E-246 - Tuesday, July 2, 2019
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IN TODAY'S NOONER:
Happy Taco Tuesday! I'm normally a soft taco, street style kind of guy but for some reason at 5:30 this morning, I'm craving my mom's very non-traditional greasy fried crispy taco with ground beef. We'll see what tonight brings.
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At this hour, the USA women are on the pitch against England in a match that is a perfect warm-up to Independence Day. I'm wearing my red, white, and blue for the game ahead of this afternoon's pod, but wait, that could be England too. Damn. I should be wearing my American flag shirt from Meridian Pacific, but I wore it for the last pod.
This week, the wall on the first floor adjacent the Governor's Office are adorned with photos documenting the contributions of Chinese immigrants in the building of the transcontinental railroad, which was largely responsible for the growth of Sacramento.
I haven't checked it out yet but hope to before Gibran and I get behind the mic for What a Week at 4pm. On that note, if you have any topics you want us to cover, email us at firstname.lastname@example.org and/or email@example.com, or tweet to us @GibranMaciel or @ScottLay. Here's the list of 25 pods we've released since Valentine's Day should you need something to keep you company while gardening over the long weekend.
The video of the arsonist early last Monday morning of Queen Sheba Ethiopian restaurant on Broadway has been released.
After getting my locks trimmed at Iverson's on 10th yesterday, I walked down Kay to stop by Capital Books to pick up my Where's Waldo passport and get some more of that Ethiopian berbere spice at Allspicery (where Waldo was easy to find). Over the weekend, Asuka Japanese Restaurant between Crest Cafe and Mother apparently went buh-bye as the sign is gone and the space is empty. On Where's Waldo, each establishment places their own. Jason Iverson hid his well in the barbershop.
I don't know how long it has been there but it certainly seems like a long time. It used to be a good lunch and pre-theatre spot but the last time I was in there the ownership had changed and it was just a simply bad overall experience. It was definitely no longer inviting to order sushi and there's Oishii across the street and the even better Osaka Sushi on Kay between 12th and 13th or Takumi Izakaya on J between 8th and 9th.
On to bizness...
HOME COOKIN': Since we've been talking about food, why not start with a food story today. In the Bee, Benjy Egel writes that despite a bill last year--AB 626 (Eduardo Garcia)--to allow "microenterprise" home cooking sales, Riverside is the only county in the state that has approved an ordinance to make the practice legal. In these operations, home cooks make their specialties and advertise on social media for usually limited sales. They are generally specialty ethnic foods.
Counties, apparently including Sacramento, are hesitating to adopt the ordinance out of "health concerns." Well, let's call BS when we see it. The opposition to these operations are by brick-and-mortar restaurants, not like so many other issues we've seen as the economy has changed over the last twenty years.
"The Yolo County department of environmental health issued local home cooks group Foodnome, to which [Honduran chef Jorge] Espinosa belongs, a cease-and-desist in February after the group hosted pay-to-eat meals at members’ houses. The cease-and-desist notes that further violations could result in up to six months in county jail or $1,000 in fines per incident."
The article notes that there are no Honduran restaurants in the Sacramento region.
To think I used to love you Yolo. After all, YOLO.
In these home sales, the purchaser generally picks up their order at the person's home and sees the kitchen in which their food was prepared. I've eaten in a lot of questionable restaurants across California that allegedly passed health code inspection. One I remember in particular on the road that I stopped at years ago for some lunchtime pho had a bathroom accessible by literally stepping over open boxes of produce. Fortunately, I peed at the end of the meal. The pho was yummy but I might have left if I had done so first.
The only restaurant that I have eaten at that has an open kitchen policy and invites guests to come in is the pricey and outstanding The Kitchen. Sure, some have pass windows and a quick glance makes you not want to look again. In contrast, most customers of the home cooks are invited to see the kitchen.
I get that restaurateurs fear what they justifiably see as unfair competition. However, I think that home cooks exposing these mostly ethnic cuisines are expanding the customer base of traditional restaurants. I've enjoyed tamales and Southeast Asian soups. They generally haven't replaced a night at a restaurant. In fact, a perfect weekend is grabbing Saturday night food at a restaurant in South Sac and picking up a home-cooked bún bò Huế (spicy beef noodle soup) for a Sunday night meal is a great weekend. It beats fast food and Coriander is closed on Sundays and their sister Cô Mai Kitchen just on the other side of the W-X freeway from me already sees me plenty. In fact, I ate there last night for a great bowl of pho. That's it for Vietnamese on "the grid" on weekends.
To the other 57 counties, get off your tush. If Riverside can do it, so can you.
By the way, I'll leave you with this headline: "Trader Joe's, Green Giant and Signature Farms packaged vegetables recalled due to Listeria risk." I fear mass production of food and vegetables far more than farmers markets or home cooks.
HUNTER: No long item on Duncan Hunter today. I wrote enough yesterday, Saturday, and last Thursday. City News Service reports "A federal judge ruled Monday that prosecutors can introduce evidence of Rep. Duncan D. Hunter’s alleged extramarital affairs in a case in which the Republican congressman is charged with misusing more than $250,000 in campaign funds for personal expenses."
Congratulations, Duncan, your unwillingness to go quietly with a plea deal will indeed require your wife to testify to implicate you and may require your mistresses to travel to Sacramento to parade through the federal courthouse in shame. But, then again, it's all about you and not your wife, children or mistresses.
On the hail Mary attempt, the motion to dismiss or recuse prosecutors because of photographs that were taken with Hillary Clinton while allegedly on official time was not ruled upon yesterday.
HOUSING: I wrote yesterday about the housing bill that, among other things, would allow courts to impose fines of up to $300,000 per month on local jurisdictions repetitively found by the court to not be in compliance with its state-defined housing element. There will be a joint informational hearing of the Assembly Budget and Local Government committees tomorrow in Room 4202 at 11am (Listen or Watch). Here is the analysis of AB 101/SB 102 for the hearing.
While no support or opposition is formally reflected in the analysis (requires a letter and the bills were in print Friday), there is plenty on both sides working the Capitol. The bill language is considered part of the budget deal signed by Governor Newsom last Wednesday.
GUNS: In the Los Angeles Times, Patrick McGreevy reports that gun rights groups have filed suit in the Southern District of California to challenge California's law barring the sale of long guns to persons under age 21. Last year, the Legislature expanded the existing ban of the sale of handguns to persons under 21 to also include rifles and shotguns in SB 1100 (Portantino). Here is the legal filing.
“Once individuals turn eighteen, they are adults in the eyes of the law,” said John W. Dillon, the Carlsbad attorney representing the gun groups. “Law-abiding adults are entitled to fully exercise all of their fundamental rights, including their Second Amendment right to keep and bear arms for all lawful purposes, not just hunting or sport.”
As someone who grew up hunting under my dad's supervision and with his guns, I'm fine with the law. But as you know, I'm a legal geek first, and the legal argument could make it to the Supreme Court of the United States (SCOTUS). It's a textbook test of the expansiveness of SCOTUS in District of Columbia v. Heller, 554 U.S. 570 (2008). In that case, the high Court held that there was an individual right to bear arms under the Second Amendment and thus invalidated DC's ordinance banning handguns and requiring long guns to be unloaded and disassembled.
However, the Court also held that within that individual right, reasonable regulation in the interest of public safety met constitutional muster. In the ruling, it upheld the DC Circuit holding that there is an individual right as it pertains to keeping a functional gun in the home for the purposes of self-defense.
The issue of the individual right of possession outside of the home is not present in the SB 1100 case, but rather the definition of "individual."
The plaintiffs in the California case against the SB 1100 21-year-old requirement is beyond reasonable regulation and violates the rights of "adults" between the ages of 18 and 20.
The ordinary definition of the militia “[i]s all able-bodied men.” Heller, 554 U.S. at 707 (Breyer, J. dissenting). The Supreme Court in Heller recognized that through Congress’ plenary power, it organized all able-bodied men between 18 and 45 as part of the militia in the first Militia Act. Heller, 554 U.S. at 596. Thus, the Supreme Court recognized 18-to-20-year-olds as part of the militia; and as such, they necessarily have the right to keep and bear arms. Further, as affirmed in Heller, the right to keep and bear arms extends beyond the militia, reserving an individual right to keep and bear arms for all lawful purposes, “most notably for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).
Again, I grew up with guns and am content with SB 1100. But based on the definition of "militia" in Heller and McDonald, the plaintiffs in the SB 1100 have a good argument. If you determine that the militia is defined as those eligible to serve in the military, and even more so those required to register with the government therefore, then at minimum men over the age 18 fit into those constitutionally allowed to own guns, reasonably regulated under Supreme Court precedent. Now, Heller was authored by Justice Scalia in a 5-4 decision joined by C.J. Roberts and Justices Kennedy, Thomas, and Alito. Justice Stevens authored the dissent, joined by Justices Souter, Ginsburg, and Breyer.
I may not like the opinion. I honestly don't know what the authors of the Second Amendment meant with this wording:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Believe it or not, I spend a lot of my time editing my own words. Later I read it again after its too late and think, "Damn, that comma was in the wrong place." Commas and needless clauses can completely confuse a reader.
Last night, I picked Yale Law professor Akhil Amar's great book "The Bill of Rights" off my bookshelf and read the chapter that covers the Second Amendment. Notably, the discussion is found in chapter three entitled "The Military Amendments." Those include the Second Amendment and the Third Amendment, one which we never talk about and provides:
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
If you consider them together, the meaning of the Second Amendment changes as you interpret it in the 1789 context.
Back to editing of the Second Amendment, the absolutists would drop everything up to "free State," and strike the comma that follows "Arms." The Heller and McDonald decisions essentially provides for that with the addition of "within reasonable regulation" added following "shall not be infringed." Absolutists would strike the regulation clause completely, although that creates problems with the allowance for severely mentally ill persons to possess guns, and I'm guessing most agree that John Hinckley who shot Ronald Reagan should not possess guns, even if he is living peacefully out of a criminal institution now.
The critics of Heller and McDonald and, if overturned by the federal courts, SB 1100 advocates would either strike the Second Amendment and leave it to the plenary powers of Congress or rewrite it and I don't have any suggestions where the "in between" language makes clear sense and my Nooner clock for today is running out.
Meanwhile, the SB 1100 case will start in the San Diego federal court. Either side (Attorney General Xavier Becerra in his official capacity is the named defendant) will appeal it to the Ninth Circuit. If the Ninth Circuit upholds SB 1100, I fully expect the gun rights plaintiffs to appeal it to the Supreme Court of the United States. I don't know what Becerra would do if the state loses at that point.
While Justices Scalia, Stevens, Kennedy, and Souter are no longer on the Court, the overall dynamics if anything are more conservative after Brett Kavanaugh replaced Anthony Kennedy. Therefore, it comes down to the definition of those eligible for a "well regulated militia," and as long as we have a mandatory registration for the draft of men over the age of 18, California has a tough argument to make.
Again, this is an analysis based on legal precedent that I've been in deep with since yesterday's filing. It is not reflective of my personal opinion. As always, I welcome feedback, but please keep it on a legal basis rather than political or emotional. I express my personal opinion on issues like whether food should be allowed to be cooked at home for sale, but I think that for those who pay, they are looking more for analysis as that in the above paragraphs, even when they like me may not agree with the result.
On a side note, while I was at Davis for law school, Akhil Amar's brother Vik was Asst. Dean of Academic Affairs and a great guy. Like his brother, he is a Yalie, and he's now the dean of the University of Illinois, Urbana-Champaign School of Law. Now, the commas in the "he is a Yalie" clause was necessary, unlike the horribly written Second Amendment.
DYNAMEX: I'm used to readers weighing in on everything from California gun regulations to Supreme Court cases and always enjoy the conversations. But this year's debate over the independent contractors and the gig economy has invited conversations throughout my daily life from people who aren't daily followers of politics and legislation. It's been fascinating.
For CALmatters, Judy Lin looks at whose daily life--for better or worse is often subjective--will change under the Dynamex decision and, if codified, AB 5. In particular, Judy looks at the "traditional" workers who would be swept up in the changes to the allowable definition of "independent contractor:"
"Less discussed, however, is the extent to which Assembly Bill 5 could sweep up some 2 million workers across industries far from the sharing economy and tech sectors, from truck drivers and general contractors to nail salons and strippers. The proposal has so unsettled mainstream businesses that they’ve banded together with sharing economy disruptors to run an “I’m Independent” campaign."
I've fielded some questions as to why Lorena Gonzalez (D-San Diego) is carrying AB 5, which puts into the Labor Code what the Supreme Court of California (SCOCAL) has already declared is the law. The Dynamex case decided by SCOCAL in April 2018 was about a document-delivery company, essentially a courier service. Dynamex is actually no longer around after being purchased by Montreal-based TFI International, a transportation and logistics company that operates throughout North America.
The SCOCAL decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles County applies only to the class of drivers for Dynamex West Inc. certified in the case. Indeed, the SCOCAL has spoken on what current law is, but that doesn't change anything for those not in that class. Rather, other possible plaintiffs who feel that they have been mischaracterized as independent contractors and should be considered employees must seek separate relief by the courts. Because of how you define a class, this would essentially be cases against each individual employer. It's great for plaintiffs lawyers, but bad for those who believe they have been mischaracterized.
By codifying the Dynamex decision, it makes it clear that the Department of Industrial Relations has enforcement authority under the Labor Code using the same legal rubric outlined the decision. In other words, it changes it from a decision affecting only Dynamex/TFI International, but all employers operating within California.
MUNI MATTERS: CAKEDAY after the jump...
SACTOWN VAXX: For the Bee, Hannah Wiley reports that ninety Sacramento-area schools "do not have vaccination rates high enough to achieve community immunity against the preventable disease."
"More than a dozen of these schools are private and charter schools that reported a disproportionate number of the county’s 309 medical exemptions.
Some of these schools dipped slightly below 95 percent, the threshold considered necessary to defend sick kids who can’t get shots, according to 2018-2019 school year data from the California Department of Public Health."
#CAKEDAY: Happy birthday to Richard Harris, Genevieve Villafranca Jopanda, Minnie Santillan, and Michael Soto!
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