b) which provides: “No person shall operate or use an alarm system on any premises under that person’s control without first having obtained a permit therefore from the Board.” Thus, what the ordinance prohibits is Ishal’s use of the alarm without a permit, not Ishal’s use of his property. The distinction matters because the fact that Ishal can continue to use his property undermines his claim that there was a regulation either depriving him of all economically viable use of his land or of the beneficial use of his property. (NJD, Ltd., supra, 110 Cal.App.4th at p. 1436.)

Generally, “permits do not constitute property rights for purposes of the takings clause.” (Bronco Wine Co.v. Jolly (2005) 129 Cal.App.4th 988, 1031 (Bronco Wine).) Ishal ignores this general rule and identifies no exception relevant here.

Ishal relies heavily on Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 874-876 (Ehrlich), arguing that it stands for the proposition that the Takings Clause “protects against the imposition of a municipal fee where there is an insufficient link between the municipal fee and the problem caused by the property owner.” In Ehrlich, our high court upheld a development permit that required a fee for art in public places as a condition of issuance. Thus, the city in that case exacted a fee for land use. Our high court found this fee “akin to traditional land-use regulations imposing minimal building setbacks, parking and lighting conditions, landscaping requirements, and other design conditions such as color schemes, building materials and architectural amenities. Such aesthetic conditions have long been held to be valid exercises of the city’s traditional police power, and do not amount to a taking merely because they might incidentally restrict a use diminish the value, or impose a cost in connection with the property.” (Id. at p. 886.)

Arguably Ehrlich is inapposite because Ishal is not prevented from developing or using his property without paying a fee.[2] But to the extent Ehrlich applies, it indicates that the city’s use of the police power that incidentally imposes a cost in connection with the property is not invalid under the Takings Clause. Thus, to the extent that Ishal is obligated to pay for false alarms emanating from his property, the Takings Clause is not implicated. Ishal agrees that it is undisputed the City has the power to issue the alarm permit and to revoke so long as it is not in violation of the Fifth Amendment.

Ishal fails to establish any of the prerequisites for a takings claim. (See Bronco Wine Co., supra, 129 Cal.App.4th 988, 1030 [claimant has burden to show protectable property interest, taking of property, and taking for public purpose].) “A claimant under the Takings Clause must show that the government, by some specific action, took a private property interest for a public use without just compensation.” (Adams v. U.S, supra, 391 F.3d at p. 1218.) Without establishing this threshold requirement, the numerous tests he cites are irrelevant. To the extent Ishal is arguing the fine itself is a taking, he does not show it falls within the meaning of the Fifth Amendment.

Even assuming that as Ishal argues there must be a causal link between Ishal and the fee for false alarms, such a link is present in this case. It is undisputed the false alarms occurred on Ishal’s property. While Ishal argues that the false alarms could have been caused by wind, rodents or animals, disputes with the alarm company, or faulty equipment he was given an opportunity to present such evidence and presented none. The notice of hearing expressly allowed Ishal to show that the false alarm was “caused by acts of nature, or situations beyond your reasonable control.” Ishal carries the burden of demonstrating a violation of the Takings Clause. (Bronco Wine., supra, 129 Cal.App.4th at 1030.)

Finally, Ishal argues that the ordinance is unconstitutionally vague because it is unclear how many violations are necessary before a permit can be revoked. The ordinance allowed the City to revoke a permit if there were “more than ten (10) responses by the Department which did not require police services for any purpose other than deactivation of the alarm” or if the permittee failed to “pay a service charge within sixty (60) days of billing . . . .”

Ishal argues that the ordinance allows for the revocation of his permit only if he had more than 10 false alarms and he had only ten false alarms. But, Ishal’s permit was not revoked for having more than 10 false alarms. The hearing officer and the trial court found that it was revoked because he failed to pay the alarm charges and the trial court made the same determination. Ishal admits that he refused to pay the services charges. He states “on advice of counsel, Ishal did not pay any of the charges . . . .” Ishal’s claim that he had 10, not more than 10, false alarms, is irrelevant. The statute clearly allows the City to revoke his permit for failing to pay the outstanding fines.

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

FLIER, J.

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[1] All further section citations are to this code.

[2] Ishal cites numerous cases involving restrictions on the development of land. Those cases are not helpful because no similar restriction was imposed in this case.