On Sunday, 03 November 2019, the Reporters Committee on Press Freedom released an article [HERE] outlining their read on the case against us. They see the overreach and concern to journalists being posed by Fullerton’s read on the law.
“The prior restraint sought here is, of course, concerning. But this is the first case we’re aware of where the computer crime laws have been misused so brazenly against members of the news media. First, the conduct alleged — accessing publicly available documents over the public internet — is clearly not hacking. A court finding that accessing publicly available documents over the public internet constitutes hacking would pose serious concerns for data journalists.”
Two days later, 05 Nov, the same day the City Council voted 4-1 to continue the lawsuit against this blog and two of your humble friends, the RCPF filed an amicus brief supporting us in our appeals court effort to overturn the Temporary Restraining Order issued against us.
You can read the entire RCFP Amicus Brief [HERE]. Some highlights are as follows.
The allegations:
“The essence of the City’s allegations in this case is that bloggers reporting on newsworthy matters of clear public interest (namely, potential government misconduct) violated federal and state hacking laws by accessing information that was made available online by the City to all the world. The City claims it is entitled not only to an extraordinary prior restraint on publication but also damages, in part for claims against the City for breach of confidentiality caused by the City’s own cybersecurity lapses.”
This was not hacking:
“If Amicus’s reading of the declaration of the City’s information technology expert is correct, one did not even need a username or password to access files in the Dropbox account maintained by the City, in which it commingled allegedly sensitive and privileged information with material that it affirmatively invited public records requesters to download.”
The theft from a “house” analogy doesn’t work:
“A public website, including the Dropbox account here, is not like a “house.” When an entity chooses to make information available to the public on the internet, without a technical access restriction like a password, that information can legally be accessed by anyone.”
VPNs/TOR are industry practice:
“It is true that the use of a VPN and Tor serves to protect user anonymity, and that “even some journalists routinely use” them. Id. Indeed, the use of such services is not only commonplace among journalists—it is a recommended industry practice.”
“Everyone should be using encrypted services and applications to protect their communications. In fact, in 2017, the American Bar Association’s Committee on Ethics and Legal Responsibility recommended that lawyers use “high level encryption” or other “strong protective measures” to protect sensitive client information.”
Read the whole thing, it’s worth it. We’ll bring more updates as they happen.
Many of you have asked how to help our named bloggers sued by the City of Fullerton for doing nothing more than telling the truth. In addition to being absurd, the City of Fullerton also decided to be cruel and named one of our blogger’s employers in their ridiculous lawsuit without cause or merit, which resulted in said blogger’s unemployment. It’s likely the city’s onslaught will continue for months if not years.
The First Amendment exists to prevent this exact occurrence: Government using its considerable resources to destroy the life of individuals who criticize those in power. Here we are in 2019 watching it happen. Joshua Ferguson and his wife have three children. As a result of the city refusing to accept responsibility for its actions and instead accusing Ferguson of being a criminal; rent payments, Christmas, and the basic necessities of life are all under serious duress.
Fellow Fullerton Friend and Fullerton Parks and Recreation Commissioner Erik Wehn established a fundraising page for Joshua Ferguson this morning. We encourage all of you who value speaking truth to power and our fundamental American liberties to donate to the Ferguson cause. I don’t have to tell those of you who know this particular family that the Fergusons value their own hard work and being put in a position to accept charity is extremely difficult, but desperate times call for corresponding measures.
Joshua Ferguson has taken on corruption in the city of Fullerton and needs your help!
Last week Joshua Ferguson announced he had filed suit to get access to documents Fullerton is legally required to produce (thanks to CA Senate Bill 1421) concerning police lying, cheating, stealing, molesting, and beating of people. Guess what he received a week later as a direct consequence of standing up to the entrenched and belligerent interests at city hall? A retaliatory, anti-First Amendment lawsuit including Joshua and his employer, who had no involvement in what the suit alleges.
Not wanting to cause harm to his employer of ten years, Joshua resigned.
Now Joshua has a very expensive fight ahead of him and a family to feed.
Out of concern for his family, Joshua hesitated to take this fight on, but he wants his three kids to learn to stand up for what’s right, no matter the risk.
Now it’s our turn to do our part, uphold that principle, and remind others that if you fight the good fight you won’t be alone.
Please consider donating what you can to help Joshua fight the culture of corruption in Fullerton.
Erik Wehn
We often take for granted the cost of defending our right to free speech. It’s hard to miss the young men and women fighting for our country, but it’s easy to miss the patriot at the podium during a town council meeting who gets abused by the state for exercising a fundamental right.
Not all of us are brave enough to stake a personal cost in the fight for freedom. Joshua’s wife and three kids will personally bear this burden for us, the very least we can do is lighten the load.
Donate, help Ferguson fight back, and share widely.
You may have already seen the story and/or press release from the City of Fullerton articulating their lawsuit against myself, Friends for Fullerton’s Future and others.
You can read the Voice of OC’s write up on this lawsuit from the city [HERE]:
“Fullerton city attorneys are heading into Orange County Superior Court Friday to ask a judge for a temporary restraining order against resident Joshua Ferguson and a local blog to keep them from deleting city records they obtained and also asking a judge to appoint someone to comb through electronic devices for the records.”
That lawsuit from the city is retaliation for a Public Records Lawsuit I filed against the city last week which was written up by the Voice of OC [HERE]:
“Fullerton residents may soon find out exactly how former City Manager Joe Felz was given a ride home by Fullerton police officers after hitting a tree and trying to flee the scene following drinking on election night in 2016, after resident Joshua Ferguson filed a lawsuit against the city to produce police body camera footage from that night.”
I will have more details in the near future but our current response is HERE]:
“The basic purpose of the First Amendment is to prevent the government from imposing prior restraints against the press. “Regardless of how beneficent-sounding the purposes of controlling the press might be,” the Court has “remain[ed] intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation’s press.” (Nebraska Press, 427 U.S. at 560-561.)
“Consistent with that principle, over the last 75 years, the United States Supreme Court repeatedly has struck down prior restraints that limited the press’ right to report about court proceedings. The Court has made clear that a prior restraint may be contemplated only in the rarest circumstances, such as where necessary to prevent the dissemination of information about troop movements during wartime, Near, 283 U.S. at 716, or to “suppress[] information that would set in motion a nuclear
holocaust.” (New York Times, 403 U.S. at 726 (Brennan, J., concurring).)
“This case does not come close to presenting such extraordinary circumstances. Thus, the City cannot prevail as a matter of law, regardless of how the records were originally obtained. The City’s requests are flatly unconstitutional in and Defendants, therefore, respectfully request this Court denying the City’s request in its entirely.”
More to come as these two cases play out in court.
One of the regular go to jokes on the old Get Smart show was when Don Adams, after being caught redhanded in a baldfaced lie, would follow up with “Would you believe…” while trying to walk back the lie to something the listener might accept.
Well, it turns out that this is exactly how school bond measures get drafted and, ultimately, passed.
The Fullerton School District has recently commissioned a Baseline Bond feasibility survey from True North Research (available here) and they have been calling residents to feel out their receptiveness to a $198 milion bond measure that, by their own admission, will increase property taxes by at least another $93 per year. What is interesting about the survey is not that the School District wants more money and isn’t shy about raising taxes to do it (they wouldn’t be a government agency otherwise) but that it is designed to determine what promises need to be made to get it. Hence the reason why the question about removing “dangerous asbestos” was included, even though A) asbestos is generally more dangerous when it is removed and B) the City of Fullerton supposedly removed the asbestos from their classrooms thirty five years ago according to this article in the LA Times archive.
The results of the Baseline Survey will be presented to the Fullerton School Board at their next meeting on Tuesday, August 13, 2019. The bond measure, if when it is ultimately approved by the School Board to go on the ballot will likely be drafted based on which spending priorities polled best, and for an amount that does not exceed the comfort level the polled residents expressed.
Of course the problem arises when the promises needed to pass a bond measure conflict with the what the school district wants to actually use the money in question for. And if the Fullerton School District is anything like the North Orange County Community College District or most other school districts, the solution is simple – spend it on what you wanted to anyway, and to hell with your promises.
Would you believe $500 million for a brand new state of the art Veteran’s Center? How about a couple busted laptops and a new football stadium?
I take no joy in calling out the Fullerton School District here. Unlike the City’s roads (which are a pothole strewn laughingstock), our schools are among the best in Orange County and a key reason many of us chose to live here (myself included). But well run or not, our schools suffer the same problems endemic to government – excess allocation to pay and benefits at the expense of infrastructure, administrative bloat and employee protections that make it too costly to fire bad employees – and until these problems are addressed bond measures designed to paper over the financial shortfalls will be a steady fixture at the ballot box. Along with a steady stream of promises nobody intends to fulfill.
Here in Fullerton, where our downtown is essentially wall-to-wall bars with hundreds of DUIs a year as a result, we don’t take alcoholism or drinking and driving very seriously.
Sure we hand out awards to the officers with the most DUI arrests but when it comes to the over-serving or other bad behaviors by bars we don’t just turn a blind eye, as a city we change the laws on the books to make it easier for those bad bars to operate. Hell, Jennifer Fitzgerald is so blind on the issue that she’s on record blaming “pre-gaming” in the parking structures for the problems.
You can get drunk and kill a 6yo in her front yard and Fullerton’s Staff and Council will yawn at the DUI culture they’ve created. That’s not fair – they won’t just yawn. They’ll actively spend the next year making the DUI factory in downtown worse.
But weed? Now that’s a problem that Fullerton is willing to tackle.
Fullerton City Manager Domer and Chief of Police Dunn want help from the State of California to crack down on “black market marijuana retailers” despite the city council steadfastly refusing to allow legal dispensaries to exist in the city.
My City Manager forwarded me an article from the OCR..
He’s curious how you were able to get the state to assist you. Any insight you can share would be greatly appreciated.
In 2016 the voters of CA approved Prop 64 for legal marijuana with 57% of the vote, even 52% of OC voters voted yes on Prop 64. Even Fullerton was pro-weed with a 51% Yes vote.
Despite the vote, the Fullerton City Council has refused to allow a single dispensary anywhere in Fullerton. They won’t zone any industrial or commercial areas for legal weed leaving sellers in non-compliance.
You can run an illegal venue at the airport, refuse to put in mandated fire sprinklers in the largest nightclub in downtown, run a bar without the legal permits and so much more and the city is more than happy to let you get away with it. But weed? Oh man, that’s a sin too far and a sin that might cut into the profit margins of the bustling bar and fight scene.
This is substantially no different than Measure W, where 60% of voters voted against the development of Coyote Hills and the council is going to do it anyways. Welcome to Fullerton where your vote counts as long as we like the way you vote.
A couple of weeks ago Jeremy Popoff’s Slidebar employees and clientele provided more examples of the sort of high class behavior favored by our city council and particularly our lobbyist/councilcreature Jennifer Fitzgerald who has been running cover for Popoff for years and years. You may recall that Slidebar has never gotten the required CUP even as city officials like Fitzgerald, Bruce Whitaker and Party Planner Ted White have schmoozed and petted its miscreant owner.
Hiding the tats won’t help…
Everybody seems to be ignoring Slidebar’s violation of planning and nuisance laws until the laws can be watered down so much even a professional douchebag can slime by without comment.
At the outset you can see a bouncer on theft serially pound some hapless dude already on the ground and then go for a head stomp for good measure.
In the open-air saloon known as Downtown Fullerton it’s often virtually impossible to distinguish between the bad behavior of the bar-hopping patrons and the low-lifes hired to control them.
Tonight our City Council is going to allow the Fullerton Police Department to use asset forfeiture money to purchase two automated license plate readers or ALPRs.
According to the paperwork these devices are used to allow police to drive around and scan the license plate of all cars on both sides of a street at up to 160mph. Tonight this is being sold as a way to enforce parking as part of the Downtown Parking Pilot Program as recommended by staff and the vendor SP+.
But these devices have a dark big brother side to them in how the data is shared and stored.
Apparently Fullerton has had these types of devices since 2008 (as referenced in my earlier post) despite the staff report tonight alluding to their newness. I’m betting the devices are currently being used for covertly tracking specific criminals in the same way that FPD uses the cellphone data capturing “Stingray” that they borrow from Anaheim.
Regardless of how the ALPRs are currently being used, they aren’t a new concept as far as I can tell for the city or police department owing to our involvement in the UASI.
In the staff report, as a way to sell these ALPRs, it is mentioned that the city currently “chalks” tires to check for parking violations.
Why are our parking enforcers “chalking” tires when they have electronic equipment to do that for them? Does that equipment no longer function? Was there a problem with the implementation of the previous “digital chalking”. Nobody knows because no data, details or explanations are being provided by staff – yet again.
The big issue here, according to the ACLU and others, is that these devices are also used to keep track of where people go and how long they stay at those locations. The police department can track your movements and build a pattern of your activities and then share that data with other agencies.
Do the police really need a record of what church everybody goes to? What about who goes to the local AA/NA meetings? Local clinic? Political rallies/events/protests? Do you want the police to have a record of every time you visited your lover or possible mistress/paramour for the politicians in the room?
All of your activities are now that much easier to track and store with this technology and there needs to be safeguards against abuse and misuse.
This giant privacy concern is why the ACLU, EFF, 10th Amendment Center and others are against the use of these devices without strict controls. Surprisingly enough the CA State Legislature mostly agrees with them.
According to the Electronic Freedom Foundation, CA law, in effect since 2016, requires agencies deploying automated license plate readers to divulge:
The authorized purposes for using the ALPR system and collecting ALPR information.
A description of the job title or other designation of the employees and independent contractors who are authorized to use or access the ALPR system, or to collect ALPR information. The policy shall identify the training requirements necessary for those authorized employees and independent contractors.
A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws.
The purposes of, process for, and restrictions on, the sale, sharing, or transfer of ALPR information to other persons.
The title of the official custodian, or owner, of the ALPR system responsible for implementing this section.
A description of the reasonable measures that will be used to ensure the accuracy of ALPR information and correct data errors.
The length of time ALPR information will be retained, and the process the ALPR operator will utilize to determine if and when to destroy retained ALPR information.
Sadly you can scour tonight’s staff report and you won’t find any of this information. You also won’t find these requirements on the website or city archive which begs a question of legal compliance.
But it’s more irritating than that. If this was an issue of non-compliance by virtue of the law changing AFTER we already had the equipment (purchase in 2008, law change in 2016) it would be one thing. It would be illegal but an issue chalked up to oversight and city attorney incompetence. But no. Two years ago our city agreed to remain in what is known as the Urban Areas Security Initiative and we’re in clear violation of that grant process as well:
I’ve looked for this “publicly-available policy” to no-avail on the city servers. Honestly though I shouldn’t have to look for such information when staff is asking the council to address the license plate readers tonight – the policy in question should have been included and explained in the staff report.
An example of compliance with the law regarding your privacy and how the city handles it related to ALPRs can be seen with the city of Cypress’s Police Department Manual. This is what should have been included tonight before council votes upon such the ALPR issue.
If you look at the top of that page you’ll it was put up back when David Hendricks was Chief of Police.
Chief Hendricks went on admin leave back on 25 August of last year before resigning. So our Police Department hasn’t had a publicly available policy manual for AT LEAST 7 months & 22 days. The best I can find is a policy manual from 2012 on archive.org and the section of ALPRs (page 322) is not compliant with the 2016 state law.
Way to go team. Way to be transparent and compliant with the law. Way be ahead of the curve and to put the interests of the people first. Oh wait. Nevermind on all counts.
Why does staff, let alone council, not care about your privacy? Why do they think it’s okay to violate CA law and their own grant agreements regarding your privacy & transparency? Why is the hunt for more downtown money more important than addressing such fundamental concerns?
I’d tell you to find out tonight but we all know that they’re going to gloss over this issue with some allusions to trust, heroes and the like after being called on their nonsense.
Regardless of who’s on council this is just the Fullerton way I suppose.
Those of us in the cheap seats out in Podunk have noticed something odd and can’t quite figure it out and we’re hoping that some of you friends have some answers.
The problem is that Joe Florentine operates a night club in clear violation of the Fullerton Municipal Code and possibly CA Law if not just CA building codes. How so? His nightclubs located at 100-104 N Harbor Blvd, and which have a combined occupancy of over 300 people, are lacking fire sprinklers. Feel free to check for the permits yourself to verify.
Fire sprinklers, mind you, which were a condition of his Conditional Use Permit back in 2008.
The CUP from 2008 on this issue fully states (our emphasis):
“12. The 2008 Building Code requires that restaurants and drinking establishments with a fire occupancy of 100 persons or more are required to install fire sprinklers. As a result, the business owner is required to add fire sprinklers as a matter of approval. Because this is a Building Code requirement, the Planning Commission does not have discretion to waive this requirement. Staff has recommended a condition to assure that the work be performed within a specified timeframe of the use approval, or else the CUP will be brought back to the Planning Commission for revocation.”
Here’s the California Building Code for those who are curious, keep in mind that Florentine’s is said to be about 8,000 sqf:
His business qualifies as requiring fire sprinklers. His conditional use permit requires him to have fire sprinklers. Yet he has no fire sprinklers.
Why are there no fire sprinklers?
Why hasn’t his Conditional Use Permit been revoked as required by law?
For 10+ years Florentine has been operating the largest restaurant / night club against the law and for 10+ years our staff has done nothing about it. Even though Fire and Life Safety are the issues at hand.
OK, that’s not fair to staff. They have done something. They’ve willfully ignored fire codes, building codes and public safety. We’ve got to give credit where credit is due and nothing in this case certainly is something.
Despite that 2008 Conditional Use Permit threatening a mandatory revocation, the city has never once enforced the issue of fire sprinklers let alone considered bringing his CUP back for possible revocation. Not Once. In all that time our useless Planning Commission has been too inept to ask tough questions of staff or for a list of gross violators to even notice this glaring slap against their preening authority.
But wait for it, it gets better.
Each year like clockwork the ever rotating Fullerton Police Chief signs off on Florentine’s Live Entertainment Permit making FPD complicit in this glaring life safety fail. Here’s an example from 2016/17:
Check #7.
“7. The C.U.P (if applicable) shall be strictly enforced.”
The Chief of Police is signing off on Live Entertainment Permits and claiming that conditions of use, such as fire sprinklers, will be enforced while NEVER ONCE ENFORCING THEM in well over a decade.
While Community Development Director Ted White likes to talk about needed changes to the municipal code, specifically Title 15 which passed our clueless Planning Commission, he mentions lights and lumens and outdated technology. It sure is curious that he never bothered to mention Fire Safety and how he, his staff, nor any staff across Fullerton, can be bothered to enforce those issues and laws either. Nevermind flagrant violations of state law, HOLY CRAP LOOK AT THOSE LUMENS! We just can’t measure those time to change the codes!
While he’s baffling our clueless leaders and representatives on the dais with bullshit, he’s letting guys like Florentine violate safety concerns because… why exactly?
No seriously, why? Why are we tolerating staff, our Planning Commission, and our City Council blatantly ignoring the law while they spoon feed us nonsense about lumen measurement?
This is an endemic problem. That Live Entertainment Permit as seen on the Fullerton website actually needs to be signed off on by multiple departments:
How is that nobody in the Building, Code Enforcement or the Fire Department has a problem with such a large venue with such a large civilian capacity each weekend being in clear violation of fire codes?
Joe Florentine actually made the case in front of the Planning Commission recently that the Live Entertainment Permit process was too arduous. Let that sink in. The dude who’s breaking the law and putting people’s lives at risk has the sadz because the process, that is letting him slip by with his lawlessness, wants the process to be easier!
An artist representation of Joe Florentine after speaking to Planning Commission.
Maybe you can figure out why right now, this weekend of St. Paddy’s Day which is one of the heaviest drinking days of the year, the city is going to continue to put hundreds of people at risk in Florentine’s night clubs.
The city knows Joe Florentine operates his bars outside the law. He is legally required to protect the public he allows in his doors, but refuses to do so. We know it, we tolerate it, and we even sign off on it at least once a year.
Why is this important? Why should you care that your city staff ignores the law and signs off on Florentine’s shenanigans?
Because this means YOU, the taxpayers of Fullerton, are on the hook for an accident in Florentine’s bars.
You, through the Police Chief & Fire Department, signed off on his entertainment permits to pack his bars.
You, through your Council, Staff and City Manager, told him he was safe, every year. You told him he’s a good operator despite obvious evidence to the contrary.
So what happens when, God forbid, there’s a fire like the Ghost Ship in Oakland where fire sprinklers were also lacking?
Who pays restitution? Little ol’ Joe with his big house and big pool up on the hill?
NO! You do! You pay! Just like you always pay when staff and council refuse to do their jobs. You signed the dotted line that blessed all his illegal bullshit and then you did nothing about it.
You get what you vote for, Fullerton. This weekend your vote will be used again to tolerate putting hundreds of people at risk. You voted for people to not enforce life safety laws, you voted to not enforce alcohol service laws, and you voted to not enforce zoning laws.
After some debate, a short delay and a little snapping by Jennifer Fitzgerald, a council majority opted to hold a beauty pageant to decide which crony will get to join them on the dais.
The city is accepting applications for contestants who are interested in the job of city council without the need to actually convince the citizenry to vote for them.
We won’t know who all is running until the application process ends but we’ve already heard some names and most of them are terrible if you care about the city budget or basic math skills.
In the ongoing process the council will pretend to view and vet the candidates in an “open and transparent” process which means closed door meetings and private wheeling and dealing with a dash of favors and/or threats for good measure.
There will be a “candidate forum” sponsored by the Neighbors United for Fullerton but really it doesn’t matter who you like or what they say to the public because the council is making this decision regardless of your thoughts or opinions. You have no real voice in this process despite empty promises to the contrary.
Let us not kid ourselves, despite applications being due by Wed, 23 January and the NUFF forum being on the 28th, this will be a done deal long before you get a chance to even know who’s all in the running and who can twirl a baton the best.
The meetings are already happening and the deals are already being struck – hence Fitzgerald, Flory and the Flor-Bots all shilling for Flory back in December before this process even started.
You can apply if you’re a masochist or you can just show up to the forum and council meeting to watch the slew of candidates take 8 boilerplate questions about the roads and zero about pension reform and overspending. Overall don’t expect the public face of this charade to matter much in the actual decision making process.
However if you want to pretend like you have a chance to be on city council and believe you have what it takes to beat back the leviathan and fix our structural deficit then all you have to do is fill out a few pieces of paper to apply. Apply Today. The more the merrier.
I was pleasantly surprised at Fullerton’s City Council meeting last night and that rarely happens. I was surprised because Ahmad Zahra stood his ground on the principle of Democracy being the preferred way to settle our current council vacancy caused by Jesus Silva. He withstood Fitzgerald’s venom laced claws and boxed Silva in so much that Silva had to contradict himself by claiming to believe voting is important except, you know, with regards to, uh, the vacancy he created in playing musical chairs.
I had heard going into the meeting that Jan Flory had lobbied 2 if not 3 of the current council members to be appointed to the vacant seat. I had also heard and believed that Fitzgerald and Silva were going to push for an appointment process to get the Flory ball in motion. I also knew, just from historical context, that Whitaker would vote no on that because he and Flory are opposites on most items and he gains nothing by supporting her. I did not know how Zahra would act or vote despite allegedly meeting with and being lobbied by Flory. Owing to Zahra’s campaign and his coziness to people I believe to be ethically challenged I didn’t hold out much hope and assumed he might go along to get along.
Then Zahra showed up to play ball and stomped on my assumptions. (more…)
