Legal Opinions
Monthly Opinion Report
Yearly Index
This yearly index lists by opinion number all opinions published in the particular year.
Views Solicited On Assigned Opinion Requests
The Attorney General welcomes and solicits the views of interested persons concerning the legal issues raised in any question submitted for an opinion. Comments must be provided in writing.
The earlier views are submitted, the more opportunity we will have to consider them in the opinion drafting and review process. All views submitted will be considered public records subject to disclosure under the Public Records Act.
To submit your written comment, contact the deputy attorney general whose name appears next to the item of interest in the list of pending opinion requests appearing on this web page:
Deputy Attorney General
Taylor S. Carey
Taylor.Carey@doj.ca.gov
P. O. Box 944255
Sacramento, CA 94244-2550
Deputy Attorney General
Diane E. Eisenberg
Diane.Eisenberg@doj.ca.gov
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Supervising Deputy Attorney General
Susan Duncan Lee
Susan.Lee@doj.ca.gov
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Deputy Attorney General
Marc J. Nolan
Marc.Nolan@doj.ca.gov
300 S. Spring Street
Los Angeles, CA 90013
Deputy Attorney General
Daniel G. Stone
Dan.Stone@doj.ca.gov
1300 I Street
Sacramento
The monthly opinion report makes available newly published opinions and lists the questions submitted in opinion requests assigned to deputy attorneys general in the current month. The monthly opinion report also lists previous opinion requests that are pending or terminated.
Use the links provided below to view the opinions published in the current month. Otherwise, you can look up key words using Search Opinions.
To view PDF files, use free Adobe PDF Reader.
Conclusions of Opinions Published in December 2011
- 07-503 [PDF 336 kb / 9 pg]
Published December 20, 2011
1. A city may enact an ordinance making it unlawful and a misdemeanor violation for any person to sell, use, or discharge any fireworks that are not “exempt fireworks” or “safe and sane fireworks” within city limits. However, although a city may enact an ordinance regulating the offering for sale, possession, storage, or transportation of such fireworks within city limits to the extent that the regulation is consistent with the State Fireworks Law, it may not enact an ordinance that would operate as a total ban on those activities.
2. If a city enacts an ordinance regulating fireworks activities within city limits, the city may impose an administrative fine pursuant to Government Code section 53069.4 of up to $1,000 for each violation. - 07-804 [PDF 326 kb / 11 pg]
Published December 22, 2011
1. Neither California Vehicle Code section 22658, nor any other state law, authorizes private property owners to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property.
2. Absent statutory authorization, private property owners may not acquire, by means of issuing a written warning or posting signage, the right to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property.
3. Persons who tow and impound vehicles under Vehicle Code section 22658 may not require payment of parking citations that have been issued by private property owners.
4. Owners of vehicles who have received parking citations imposing monetary sanctions issued by private property owners or their agents do not have rights or remedies per se, but the citations are unenforceable against the vehicle owners. - 08-505 [PDF 296 kb / 9 pg]
Published December 22, 2011
An animal control officer is not permitted to possess and administer controlled substances to capture or treat animals in the field without contemporaneously consultating, and receiving direction from, a licensed veterinarian. - 08-509 [PDF 529 kb / 17 pg]
Published December 29, 2011
1. Education Code section 49602(c) permits, but does not by its terms require, a school counselor to disclose personal information (including pregnancy-related or abortion-related information) received from an unemancipated student age 12 or older to the student’s parents or school principal when the counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the student’s health, safety, or welfare. The statute does not, on its face, violate a student’s constitutional right of privacy.
2. Because Education Code section 49602(c) does not by its terms compel disclosure, it may not form the basis of civil liability against a school counselor or his or her employing school or school district under the doctrine of negligence per se where the school counselor fails to disclose pregnancy-related or abortion-related personal information to the parents or school principal of an unemancipated student age 12 or older and the minor thereafter suffers harm that could have been averted by the disclosure of that information. - 09-507 [PDF 95 kb / 6 pg]
Published December 21, 2011
No, a private smokers’ lounge located in or attached to a retail or wholesale tobacco shop, which serves alcoholic beverages to patrons, is not exempt from the requirements of Labor Code section 6404.5 to maintain a smoke-free workplace. - 09-903 [PDF 323 kb / 9 pg]
Published December 27, 2011
The charges required to be collected by cities, counties, and cities and counties under section 18931.6 of the California Health and Safety Code are validly levied regulatory fees, and do not constitute an unlawful tax. - 10-206 [PDF 402 kb / 10 pg]
Published December 27, 2011
The real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act permits discussion in closed session of: (1) the amount of consideration that the local agency is willing to pay or accept in exchange for the real property rights to be acquired or transferred in the particular transaction; (2) the form, manner, and timing of how that consideration will be paid; and (3) items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential. - 10-501 [PDF 302 kb / 12 pg]
Published December 27, 2011
1. The Department of Public Health may seek mandamus or injunctive relief from a court to enforce compliance with the Forensic Alcohol Program.
2. Although laboratories engaged in performing forensic alcohol tests must follow the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) guidelines for proficiency testing, and must obtain the required proficiency tests from an ASCLD/LAB-approved test provider, the Department of Public Health may nevertheless (a) require a laboratory to also perform separate proficiency tests under Department of Public Health regulations using samples not obtained from an ASCLD/LAB-approved provider, and (b) discipline a laboratory for failing to perform these additional tests. - 10-901 [PDF 439 kb / 14 pg]
Published December 28, 2011
1. If its enabling statutes do not specify a quorum, California’s State Council on Developmental Disabilities may establish its quorum through adoption of a bylaw.
2. Although it may establish its quorum by bylaw, the Council may not define its quorum as less than a simple majority of the Council’s full statutory membership.
3. With respect to abstentions: (a) Council members who are disqualified by law from participating in a given matter may not be counted toward a quorum, and their abstentions may not be interpreted as support for, acquiescence in, or opposition to any actions taken by the Council; (b) members who are present and entitled to vote, but who abstain, are counted toward a quorum; (c) members who abstain by choice are deemed to “acquiesce” in the resolution reached by the Council—meaning that Council decisions will require majority support only from the members who actually cast votes, not from those who are entitled to vote—provided that the Council may not act without support from at least a majority of the Council’s quorum; and (d) a discretionary abstention may not be counted as a concurring or a dissenting vote absent a special rule to that effect. - 11-203 [PDF 251 kb / 11 pg]
Published December 22, 2011
Where a victim of sexual assault has elected to have one or more “victim advocates” present during an interview conducted by law enforcement authorities or a district attorney, the victim advocates may not be excluded from the interview. The interviewing authority’s power to exclude extends only to “a support person of the victim’s choosing,” and may be exercised only upon a determination that “the presence of that individual would be detrimental to the purpose of the interview.”
Opinion Requests Assigned In December 2011
The Attorney General welcomes the views of interested persons concerning the legal issues raised in questions submitted below. See Views Solicited on Assigned Opinion Requests for details.
- 11-1202
Requested By: Assemblyman Jared Huffman
Assigned To: Deputy Attorney General Taylor S. Carey
Question(s):
When a high school district contracts with a K-8 district to provide services to 7th and 8th grade students, may the high school district claim the revenue limit apportionment for those students, or must the revenue limit for the high school district be blended or adjusted? (Educ. Code secs. 35511, 35735.3.)
Assigned Opinion Requests Pending In December 2011
- 08-1001
Is Orange County Ordinance Section 1-6-8 unconstitutional if it prohibits a county candidate or county officer from having multiple campaign committees, or multiple bank accounts, for other county offices? (Lee) - 09-301
May a county collect unpaid property taxes where, due to an error in the tax collection software, property owners who owe such taxes have not been notified of a delinquency, and, if so, how? (Eisenberg) - 09-308
In any case in which a person is ordered to make victim restitution, and any portion of that restitution remains unsatisfied, are the courts prohibited from collecting court fines and fees unless they first apply those funds to pay the amounts ordered as restitution to the victim?
In any case in which a person is ordered to make victim restitution, and any portion of that restitution remains unsatisfied, do the courts have the authority to collect victim restitution? (Carey) - 10-205
Is a regional Anti-Terrorism Approval Body, which has authority to allocate grant funds to local agencies, considered a "legal body" for purposes of the Brown Act? (Carey) - 10-207
1) When California employs an medical consultant to evaluate a long-term disability claim for the Social Security Administration, is there a doctor-patient relationship between the consultant and the claimant?
2) Would it violate California law for the consultant to order tests or procedures without examing the claimant?
3) Is the medical consultant responsible for after hours follow up if a test reveals a critical condition?
4) Would a consultant be engaged in the unlicensed practice of medicine if a test is carried out in a state where the consultant is not licensed? (Carey) - 10-502
Does Title 10 of the United States Code limit the State’s authority for fire protection on the California National Guard Base at Los Alamitos? (Carey) - 10-504
Does the offense specified in Penal Code section 12072(d) and the punishments listed in Penal Code section 12072(g) apply to both the person transferring a firearm and the person receiving it? (Carey) - 10-804
Can a judge voluntarily retired for disability with the approval of the Commission and the Chief Justice be certified to administer oaths under Code of Civil Procedure section 2093(c) and Government Code section 1225, which empower a “retired or resigned” judge who receives certification from the Commission to administer oaths, except a judge “who was retired by the Supreme Court for disability”? (Eisenberg) - 10-902
1) Does Government Code section 56375.3, pertaining to the annexation of substantially surrounded islands of unincorporated territory require annexation of the “entire unincorporated island” as set forth in subdivision (b) (1) and (2) of section 56375.3?
2) May a Local Agency Formation Commission split up county unincorporated islands which exceed 150 acres into smaller segments of 150 acres or less for annexation and thereby avoid landowner/voter protest proceedings pursuant to section 56375.3(a)? (Nolan) - 10-1101
Does Vehicle Code section 21455.7, governing traffic signal timing, require that Caltrans and local agencies base minimum yellow cycle times on designated approach speeds? Does Vehicle Code section 21455.7 allow Caltrans and local agencies to interpret minimum yellow cycle times based on other provisions of the Manual of Uniform Traffic Control Devices such as turning movement and other type of signal mode that may change over time? (Carey) - 10-1103
May a director of the County Water Authority (CWA) who represents one of the member agencies of the CWA vote on an action coming before the board of the CWA in which the member agency has a financial interest, if the action does not concern any contract that is solely between the member agency and the CWA? (Eisenberg) - 11-103
Does the Court's opinion in Sheehan v. San Francisco 49ers (45 Cal. 4th 992 (2009)) affect the analysis or conclusions of our 2003 opinion regarding pen register searches (86 Ops.Cal.Atty.Gen. 198)? (Nolan) - 11-201
Is a California charter school and its board or directors subject to the Ralph M. Brown Act; the California Public Records Act; the Political Reform Act of 1974; Government Code section 1090; or the review and inspection of books and records, by a Grand Jury formed pursuant to Penal Code section 888? (Eisenberg) - 11-202
Are Laurie Smith and John Hirokawa unlawfully holding the offices of Sheriff, Undersheriff and Santa Clara County Chief of Corrections? (Carey) - 11-204
May the Rossmoor Community Service District contract with the Orange County Sheriffs Department, or with another agency, to provide specified law enforcement services to the District? (Nolan) - 11-301
Is there a substantial legal or factual question as to whether the Turlock Irrigation District has unlawfully usurped an electrical service franchise? (Nolan) - 11-302
Is Linda Sanders Ruben lawfully holding the office of director of the Pioneers Memorial Healthcare District? (Eisenberg) - 11-304
Does the authority granted to the California Prison Industry Board "[t]o establish, notwithstanding any other provision of law, procedures governing the purchase of . . . goods and services" exempt California Prison Industry Board from state laws governing public works contract? (Stone) - 11-401
May a council member, who served two terms prior to August 1, 2010, be entitled under existing state law to serve two additional terms before being subject to the waiting period provision of a municipal term limits ordinance adopted on November 2, 2010? (Nolan) - 11-402
Does it constitute an unlawful practice of law for one person (who is not a licensed member of the California Bar) to represent another person by presenting a demand letter and/or by negotiating a settlement of legal claims before a civil complaint is formally filed? (Carey) - 11-504
1) Does the Community Recreation Act (Educ. Code sections 10900-10914.5) prohibit the use of school buses to transport persons for purposes of community recreation in a county with a population greater than 45,000, unless the recreation is under direct control of a public authority? (See Educ. Code sections 10901(d) (defining "community recreation" and "public recreation"), 39835 (permitting use of school buses for community recreation).) 2) How are the transportation provisions of the Community Recreation Act enforced? (Formerly Opinion No. 11-101.) (Stone) - 11-601
May user-generated revenue sources earmarked for deposit in the Off-Highway Motor Vehicle Recreation Trust Fund — including off-highway vehicle registration fees, off-highway vehicular recreation facility use fees, and off-highway vehicle use fuel taxes — be redirected to general fund purposes? (Stone) - 11-603
Does the Legislature have the authority to enact legislation that purports to preclude the commission from disciplining California superior court judges for authorizing supplemental compensation to be paid to themselves from public funds, and/or receiving that supplemental compensation, on the ground that benefits were or are not authorized by law? Does section 2 of SBX2 11 (a) simply identify which judges are permitted as of the effective date of SBX2 11 to continue receiving supplemental compensation from the effective date forward, on the terms and conditions in effect on July 1, 2008, or (b) retroactively authorize all or some portion of supplemental compensation provided by counties to judges, or to judges themselves, so long as it was being provided as of July 1, 2008? (Nolan) - 11-605
Is Richard S.E. Johns unlawfully holding the Historian Seat (No. 4) of the San Francisco Historic Preservation Commission? (Carey) - 11-606
May the Commission on Teacher Credentialing delegate to its Executive Director, and through him or her to subordinate staff, the authority to review and determine which cases are required to be presented to the Committee of Credentials? (See Educ. Code §§ 44220(b), 44242.5(a); see also California State Auditor’s Report No. 2010-119.) (Eisenberg) - 11-702
Did the City of Bakersfield usurp the rights of Bakersfield Police Officers Association by placing Measure D on the November 2, 2010 General Election Ballot? (Nolan) - 11-703
Where a mobilehome park owner has enacted rules and regulations which prohibit homeowners from subleasing or renting their homes, other than as now provided for in a limited fashion in Civil Code section 798.23.5, is the park owner allowed to rent homes without similar restriction within the park that are owned by the park owner, or is the park owner required by Civil Code section 798.23 to also follow its own rules and regulations relating to renting and subletting to the same extent as what is demanded of the homeowners? (Eisenberg) - 11-704
When a county treasurer serves as a treasurer of a public cemetery district that has not appointed its own treasurer in accordance with Health & Safety Code section 9077, is the county treasurer's approval required before that district may invest its endowment care and surplus funds outside of the county treasury? (Stone) - 11-705
Can the authority of the court impose a probation condition on DUI defendants to make a specified payment to the DUIRR Program? (Carey) - 11-706
Do sections 26503-26505 of the California Government Code require a district attorney to deposit with the county treasurer any processing fees received from a "bad check diversion program" as allowed by section 1001.65(a) of the California Penal Code? (Nolan) - 11-707
Under the Emergency Medical Services Act, when are cities and counties required to enter into written agreements regarding local provision of emergency medical services? Does entering into such an agreement necessarily extinguish any pre-existing rights of obligations of a city? (Health and Safety Code § 1797.201.) (Nolan) - 11-1104
May automated enforcement of any illegal turn, not just a red-light violation, authorized under Vehicle Code section 21455.5? (Nolan) - 11-1109
May a school district include the average daily attendance of its adult education program to determine the level of compensation for school board members authorized under Education Code section 35120? (Stone) - 11-1110
If the Fair and Open Competition in Construction Ordinance is approved by the voters, would SB 922 preclude San Diego as a government entity from receiving state funding of any sort?
2) For local governments which have banned project labor agreements, what state/other funding sources will be limited by the enactment of SB 922? (Carey) - 11-1113
Is Richard Kuritz unlawfully holding the office of Director of the Arrowbear Park County Water District due to residing outside the district? (Formerly Opinion No. 11-1115) (Eisenberg) - 11-1202
When a high school district contracts with a K-8 district to provide services to 7th and 8th grade students, may the high school district claim the revenue limit apportionment for those students, or must the revenue limit for the high school district be blended or adjusted? (Educ. Code secs. 35511, 35735.3.) (Carey)