Day Labor And the Law

— Around 8:00 in the morning on August 22, Susan and Sheng Wei drove their white SUV to Escondido and South Santa Fe avenues in Vista, looking to hire help for the heavy lifting required to clear a dead tree from their yard. One man got into the SUV and sat down in the backseat. Then Jeff Stevens, a code compliance officer for the city of Vista, moved in.

After stopping the Weis in the parking lot, "I told Mr. Wei that I would be required to issue a cite," Stevens wrote in his report. "At this time, Mrs. Wei asked the day worker to leave their car, which he did. I finished the cite to Mr. Wei, and explained to him how to get a permit at City Hall." Mr. Wei then drove to city hall, on nearby Eucalyptus Avenue, applied for a permit, obtained it, attached it to the window on the rear passenger side of their vehicle, and returned to the same area to hire a worker.

And so, less than a month after Vista's day-labor ordinance took effect, the Weis became the 23rd entry on the list of people officially allowed to hire day laborers in Vista.

The Weis also became the first employers to appeal the citation and the $100 fine that came with it. By mid-November, 42 citations had been issued; there were a dozen appeals. In their appeal, the Weis wrote that having just moved to town, they were not aware of the law. On August 30, the City denied the appeal and ordered the Weis to pay the $100 fine. But Mrs. Wei dug in. She took her appeal a step further, as outlined in the ordinance, and asked a neutral hearing examiner to look at her case.

On October 19, at 3:15 p.m., the Weis met with Stevens, the code compliance officer, and an administrative hearing officer from San Diego named Christopher F. Milnes. The hearing was closed to the public. The written record was obtained through a Public Records Act request.

Mrs. Wei admitted that someone had gotten into the car, but she said she did not hire him. He hopped in only to direct her to where the day laborers were gathered and to pick out his uncle, who needed work. "If I had known about the law and the 'free' registration for day labor employer, I would no doubt get the permit before going to the site," Susan Wei noted.

Four days later, Milnes upheld the fine. "In evaluating the evidence," he wrote, "it is significant that Appellants admitted they were looking for day laborers, went to an area where day laborers gathered, and people got into their car. Although Appellants argue that no offer was made the evidence is sufficient to conclude that an offer of employment was made."

Susan Wei said she will not take her appeal to state superior court, for it would cost her another $25. Wei, who had moved to North County from New York City to be closer to her daughter, an Oceanside resident, said, "I'd lose $125, not just the $100. I feel it's not right. I feel it's not fair. I don't want any trouble. I already paid the $100."

She may have gotten off lucky. The ordinance, which was adopted on June 27 by a unanimous vote of the five-member Vista City Council and which took effect on July 28, states that violating "any provision" constitutes a misdemeanor punishable by a fine of up to $1000 and as much as six months' imprisonment, or both. It requires those who hire day laborers to register with the City, display a certificate on the passenger-side window of their vehicle when they go to hire a day laborer, and provide the worker with a "term sheet" once an offer of employment is accepted. Employers or subcontractors hiring at a job site are exempt. The registration lasts a year.

A sample term sheet, one of more than 50 pages that make up the City's "day labor information packet," asks employers to list the estimated number of hours the job will take, the rate of pay, the type of work (gardening, carpentry, masonry, manual labor, housecleaning, other), and whether transportation will be provided at the end of the job.

Missing from the information packet is a copy of the ordinance itself. The night the council passed the ordinance, four people spoke in its favor, three of whom lived outside Vista. One out-of-towner represented the Minuteman Project. Seven people spoke against the ordinance. Two more spoke about racism.

According to the minutes of the June 27 council meeting, "City Councilmembers acknowledged the passion on the part of all the people who came to speak on this issue, expressed support of the ordinance stating that it will protect the day laborers, and clearly affirmed that race has nothing to do with the proposed ordinance."

Sal Martinez, president of a nonprofit job-placement agency called Service Employment and Redevelopment, Inc., offered to help the city council set up a hiring hall like ones his organization runs in Carlsbad and Pacific Beach. Though the notion had initial support from the mayor of Vista, Morris Vance, it has garnered little if any further backing from elected officials.

Vance came out of retirement 4 years ago to run for mayor, after 17 years as Vista's city manager. He said in an interview that the city council acted in response to complaints from businesses that occupy the shopping center at South Santa Fe and Escondido avenues. A Vons, a Goodwill thrift store, a now-closed Italian restaurant, and a Yum Yum Donut shop are among the businesses at the center; the parking lot is the primary place in Vista where day laborers congregate. Businesses complained that the laborers' presence was hurting commerce. Shoppers were reluctant to go there because they would be descended upon by men seeking work. Vance said that the ordinance also helps protect the laborers, some of whom have complained that employers do not pay as agreed.

At 8:00 a.m. on a Thursday in November, 14 laborers clustered in the shopping center parking lot. Alan Cabrera, another New York City transplant, stood among them. Cabrera runs a printing and graphic design business on Vista Way. His parents are Colombian immigrants, and he had spoken about racism at the council meeting the night the ordinance was adopted. "They passed the ordinance not for the community," he said. "They passed it for the Minutemen. These guys here [the day laborers] work. They're not selling dope; they're not selling crack.

"This is night and day from New York, man," he added. "People talk down to you here. Here the workers talk to you with their heads down. Nobody talks about their exploitation; they only talk about their status. These Minutemen, they got a grudge. They got hatred going, man."

Inside the Vons, in the men's restroom, "Beaners Go Home" is scrawled on a tissue dispenser. Under it, someone has scratched, "We are home."

A man coming out of Yum Yum Donuts, who identified himself as a landscaper, said he had hired day laborers in the past. "The thing is," he said, "here, you work one day and you eat one week. And over there [south of the border], you work one week and you eat one day."

"At this moment," said Robert Antonio, a 19-year-old laborer, "I feel a little bit troubled, you know, because there's not much work." Antonio said that the previous day he gave up waiting for a job offer after three or four hours and went home to do laundry and clean the house. "I borrow money from friends. Sometimes I borrow $100, $150. The Minutemen are pressuring people not to hire here."

Cabrera and others, including city officials, say hiring has been drying up at the shopping center since the ordinance passed. According to the city code compliance office, about 100 workers used to gather in the parking lot regularly. The average in mid-December had dropped to about 30. The Saturday before Thanksgiving, the workers were far outnumbered by demonstrators, many wearing bandannas to mask their faces.

Jeff Schwilk, an Oceanside resident who retired from the United States Marine Corps as a staff sergeant and became a leader of the San Diego Minutemen, said by phone that the ordinance "drove a lot of the guys away" but still contains a glaring loophole. "It does not forbid anybody from hiring illegal aliens," he said. "All it does is, basically, in a way, condone the behavior it was meant to deter."

Schwilk has an ally in Michael Spencer, a member of the Vista Citizens Brigade. The brigade formed last February to fight illegal immigration, launching its drive with a rally at the shopping center. People from the San Diego Minutemen joined the rally that day.

"I was a frustrated citizen at that point," Spencer said in a phone interview. Spencer, who worked as an electrical engineer for high-tech companies before going into business for himself doing custom finishing for new homes, subsequently became a Minuteman. "That site had become a center for chaos. We basically showed up at every city council meeting and told the government how bad the situation was.

"They would mob anyone who came in and looked sideways at them, and some would just jump in the cars," he said of the laborers. "There was public urination and defecation, and they were generally making it a hostile environment for people who wanted to shop at Vons and the other stores. This is a big problem, and you're never going to solve it with one fell swoop, so we're nipping away at the corners and, so to speak, we're draining the swamp."

Spencer said illegal immigrants tax the resources of social service agencies in Vista and commit a disproportionate amount of the crime. According to Captain Glenn Revell of the San Diego County Sheriff's office, which provides Vista's law enforcement, the sheriff does not routinely collect data on the immigration status of those arrested.

The Vista Citizens Brigade, Spencer said, wants federal authorities to come to the site and check the immigration status of the laborers. "I have a mantra: it's a federal problem, and they are passing the buck. I think we'd like to have most or all of the illegal aliens moved back to where they belong."

Spencer pointed out that there are like-minded groups made up of Hispanics opposed to illegal immigration. His wife, a Mexican woman, belongs to one called You Don't Speak for Me.

"Lately, I've counted 40 guys at the site," Spencer said toward the end of November. "It's a rebound of the infection. You stopped taking the antibiotics too soon, and now the infection is back.... We're going to have to do something. Like in musical chairs, when the music stops, I don't want to be the last one standing and having the illegal aliens all sitting down."

Now the American Civil Liberties Union of San Diego and Imperial Counties and California Rural Legal Assistance, Inc., have brought suit in U.S. District Court on behalf of two legal, permanent residents of Vista. Dorothy Johnson, an attorney from Rural Legal Assistance, said one resident supplements his minimum-wage jobs with "occasional day labor," while the other relies heavily on it for his sole means of support. They argue that their rights to equal protection under the Fourteenth Amendment are being breached because the city council's motivation included discrimination by race or national origin.

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