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Crew command, Jesusita Fire.

Ray Ford

Crew command, Jesusita Fire.


Jesusita Fire Defendants Win Major Victory in Court Ruling

Judge Rules That “Hot Work” Statute Does Not Apply to Defendant’s Use of a Weed Cutter


Monday, April 19, 2010

In a mid-morning decision, Judge Jean Dandona ruled the District Attorney’s theory that a “hot work” permit was required for use of brushing cutting equipment did not apply to the case being brought against Jesusita Fire defendants Dana Larsen and Craig Ilenstine.

At issue in today’s hearing was an in limine motion by attorneys for the defendants challenging the applicability of the requirement that Illenstine and Larsen obtain a permit pursuant to the provisions of Title 15, Santa Barbara County Code, Section 15-121, and California Fire Code, Chapter 26, Sections 2601.1 which were incorporated into the County Code in 2007.

Attorneys Sam Eaton and Michael Damen argued in the motion that use of a gasoline powered weed trimmer with a steel cutting blade was clearly not covered under the CA Fire Code relied upon by the District Attorney, entitled Welding and Other Hot Work. Thus there was no need for the defendants to obtain a hot work permit.

Calling the efforts to use the statute “strained,” Attorney Michael Damen, who is representing Dana Larsen, noted that by definition, hot work included cutting welding, brazing, soldering, grinding and other similar types of activity that had nothing to do with brush cutting or weed abatement.

In opposing the motion, Senior Deputy District Attorney Jerry Lulejian countered that the Forest Service clearly prohibited any maintenance of trails without special-use authorization or an approved operating plan and would not have authorized the use of powered saws with metal blades used at or near ground level during dry periods because of the probability of starting a fire.

L to R Santa Barbara Senior Deputy District Attorney Jerry Lulejian (left) leaves the Jesusita Fire press conference with a bundle of paperwork related to the case, with former Acting District Attorney Joshua E. Lynn and County Fire PIO Capt. David Sadecki
Click to enlarge photo

Paul Wellman

L to R Santa Barbara Senior Deputy District Attorney Jerry Lulejian (left) leaves the Jesusita Fire press conference with a bundle of paperwork related to the case, with former Acting District Attorney Joshua E. Lynn and County Fire PIO Capt. David Sadecki

It is not unreasonable to suggest that Santa Barbara’s fire regulations were intended to have the same effect, Lulejian continued in opposition to the defendant’s brief. “Furthermore,” he noted, “the statutes involved in defining a ‘hot work’ operation specifically state that their purpose is to safeguard against the dangers of fire.”

Arguing for a loose interpretation of the regulation defining hot work, Lulejian also noted that along with welding brazing and other similar types of activities the word “cutting” was included as well as “any other similar activity” and the sum total of this and other regulations were clearly enacted to “mitigate conditions hazardous to life and property from fire.”

Calling the arbitrary distinctions offered by the District Attorney’s office “a tortured interpretation of the entire chapter of fire code provisions,” the defense brief added that if the DA’s arguments applied to the defendants then it also would apply “to every citizen who has ever used a gasoline powered lawn mower, lawn tractor, hedge trimmer, edger, chain saw … to cut grass, weeds bushes, branches or dried brush in their backyards or in areas of high fire danger.”

Not too far into the morning hearing, the Judge Dandona signaled she favored the defense’s motion relating to the hot work permit when she turned to Deputy District Attorney Lulejian and asked, “You want to explain to me where in Chapter 26 of the fire code that it applies to weed cutters?”

Not satisfied with the answer, Judge Dandona added that she was ready to make a decision, quickly ruling that Lulejian could not use the hot work statute as a justification for the misdemeanor charge relating to use of the weed cutter.

An additional, lesser, charge still remains in place against the two defendants relating to not having a shovel or fire extinguisher with them. However, both defense attorneys were clearly relieved by the ruling.

“Without the first charge relating to the hot work permit in place,” Larsen’s attorney Michael Damen commented, “the District Attorney has admitted he won’t be able to seek restitution, which he said he would if my client had been convicted of the charge. That’s dramatic and a huge weight off of Dana’s shoulders.”

The next hearing in the matter is scheduled for June 4 when attorneys for both sides will meet to discuss a settlement. Given today’s decision, it appears that little is left to the District Attorney’s case.

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