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HomeMy WebLinkAboutClaim 751 - International Apparel - Accessories HeiressIv CITY OF PALM DESERT CITY CLERK DEPARTMENT STAFF REPORT REQUEST: CLAIM AGAINST THE CITY (#751) BY INTERNATIONAL APPAREL & ACCESSORIES/HEIRESS IN AN UNSPECIFIED AMOUNT SUBMITTED BY: Rachelle Klassen, City Clerk DATE: July 9, 2015 CONTENTS: • Staff Report • Recommendations of Claims Adjusters and Staff • Claim No. 751 Recommendation By Minute Motion, reject the Claim and direct the City Clerk to so notify the Claimant. Background Based on a review of the subject Claim and the recommendation of the Claims Adjuster, Risk Manager, City Attorney, and staff, it is recommended that the Claim be rejected. Discussion of this item should be held in Closed Session pursuant to Government Code Section 54956.9(b), potential litigation. Fiscal Analysis City of Palm Desert participates in the self-insurance pool of the California Joint Powers Insurance Authority (CJPIA). Action to reject the subject Claim does not have a fiscal impact on the City at this time. Submitted by: Ap ed: C Ra elle . Klassen, City Clerk J M. Wohlmuth, City Manager rdk Attachments (as noted) � r (',AIIL WARItLN & COMPANY March 11, 2015 TO: City of Palm Desert ATTENTION: Rachelle D. Klassen, MMC, City Clerk RE: Claim: International Apparel & Accessories, Inc. v. Palm Desert Claimant: International Apparel & Accessories, Inc. Member: City of Palm Desert Date Rec'd by Mbr: 8/28/14 Date of Event: 7/22/14 CW File Number: 1892884 Please allow this correspondence to acknowledge receipt of the captioned claim. Please take the following action: • CLAIM REJECTION: Send a standard rejection letter to the claimant. Please include a Proof of Mailing with your rejection notice to the claimant. An exemplar copy of a Proof of Mailing is attached. Please provide us with a copy of the Notice of Rejection and copy of the Proof of Mailing. If you have any questions feel free to contact the assigned adjuster or the undersigned supervisor. Very truly yours CARL WARREN & COMPANY Riz4A4 & D. Margin Richard D. Marque Supervisor AN EMPLOYEE -OWNED COMPANY 77( S Placentia Avenue i Placentia, CA 92870 P O Box 25180 i Santa Ana, CA 92799-5180 ,:;ro.ra l•rra ren: nr:� i f.�i 714-572-5200 i 800-572-695 i Fax: 866-254-4423 CA L u.- insa No 2607296 CITY Of P q L M 73-5 tU Fini) WARING DRIVE PALM DI:S17RT, CAI.IFORNIA 9226o-2578 TEL: 760 346—O6II inf)(11citp dpainidescrt.urq TO: CJPIA (c/o CARL WARREN & CO.), CITY MANAGER, ,CITY ATTORNEY, DIRECTOR OF COMMUNITY DEVELOPMENT, CODE COMPLIANCE SUPERVISOR, RISK MANAGER FROM: CITY CLERK DATE: AUGUST 28, 2014 SUBJECT: CLAIM NO. 751 - CLAIM AGAINST THE CITY BY INTERNATIONAL APPAREL & ACCESSORIES INC./HEIRESS IN AN UNSPECIFIED AMOUNT The attached Claim No. 751 is being transmitted to you for the following: ❑ Information only. or Review and recommendation to the Claims Review Committee for any action required by the City of Palm Desert. We would appreciate your report, if requested, by September 29, 2014, for timely response to the Claimant. RACHELLE D. KLASSEN, MMC CITY CLERK Attachments (as noted) . nnio o4 n;niio nri= Klassen, Rachelle From: Rodriguez, Pedro Sent: Wednesday, September 03, 2014 9:27 AM To: Klassen, Rachelle Cc: David Erwin (david.erwin@bbklaw.com) Subject: Claim 751, Paige Linn, Owner of Heiress at 73260 El Paseo Rachelle, I have discussed this matter with Dave Erwin, we both recommend that this claim be rejected Thank you, Pedro Rodriguez Code Compliance Supervisor City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 (760) 346-0611 Ext. 442 prod riq uez .cityofpalmdesert.org k;EIVU; ERIX i "rL?'i1DE ER1,i July 25, 2014 2114 AUG 28 Pp; David Erwin Best Best & Krieger 74-760 Hwy 111 Suite 200 Indian Wells, Ca 92210 SENTVIA E-MAIL David. Erwin(a)bbklaw.com SENT VIA CERTIFIED MAIL 7006 2150 000 3 5973 0581 RETURN RECEIPT REQUESTED RE: International Apparel & Accessories Inc. HEIRESS 73-260 El Paseo Suite 1C, Palm Desert, CA. 92260 RE: Defamation by the City of Palm Desert; Abuse of Process; Malicious Intent Heiress Signage; Failure to Give Due Process Code Issues in Swan Center/Armandos Restaurant Fire March 28, 2014 Dear Mr. Erwin, This letter shall address several issues including defamation, slander and abuse of process by the City of Palm Desert employees and code enforcement issues at Swan Center. On Thursday July 24, 20141 returned to the store to find 6 pages which had been posted the day before, Wednesday July 23, 2014, on the front glass doors, of my business, and had remained posted during the day and into the next morning until 1 removed said items. Upon removing the letters and photos I subsequently made four continuous trips to the City of Palm Desert Code Enforcement Office the morning of Thursday July 24, 2014. The following were the [6] pages stapled and taped to the Heiress front door. An 8 1/2 by 11 inch page sign was stapled on the front of the letters and photos which read in large red letters: NOTICE OF PUBLIC NUISANCE" 14-2887 [ 1 ] Two letters with the same language, dated July 22, 2014, signed by Johnny Terfehr, "code compliance officer", [hereinafter referred to as "TERFEHR"] which had been separately addressed to Heiress and Heidi Hustedt, the landlord; : ON 1. h I =L tad 8Z Snr nea 331330 S3)ib3131J�110 a3AI3a38 The July 22, 2014 letter signed by Johnny Terfehr specifically states: "The City has been attempting to gain compliance with regard to pedestal signs on El Paseo and has been unsuccessful in obtaining compliance with the business (Heiress, Unit 1C). The property owner is ultimately responsible for code violations that are allowed exist on the property. [Incoherent sentence] At this time the City is asking the property owner(s) assistance in requiring compliance from the tenant so that any unpermitted exterior signs, including pedestal signs, be removed and no longer used until specifically permitted by the City." "Please see enclosed brochure outlining permissible signs. The business owner may bring the proposed pedestal sign in to the Planning Department to obtain the free approval and permit if the sign meets the criteria." This statement[s] are erroneous and defamation and will be addressed with additional comments later in this communication. [ 2 ] Attached to these letters was a page with 4 different types of signage. One photograph showed a type of sign, which the HEIRESS sign qualifies, under the heading "Allowable pedestal signs." The HEIRESS sign has been in use for ten years. [ 3 ] Another page showed a photo of the north side of EL Paseo with signs on the sidewalk. This photo was particularly ludicrous given it shows a picture of the Le Chateau store and its sign. The Le Chateau store has not been existence on El Paseo for at least 10 years. This particular page shows a notation stating; "Palm Desert Municipal Code Section 25.56.080 G Pedestrian Oriented Signs" This photo is misrepresentation and fraud on its face as it misrepresents El Paseo approaching a decade ago and not the present street environment. [ 4 ] Another page attached to this group contained 5 photos. Three photos were taken on July 22, 2014 showing the HEIRESS sign under the awning, on private property and facing south, exactly within the legal area for the sign after June 15'. In the three photos taken of the HEIRESS sign, the sale sign is also showing. The sale sign is on an antique easel. Not only is the sale sign on private property, the sign is in the foyer of the store boundaries AND inside the wall boundaries of the unit. 2. Two photos were taken at 10:41 and one photo was taken at 11:05. Two other photos, on the same sheet, were taken on July 23rd at 9:43am, the day the items were posted when the store was closed. The two photos taken at 9:43am show the items taped to the front glass door showing the front sign which read "NOTICE OF PUBLIC NUISANCE". [ 5 ] The aforementioned 5 pages were attached to the one page sign showing in large red letters"NOTICE OF PUBLIC NUISANCE". TERFEHR has documented via photos, his defamation, slander, abuse of process, misrepresentation and intentional malicious conduct. [ 6 ] The store was closed on Wednesday July 23`d due to the continuous smell of smoke coming from the March 28, 2014 fire in Armando's Restaurant. Heiress and Armando's share a common wall on the east side of Heiress. The smell is so strong on any given days I cannot stay in the store because of my asthma. The smell also drives the customers out. My insurance company sent a crew to the store on July 24Lh, in an attempt to clean the vents but upon inspecting the store, vents on the common wall and looking at Armando's roof currently, partially covered by a canvas, they determined there was nothing to be done until which time the charred damage was completely removed and all areas cleaned to destroy the smell of smoke from the origin of the fire site. To date this has not been done for which I am holding the landlord, Heidi Hustedt and The City of Palm Desert liable. The following is the history of the HEIRESS street sienage and any contact with the City of Palm Desert. California. [ 7 ] The store opened in November of 2004. The sign has been outside the store, under the HEIRESS awning, on private property for 10 years. The sign was professionally produced, has recently been renovated, looks new and was expensive to make and renovate. The sign displays the HEIRESS federal trademark and the HEIRESS logo that local and international customers have come to recognize. [ 8 ] On March 20, 2014 , during El Paseo Fashion Week, one of the busiest weeks on El Paseo and certainly the most publicized, TERFEHR, accompanied by Eric Ceja, [hereinafter referred to as "CEJA"] entered HEIRESS and threatened me with code compliance [Specifically Violation 25.56.080 G] if I did not move the HEIRESS sign which has been sitting as stated above, on private property, for 10 years. They cited a "new ordinance" in which there would be no signs showing outside the stores, on El Paseo, until June first . Both TERFEHR and CEJA presented me with the same 10 year old photo of the north side of El Paseo including Le Chateau, referenced above. 3. Both men confirmed that the El Paseo Business Improvement District Board of Directors, [hereinafter referred to as "El Paseo Directors"] appointed by the City council, were consulted and acted on behalf of the El Paseo merchants agreeing to the "new ordinance". Both men also confirmed the "El Paseo Directors" "represented" the owners on El Paseo in designing and writing this ordinance with the City. The El Paseo Directors have no legal authority to represent the business owners on El Paseo or any business owners who are off El Paseo but maintain an El Paseo address. The El Paseo Directors are not an elected group. In fact, the El Paseo Directors, given they are appointed by the Palm Desert City Council have a conflict of interest in certain issues relating to the El Paseo merchants. In this particular case, involving the signage, the conflict is the harm the El Paseo merchants experience as a result of the "new ordinance", initiated by the El Paseo Directors and the City. In short, the City and certain individuals claiming to "represent" El Paseo business owners, pushed this ordinance through without proper notice to a specific class, [i.e. the El Paseo merchants] failing to give the ordinance due process. I question the legal weight and validity of any "new or amended signage ordinance". I certainly take exception to any individual or group of individuals that claim to represent me or others that are not an elected body and or do not have authority to do so. Any individual or body who claims to "represent" anyone or any entity [i.e. corporations] certainly takes a chance of being accused of practicing the law without a license. [ 9 ] On March 20, 2014, 1 advised TERFEHR and CEJA I was unaware of the "new ordinance". We DONOT receive mail at the store's physical address. The City has the correct mailing address as they send the tax bill to the corporation's mailing address. Apparently, one hand does not know what the other had is doing at the City in that I DID NOT receive any just notice regarding this "new ordinance". CEJA confirmed other merchants also did not receive notice. [ 10 ] Also, I did not receive any notification of a pending "new ordinance" from any member of the El Paseo Directors. The El Paseo merchants are a very concentrated, defined class. Not only did I know nothing about the "new ordinance", it is now my understanding a majority of the merchants were also unaware of the pending "new ordinance". This shows a substantial negligence by the City and El Paseo Directors relating to the notice nd due process of any amendment. [ 11 ] I explained my position that the HEIRESS sign was "grandfathered" in regarding any "new ordinance" and the City has lost any statute of limitations as to the HEIRESS sign. [ 12 ] Upon TERFEHR and CEJA leaving the premises I went outside and moved the sign to the Sage side. 4. [ 13 ] All units in the Swan Center have the same address of 73-260 El Paseo. Three businesses on the Sage side apparently did receive notices, from the City and ignored the notices. Two businesses have front doors on the Sage side. A third business has a front door facing the HEIRESS Sage side door. This third business also ignored the City's "new ordinance". To date, these 3 businesses have not been harassed or received any additional information or threat regarding their signage. [ 14 ] The Heiress sign from March 20, 2014 on until June 1" remained on the Sage side well within the confines of private property and not on the El Paseo side of the street. Four Swan Center business signs aligned themselves on the Sage street side. In addition, the consignment store, Out of the Closet, across the street from the Swan Center, on Sage also continued to place their sign outside, on private property. [ 15 ] On March 21, 2014 TERFEHR returned to HEIRESS to bring his business card. I had requested his card on March 20, 2014 at which time he claimed to be out. [ 16 ] On June 1, 20141 returned the HEIRESS sign to the front of the store complying with the "new ordinance". [ 17 ] I learned in June, 2014 the City was canvassing El Paseo placing stickers on all out door signs. No city employee placed a sticker on the Heiress sign regardless of the fact the store is open all summer. [ 18 ] Regardless, if HEIRESS was or was not open on any given day no one from the City came to the store to place a sticker on the HEIRESS sign. Nor did the City notify me in any way, in any form of communication to come into the City and pick up a sticker. [ 19 ] TERFEHER and CEJA were aware on March 20, 2014 that we do not receive mail at the store location. [ 20 ] In reference to TERFEHR'S July 22, 2014 letter, no business owners on El Paseo have transported their existing outdoor signage to the City for "approval". Apparently, TERFEHR and Ceja were compelled to harass and discriminate against me instead of simply placing a sticker on the HEIRESS sign outside the store. [ 21 ] Subsequent to March 20, 20141 did not receive any notice, letter phone call or any other type of communication regarding any signage. It was not until July 24"' four months later, that I opened HEIRESS to find the aforementioned documents taped to the front glass door. 5. [ 22 ] The three photos that were taken on July 22, 2014, of the HEIRESS sign, included the store sale sign, which is at least seven years old and has been on the inside of the premises since early spring of this year. The sale sign is on an antique easel on private property and stands on the inside of the front wall foyer. On March 20, 2014 TERFEHR and CEJA made no mention of the sale sign. Obviously because the sign was within the inner walls of the store. [ 231 she question that is ridiculousiv simple and obvious is why didn't the City, represented .v TEREHR and/or CEJA. simply place the sticker on the Heiress sign on or even before July 22, 4.014 as thev had done the month prior for all other outdoor signs on El Paseo? Instead of taking photos of the sign on July 22"O why not just place the sticker on the HEIRESS sign. TEREHR and CEJA'S behavior is harassing and discriminatory. [ 24 ] The week of July 14, 2014 1 went to the Palm Desert City code compliance department. Pedro Rodriquez [herein after referred to as "RODRIQUEZ"] who I understand is the code compliance supervisor, was in the office. I introduced myself and told him I was having extreme problems with the fire smell and the electrical problems were continuing at the Swan Center. I specifically ask RODRIQUEZ if there were ANY type of code violations associated with 73-260 El Paseo, commonly known as Swan Center. RODRIQUEZ went to an office and accessed the computer. He then returned to the counter and said, "NO, the City has no code violations pending on 73-260 El Paseo". RODRIQUEZ then stated if I wanted any code violation information specifically on the Armando's fire I should go to the planning area. By RODRIQUEZ'S own admission he was accessing ALL code violations for the Swan Center. RODRIQUEZ specifically stated there were no code violations at Swan Center the week of July 14th. Yet a week later, TERFEHC claims in his July 22, 2014 letter, "The City has been attempting to gain compliance with regard to pedestal signs on El Paseo and has been unsuccessful in obtaining compliance with this business (Heiress Unit 1C) [25 ] Not only was the HEIRESS sign in compliance, according to RODRIQUEZ, on and before the week of July 14, 2014, the HEIRESS sign was in compliance on July 22, 2014 when TERFEHR defamed me and my business by taping a "NOTICE OF PUBLIC NUISANCE" sign on the HEIRESS front door for the public to read. [ 26 ] I believe it was the intent of TERFEHR, CEJA and TERFEHR'S supervisor RODRIQUEZ to harass, embarrass, defame and slander myself and my business. The City and its employees have had two months to place the sticker of compliance on the HEIRESS sign, as they did for all other business on El Paseo but failed to give HEIRESS due process and provide the sticker. [ 27 ] During my first of 4 visits, to the City on July 24th, CEJA tendered a sticker for the HEIRESS sign. [ 281 Heidi Hustedt has made no attempt to communicate with me, to date, regarding TEREHR'S July 22, 2014 letter. [ 29 ] I have made complaints regarding Armandos to TERFEHR, in the past, citing violations of City smoking ordinances and state liquor violations. TERFEHR ignored the problems. I brought these issues to his attention again on March 20, 2014. Again, he ignored the issues. Apparently, Armando's City tax dollars are more important that the violations. HISTORY OF THE SEPTEMBER 11, 2009 ORDINANCE NO. 1190 Subsequent to the July 23, 2014 posting by TERFEHR I researched the signage ordinance[s] in Palm Desert. [ 1 ] Apparently the "new ordinance" TERFEHR and CEJA were referring to was a zoning ordinance AMENDMENT to MODIFY SECTION 25.56.080.G [PEDESTRIAN -ORIENTED SIGNS TO RESTRICT THEM ON EL PASEO, AND ALLOW A -FRAME SIGNS IN OTHER PARTS OF THE CITY. [ 2 ] Both TEREHR and CEJA misrepresented the amendment. [ 3 ] The meeting date was September 26, 2013 with an actual vote by the City council on October 10, 2013. [ 4 ] A review of the amendment shows there is absolutely NO language which states WHERE a sale sign should be located. Apparently the City and the planning department are "winging it" and manufacturing the language of an amendment as they harass the merchants on El Paseo. [ 5 ] The insistence that the "sale" signs are to be inside and or on the inside of a window is a clear indication the City is insisting all sale signs should be in an area that is the wall and or the physical boundary line of a given store. The HEIRESS sale sign is exactly where the City is insisting the boundary line of a sale sign should be. [ 6 ] Once again, the amendment does NOT reflect where to place "sale" signs. The City of Palm Desert is taking the liberty to manufacture language and elaborate on a given amendment without due process and acting on their elaboration to harass and fine without legal justification, the merchants on El Paseo. 7. [ 7 ] The City has succeeded in turning El Paseo into a strip mall gone wild. The City has forced Leed's, who used a conservative sale sign, into now placing vinyl lettering across their windows and so goes the scenario down El Paseo. Section 1.25.56.080.G-Pedestrian oriented signs (25.68.080.G.current code) 1 d. States: "Signs shall be designated and located so as to not distract from the appearance of the building or violate the intent of this chapter." This is exactly what sale signs create on the windows. They not only distract from the building and the merchandise in the windows, the individuals driving down the street sees nothing but sale signs opposed to viewing the merchandise in the windows. [ 8 ] The decision, by those who created this amendment, in not allowing open signs in front of the stores, during certain times of the year, have placed the businesses on El Paseo in a position to lose business revenue. Some stores close the end of April or by different times of the month in May, June or July. Some stores reopen in September, October or November. Stores have different hours or are open only certain days. There is an excessive amount of variance in hours and months for all stores on El Paseo even those open, year round. By restricting the use of outdoor "open" signage, on El Paseo, between October I"to June 1s' the restriction harms business revenue. The public assumes all business have similar hours. When a store is not allowed to tell the public they are actually "open" with a sign, the public must investigate each individual business when they find all stores are not open. You and those you are responsible for have created confusion with the public when an obvious "open" sign is not visually available to the public. You and those you are responsible for cannot impose "mall" criteria on the El Paseo stores which are known for their individual personalities. You and those you are responsible for have assumed all stores on El Paseo are open with similar hours from October 1rt to June 15L. This assumption is erroneous. The City and those individuals who participated in any capacity as "advisors" have succeeded in already making a difficult economy even more difficult. [ 9 ] In addition, the City has not only discriminated against myself and my business, the City has discriminated against the entire class of El Paseo merchants. [10 ] Attached you will find photos showing the sale sign Coldwater Creek used before the store was close. The fact that the store has been closing over the last months is irrelevant. The City has failed to hold Coldwater Creek to the same "amended ordinance" as the other merchants on El Paseo. The City failed to hold Coldwater Creek to the amended ordinance. Thus, discriminating against the merchants on El Paseo as a class. [11] 1 spoke with Coldwater Creek management regarding the sign. I was told the City has made absolutely no contact with any employee or management regarding their sign. [12 ] Their sale sign was and is directly on the public sidewalk. Violation [Section 1 25.56.0880.G-Pedstrian oriented signs; Section 1 1.c "Signs shall be placed on private property in a location that does not impede pedestrian traffic flow."] In addition, the sign also violates (Section 1 1. e. "Signs shall not include extraneous verbiage advertising the business, specials, sales events; and" In addition, there is no City approval sticker on this sign. You and those you are responsible for discriminate as to individual businesses. Coldwater Creek is in bankruptcy. The entity is not now nor will they be paying, in the future, the El Paseo tax to the City of Palm Desert. Yet the City employees harass me and others who are paying taxes and in our case have been doing so for 10 years. When I approached RODRIQUEZ the week of July 15th and advised him of the continuing electrical problems at Swan Center and the continuing issues with the fire smell that I was having as a result of the March 28, 2014 fire at Armandos, that should have been his concern of focus. But it was not. (1] Armando's restaurant and HEIRESS share a common wall. The wall is on the east side of the HEIRESS store. [2] The store has been having problems for years with the electricity. The credit card machine and cash register are plugged into the common east wall through a surge protector. This wall separates Armando's from HEIRESS. The credit card machine periodically experiences an electrical issue and reverts back to 1995. [3] On March 18, 2014 the credit card machine ceased to operate from an electrical surge. It was replaced. This was ten [10] days prior to the March 28th fire at Armando's. [4] The lights go on when they are switched off. [5] The landlord, Heidi Hustedt AKA Hustedt Properties is aware of these problems and has done nothing to cure the issues. 9. [6 ] The fire smell is so strong I have been forced to periodically close the business. I have asthma and the smoke has caused me to experience breathing problems, sore throat and inability to speak clearly. The smell causes the customers to leave. [7 ] As stated earlier, my insurance company sent a crew to clean the vents, in the store, but when they saw the charred area of the fire they quickly came to the conclusion the charred remains had to be completely removed to eliminate the origin of the smell. The landlord, Heidi Hustedt AKA Hustedt Properties, sent once, at my insistence a crew to clean the vents several weeks after the fire, The crew cleaned two of the three pertinent vents and removed my air conditioner filter but did replace it leaving the store vulnerable to debris. [8 ] The City must immediately take action to insist the landlord clean up the charred area. The fire was 4 months ago. The charred area is covered with a canvas cover. Regardless of the time frame as to when construction may or may not take place this area must be cleaned and the odor eliminated from the initial site. The odor is a health issue and a detriment to business. In conclusion: [1] Cease and Desist the harassment regarding the signage at HEIRESS. The City and others, erroneously speaking on behalf of the El Paseo business owners, have passed an amendment which is harmful to the business owners on El Paseo. The City and others failed to give due process to the members of a specific class, the El Paseo merchants. The failure to give due process was intentional by you and those you are responsible for. [2] Demand is herein made on the City of Palm Desert to in turn demand Heidi Hustedt, dba Hustedt Properties, remove all charred debris from the Swan Center and clean the area forthwith. I will not hesitate to litigate these issues against the City of Palm Desert, its employees and additional individuals. Your immediate cooperation is appreciated. Regard Paige Linn International Apparel & Accessories, Inc. P.O. Box 3858 Palm Desert, Ca. 92261 10. C` V N N C --- C Er �- ru -� Ln C C C C w W - C Ln --� C C 3 C DL) (n 3 (DO'D• ' O^NR7D �' Z. MM 0 .. �� -1 •037 to �. -4 1 n c=i _, m