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TO: Honorable Mayor and Members of the City Council
FROM: Karl H. Berger, City Attorney
SUBJECT: Consideration and possible action to authorize Legislative Subpoenas be served on the Consolidated Fire Protection District of Los Angeles; and adopt Resolution No. 25-03 – A Resolution authorizing the City Clerk to issue legislative subpoenas for the purpose of determining the City Council’s legal authority to adopt the California Fire Code (Code of California Regulations, Title 24, Part 9) and authorizing the Building Official to review building plans in accordance with California Building Standards § 105.4 (Code of California Regulations, Title 24, Parts 1 and 2).
DATE: January 27, 2025
EXECUTIVE SUMMARY
On October 14, 2024 (see attached staff report), the City Council received and filed a report from the City Manager regarding the Consolidated Fire Protection District of Los Angeles County (“Fire District”). In sum, the Fire District issued a threat of litigation to the City based upon the City Council’s decision in 2019 and 2022 to adopt the California Fire Code (“CFC”) rather than the Fire District’s fire regulations.
In November 2024, voters overwhelming adopted a City Charter for Bellflower. Among other things, the Charter was adopted to assist the City Council in resisting overreach by government agencies outside of Bellflower such as the Fire District. A separate ag enda item verifies that the City Council seeks to implement California law by adopting the CFC – not the Fire District’s fire regulations. Such action is supported not only by Title 24 of the California Code of Regulations but also the Health and Safety Co de and, more importantly, the City Charter.
In response to the Fire District’s threats of litigation, the City Council should consider reminding the First District that it – not the appointed public officials managing the Fire District – is the elected representative of Bellflower residents. Council Members, not bureaucrats, are properly positioned to decide what is best to protect public health, safety, and welfare.
One option (among several) is for the City Council to authorize the City Attorney to serve legislative subpoenas for testimony and records related to the Fire District’s threats. The legislative subpoenas would be to investigate this ongoing matter concerning the City of Bellflower and its residents, and then to provide the results of the investigation to the City Council for consideration as to further potential action.
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Staff Report – Legislative Subpoenas
January 27, 2025
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RECOMMENDATION TO CITY COUNCIL
1) Adopt Resolution No. 25-03 to authorize the City Clerk to issue subpoenas for legislative fact-finding related to City adoption of the California Fire Code and City review of building plans submitted to the Building Official seeking building permits; or
2) Alternatively, discuss and take other action related to this item.
FISCAL IMPACT
There is a cost associated with preparing, serving, and executing the legislative subpoenas. Such costs are, at the time of this writing, speculative as they are dependent on the response from the Fire District.
BACKGROUND
The background associated with this matter is set forth in the attached staff report (Agenda Item No. 14-O) from the October 14, 2024 City Council Meeting. Despite the City’s offer to meet with the Fire District (see, e.g., p.6 of letter dated September 25, 2024 from the City Attorney) regarding its complaints, there has been no response – other than a request for public records submitted by special litigation counsel for the Fire District (an obvious precursor to litigation).
As is well documented, the City Council’s adoption of the CFC, as well as the City Council’s decision to not ratify the Fire District’s regulations, were motivated in part by a desire to reject the unacceptable and inefficient bureaucracy and policies instituted by the Fire District when reviewing building plans. This includes repeated and documented unacceptable delays and fees charged by the Fire District in such review.
DISCUSSION
A dispute presently exists between the City and the Fire District arising from the City’s legal authority to adopt the CFC rather than be subject to the Fire District’s regulations.
Additionally, the Fire District apparent disputes the Building Official’s plenary power to issue building permits within the City’s jurisdiction in accordance with legally adopted ordinances (“Dispute”).
To investigate the validity of the Fire District’s position, the City Attorney recommends that the City Council consider seeking information from the Fire District utilizing legislative subpoenas. Information obtained as a result from such subpoenas will better inform the City Council regarding the Dispute and may influence future decisions of the City Council as to adopting the CFC (the next update to the CFC is anticipated in 2025).
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Staff Report – Legislative Subpoenas
January 27, 2025
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DISCUSSION – Continued
Issuing legislative subpoenas for these purposes is authorized by Government Code § 37104 and other applicable law (Connecticut Indemnity Company v. Superior Court (City of Loch) (2000) 23 Cal.4th 807,814: “It long has been recognized that a legislative body may conduct an investigation in order to assist its decisionmaking regarding legislative or appropriative matters.”) including Resolution No. 22-33, adopted June 27, 2022 (Attachment No 3).
If adopted, the draft Resolution would authorize the Mayor to issue and the City Attorney to execute legislative subpoenas seeking, among other things, the following:
1. Written contracts between the City and Fire District authorizing the Fire District’s review of building plans (“plan check”).
2. Written contracts with other agencies within the Fire District’s jurisdiction authorizing plan checks.
3. Records documenting the Fire District’s formula and studies for calculating plan check fees.
4. Records documenting Fire District invoices to agencies for payments related to plan check review.
5. All Fire District communications regarding plan checks with every agency that is a part of the Fire District.
6. Deposition testimony of the Fire District Chief and Assistant Chiefs regarding the Dispute including, without limitation, (a) the average timing of plan check review and how many resubmittals, on average, take place; (b) every agency within the boundaries of the Fire District that adopted the CFC rather than Fire District regulations; (c) direction from the Board of Supervisors (which acts as the Board of Directors for the Fire District) as to whether its policy decision is for contract cities to adopt the Fire District regulations; and (d) the average cost to an agency of Fire District plan checks.
7. Deposition testimony of former City Manager Jeff Stewart, City Building Official Steve Patterson, and such additional persons identified by the City Attorney, regarding the Dispute including, without limitation, all circumstances leading to the Dispute.
CONCLUSION
Draft Resolution No. 25-03 would authorize legislative subpoenas being issued to the Fire District. If the Resolution is adopted, then the City Attorney will enforce the legislative subpoenas to fully inform the City Council regarding the Dispute.
ATTACHMENTS
1. October 14, 2024, Staff Report
2. Resolution No. 22-33 (“Subpoena Resolution”)
3. Draft Resolution No. 25-03
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TO: Honorable Mayor and Members of the City Council
FROM: Ryan Smoot, City Manager
SUBJECT: Consideration and possible action to receive and file memorandum designating the Fire Chief for the Consolidated Fire Protection District of Los Angeles County as the enforcement officer for the California Fire Code (“CFC”), as adopted by the Bellflower Municipal Code (“BMC”).
DATE: October 14, 2024
EXECUTIVE SUMMARY
On September 20, 2024, the City Attorney received a letter from the Los Angeles County Counsel’s office regarding enforcement of the CFC, as adopted by the BMC (the “Letter”).
Among other things, the Letter suggested that the BMC created an ambiguity regarding whether the Fire Chief for the Consolidated Fire Protection District of Los Angeles County (“Fire District”) could enforce the CFC.
While the City disagrees that there is any ambiguity, the City Manager (in an abundance of caution) issued the attached memorandum confirming that the Fire District’s Fire Chief may enforce the CFC. Nothing in the memorandum changes the method by which the City accepts and processes applications for building permits. As provided by California regulation and the BMC, the City’s Building Official is the only official authorized to issue building permits under the California Building Standards Code (“CBSC”).
RECOMMENDATION TO CITY COUNCIL
It is recommended that the City Council consider the following:
1) Receive and file this report; or
2) Alternatively, discuss and take other action related to this item.
FISCAL IMPACT
There is no fiscal impact with the recommended action.
BACKGROUND
The City Attorney received the attached Letter from the Los Angeles County Counsel’s office. A letter responding to the Letter is also attached. -1--4-
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Staff Report – Fire Chief
October 14, 2024
BACKGROUND – Continued
According to County Counsel, one of the Fire District’s complaints is that the City somehow undermined the Fire Chief’s ability to enforce the CFC. BMC § 15.40.020 amended CFC § 202 as to the definitions of “fire chief” and “fire official.” Based upon that amendment, the City Manager may designate an official as the “fire chief”; that designation will also constitute the “fire code official” for purposes of the CFC.
To avoid any purported confusion, the City Manager issued the attached memorandum designating the Fire District’s Fire Chief as the “fire chief” (and “fire code official”) under the CFC. Such designation, of course, does not change the Building Official’s plenary authority to issue building permits under the CBSC. That authority is outlined in the City Attorney’s response to the Letter.
No action is needed on this item. A copy of this agenda item – and the City Manager’s memorandum – will be transmitted to the Fire District.
ATTACHMENTS
City Manager’s Memorandum dated October 9, 2024
City Attorney’s Letter dated September 26, 2024
County Counsel’s Letter dated September 17, 2024
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City of Bellflower
MEMORANDUM
TO: Bellflower Building Official
FROM: Ryan Smoot, City Manager
SUBJECT: Fire Chief Designation
DATE: October 9, 2024
Pursuant to Bellflower Municipal Code (“BMC”) § 15.40.020, | designate the Consolidated Fire Protection District of Los Angeles County’s (“Fire District”) Fire Chief as the “fire chief” and “fire official” for purposes of California Fire Code (“CFC”) § 202. In that capacity, the fire chief is authorized to enforce the CFC as adopted by the BMC. Such authority should be exercised in cooperation with the City’s Public Safety Director to ensure a uniform enforcement of applicable law within the City’s jurisdiction.
Nothing in this memorandum or designation authorizes the Fire Chief to review plans as contemplated by California Building Standards Code (“CBSC”) § 105.4 (as adopted by the BMC). Only the Bellflower Building Official is authorized to exercise the authority in CBSC § 105.4 including, without limitation, issuing building permits.
4887-7188-4010 v1
Direct No.: 213.236.2729
Our File No.: 08481-0001
[email protected]
Los Angeles – Inland Empire – Marin County – Oakland – Orange County – Palm Desert – San Diego – San Francisco – Silicon Valley – Ventura County 444 South Flower Street - Suite 2400
Los Angeles, California 90071-2953
voice 213.236.0600 - fax 213.236.2700
www.bwslaw.com
September 26, 2024
Jenny P. Tam
Senior Deputy County Counsel
Fire Department’s Legal Advisory Unit
1320 N. Eastern Avenue, Executive Office
Los Angeles, CA 90063
Re: Letter dated September 17, 2024
Dear Ms. Tam:
Thank you for your letter (the “Letter”) dated September 17, 2024 (received September 20, 2024). I am disappointed.
After our video conference call on August 27, 2024, I understood that the Consolidated Fire Protection District of Los Angeles (“District”) and the City of Bellflower would seek what I termed the “third way” to find a path forward. The emphasis at that time was to ensure that members of the public requesting a building permit from the City would receive timely service. My impression was that the District’s Chief(s) understood that the historical failure of the District to provide prompt and efficient service to the City’s (and its residents’) needs is what caused the City Council to consider alternatives to sending building plans to the District for review. It appears that the District now wishes to ignore the progress made on August 27th. While the City trusts that wiser minds will reconsider the District’s bellicose stance in this matter, my initial response follows.
District’s Historical Failure to Perform
On February 4, 2019, the City’s Building Official, Steve Patterson, emailed Mr.
Brent Times regarding the City’s concerns that the District failed to efficiently review plans related to an In-and-Out Burger located on Bellflower Boulevard and Artesia Boulevard. As noted in Mr. Patterson’s email:
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Jenny P. Tam
September 26, 2024
4887-7188-4010 v1
The City does not have any record of the District’s representatives responding to Mr. Patterson’s email. Consequently, on February 11, 2019, the City Council adopted Urgency Ordinance No. 1371 which amended to the Bellflower Municipal Code (“BMC”) to authorize the City’s Chief Building Official to enforce the Fire Code (Agenda Item No. 12-A). No District representatives attended that meeting and the City does not have any written record from the District raising an objection.
On September 4, 2019, Mr. Patterson again wrote Mr. Times as follows:
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Brent, good afternoon.
Brent, last week you and I had a brief conversation in the lobby area of City Hall. I requested of you to help out on getting all of us ( LA Fire and City staff) together to review the upcoming Code Adoption as well as to discuss confusion on requirements with the In and Out Burger project located at the North West corner of Bellflower Blvd. and Artesia Blvd.
As I mentioned to you, the City has reached out on several occasions to LA Fire asking to sit down and discuss differences on new project development. I personally reached out to you at the opening of the Mayne Centre, and the City Manager, Jeff Stewart, has tried unsuccessfully to connect with the Fire Chief. I believe Jeff and someone at LA Fire have played phone tag. In addition. I believe Len Gorecki, Asst. City Mgr/Public Works Director has sent out invites to Chief Savage, you, and twice to Nick Duvally, all LA Fire representatives, requesting a meeting. To my knowledge, he has not been able to get a response from anyone in regards to setting up a meeting date.
I am asking you to please contact the appropriate parties from LA Fire to help set up a meeting ASAP to deal with current challenges, and hopefully discuss the potential adoption , and any amendments that are beneficial to all parties, prior to presenting to City Council.
Your prompt attention to both items is appreciated, while the Code concerns with In and Out Burgers need to be resolved ASAP.
Your help with this request would be greatly appreciated.
Brent, hope all is well. Have not talked with you for some time. As you know, Len Gorecki has reached out on several occasions, via email, asking LA County Fire to sit with Bellflower staff to review any possible amendments to the Codes that may best serve the City of Bellflower.
To date, we have not heard a response to our requests to work together on the final version of the applicable codes for our Council considerations.
I am asking once again, as our DRAFT ordinance is completed, for you, or LA County Fire to advise if you wish to meet to review any possible Amendments.
I would respectfully ask that we hear from someone prior to close of business on Oct. 4, 2019, 5:00 pm. of your desire to meet, not interested in meeting, submittal of any Amendments to better Bellflower, orjust to sit and discuss common interests.
Please advise so we can move forward to have all applicable Codes in place prior to the mandatory December 31, 2019 State required time frame.
Brent, hoping we can work together, looking fonNard to the response,
Jenny P. Tam
September 26, 2024
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The City’s records suggest that a meeting was proposed for September 23, 2019; it does not have a record of what transpired at that time (if anything).
As implied in Mr. Patterson’s emails, the District historically failed to review building plans submitted by the Building Official in a timely or uniform manner. For example, the District’s misreading of the 2016 Los Angeles County Fire Code (“LAFC”) nearly caused a delay in the grand opening of … the Los Angeles County Fire Museum which is housed in the Mayne Centre within the City. After that debacle, the District then failed to approve plans for an In-and-Out Burger building in Bellflower when the exact same building plans were approved in a neighboring jurisdiction! As exemplified by Mr.
Patterson’s emails, the District did nothing in 2019 to rectify the problems identified by the City.
The Bellflower City Council’s responsibility is to meet the needs of its community.
Faced with the District’s inability to perform its limited role in reviewing building plans, the City Council chose to take a different, legal, action.
The District does not issue Building Permits
The Letter spends much time complaining that the City usurped the District’s enforcement authority as to the LAFC. Yet, the substance of the disputed matter is not enforcement, but the review of building plans for purposes of issuing a building permit. If the District wishes to “enforce” the California Fire Code, then the City looks forward to the District doing so. The City has a list of properties that should be inspected by District personnel to determine whether they violate the CFC. We are excited that the District would like to participate in code enforcement. Let us know when we may expect District personnel to accompany the City’s code enforcement officers in inspections.
As to building plan review, however, the Letter does not identify a single statute or regulation that empowers the District to have a monopoly on plan review. That should not be a surprise. I noted during the meeting on August 27th that the City’s Building Official – not the District’s Fire Chief – is the only official authorized to issue a building permit. California Building Standards Code (“CBSC”) § 105.4 (as adopted by the BMC) states, in relevant part (see enclosed for relevant sections from the BMC), that “[t]he application, plans, specifications, computations, and other data filed by an applicant for a permit will be reviewed by the Building Official. Such plans may be reviewed by other City officials to verify compliance with applicable law. If the Building Official finds that the work described in an application for a permit and the plans, specifications and other data filed therewith conform to applicable law, -6--9-
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Jenny P. Tam
September 26, 2024
4887-7188-4010 v1
and that the specified fees have been paid, the permit must be issued.” Emphasis added.
This language is substantially similar to the static language in Title 24 which states this:
There is no mention of the District’s Chief being any part of the plan review for a building permit. Nor does the Letter identify any such purported authority. All authority as to reviewing plans and issuing building permits lies solely within the power and discretion of the Building Official.
The City is not required to adopt the District’s Fire Code At the time of Mr. Patterson’s February 2019 email, the City was still utilizing the 2016 LAFC. Because of the District’s failure to communicate with the City, however, the City Council opted in December 2019 to adopt the 2019 California Fire Code, with local amendments; it subsequently adopted the 2022 California Fire Code, with local amendments.
The Letter’s assertion that the District may impose the LAFC upon the City notwithstanding the City Council’s legislative authority is contradicted by the express statutory language of Health and Safety Code § 13869.7(c):
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w 105.: mum tor permit.
To obtain a permit, the applicant shall first file an application therefor in writing on a form fumished by the department of building safety for that purpose. Such application shall:
.-
. Identify and describe the work to be covered by the permit for which application is made.
Describe the land on which the proposed work is to be done by legal description. street address or similar description that will readily Identify and definitely locate the proposed building or work.
Indicate the use and occupancy for which the proposed work is intended.
Be accompanied by construction documents and other information as required in Section 107. .N
State the valuation of the proposed work.
Be signed by the applicant. or the applicant's authorized agent.
Give such other data and information as required by the building official. .‘ I
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[A] 105.3.1 Action on application.
The building official shall examine or cause to be examined applications for permits and amendments thereto within a reasonable time after filing. If the ' ‘ or the ' do not to the V ‘ of pertinent laws, the building official shall reject such application in writing. stating the reasons therefor. If the building official is satisfied that the proposed work conforms to the requirements of this code and laws and ordinances applicable thereto. the building official shall issue a permit therefor as soon as practicable.
Jenny P. Tam
September 26, 2024
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The City Council did not ratify either the 2019 or the 2022 version of the LAFC. It does not, therefore, have any effect within the City of Bellflower. The City is entirely within its statutory rights to take (or not take) such action. Indeed, based upon the District’s failure to meet the City’s expectations as to plan review, the City Council found that rejecting the LAFC was in the public’s best interest.
The City is not required to take action in response to the Letter The Letter asserts that the City must “comply” with the District’s demands not later than October 17, 2024. While the City is certainly ready to discuss these matters with the District – as it has repeatedly offered – it is under no time constraint to take legislative action in response to the District. First, the City Council’s next regular meeting does not occur until October 14, 2024. Even if the City were inclined to take legislative action in response to the Letter, it could not do so by the artificially imposed deadline. At best, an ordinance could be introduced on October 14th; that would still, however, require a second reading and would not take effect until 30 days afterward.
Second, what is the perceived urgency? The City has offered an alternative to the District’s plan review for more than five years with the District’s knowledge. Now there is a sudden urgency that the City Council react to the District’s demands?! Despite the hyperbole expressed by some of the District’s officials, the legal reality remains the same: the City’s Building Official reviews building plans and issues building permits; the District’s Chief does not. This was always the situation – even before 2019 – and remains so now. It would not change even were the City Council to consider adopting the 2022 LA Fire Code.
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(c) The fire protection district shall transmit the adopted ordinance to the city, county, or city and county where the ordinance will apply. The legislative body of the city, county, or city and county, may ratify, modify, or deny an adopted ordinance and transmit its determination to the district within 15 days of the determination. Any modification or denial of an adopted ordinance shall include a written statement describing the reasons for any modifications or denial. No ordinance adopted by the district shall be effective until ratification by the city, county, or city and county where the ordinance will apply. Upon ratification of an adopted ordinance, the city, county, or city and county, shall file a copy of the findings of the district, and any findings of the city, county, or city and county, together with the adopted ordinance expressly marked and identified to which each finding refers, with the Department of Housing and Community Development.
Jenny P. Tam
September 26, 2024
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General Observations
This letter does not respond to every one of the assertions made in the Letter.
That does not mean, however, that the City waives any legal argument in response to the District’s position. Among other things, the City’s Building Official specifically contacted the State Fire Marshall in February 2019 to confirm there was no objection from that office as to the City’s intended action in providing an alternative to permit applicants for plan review. I also note that the City does not have a contract with the District for plan review. This is particularly important considering the ongoing State mandates as to processing building permit applications in an expeditious manner for residential housing projects: the City is not going to assume liability for the District’s failure to timely review residential housing plans.
Rather than engage in saber rattling, it seems that the District should take the City’s offer (which has been on the table for at least the past five years) to figure out a way forward that is mutually beneficial. Tying up the judicial system with a dispute that may be resolved by public officials who are all trying to do what is best for the public seems irrational. We are all in the same business of serving the public. Let us try to find a way to best accomplish that goal.
Very truly yours,
BURKE, WILLIAMS & SORENSEN, LLP
Karl H. Berger
City Attorney
C: City Council
Ryan Smoot, City Manager
Supervisor Janice Hahn
KHB
Enclosure
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BELLFLOWER CODE
105.3 Application for permit. To obtain a permit, the applicant must first file an application therefor in writing on a form furnished by the Building Official for that purpose. Such application must:
1.Identify and describe the work to be covered by the permit for which application is made.
2.Describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work.
3.Indicate the use and occupancy for which the proposed work is intended.
4.Be accompanied by construction documents and other information as required in Section 107.
5.State the valuation of the proposed work.
6.Be signed by the applicant, or the applicant’s authorized agent.
7.Give such other data and information as required by the Building Official. 105.3.1 Action on application. The Building Official will examine or cause to be examined applications for permits and amendments within a reasonable time after filing.
If the application or the construction documents do not conform to the requirements of applicable law, the Building Official must reject such application in writing.
No building permit or other similar applicable permit bearing on property development or use including additions, modifications or revisions may be issued unless and until the review and approval of all other departments and agencies having legal authority for review of construction projects have found the construction project to be in compliance with all applicable code provisions or entitlements.
When the Building Official is satisfied that the proposed work conforms to the requirements of applicable law, the Building Official must issue a permit in accordance with applicable law.
105.3.2 Time limitation of application. An application for a permit for any proposed work is deemed expired 12 months after the completion of any submittal review unless a permit has been issued. The Building Official is authorized to grant one extension of time of an unexpired application for additional periods not exceeding 12 months. The extension must be requested in writing and justifiable cause demonstrated.
For the purpose of this section, contact by a City representative indicating the review is completed is deemed completion of any submittal review. 105.4 Permit issuance. The application, plans, specifications, computations, and other data filed by an applicant for a permit will be reviewed by the Building Official. Such plans may be reviewed by other City officials to verify compliance with applicable law. If the Building Official finds that the work described in an application for a permit and the plans, specifications and other data filed therewith conform to applicable law, and that the specified fees have been paid, the permit must be issued.
When the Building Official issues the permit where plans are required, they must endorse in writing or stamp the plans and specifications. Such approved plans and specifications cannot be changed, modified or altered without authorization from the Building Official, and all work regulated by the codes must be done in accordance with the approved plans. 15-B:6 Publication, Jul 2024
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' emits! b COUNSEL
County of Los Angeles
Dawyn R. Harrison
County Counsel
September 17, 2024
Karl H. Berger
City Attorney - City of Bellflower
Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite 2400
Los Angeles, California 90071
Re: City of Bellflower's Unauthorized Fire Protection
Services
Dear Mr. Berger:
The Office of the County Counsel represents the County of Los Angeles ("County") and the Consolidated Fire Protection District of Los Angeles County (”Fire District”). It has come to our attention that the City of Bellflower ("City"), having been part of the Fire District since 1949, has been conducting fire protection services without authorization from the Fire District. Namely, (1) the City adopted and has been enforcing the California Fire Code, rather than the Los Angeles County Fire Codel; (2) has been independently conducting plan checks and approvals; and (3) has named the City's City Manager as the Fire Chief.
Since such acts are improper and unauthorized by the Fire Chief of the Fire District, the Fire District demands that the City immediately cease and desist from performing independent plan checks and approvals, making public representations that the City has independent authority to enforce fire codes, designating the City Manager as the Fire Chief, and to immediately take action to adopt the Los Angeles County Fire Code.
Unauthorized Adoption ofthe California Fire Code
7 7 The City's fire protection servicesare under the authority of the Fire District. On April 12, 1949, the County ordered the 1 Title 32 of the Los Angeles County Code.
HOAJO49569413 Fire Department's Legai Advisory Urait TEL 323.881.2384 1320 N. Eastern Avenue, Executive Office TDD 213.633.0901 Los Angeles, California 90063
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Karl H. Berger
September 17, 2024
consolidation of fire protection services of several cities, including the City, to be within the Fire District. When the City submitted a petition to the County for its incorporation in 1957, the City chose to remain within the Fire District for its fire protection services. In addition, the Local Agency Formation Commission for the County of Los Angeles ("LAFCO") continues to recognize that the City's fire protection services are within the Sphere of Influence of the Fire District.2 There has been no evidence that LAFCO, the Office of the State Fire Marshal, or the State of California recognizes any fire department other than the Fire District as the City‘s regularly- organized fire department.
The Fire District therefore has the final authority to enforce the fire code on the City's behalf. The County's Charter imposes the responsibility on the Fire Chief of the Fire District to "enforce and observe all orders and ordinances. . . "3 which includes the Los Angeles County Fire Code. California Health and Safety Code ("HSC") section 13861 authorizes a fire district to adopt ordinances and establish and enforce rules and regulations for the administration, operation, and maintenance of its services. It has done so by adopting the Los Angeles County Fire Code. In order for the Fire District to perform its services, including the enforcement of fire codes, it must utilize its adopted fire code. The City's fire protection services, being within the Fire District, must therefore immediately adopt and utilize the Los Angeles County Fire Code.
Unauthorized Independent Plan Approval Process
In addition to the City's legally improper and unauthorized adoption of the California Fire Code, the City's use of an independent plan checker and approval of such plans are also not permitted by the Fire District or the law. The City publishes on its website that it has a plan review process and represents to the public via City Municipal Code section 15.40.010 that "[p]ursuant to Health and Safety Code Section 13869.7(h)(llB), the Building Official, or designee, is authorized to enforce the Fire Code."
The City's reliance on and interpretation of HSC section 13869.7(h)(1) as its authority to designate a building official to enforce fire codes is in error. The subsection reads:
2Please see: httpszl/lalafco.org/wp-content/uploads/documents/special_district_map/CFPD.pdf 3 Los Angeles County Charter, Article VI. Duties of Officers, Section 24 1/3.
HOA.104956941.3
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Karl H. Berger
September 17, 2024
A city, county, or city and county that ratifies an ordinance relating to fire and panic safety pursuant to this section shall delegate the enforcement of the ordinance to either of the following:
(A) The chief of the fire protection district that adopted the ordinance, or his or her authorized representative.
(B) The chief building official of the city, county, or city and county, or his or her authorized representative.
(Emphasis added).
The emphasis of "pursuant to this section" is important because the entire section of 138697 applies to actions taken by fire protection districts and so does the entirety of section 13869. Further, section 13869.7 specifically refers to the enforcement of locally adopted local amendments which may be more stringent than those adopted by the State and allows the Fire District to enforce those more stringent requirements.
Under HSC section 13146, only "[t]he chief of any city, county, or city and county fire department or of any fire protection district, and their authorized representatives, shall enforce within its jurisdiction the building standards and other regulations of the State Fire Marshal . . . " The first exception, under HSC section 13146(a)(4), is to allow the State Fire Marshal to enforce building standards if requested upon by the chief fire official or the governing body. The second exception, under HSC section 13146(a)(1), allows the agency with jurisdiction to delegate enforcement of building standards for R-3 dwellings. The City's designated plan checker is neither from the State Fire Marshal's office nor have they been approved by the Fire District to enforce R-3 dwellings.
There is no question that the Fire District is the proper authority to enforce the City's building standards as it relates to fire and panic safety. HSC section 13145 makes this clear:
"The State Fire Marshal, the chief of any city, county, or city and county fire department or district providing fire protection services. . . and their authorized , .represeMafl.ves_halLeamejnjheiLcespectivecaceassbuildingstandards . relating to fire and panic safety adopted by the State Fire Marshal and published in the California Building Standards Code and other regulations that HOA.104956941.3
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Karl H. Berger
September 17, 2024
have been formally adopted by the State Fire Marshal for the prevention of fire or for the protection of life and property against fire or panic." The City cannot enforce the fire and panic safety component of building standards independent from the authority of its fire department or its fire chief.
Further, the City's designated plan checker, who approves plans, is not a person employed by the Fire District as required by Health and Safety Code section 13146.5, which states,
"The provisions of Sections 13145, 13146 and 13146.3 shall, so far as practicable, be carried out at the local level by persons who are regular full- time members of a regularly organized fire department of a city, county, or district providing fire protection services, and shall not be carried out by other persons pursuant to Section 34004 of the Government Code." (Emphasis added)
HSC section 13146.5 prohibits the City from independently designating a non- Fire District individual to enforce the fire and panic safety provisions ofthe building standards. The Fire District has performed fire protection services for the City since 1949 and it has not determined that continuing to do so would not be practicable.
Additionally, Government Code section 34004 prohibits a city from imposing such a duty on one of its officers unless already authorized by state law or regulation. There is no legal authority that allows the City to have an independent plan approval process.
The California Office of the State Fire Marshal ("SFM") directly addressed whether a building official can assume the responsibilities of enforcing fire and panic safety regulations.4 The SFM opined that the statutory provisions of HSC sections 1314 and 13146,
”. . .specifically authorize the local fire chief, or their designated representative to enforce State Fire Marshal regulations (exception for R-3 as specified in 13146(a)). The fire chief can appoint the building official as an authorized representative, however, the ultimate responsibility lies with the fire chief. 4 Please Vsee‘the letter ét't'ii'é following link:
https://www.yumpu.com/en/document/read/29439508/health— safety—codes—13145-13146-sacramento—fire— department
HOA.104956941.3
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~~-~m;unctrverehefandattomeys-fees ,
Karl H. Berger
September 17, 2024
Also, according to statute, if the building official is designated to enforce such regulations, they must be a full—time member of the fire department." Since the regulations and the SFM make it clear that only a fire chief or their authorized representative can enforce fire and panic safety provisions, the City must therefore cease from their independent plan review and approval process and must cease to represent to the public that they have the authority to enforce fire codes.
Continuing to do so is misleading to the public and creates inconsistent enforcement of the Los Angeles County Fire Code.
Unauthorized Designation of the City Manager as the Fire Chief Additionally, the City must cease in its designation of the City's City Manager as the Fire Chief. Under the City's Municipal Code section 15.40.020 Amendments, it amended the municipal code definitions to be:
"Fire Chief. The City Manager for the City of Bellflower, or designee.
Fire Code Official. 'Fire Code Official' will have the same definition as 'Fire Chief.”'
As stated above, the City lacks the authority to and cannot make this designation pursuant to HSC sections 13145, 13146, 13146.5 and Government Code section 34004. Therefore, the Fire Districts demands the City immediately take action to amend its ordinance to remove its erroneous and publicly misleading definition.
Please submit written confirmation that the City will comply with the Fire District's cease and desist requests that it will immediately (1) stop performing independent plan checks and approvals; (2) stop making public representations that the City has independent authority to enforce fire codes; (3) take action to remove its designation of the City Manager as the Fire Chief, and; (4) take action to adopt the Los Angeles County Fire Code. Please provide such written confirmation no later than Thursday, October 17, 2024.
Should the City fail to comply with this demand to cease and desist, the Fire District will evaluate pursuing any and all available legal remedies, including seeking We look forward to hearing from you and thank you for your anticipated cooperation with our request. Should you have any questions or wish to discuss this HOA.104956941.3
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Karl H. Berger
September 17, 2024
matter further, please do not hesitate to contact the undersigned. Nothing herein shall serve as a waiver of any of the Fire District and County's rights and remedies, each of which is expressly reserved.
Very truly yours,
DAWYN R. HARRISON
County Counsel /
Bv
JENNY .TAM
Senior Deputy County Counsel
Justice and Safety Division
JPTzlr
HOA.104956941.3
CITY OF BELLFLOWER
RESOLUTION NO. 22-33
A RESOLUTION ESTABLISHING PROCEDURES FOR LEGISLATIVE
SUBPOENAS IN ACCORDANCE WITH CALIFORNIA LAW
SUBPOENA RESOLUTION")
THE CITY COUNCIL RESOLVES AS FOLLOWS:
SECTION 1. The City Council finds as follows:
A. The City Council has the power to issue subpoenas requiring attendance of witnesses or production of documents in proceedings pending before it pursuant to Government Code §§ 37104-37109.
B. Government Code § 37105 requires such subpoenas be signed by the Mayor and issued by the City Clerk. Thereafter, a subpoena must be served in accordance with Code of Civil Procedure § 1987.
C. The California Supreme Court recognizes that a city may issue legislative subpoena if it is authorized by ordinance or similar enactment, it serves a valid legislative purpose, and the witnesses or material subpoenaed are pertinent to the subject matter of the investigation (Connecticut Indem. Co. v.
Super. Court (2000) 23 Cal.4th 807).
D. Subpoenas issued pursuant to this Resolution must seek testimony and documents that are relevant to any actions or matters considered by the City of Bellflower including, without limitation, actions related to collection of cannabis taxes (Bellflower Municipal Code (`BMC') § 3.37.160); obtaining hotel registries (BMC § 5.88.060); and such additional matters that may be identified by the City Manager or City Attorney when seeking City Council approvalfora subpoena.
SECTION 2. Purpose and intent. This Resolution is adopted for the purpose of establishing a procedure for issuing subpoenas to compel the attendance of witnesses and the production of other evidence at City actions or proceedings. It may be referred to as the Subpoena Resolution.
SECTION 3. Authority. On its own motion or at the request of the City Manager or City Attorney, the City Council may authorize the City Clerk to issue a subpoena requiring the attendance of a witness and/or to compel the production of documents or other evidence for any action or proceeding under consideration by the City of Bellflower.
Such authority may be reflected by written resolution or minute order. The Mayor must sign any such subpoena and the City Clerk will issue subpoenas in the name of the City when authorized to do so by the City Council pursuant to this Resolution.
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CITV OF BELLFLOWER
RESOLUTION NO.- 22-33
A RESOLUTION ESTABLISHING PROCEDURES FOR LEGISLATIVE
SUBPOENAS IN ACCORDANCE WITH CALIFORNIA LKW
(“SUB'POENA RESOLUTION”)
THE CITY COUNCIL RESOLVES AS‘ FOLLOWS:
SECTION ‘I. The City Council finds as follows:
A. The City Council has the power to issue subpoenas requiring attendance of witnesses or production of documents in proceedings pending before it pursuant to Government Code §§ 37104437109.
B. Government Code § 37105 requires such subpoenas be signed by the Mayor and issued by the City Clerk. Thereafter, a supena must be served in accordance with Code of Civil Procedure § 1987.
C. The California Supreme Court recognizes that a city may issue legislative subpoena if it is authorized by ordinance or similar enactment. it serves a valid legislative purpose, and' the witnesses or material subpoenaed are pertinent to the subject matter of the investigation (Connecticut Indemi Co.» v.
Super. Cowl (2000) 23 Cal.4th 807);
D, Subpoenas issued pursuant to this Resolution must seek testimony and documents that are relevant to any actions 0r matters considered by the City of Beliflower including, without limitation, actions relatedl to collection of cannabis taxes (Bellflower Municipal Code (“BMC”) § 3.37.160); obtaining hotel registries. (BMC § 5.88.060); and Such additional matters that may be identified by the City Manager or City Attorney when seeking City Council approval for a subpoena,
SECTION 2, Purpose and intent, This Resolution is adopted for the pUrp'os'e of establishing 8 pCédé TO? ISSUICQ SUCCCéfiéS {C compel ’[I‘ié éfléfidéfiCé Cf WitfiéSSéS and the production of other evidence at City actions or preceedings. It may be referred to as the Subpoena. Resolution.
SECTION 3. Authofity. On its own motion or at the request of the City Manager or City Attorney, the City Council may authorize the City Clerk to issue a subpoena requiring the attendance of a witness and/or to compel the prodUction of documents or other evidence for any action or proceeding under consideration by the City of Bellflower, Such authority may be reflected by written resolution or minute order. The Mayor must sign any such subpoena and the City Clerk will issue subpoenas in the name of the City when authorized to do so by the City Council pursuant to this Resolution.
City of Bellflower
Resolution No. 22-33
SECTION 4. Subpoena duces tecum. Subpoenas issued pursuant to this Resolution must comply with the provisions of Code of Civil Procedure § 1985, and any successor statute or regulation. The form of a subpoena must substantially comply with that in Code of Civil Procedure § 1985, as determined by the City Attorney, and may be similar to the most recent form approved by the Judicial Council of California (e. g., Form No. SUBP-002 [Rev. January 1, 2012]) for use in civil litigation.
SECTION 5. Service. Subpoenas will be served in accordance with the provisions of Code of Civil Procedure §§ 1987 and 1988, and any successor statute or regulation.
SECTION 6. Witness fees and mileage. If requested by the witness, all witnesses appearing pursuant to subpoena will receive fees and mileage, in the same amount and under the same circumstances as prescribed by California law for witnesses in civil actions in a superior court.
SECTION 7. Enforcement. Subpoenas issued in accordance with this Resolution may be enforced pursuant to applicable law including Government Code 37105 through 37109.
SECTION 8. Electronic Signatures. This Resolution may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.
SECTION 9. Recordation. The Mayor, or presiding officer, is authorized to sign this Resolution signifying its adoption by the City Council of the City of Bellflower and the City Clerk, or her duly appointed deputy, may attest thereto.
SECTION 10. Effective Date. This Resolution will become effective immediately upon adoption and will remain effective unless repealed or superseded.
PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF BELLFLOWER THIS 27T" DAY OF JUNE, 2022.
Ray Du on, Mayor
ATTEST:
May O i , ' Clerk
APPRO D O
arl H. Berger, ity Attorney
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City of Bellfiower
Resolution No. 22-33
SECTIONA. Subpoena dupes tecwn. Subpoenas isSuedl pursuant to this Resolution must comply with the provisions of Code of Civil Procedure § 1985. and any successor statute or regulation. The form ot a subpoena must substantially comply with that in Code of Civil Procedure § 1985, as determined by the City Attorney, and may be similar to the most recent form approved by the Judicial Council of California (eg... Form No. SUBP-OOZ [Rev January 13 2012]) for use in civill litigation.
SECTION 5. Service. Subpoenas will be served in accordance with the provisions of Code of Civil Procedure §§ 1987 and 1988', and any successor statute or regulation.
SECTION 6'. Witness fees and mileage. If requested by the witness all witnesses appearing pursuant to subpoena will reCeive fees and mileage, in the same arn0unt and under the same circumstances as prescribed by California law for witnesses in civil actions in a superior court.
SECIIONZ. EnfOrcement. Subpoenas issued in accordance with this Resolution may be enforced pursuant to applicable law including Government Code §§ 37105 through 37109.
SECTION 8. Electronic Signatures. This Resolution may be executed with electronic signatures in accordance with Government Code $16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature. _ SECTIONS, Reoordatr‘on. The Mayor, or presiding officer. is authodzed to sign this Resolution signifying its adoption by the City Council of the City of Bellflower and the City Clerk. or her duly appointed deputy, may attest thereto.
SECTION 10. Effective Date. This Resolution will become effective immediately upon adoption and will remain effective unless repealedl or superseded.
PASSED, APPROVEQ, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF BELLFLOWER THIS 27TH DAY OF JUNE, 2022.
Ray ' on, Mayor
ATTEST:
ff
«an. H. Beefy/MW Attorney
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES SS
CITY OF BELLFLOWER
I, Mayra Ochiqui, City Clerk of the City of Bellflower, California, do hereby certify under penalty of perjury that the foregoing Resolution No. 22-33 was duly passed, approved, and adopted by the City Council of the City of Bellflower at its Regular Meeting of June 27, 2022, by the following vote to wit:
AYES: Council Members - Sanchez, Santa Ines, Hamada, Koops and Mayor Dunton
Dated: June 28, 2022
i;--
May a O iqui, ity Cler
Ci of ellflower, Califo ia
SEAL)
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STATE OF CALIFORNIA )'
COUNTY OF LOS ANGELES )85»
CITY OF BELLFLOWER I
ll, Mayra Ochi‘qui, City Clerk of the City of Bellflower. California, do hereby certify Under penalty of perjury that the foregoing Resolution No. 22-33 Was duly passed. aficroved, and adopted by the City Council of the City of Bellflower at its Regular Meeting of June 27, 2022, by the following vote to wit:
AYES: Council Members - Sanchez, Santa Ines, Hamad‘a. Koops and Mayor Dunton
Dated: June 28, 20221
(SEAL)
CITY OF BELLFLOWER
RESOLUTION NO. 25-03
A RESOLUTION AUTHORIZING THE CITY CLERK TO ISSUE
LEGISLATIVE SUBPOENAS FOR THE PURPOSE OF DETERMINING
THE CITY COUNCIL’S LEGAL AUTHORITY TO ADOPT THE
CALIFORNIA FIRE CODE (CODE OF CALIFORNIA REGULATIONS,
TITLE 24, PART 9) AND AUTHORIZING THE BUILDING OFFICIAL TO
REVIEW BUILDING PLANS IN ACCORDANCE WITH CALIFORNIA
BUILDING STANDARDS CODE § 105.4 (CODE OF CALIFORNIA
REGULATIONS, TITLE 24, PARTS 1 AND 2)
THE CITY COUNCIL RESOLVES AS FOLLOWS:
SECTION 1. The City Council finds as follows:
A. The City Council has the power to issue subpoenas requiring attendance of witnesses or production of documents in proceedings pending before it pursuant to Government Code §§ 37104-37109.
B. Resolution No. 22-33, adopted June 27, 2022, establishes the procedures for issuing legislative subpoenas.
C. The California Supreme Court recognizes that a city may issue legislative subpoenas if authorized by ordinance or similar enactment, they serve a valid legislative purpose, and the witnesses or material subpoenaed are pertinent to the subject matter of the investigation (Connecticut Indem. Co. v. Super. Court (2000) 23 Cal.4th 807).
D. Subpoenas issued pursuant to this Resolution must seek testimony and documents that are relevant to the threats of litigation levied by the Consolidated Fire Protection District of Los Angeles County (“Fire District”) that challenge the City Council’s legal authority to adopt the California Fire Code (“CFC”), with local amendments, by reference and authorize the Building Official to review (and approve) building plans in accordance with the CFC. The Fire District’s threats are memorialized in the Staff Report (Agenda Item No. 14-O) from the October 14, 2024 City Council Meeting and noted in the findings for the urgency and regular ordinances reaffirming the City Council’s decision to adopt the CFC (dated January 27, 2025).
E. This Resolution is adopted in accordance with applicable law (including Resolution No. 22-33) for the purpose of informing the City Council as to its ability to implement the City Charter to adopt the CFC and authorize the Building Official to review building plans in accordance with the CFC and the California Building Standards Code (“CBSC”).
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City of Bellflower
Resolution No. 25-03
SECTION 2. Authority. The Mayor is authorized to execute all legislative subpoenas requested by the City Attorney needed to implement this Resolution. The City Clerk is authorized to issue legislative subpoenas in accordance with this Resolution to require the attendance of a witness and/or to compel the production of documents or other evidence. The City Attorney is authorized to enforce all such legislative subpoenas including, without limitation, seeking judicial intervention to compel compliance pursuant to Government Code §§ 37105 through 37109. This authorization continues until terminated by the City Council by resolution or minute order.
SECTION 3. Electronic Signatures. This Resolution may be executed with electronic signatures in accordance with Government Code §16.5. Such electronic signatures will be treated in all respects as having the same effect as an original signature.
SECTION 4. Recordation. The Mayor, or presiding officer, is authorized to sign this Resolution signifying its adoption by the City Council of the City of Bellflower and the City Clerk, or her duly appointed deputy, may attest thereto.
SECTION 5. Effective Date. This Resolution will become effective immediately upon adoption and will remain effective unless repealed or superseded.
PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF BELLFLOWER THIS 27TH DAY OF JANUARY 2025.
______________________________
Ray Dunton, Mayor
ATTEST:
____________________________
Mayra Ochiqui, City Clerk
APPROVED AS TO FORM:
____________________________
Karl H. Berger, City Attorney
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