SmartMeter installations raise questions about enforcement in the county
Forty-three counties in California have voted to oppose PG&E’s SmartMeters, and more than 10 counties have officially banned the installation of the meters.
The Santa Cruz County Board of Supervisors passed a one-year ordinance, 5084, on Jan. 11, 2011 banning the installation of this new wireless technology. According to Section II of Ordinance 5084, it is a potential misdemeanor to install the meters within the unincorporated portions of the county:
It reads, “No SmartMeter may be installed in or on any home, apartment, condominium or business of any type within the unincorporated area of the County of Santa Cruz, and no equipment related to SmartMeters may be installed in, on, under, or above any public street or public right of way within the unincorporated area of the County of Santa Cruz.”
But despite the ban, SmartMeters have been, and continue to be, installed on many homes and buildings throughout the county, with or without owners’ consent.
County Supervisor Mark Stone says that though the ordinance itself states that the installation of SmartMeters is a possible misdemeanor, it was intended primarily to get the attention of PG&E.
“We’re not going to do something without trying to put some teeth in it,” he says. “From my standpoint, it was never really aimed at individual installers, it’s really aimed at PG&E as an organization. Whether or not it’s technically enforceable would be something for the courts to decide.”
Local law enforcement is up against criticism from SmartMeter opponents for their failure to uphold the ordinance. County Sheriff Phil Wowak, in particular, faces heat over the SmartMeter installations—the matter even has residents of the county, organized by the locally-run grassroots organization StopSmartMeters!, petitioning to recall his elected position as sheriff.
The top of several points on the recall petition is the lack of law enforcement of Ordinance 5084 in Santa Cruz County.
Local Law vs. Utility Commission Policy
Watsonville has handed PG&E monetary citations for breaking the city’s moratorium and installing SmartMeters, and in other jurisdictions with SmartMeter-banning ordinances police forces stand prepared to enforce their local ordinances.
However, law enforcement in Santa Cruz County has not enforced the local ordinance. Sheriff Wowak’s stance on the matter is that the enforcement of the local ordinance is not within his jurisdiction, as California Public Utilities Commission policy trumps local law.
“The SmartMeter issue is a civil court responsibility and the core group of anti-SmartMeter advocates should really get their effort organized in the civil court arena in order to seek an injunction against PG&E to halt the installation of the meters,” Wowak says.
He maintained the same stance when he addressed more than 50 citizens at the Live Oak Grange on Sept. 22, where the sheriff recall effort was officially announced by Josh Hart, founder of StopSmartMeters!.
As noted in the local ordinance, Article XI of the California Constitution provides local governments with broad discretion to legislate for public purposes and general welfare, “including but not limited to matters of public health, safety and consumer protection.”
The ordinance also points out that the County of Santa Cruz has a franchise agreement with PG&E that has been in effect since 1955, and under California Public Utilities Code section 6203, if a franchise imposes additional terms and conditions, whether governmental or contractual, the local government is provided broad discretion and authority to regulate.
The town hall style meeting incorporated a heated question-and- answer session with the sheriff.
Hart and two other residents who spoke up during the session were quick to point out that the sheriff’s interpretation of the law regarding SmartMeters is just that: an interpretation.
“A judge has never ruled that the PUC has sole authority over the meter program, or that PG&E can go enforce this,” Hart says. “The fact is that neither the California PUC, FCC, or congress has mandated these meters. The PUC has authorized PG&E and the other investor owned utilities to roll them out, but they have not mandated it. This whole thing that ‘Everyone’s going to get a SmartMeter, you have no choice,’ is utility policy. That’s not law.”
Wowak says that the enforcement of Ordinance 5084 would be misuse of law enforcement resources, as it would mandate the arrest of employees contracted by PG&E under the local Wellington Energy facility and he could not use resources to give a criminal record to employees who were on the job.
When a member of the crowd asked the sheriff why he does not shut down the Wellington Yard altogether rather than arrest any individual installer, the sheriff said that they would “have to agree to disagree,” reiterating that the County Board of Supervisors ordinance “does not trump” the Public Utilities Commission and that the facility has as much right to operate “as the Starbucks down the street.”
“I have directed my staff not to enforce the ordinance on PG&E installers, to keep the peace,” Wowak says.
There have not yet been any court rulings in regard to the installation of SmartMeters in California counties, and no judicial ruling is currently in place to mandate that the Public Utilities Commission policy should overrule a county ordinance.
“Our sheriff is the last line of defense,” says Hart. “He has a broad degree of discretion over what laws to enforce or what laws not to. The statement he made that he does not have the ability or that the California Public Utilities Commission trumps local law—that is a judicial decision. He is putting himself in the position of a judge by saying that this PUC trumps local law.”
During the Grange meeting, the sheriff defended his position while maintaining that he was not present in an effort to dissuade the crowd from signing a recall petition.
“I can tell you that my recall, successful or not, will not change the SmartMeter issue. It will not stop the installation of SmartMeters,” he says. “I gave the group a very clear and concise explanation of what they could do; seek a civil injunction with the court, pass responsibility up to Public Utilities Commission.”
Hart responded to the sheriff’s suggestion that in order to face PG&E’s lawyers in a civil court, the group would have to post roughly $1 million, to cover PG&E’s potential losses.
“I think if we started seeing enforcement we probably wouldn’t be so keen on a recall, it probably wouldn’t seem so urgent or necessary,” says Hart. “We don’t have law enforcement on the side of the public, who overwhelmingly oppose [SmartMeter installations] by the way, in every poll.”
Wowak says he does understand the anti-SmartMeter cause, and reminds the public that property owners may call his department and request assistance in removing a SmartMeter installer from their property.
Such is not the case when it comes to renters, however.
“The only person that can enforce that right to pass with regard to the public utility is the proper owner or the landlord. Not the leaser, not the tenant,” he says.
During the recall meeting, Alan Fischer, a resident of the Neary Lagoon apartments near Downtown Santa Cruz, stood up and told the crowd, on the verge of tears, that after 20 years he is looking for a new home due to the 14 SmartMeters installed on the wall directly behind his bed.
Fischer does not currently work due to disability. He suffers from a medically recognized disease that causes him physical disabilities. (He asked for anonymity regarding the specifics of his disease). One of his disabilities is hypersensitivity to electromagnetic frequencies. Medical conditions with commonly reported sensitivity to electromagnetic frequencies include Lyme Disease and Fibromyalgia. Although there has been debate over the level of frequencies emitted by the wireless meters, for Fischer, any increase in radiation is noticed.
When he heard about the new SmartMeter PG&E has been installing to replace analog meters, he called the company and informed them of his choice to opt out. His understanding was that his building would be exempt from the meters due to his health condition.
According to Wowak, however, renters like Fischer have no rights when it comes to SmartMeter installations on their residences.
On Wednesday, Sept. 14, a Wellington Energy installer arrived at his apartment building and began to install 14 Smart Meters on the wall directly behind Fischer’s bedroom. He protested their installation, and says the meter installer assaulted him by pushing him back.
Fischer says he then fetched his camera from inside the nearby apartment. When he began to snap photos of the installer, the man grabbed and smashed Fischer’s camera.
The Santa Cruz Police Department (SCPD) was called and when an officer arrived on the scene, Fischer says the law was clearly on the side of the installer. Fischer lives in the City of Santa Cruz, thus the county’s Ordinance 5084 does not apply to his apartment building. Although the Santa Cruz City Council has voiced concern over the meters, and voted in August to join a petition protest at the State Public Utilities Commission against PG&E’s controversial SmartMeters, they have not passed an official ordinance banning them.
Fischer went to the police department the following day to submit a statement, as he did not trust that the police report taken on the scene reflected his argument. He is currently looking into his legal options.
“The opportunity here is to use this recall effort as a means to educate the public about the issue,” says Hart. “How bad does it need to get before it gets to that level where we need to kick them out and generate our own power in a safe way that serves the public?”