Greenwood store owner Vincent Cal was convicted Wednesday of two counts of zoning violations and one count of building a deck without a permit, but was acquitted of serving food without a permit.
The second day of the Vincent Cal trial, Tuesday, Aug. 28, began with a few minutes of discussion about jury instruction before the jury was led in to the courtroom.
Defense attorney Steve Tapson called his first witness, Robert Laurie, to the stand. Laurie, a court-appointed expert on zoning and former California state energy commissioner, said that “It is my opinion that Mr. Cal is being improperly charged.”
Laurie’s main reason heard in court was that Cal was “currently not in violation of the zoning ordinance,” Laurie said. After noting that the parcel was zoned R1A — a 1 acre residential zone — he went over what could and could not be done “by right” in the zone or with a special permit. Operating a grocery store was not allowed. Except, he said, if it fell under legal non-conforming use.
Assuming that the store had been in operation or not declared abandoned since it was legally run, it could still be a store, Laurie said. Abandonment, he said, requires a year or more of not operating as a store and having a public hearing to decide the status. Laurie said the county “never had such a hearing.” He reiterated, “The hearing, required by law, has never been held.”
Laurie also made note of a memo to Mark Millard — which Laurie had also used as evidence at a hearing in April — which had a record of the store being in operation in the 1940s or 1950s.
He also affirmed that Cal had a letter saying he would need a business license before the Planning Commission would allow the market to have a deck.
Under question from deputy district attorney Michael Pizzuti, Laurie said that the parcel had been unclassified in 1968, but was zoned as residential in 1976. In the 1990s, the General Plan was modified, but zoning remained the same.
Pizzuti showed Laurie photographs of the market, but Laurie was unsure of when they were taken. He guessed in the 1950s, but could not say for certain. He was also shown tax records, which did not change his opinion on the matter.
After he was excused, the court took a quick recess, and then Vincent Cal was called again to the stand. Cal noted that the letter he was shown indicated that, if he wanted to apply for a health permit to sell food, he would need to visit the Planning Office first. Attached to the letter was his business license application.
Cal was excused and the defense rested its case.
Pizzuti called Karl Weiland, El Dorado County assessor, to the stand. Weiland had a record of the store no longer operating from April 28, 1960, after having been noted as a store on April 17, 1948, specifically with a “walk-in box” or refrigerator. Records he had indicated the store was used for storage in 1968 and ’69. A note in 1976 said that there was “No change, poor condition, storage only,” Weiland read. The entry for 2008 noted it was “used as a workshop storage.” There was no entry for 2009, when Cal bought the market.
Pierre Rivas, a principal planner for the county, next took to the stand. He, too, noted the zoning change in 1976 and that the store could have been a non-conforming use then. He compared the situation to an old mine, no longer in use, surrounded by subdivisions. “Someone can’t come in and claim non-conforming use,” he said.
Based on tax records, he said, he “made the determination that it was an illegal use, not a non-conforming use.”
Under questioning from Tapson, Rivas noted that there had been “numerous hearings during the adoption process” of the zoning in 1976. However, there had not been a hearing in present times.
Jim Wassner, a code enforcement officer for the county, was called to the stand for the second time during the trial. He again said that it was a complaint about operating a grocery store that he was called in on, and in doing research prior to visiting, found no plans for the deck he saw upon arrival. The deck itself was not ADA compliant, he said. When asked whether Cal’s practice of having someone who could not get up the deck to honk their car horn for assistance was in compliance, Wassner replied that it was not.
When asked whether Cal would have needed a business license to get a permit to build the deck, Wassner said that he “would have given the permit if (Cal) had submitted plans.” The letter from Fred Sandford saying he needed a business license before any work could be done “was from Fred Sandford, who is not with the building department,” Wassner said with a laugh.
Pizutti then rested his case and Tapson called Laurie to the stand again.
Laurie said he did not agree with Rivas’ assessment, though he had a great deal of respect for the planner, having worked with him for years.
“It was first zoned in 1968 or ’69. That’s the operative date,” he said. Laurie also noted that “non-use is not synonymous with abandonment.” He said it “relates to the intent. You can have a period of non-use and have it not be abandoned.” Before he stepped down, he said that he believes “there is sufficient evidence to take it to Planning over non-use.”
Both sides rested their case and took a lunch break. Once back, both sides spoke with Judge James R. Wagoner over more jury instructions. Tapson also made a motion to immediately find Cal as not guilty, but Wagoner “respectfully denied” the motion.
The jury was brought in and Wagoner went over the instructions. Pizzuti then gave his closing statement, going over the counts and what each meant with the jury.
“The defense says, ‘I’m not doing anything wrong,’” Pizzuti told he jury. “Ultimately, Mr. Cal made the decision that he just wasn’t going to (get the licenses and permits).” He said that “These are things that are generally done. Things that people generally comply with.” He added that, with Cal’s hot dogs not being at proper temperature, Cal was “possibly putting the public at risk, we don’t know.”
Tapson, in his closing statement, said “The county didn’t do what they were supposed to do. The argument is, did they follow their own law that the use had been abandoned?” He noted that “not using it is not abandonment. There has to be a public hearing, a public meeting to deem it abandoned and that was never done.”
The defense attorney sarcastically said that “The DA is coming in on his white horse to protect the people from hot dogs” in a case where “premeditated murder is easier to understand than this.”
Tapson reached behind the witness stand and took out a small model, representing the market. “Vince Cal wants a little store in Greenwood. El Dorado County,” he said, taking out a rubber rat, “wants to bite Vince Cal in the rear and for no reason than they were tired of dealing with him.” He pulled out a singing hamster doll, dressed in jailhouse stripes and pressed a button, making it sing Elvis’ “Jailhouse Rock,” noting that’s what the county wanted for Cal. The trial, he said, moving the fake rodent, was meant to “turn the rats away and make them disappear.”
Pizzuti, after a conference with the judge, told the jury that the DA’s office was not seeking any jail time for Cal. “This whole thing is about whether there was actual use,” he said. He said that the time periods of when the store was used as a store was most relevant to the case, and went over the charges again.
“The case is about trying to get reasonable limits” on what the county had already zoned, Pizzuti said. “This case is about the $6,000 he doesn’t want to pay.”
The jury left to deliberate just before 3 p.m. on Tuesday, and came back with a verdict just before noon the next day. Cal was found guilty on two counts of zoning violations and a count of building a deck without a permit. He was found not guilty of operating a food facility without a health permit. Pizzuti confirmed with the judge that the order to not sell hot or prepackaged food stood.
“I’m disappointed, obviously,” Tapson said after the verdict was read.
“I’m going to have to close the store, obviously,” Cal added. “But I’m going to put up a sign that says I will be back.”
“This case is not about some poor guy trying to keep his business,” Pizzuti said after the trial. “The investigation started after the county received neighbor complaints that a store was operating in their neighborhood. Later, a person reported that he became ill after eating some of Mr. Cal’s prepared food. Mr. Cal was warned, given time to comply but kept operating.” Even after inspection and a closure sign, which Cal ripped off, he wouldn’t close, Pizzuti said. “The county can’t walk away from taking action in that scenario.”
As for why Pizzuti thought Cal wasn’t grandfathered in to the non-conforming use, “The defense relied a lot on expert witness had a questionable interpretation of the law and may have confused some jurors at the start, but the jury ultimately made the right call.”
Pizzuti also explained the single not guilty verdict of operating a food facility without a health permit. “After speaking to the jury, it appeared some jurors were confused about the instruction given to them regarding the defense to the health permit charge and the verdict confirmed that,” he said. “Basically, Mr. Cal was given an additional defense that he wasn’t guilty of selling food without a permit because the county didn’t let him apply for one, i.e., since it was impossible for him to get the permit in the first place he shouldn’t be found guilty.”
Although Cal testified that the county wouldn’t give him the permit without proper zoning, which Pizzuti said was partially true, “but he also admitted the store was never set up for it as required under the code. In reality, once the jury found Mr. Cal’s use was illegal he wasn’t entitled to this defense, but the jury mistakenly thought they had to acquit him under the instruction.”
Cal will appear in court on Sept. 21 at 8:30 a.m. for judgment and sentencing, as well as for another matter relating to Workers Compensation that was originally dropped from this trial.