KENNEDY, J.
Plaintiff Thomas Lippman sought a writ of mandate (Code Civ. Proc., § 1085)
Lippman owns rental property in the City. In 2009 and 2010, the City's building services department (Building Services) cited Lippman for blight and substandard living conditions on the property. He disputed the citations and eventually sought administrative review.
In April and June 2012, a hearing officer appointed by Building Services heard Lippman's appeals. The hearing officer received testimony from Lippman and various City representatives. After receiving oral testimony and reviewing the relevant notices and invoices, the hearing officer found that Lippman was (or had been) in violation of various City ordinances for each of the citations. The hearing officer further found that the testimony of the witnesses, as well as Lippman, supported a finding that the property was blighted in 2009 and abatement did not occur until after fees were assessed.
After receiving the appeal decisions from the hearing officer, Lippman filed the underlying writ petition. In the petition, he alleged, among other things, that his appeals should have been heard before the city council or an appeals board instead of a single hearing examiner.
The parties briefed the merits of the petition. After hearing the arguments of the parties, the trial court requested supplemental briefing on one issue — whether there is a conflict between the Oakland Municipal Codes (OMC) section 15.08.410 et seq. and the 2010 Building Code former section 1.8.8.1. If a conflict existed, the trial court asked whether the matter at issue in the petition was a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state.
The trial court held another hearing and took the matter under submission. After further consideration, the trial court granted the petition in part. As to the administrative writ seeking review of the blight citations, the writ was granted, the appeal decision was set aside, and the City was directed to either refund the fees Lippman paid on these citations or hold a new administrative hearing on the blight citations only. The City elected to notice a new administrative hearing on these citations. As to the administrative writ seeking review of the substandard living conditions citation, the writ was denied.
As to the traditional writ seeking to compel the City to hear administrative appeals before the city council or an appeals board pursuant to the Building Code, the writ was denied. The trial court issued a decision stating that, inter alia, "the relevant provisions of the State Housing Law and State Building Code, although not free of ambiguity, do not bar a city from authorizing its enforcement agency to resolve such appeals by appointing a hearing examiner to decide them." The trial court determined it did not have to reach the "difficult constitutional question" of whether the underlying issue was a matter of "statewide concern" where state law would regulate the City's activity because it found no conflict existed in the first instance.
Lippman filed this appeal, challenging only the denial of his petition seeking traditional mandamus. Specifically, his appeal is limited to the issue of whether the City's current administrative appeal process for deciding appeals from Building Services citations conflicts with the Building Code and, if a conflict exists, whether the matter at issue is a "municipal affair" governed by the City's municipal code or one of "statewide concern" governed by the Building Code.
In determining whether the trial court erred in denying Lippman's petition for writ of mandate, we first must determine whether there is a conflict between the City's municipal code and the 2010 Building Code. If such a conflict exists, we must decide whether Lippman's petition involves a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state. In resolving these questions, we are guided by established principles of law.
Lippman argues the City's appeals process before a single hearing officer conflicts with the procedures set forth in the Building Code. We agree.
At issue in this appeal is former section 1.8.8 of the 2010 Building Code, entitled
The City's municipal code authorizes the city manager to set standards and procedures for holding administrative hearings "to adjudicate the issuance of administrative citations...." (OMC, § 1.12.080A.) The municipal code further states, "In all instances, the determination regarding administrative citations resulting from the administrative hearing shall be final and conclusive." (OMC, § 1.12.080C.)
OMC section 15.04.1.125 states that a property owner may request an administrative hearing with a "Hearing Examiner" in order to "hear and decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretation of the non-administrative (technical) requirements of this Code...." (OMC, § 15.04.1.125A; OMC, § 15.04.025A.)
OMC section 15.08.410 et seq. outlines the specific administrative hearing procedures used for building maintenance code violations. They establish the process for requesting a hearing, scheduling a hearing before the "Hearing Examiner," and determining what matters or issues will be considered. (OMC, § 15.08.410B; see id., §§ 15.08.420, 15.08.430.) When a property owner requests an appeal from a decision of the building official, the building official is required to fix the date, time, and place for the hearing of the appeal by the hearing examiner. (OMC, § 15.08.410B.) "Decisions made and determinations rendered by the Hearing Examiner shall be in all cases final and conclusive." (OMC, § 15.08.450.)
The City contends there is no conflict between the municipal code and the Building Code, as the latter requires only the establishment of "process" to hear and decide appeals, which does not require an "appeals board." We disagree.
Prior versions of the Building Code support this interpretation. Up until 2010, the Building Code provided, "Every city, county or city and county shall establish a local appeals board and a housing appeals board. The local appeals board and housing appeals board shall each be comprised of at least five voting members that shall serve at the pleasure of the city, county or city and county. Appointments shall not be employees of the jurisdiction and shall consist of members who are qualified and specifically knowledgeable in the California Building Standards Codes [sic] and applicable local ordinances." (See Building Code, former § 108.8.1, italics added [2007]; see also Building
The 2010 Building Code differed from former versions in three respects. The 2010 Building Code provided that every city "shall establish a process to hear and decide appeals" instead of stating that every city "shall establish a local appeals board and a housing appeals board." (Building Code, former § 1.8.8.1, italics added [2010]; cf. Building Code, former § 108.1 [2007]; Building Code, former § 105.1 [2001]; Building Code, former § 105.1 [1998].) The 2010 Building Code no longer specifies the minimum number of voting members of the appeal boards, but does state that members "shall not be employees of the enforcing agency...." (Building Code, former § 1.8.8.1.) The 2010 Building Code also mandated: "Where no such appeals boards or agencies have been established, the governing body of the city, county, or city and county shall serve as the local appeals board or housing appeals board as specified in California Health and Safety Code Sections 17920.5 and 17920.6." (Building Code, former § 1.8.8.1.) In our view, these amendments clarify that the "process" that is contemplated requires review by an appeals board, an agency, or a governing body.
Nevertheless, the City maintains that its process for handling appeals does not conflict with state law because the references to an "agency" in the State Housing Law and the Building Code suggest that the reviewing body need not be an entity distinct from its enforcement agency. The City argues that nothing in the State Housing Law or Building Code indicates that an agency authorized to hear appeals cannot be the enforcement agency itself. However, the plain language of the 2010 Building Code prohibited employees of the enforcing agency from serving as members of the appeals board. (Building Code, former § 1.8.8.1.) The City contends that because the hearing officer is not an employee of the enforcing agency, there is no conflict. The City's position appears to be that the enforcing agency is authorized to hear appeals so long as it does not utilize any of its employees. This argument not only requires a strained interpretation of the statutory scheme as a whole, it also requires that we read the word "agency" to mean the enforcement agency acting through a nonemployee of that agency. This would violate "`the cardinal rule of statutory construction that courts must not add provisions to statutes. [Citations.] This rule has been codified in California as [Code of Civil Procedure] section 1858, which provides that a court must not "insert what
In fact, the legislative history indicates the exact opposite — that an appeal should exist outside the enforcement agency. In 1961, the Legislature repealed the State Housing Act (Health & Saf. Code, former §§ 15000-17902) and enacted the existing State Housing Law. (See 41 Ops.Cal.Atty.Gen. 182, 183 (1963); Assem. Bill No. 787 (1961 Reg. Sess.) § 7 et seq.) The 1961 legislation created two new procedures: review by a local appeals board and review by a state housing appeals board. (41 Ops.Cal.Atty.Gen., supra, at p. 183.) Although there was some initial confusion regarding the relationship between the local appeals board and the state appeals board, Assembly Bill No. 787 expressly and consistently differentiated between the appeals boards and the enforcement agencies. (See Assem. Bill No. 787 (1961 Reg. Sess.) as introduced Jan. 25, 1961; Alexander H. Pope, bill mem. to Governor Brown, July 14, 1961, Governor's chaptered bill files, ch. 1844, pp. 1-3; Stats. 1961, ch. 1844, § 7 et seq., pp. 3919-3927.) The bill provided for "local agency appeal bodies" that were separate from the "enforcement agencies," which were authorized to inspect buildings and issue citations. (See Alexander H. Pope, bill mem. to Governor Brown, July 14, 1961, Governor's chaptered bill files, ch. 1844, pp. 1, 3; Stats. 1961, ch. 1844, § 8, pp. 3919, 3920, 3923-3924.) The intent to have separate reviewing and enforcing bodies is clearly reflected in the 1977 amendments to the State Housing Law, which added, among other things, a housing appeals board. (Sen. Bill No. 1072 (1977 Reg. Sess.) § 2 et seq.). In recommending Senate Bill No. 1072, the Department of Housing and Community Development reported that "[s]ome accessible appeal ... should exist outside the enforcement agency." (Dept. Housing & Community Development, Enrolled Bill Rep. on Sen. Bill No. 1072 (1977 Reg. Sess.) Sept. 13, 1977, p. 2.) It was further reported that the "bill represent[ed] a sound step towards making the building codes less arbitrary and more responsive to the shelter needs of California's citizens." (Ibid.)
The City's process of authorizing an appeal to a single hearing officer appointed by the enforcement agency is contrary to the plain language of the State Housing Law and the Building Code and is inconsistent with the legislative intent. Accordingly, we conclude the municipal code conflicts with state law to the extent it provides for an appeals process inconsistent with the mechanism mandated by the Building Code and State Housing Law.
The City contends that its right to "home rule" overrides the Building Code and its related statutory scheme. We disagree.
"There must always be doubt whether a matter which is of concern to both municipalities and the state is of sufficient statewide concern to justify a new legislative intrusion into an area traditionally regarded as `strictly a municipal affair.' Such doubt, however, `must be resolved in favor of the legislative authority of the state.'" (Baggett v. Gates (1982) 32 Cal.3d 128, 140 [185 Cal.Rptr. 232, 649 P.2d 874] (Baggett).)
"[T]he question whether in a particular case the home rule provisions of the California Constitution bar the application of state law to charter cities turns ultimately on the meaning and scope of the state law in question and the relevant state constitutional provisions. Interpreting that law and those provisions presents a legal question, not a factual one." (State Building, supra, 54 Cal.4th at p. 558.)
"Until the 1970's, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 97 [48 Cal.Rptr. 889, 410 P.2d 393].) In 1970, the Legislature put an end to all that by declaring a statewide interest in uniform building codes (Stats. 1970, ch. 1436, § 7, p. 2785) and otherwise expressing an intent to generally preempt the field. (Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal.App.3d 573, 577 [109 Cal.Rptr. 260]; see also Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal.App.3d 241, 248 [129 Cal.Rptr. 882] [citation].) But that is not to say that local authorities may never adopt ordinances which vary from the uniform codes." (ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 288 [29 Cal.Rptr.2d 224].)
Because the state has delineated specifically where and in what manner local authorities may "adopt ordinances which vary from the uniform codes," we conclude the Legislature intended to preempt local government's power to legislate in the field of housing building standards, except as specifically permitted by state statutes. (Briseno, supra, 6 Cal.App.4th at pp. 1382-1383; see Health & Saf. Code, §§ 17958.5, 17958.7, subd. (a) [permitting localities to amend building standards based on local climatic, geological, or topographical conditions, but requiring local governments to make specific findings to do so], 17922, subd. (c) [reserving to local jurisdictions power over "local use zone requirements, local fire zones, building setback, side and rear yard requirements, and property line requirements"], 17951, subd. (e)(2) [allowing local governments to approve alternate material or methods of construction provided that the alternate has been approved by the state and is "for the purpose intended, at least the equivalent of that prescribed in the California Building Standards Code"].)
In determining the sweep of a state law, the California Supreme Court has "`emphasize[d] that there is a clear distinction between the substance of a[n] ... issue and the procedure by which it is resolved.'" (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 289 [132 Cal.Rptr.2d 713, 66 P.3d 718] (Riverside) [explaining that employee salaries are municipal affairs, but the process of fixing such salaries is a matter of statewide concern].) One appellate court has described the distinction as this: "A procedural (state) law leaves the ultimate decision making authority ... in the hands of the charter county and thus can be applied to it." (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1289-1290 [83 Cal.Rptr.3d 576].) "A substantive law, on the other hand, takes away a charter county's ability to establish local [laws]." (Id. at p. 1290.)
For example, in Baggett, supra, 32 Cal.3d 128, the California Supreme Court held that state law requiring an administrative appeal for police officers was applicable to the city. (Id. at pp. 140-141.) Although the Baggett court found that the state law impinged on the city's "implied power to determine the manner in which its employees may be removed," the impingement was not sufficient to render the state law unconstitutional. (Id. at p. 138.) With regard to the state law, the court found that "the total effect of this legislation is not to deprive local governments of the right to manage and control their police departments but to secure basic rights and protections to a segment of public employees who were thought unable to secure them for themselves." (Id. at p. 140.) Similarly, in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 597 [205 Cal.Rptr. 794, 685 P.2d 1145] (Seal Beach), the case concluded a state law setting forth dispute resolution procedures was applicable to city employees. In Seal Beach, the court found no conflict between the city's constitutional powers and the limited state regulation. (Id. at p. 601.)
Conversely, in Riverside, supra, 30 Cal.4th 278, the California Supreme Court held that a state law requiring the county to enter into mandatory arbitration with the union representing its employees violated the county's home rule authority as it was a substantive law permitting an arbitration panel rather than the governing body to establish local salaries. (Id. at p. 289.) Distinguishing its prior decision in Baggett, the court explained that the state
The California Supreme Court in Riverside also cited with approval its decision in Seal Beach, supra, 36 Cal.3d 591, explaining that "the law in question did not establish a binding process but merely imposed procedural requirements. `While the Legislature established a procedure for resolving disputes regarding wages, hours and other conditions of employment, it did not attempt to establish standards for the wages, hours and other terms and conditions themselves.' (Id. at p. 597.)" (Riverside, supra, 30 Cal.4th at p. 288.)
The City contends Baggett and Riverside are not controlling because the impact of the instant case is "far less widespread" than matters of public employee labor disputes. In support of this assertion, the City avers no one other than Lippman "is affected by the problems on Lippman's property." While the conditions leading to Lippman's citations are indeed a local issue, the fairness of the procedure used to resolve citations generally is a matter of statewide concern. Although there are no cases specifically addressing this issue, we conclude that, just as a state has an interest in securing "basic rights and protections" to public employees (Baggett, supra, 32 Cal.3d at p. 140), it also has an interest in protecting the basic rights of property owners. Thus, contrary to the City's contention, it is a "`sensible and appropriate' allocation of state power to require compliance with the Building Code's appeals board requirement. (California Fed., supra, 54 Cal.3d at p. 17.)
The City further contends the Building Code's appellate requirements should not apply to the City because the property owners have other judicial safeguards in place that protect them from local abuse. Recently, a different panel of this division rejected a similar argument. In Morgado v. City and County of San Francisco (2017) 13 Cal.App.5th 1, 15 [220 Cal.Rptr.3d 497], the city argued it was not required to comply with state law regarding administrative appeals brought by its police officers because, it claimed, the rights and protections it provided in its existing disciplinary scheme exceeded those in some other cities. Citing Baggett, supra, 32 Cal.3d at page 135, we explained that a municipality was not exempt from state law "based on the asserted fairness of its disciplinary procedure as a whole." (Morgado, at p. 16.)
The judgment denying the petition for writ of mandate is reversed. On remand, the trial court is directed to issue a writ of mandate compelling the City to establish an appeals board or authorized agency to hear appeals or provide for an appeal to its governing body as required by section 1.8.8 of the Building Code. Lippman is entitled to costs on appeal.
Ruvolo, P. J., and Rivera, J., concurred.
