New Fast-Food Restaurants Blocked for a Year in Los Angeles Low-Income Neighborhoods

The One Sentence Summary: An ordinance banning new fast-food establishments for a one-year period has been approved unanimously by the Los Angeles City Council for certain areas in South Los Angeles.


Full Posting:

The moratorium on issuance of building permits for new stand-alone restaurant projects affects a 32-square-mile area in South Los Angeles, including Southeast Los Angeles, West Adams, Baldwin Hills and the Leimert Park community planning areas. The Director of City Planning has discretion to approve a project permit upon the demonstration of a number of factors including size of the project, parking availability, litter control, and absence of a “Drive-through Window”.

Proponents of the measure, Council members Jan Perry and Bernard Parks, hope to use the time to encourage new development, including grocery stores and sit-down restaurants, in their districts. They expressed the hope of encouraging more healthy food alternatives in the area. The measure can be extended for as much as an additional 12 months if the two 6-month extension options are triggered.

“Fast Food Restaurant” is defined in the draft “Interim Control Ordinance” submitted to the City Council as “Any establishment which dispenses food for consumption on or off the premises, and which has the following characteristics: a limited menu, items prepared in advance or prepared or heated quickly, no table orders, and food served in disposable wrapping or containers.” ICO 07-1658.

This updates the earlier blog entry
http://www.retaillawobserver.com/2007/12/proposed-ban-on-fast-food-restaurants.html

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Brinker Restaurant v. Superior Court of San Diego County, et al.

Case: Brinker Restaurant v. Superior Court of San Diego County, Case No.D049331 (Cal. Sup. Ct. 7/22/08)

The One Sentence Summary: On July 22, 2008, the California Court of Appeal issued a ruling on meal breaks and rest periods that may make it easier for California employers to comply with meal and rest break requirements. Because it is likely that the case will be appealed, however, employers should be cautious in relying on the opinion until all appeals are finally concluded, which may take several years.

What They Were Fighting About:

In Brinker Restaurant v. Superior Court of San Diego County, et al., plaintiffs brought a class action complaint against Brinker Restaurants (operator of 137 restaurants in California including Chili's, Romano's Macaroni Grill, and Maggiano's Little Italy) for various alleged violations of California meal and rest break requirements. In vacating the Superior Court's order granting class certification, the Court of Appeal made several significant rulings concerning employers' responsibility for meal periods and rest breaks:

(1) Providing Meal and Rest Breaks: The Court held that while employers cannot "impede, discourage or dissuade employees from taking" meal periods or rest breaks, employers need only provide employees the opportunity to take meal periods and rest breaks, not ensure that employees actually take them.

(2) Scheduling Meal Breaks: The Court overturned the trial court's conclusion that the employer was required to provide meal breaks on a "rolling" five hour schedule-that is, providing a thirty minute break for each five hours worked. Because Brinker allowed its food servers to take meal breaks in the first hour of an eight hour shift (so they could work and earn tips during the busiest part of the shift), plaintiffs had argued that Brinker was required to provide a second meal period within five hours of the first meal break. The Court held that employers need provide only one meal break for employees who work between five and ten hours during a shift, regardless of when the meal period is taken. A second meal break is only required if an employee works more than ten hours.

(3) Scheduling Rest Breaks: The Court also rejected the argument that employees need to take their rest breaks in the middle of each four hour period. The Court found that Brinker did not violate the rest break requirement by allowing employees to take their meal period in the first hour of an eight hour shift and then to take their two rest breaks later in the shift.

What Brinker May Mean to You:

If this case is not overturned on appeal (which we may not know for months or even years), then employers will have more flexibility in scheduling meal periods and will not have the burden of ensuring (and proving) that employees actually take the full meal periods provided. In addition, employers will not have to pay the one hour of premium pay to employees who take an "early lunch," a break at the wrong time, or a break of less than 30 minutes, as long as the employer provided a meal period and the employee did not work more than ten hours total.

In light of the likelihood that this case will be appealed, we recommend that employers do not make changes to meal and rest break policies without consulting legal counsel.

If you have any questions about the Brinker case, and how it may apply to any particular situation effecting your company, please contact one of us in the Labor and Employment Practice Group.

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Foil Balloons May Be Subject to Point-of-Sale Warnings in California

The One Sentence Summary: If legislation proposed by California Senator Jack Scott (D-Pasadena) is enacted, California retailers selling helium-filled foil balloons can no longer use toys or candy as balloon weights, and stores must post information (or use some other means) to warn customers about power outages that can be caused by errant mylar balloons coming in contact with electrical power lines.


Full Posting:

Before it was amended in mid-July, the latest California bill (SB 1499) to seek to regulate helium-filled metallic foil balloons would have completely banned the balloons, and would have subjected violators to increased criminal fines. Now the proposed legislation, if it is approved by both houses of the California Legislature and signed by Governor Schwarzenegger, no longer outlaws the balloons, but puts a greater burden on retailers to educate the public about the dangers runaway balloons can pose for electrical utility lines.

A copy of the legislation, in its current form, can be viewed here: http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_1451-1500/sb_1499_bill_20080715_amended_asm_v96.pdf

Under the proposed law, with the new amendments, retailers would have to notify customers by posting signs at cash registers, or giving a notice directly to buyers, informing them about the California Balloon Law. In addition, when retailers supply weights for helium-filled foil balloon, which is already required by current law (California Penal Code section 653.1(a)(1)), the proposed legislation would prohibit using a child’s toy or candy as the weight.

If enacted, the new balloon law would also impose requirements on distributors to educate retailers about the law, and to supply retailers with information about the law in shipments of balloons to California buyers. Manufacturers would be called on to increase the size of the warning on their goods, and the industry would be called on to pay for a study by the University of California to find alternative balloon materials that are less electrically conductive.

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California Seeks to Expand Regulation of Sale of Products With Toxics, Require Take-Back Programs

The One Sentence Summary: A bill now advancing through the California Legislature would significantly expand state regulation of consumer goods to cover all products with certain toxic chemicals, including lead, plasticizers, and “hex chrome,” and would require manufacturers to take back tainted goods for recycling or disposal.


Full Posting:

Proposed legislation (A.B. 1879) would delegate authority to the California Department of Toxic Substances Control (“DTSC”), a branch of CalEPA, to enforce consumer protection laws limiting the content of lead, mercury, cadmium, arsenic, PBDEs, phthalates, and hexavalent chromium. This legislation would expand the relatively new enforcement authority of DTSC to regulate toxic chemicals in children’s products and metallic jewelry.

In addition, the new law, if passed by the full Legislature and signed by Governor Schwarzenegger, would delegate authority to DTSC to require manufacturers to have programs to take back products for recycling or disposal. Such programs being tried by retailers of appliances and consumer electronics could be models. Warning labels on products could also be required by the law. Implementation of the law would have to conform with applicable federal laws and regulations. Violation of the law could be prosecuted criminally.

A.B. 1879 has passed the state Assembly, and was amended in mid-June by the state Senate. A copy of the current version of A.B. 1879 can be obtained here:
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_1851-1900/ab_1879_bill_20080617_amended_sen_v96.pdf

As part of its “Green Chemistry” program, CalEPA is including consumer products in its regulatory efforts. Up until two years ago, DTSC focused its efforts on hazardous waste permitting and cleanup. With the adoption of laws in 2006 limiting lead in children’s jewelry and other metallic costume jewelry, and regulating certain toxics in packaging materials, including bags used by retailers, DTSC’s enforcement role has steadily expanded.

Other legislation to ban or limit chemicals in goods sold in the state is also pending. Such bills target bisphenol A and lead in children’s products (S.B. 1713), halogenated flame retardants in consumer products (A.B. 706), and PVC in packaging (A.B. 2502). Another proposed law would have manufacturers list the substances in their consumer products (S.B. 509).

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Retail Lease Tying Rental Rate To Rent Of Competing Tenant Or Its Successor Held Inapplicable Where Competing Tenant Is Defunct

Case: California National Bank v. Woodbridge Plaza LLC, Case No. 05CC03999 (Cal. Ct. App. 6/20/08)

The One Sentence Summary: California Court of Appeal held that a bank’s retail lease providing for an extended lease term at the lesser of the then prevailing rental rate or the latest square foot rental rate of a competing bank in the center or its “successor” in the center is construed to require rent at the then prevailing rental rate where the competing bank was defunct and the space previously occupied by the competing bank was occupied by six non-bank tenants.


What They Were Fighting About: The plaintiff was a bank whose predecessor entered into a 25 year lease in 1979 for retail banking space in the defendant’s shopping center. The lease provided that the plaintiff had an option to extend the term for 10 years at the then prevailing rate, but the rent for the extended term would not exceed the latest square foot rental paid by the competing bank in the center or its “successor” in the center.

Five years later, the competing bank in the shopping center ceased doing business, and the landlord was unable to lease the space to a bank or other single tenant. The landlord remodeled and divided the space previously occupied by the competing bank and leased the space to six new tenants who were not engaged in the banking business. When the plaintiff’s lease term concluded, it claimed a right to extend the lease term at a new rental rate that was the lesser of the fair market rental rate or the blended rental rate charged to the six tenants in the space previously occupied by the competing bank. The landlord contended that since the six tenants were not banks, there was no “successor” to the competing bank in the center. Thus, the landlord asserted a right to rent the space to the plaintiff at the fair market rental rate. A lawsuit was filed to have the court determine the rental rate for the extended lease term.

Court Holdings:

• The appellate court reviewed the trial court’s construction of the lease de novo.


• The court held that the term “successor” in the lease was ambiguous, and therefore, the court looked to the circumstances surrounding the execution of the lease.


• The court noted that when the lease was executed in 1979, the plaintiff and the competing bank in the center were competitors and the two major tenants in the center. Their lease terms were comparable, but rental rates for office space in the center were lower. The court concluded that: “[u]nless the parties anticipated use by a financial institution, there would be no point in tying plaintiff’s rent to rent for those purposes.”
  
• The court rejected the plaintiff’s argument that the landlord’s interpretation of the lease was unfair even though it was the landlord that divided the space previously occupied by the competing bank and leased it to non-banks.
  

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