A pair of related cases currently before the Appellate Division of the Superior Court of Riverside County may set a statewide legal precedent regarding the ability of cities to set high penalty fees for code violations.
The city of Cathedral City is appealing a decision by Riverside County Superior Court Judge Manuel Bustamante Jr., which ordered a $5,000 penalty levied by the city against resident Richard Levik for a short-term rental (STR) code violation to be reduced to $750.
David Koslow is a Cathedral City resident who has supported Levik’s legal defense. He graduated from the New York University School of Law in 1974 and worked as an entertainment and constitutional-law attorney until the mid-1980s in Los Angeles. He’s now acting as a citizens’ legal-defense resource here in Coachella Valley and said he’s determined to help valley residents defend themselves against high-cost punishments for seemingly minor offenses of local ordinances or resolutions.
In 2022, Koslow assisted another Cathedral City resident, Alessandra Montanaro, who ran advertisements for her short-term rental property even though her city-issued permit had expired. The city, through its third-party vendor Data Ticket, issued a $5,000 citation to Montanaro, which she appealed. She acted as her own attorney at her city hearing and her subsequent case in Riverside County Superior Court, losing in both proceedings. She eventually argued in front of the Appellate Division that the $5,000 fine for a first offense was draconian in nature, and created an undue financial burden. While the Appellate Division agreed that the excessive fine violated both the California and United States constitutions, her case was eventually scuttled because she did not initially raise that argument.
Two years later, Cathedral City cited Levik for a similar violation—and again, the initial penalty was $5,000.
“On Feb. 27, 2024 … I got a letter in the mail from the city,” Levik told the Independent. “I had just installed solar panels, so I assumed it had something to do with that—and then I see a fine. ‘First violation $100’ was crossed out. ‘Second (violation) $250,’ ‘third $500’—all that was crossed out, and written in was $5,000. I’m like, ‘This is ridiculous. This is a mistake, I assume.’”
He filed an appeal and wrote a post on NextDoor—where he made contact with Koslow.
Fortunately, when Levik represented himself during his initial trial in Superior Court, he raised the issue regarding the unfair fee amount. Judge Bustamante agreed, reducing the fine from $5,000 to $750. As of our interview, Levik was searching for an attorney to represent him during the appeals process.
Any attorney who agrees to represent Levik will have an established legal argument to present. Attorney Brian Sutherland, who eventually represented Montanaro as she unsuccessfully filed an appeal with the California Supreme Court, stated: “Review is warranted. As the city (of Cathedral City) has conceded, numerous municipalities are exploiting an interpretation of the law that purportedly enables them to impose unlimited fines in administrative proceedings. Thus, as the city further conceded (in a court filing), the issue is one of ‘sweeping statewide importance for local governments.’”
The Alliance Against Local Agency Injustices submitted a letter in support of Alessandra Montanaro’s appeal, in which attorney Daniel O. Ajeigbe wrote, in part: “The question of whether (California) Government Code section 36901 limits to $1,000 the administrative fine for a non-infraction violation of a city ordinance is a matter of statewide concern affecting the rights of over 34 million people who reside within the jurisdiction of the state’s 483 incorporated cities, and of the approximately 271.6 million people who visit California in a year. (Our organization) seeks to protect this large class of people from the harm that administrative municipal fines cause when they exceed the limits provided by law.”
In the Coachella Valley, the cities of Palm Desert, La Quinta, Rancho Mirage, Desert Hot Springs and Coachella all join Cathedral City in having STR penalty-fee structures that exceed $1,000. The cities of Palm Springs and Indio’s fee structures max out at $1,000, although the Indio City Council recently opened discussion of creating a STR excessive-noise violation penalty of $5,000 as a response to problems during April’s music-festival season. In Indian Wells, the city’s penalty fees straddle $1,000 by creating two classes of violations: For general code violations, the structure is below $1,000, unless there are three or more violations in a 12-month period, which carries a $1,500 fine per violation. Indian Wells also created another category for threats to health and safety violations which begin at $1,500 and rise to $5,000 for three or more violations in a year. (These higher fines for health/safety violations were made legal as part of Senate Bill 60, passed in 2022.)
“The reason the (Cathedral City) has been fighting this,” Koslow said, “and delaying what I think is inevitable, is there is going to be about a half-million dollars in refunds that the city will need to make to all of the people who paid $5,000, $10,000 and $15,000 fines to the city.”
Koslow said he will provide any support he can to any valley residents looking for pro-bono legal assistance in these sorts of matters, and urged anyone in need of such support to contact him at koslowfineart@gmail.com or 760-202-6838.
“At the trial court, (Montanaro) was representing herself,” Koslow said. “And the reason why is she checked around, and attorneys were asking $20,000 to $25,000 to handle her case at the trial court, and the amount in controversy was only $5,000, so it would not make any sense for her to hire an attorney.”
Or, as Sutherland, Montanaro’s eventual pro-bono attorney, stated in his petition for review: “Unlike in criminal proceedings, in which the right to counsel is guaranteed, Californians facing administrative proceedings or subsequent civil proceedings are not currently afforded any right to representation. The process therefore disproportionately harms low-income people, who are forced to contend with the power of the state while provided with ‘decreased procedural protections.’”