California Scanning Laws?

[cweichel]

Hi all.

My father lives in an assisted living home. He's a retired firefighter and scanner buff. With his scanner(s), he's found the frequencies that are in use by the staff at the home and has been listening in to the local chatter. Managment has learned of this and has now issued a memo to all residents advising that they have updated the Resident Handbook to include:

"Due to the respect for resident and associate privacy and the dignity of the residents, (name of home) prohibits the use of Electronic Monitoring Devicess (a mechanism or piece of equipment used for the purpose of covert or overt video or audio surveillance of a specified area or actions taking place within a specified area) by residents, resident family members or representatives or anyone else on behalf of a resident or resident representative, as a means to monitor residents or residents' rooms. Use of Electronic Monitoring Devices by a resident, resident family member or representative or anyone else on behalf of a resident or resident representative may result in discharge of the resident"

My question to all you very intelligent folks out there is - can they do this in California? It's my understanding that scanning in California is legal and if they have an issue with what staff is broadcasting, they should perhaps deal with staff and what they are saying (which according to my dad - who could really give a rip, they are not abiding by FCC regs, or HIPPA for that matter) or scramble their transmissions.

We (my dad and I) are not out to cause them any issues with the FCC. It just seems a bit heavy handed to issues a memo that's clearly directed towards my dad and his scanner use. I'd just like to have more clarification on the regs or whatever in order to either go to bat for my dad, or suggest to him that he back off...

Anyone have any thoughts on this?

I'd really appreciate your input

 

[Eng74]

He is on private property so yes they can ban the use of a scanner on their property. As for HIPPA even if they just use a room number he would still know who is there so that might be a grey area. Then agian that falls under the keep what you hear to yourself.

 

[reconrider8]

I wish they would tell me i couldnt bring my scanner up to the nursing home when i got and see my grandma... if you really want to get serious with it call the state and ask them to look into it its not like he is really invading the patients privacy or anything illegal

 

[gmclam]

If they don't let me have my scanner, I am moving to a different home.

 

[SkipSanders]

Certainly they can prohibit whatever they want on their private property, subject to whatever contract the residents have with them.

Instead of going to war, wouldn't it be more sensible to just make arraingements for him to just not listen to the internal communications, and only to external police/fire/etc.?

 

[CrabbyMilton]

To be pragmatic, a property owner has the right to ban scanners. But I feel terrible for you and especially your dad. He put his life on the line for many years and this is how those clowns feel? Besides, he's a paying customer so what in the world is that place so afraid of disclosing?

 

[byndhlptom]

As written, seems overly broad and wide open to interpretation. You could argue that it prohibits TV's and AM/FM radios, FRS, GMRS, CB etc. They didn't really define what they were not wanting you to hear. It could also be interpreted to include staff who monitor the CCTV hall cameras (they are monitoring on behalf of the residents as part of the security program). Like I said, a very vague and broad document.

I would also think that a resident who was already in place wouldn't have abide by the "new" change since that is not the document they agreed to when moving in (this is not a legal opinion)

my $.02

tom

 

[DaveNF2G]

I would wonder what they're trying to hide and whether I wanted my relative to live in a place with such a policy.

Nothing in that regulation prohibits anyone from scanning activities that are taking place outside of the property.

 

[kb4mdz]

I am not a lawyer, nor do I play one on TV, tho I know a few, and some of them are actually good people.

But pragmatically, I think this 'rule' is overly broad, relatively unenforceable, except by 'throwing your dad/whomever' off the property, and really wouldn't hold up in court if someone were to challenge it on one of several fronts. Although they do specifically mention 'monitoring residents rooms'; But your dad is not breaking any FCC law, until he starts repeating to other residents what he's heard on the scanner from the staff.

If they are not abiding by HIPPA, or are not abiding by FCC regulations, then they have even less of a leg to stand on. They could make life hell for your dad, but he could really make their life hell WRT FCC/HIPPA, if it went that far.

Here's an idea - anyone in the facility a retired lawyer, who could explain in excruciatingly painful detail what thin ice they are treading on? And then it would be in the best interest of the facility to let dad have his scanner, clean up their own act in operating & privacy issues, and everyone go away happy!

Rant mode on: My personal, biased and loosely organized opinion of the management of nursing homes, assisted living facilities, etc. is that they are on a big ego trip, and the place is theirs to run as they see fit. Whether that makes sense legally, ethically, medically, or economically. You residents will do as the staff say, or you're in BIG TROUBLE!! Think of a vice-principal of a junior high school. Lots of self-important authority over people weaker than themselves, and who will at some time in the future, move on to somewhere else. But they hire minimally skilled workers, pay meager salaries, charge high rates, pocket the difference, and whine & cry about "how expensive and hard it is to run such a NICE place" when they get hauled up short by the regulatory agencies for not doing the job properly. I could go on, but I won't.

Short answer: Yes, they can do it, they're doing it now. Is it right? No. But someone has to step up and make enough of a fuss to tell them so and make it stick. I'm not sure how the 'private property' issue can be used to allow banning scanners. I would think that he is renting a room from them, with all the usual nuances of landlord/tenant law, that is very well defined area of law. (Californian's, and each state's, mileage may vary.) Like what is in his home/room/quarters is his, for his own enjoyment, etc. as long as it isn't overtly illegal. The facility wouldn't have the right to enter without permission, except in an emergency, can't take his stuff without due process, etc. etc.

 

[akanuaka]

This Rule is Likely Not Enforceable....

I am not an attorney either, but, I was a cop in California and am currently a landlord in the Golden State. My opinion based on training & experience gained via my employment and landlord experience differs completely from those expressed here.

In summary, I don't think that they can do a damn thing about this and they likely know it and are bluffing.

Here is my legal theory: Private Property, agreed, but with a big wrench in the cogs - your father has standing as a tenant and that conveys a boatload of rights.

Your father pays for the use and peaceful possession given amount of space pursuant to his lease agreement.

And after 30 days in residence, he is considered a tenant. <30 daysone is considered a 'lodger' and has none of the absolute rights of tenancy.

Tenants have tremendous rights in California. In the view of California law, the tenant has the same constitutional rights and standing as the property owner as it applies to use and peaceful enjoyment of the property.

As long as he does not breach that contract by not paying on time and in full, posing some danger to himself or others, or the the property itself, and does not commit a crime- the proprietor (in my view) would not be able to make such a rule grow legs.

Regrettably for the retirement home operators, as long as your pop does not use the scanner in the furtherance of a crime (see PC636.5) or divulge the contents of the transmissions to a third party pursuant to 47USC605- they would not be able to interfere with his peaceful and complete right to exercise his right of tenancy over the use of a radio monitor.

The federal violation would likely not be considered due to lack of any similar law in California and a county Superior Court Judge, lacking jurisdiction to enforce a federal violation, would likely not give it much, if any, weight so that would make their position even more diluted.

The California Constitution requires that all laws be codified (written down) and that all laws must be enforced with a fair import of their values and in the spirit of the law, not the letter of the law. I know of no violation of California law in either spirit or letter that one could use as the basis to evict.

It is my view one would be hard pressed to find a superior court judge who would give even begin to entertain an eviction as long as your pop had not otherwise breached the contact.

A good resource might be to contact an investigator or ombudsman with the California Department of Public Health which regulates most retirement and rest homes.

Good luck, I I think this rule is DOA. Pick your battles, seek competent counsel, and then make a decision on how to proceed.

Aloha from Paradise,
AL

 

[kma371]

I am not an attorney either, but, I was a cop in California and am currently a landlord in the Golden State. My opinion based on training & experience gained via my employment and landlord experience differs completely from those expressed here.

In summary, I don't think that they can do a damn thing about this and they likely know it and are bluffing.

Here is my legal theory: Private Property, agreed, but with a big wrench in the cogs - your father has standing as a tenant and that conveys a boatload of rights.

Your father pays for the use and peaceful possession given amount of space pursuant to his lease agreement.

And after 30 days in residence, he is considered a tenant. <30 daysone is considered a 'lodger' and has none of the absolute rights of tenancy.

Tenants have tremendous rights in California. In the view of California law, the tenant has the same constitutional rights and standing as the property owner as it applies to use and peaceful enjoyment of the property.

As long as he does not breach that contract by not paying on time and in full, posing some danger to himself or others, or the the property itself, and does not commit a crime- the proprietor (in my view) would not be able to make such a rule grow legs.

Regrettably for the retirement home operators, as long as your pop does not use the scanner in the furtherance of a crime (see PC636.5) or divulge the contents of the transmissions to a third party pursuant to 47USC605- they would not be able to interfere with his peaceful and complete right to exercise his right of tenancy over the use of a radio monitor.

The federal violation would likely not be considered due to lack of any similar law in California and a county Superior Court Judge, lacking jurisdiction to enforce a federal violation, would likely not give it much, if any, weight so that would make their position even more diluted.

The California Constitution requires that all laws be codified (written down) and that all laws must be enforced with a fair import of their values and in the spirit of the law, not the letter of the law. I know of no violation of California law in either spirit or letter that one could use as the basis to evict.

It is my view one would be hard pressed to find a superior court judge who would give even begin to entertain an eviction as long as your pop had not otherwise breached the contact.

A good resource might be to contact an investigator or ombudsman with the California Department of Public Health which regulates most retirement and rest homes.

Good luck, I I think this rule is DOA. Pick your battles, seek competent counsel, and then make a decision on how to proceed.

Aloha from Paradise,
AL

Well, I see your point, but he's paying for services there. Yes he lives there, but there is some contract involved. I believe they can implement a policy prohibiting scanners.

In your example... someone admitted to a hospital more that 30 days would be a "tenant" and they would have to evict you if you refuse to leave, correct?

Just my two cents.

 

[JoeyC]

Theres a simple solution to this problem. Tell pops to shut his trap about what he is listening to on the scanner, keep the volume within reason, and if he is gonna listen to in-house communications, use a headphone, don't do it in the presence of staff and be able to quickly exclude the channel from the scan when staff members are nearby. There is nothing in the policy that says he can't listen to typical activities with the radio. If he gets caught monitoring in-house radio comms in the facility, then he is violating their policies and can be discharged. The facility has the right to make policies as they see fit, and you have the right to leave if you disapprove of them.

 

[WisconsinRailfan]

Is he allowed to have a "regular" radio? If so, buy a cheap table-top radio, gut it, place scanner inside and wire for head phones.

 

[akanuaka]

... someone admitted to a hospital more that 30 days would be a "tenant" and they would have to evict you if you refuse to leave, correct?

No. Hospitals do not meet the definition of a residential housing unit as set forth in the code. The first test it fails is its intention is not to provide a primary residence but medical treatment. Patients in a hospital are deemed 'guests' under California law.

Conversely, the assisted living home does have the intention of providing a primary residence hence the word 'home' in how they are commonly referred to.

This is not as simple as saying this is a the new law, I respectfully assert that he has rights conferred by tenancy.

 

[N9NRA]

As written, seems overly broad and wide open to interpretation. You could argue that it prohibits TV's and AM/FM radios, FRS, GMRS, CB etc. They didn't really define what they were not wanting you to hear. It could also be interpreted to include staff who monitor the CCTV hall cameras (they are monitoring on behalf of the residents as part of the security program). Like I said, a very vague and broad document.

I would also think that a resident who was already in place wouldn't have abide by the "new" change since that is not the document they agreed to when moving in (this is not a legal opinion)

my $.02

tom

That`s what i thought when i read this too. Also, i recall hearing on the ARnewsline once an interview about this very thing (or something related to it), anyway, the comment that stuck in my head when i listened to the whole interview was that the owener of the property can give you whatever rights he/she wants to, and take away whatever rights he/she wants to, the interview was part of a story about a HAM that was asked to leave `cause he was using his radio to listen to stuff at (i believe) Walt Disney World. Still, this is kinda disturbing, but truthfully, one has only one choice, and that is to just suck it up and obey this rule...even though it`s kinda absurd...and as has been said, might in the end be unenforceable. Good luck to the original poster on this. 73. N9NRA

 

[USAPatriot]

I think you need to look at the language and the aim:

"Due to the respect for resident and associate privacy and the dignity of the residents, (name of home) prohibits the use of Electronic Monitoring Devicess (a mechanism or piece of equipment used for the purpose of covert or overt video or audio surveillance of a specified area or actions taking place within a specified area) by residents, resident family members or representatives or anyone else on behalf of a resident or resident representative, as a means to monitor residents or residents' rooms. Use of Electronic Monitoring Devices by a resident, resident family member or representative or anyone else on behalf of a resident or resident representative may result in discharge of the resident"

You said your father is listening to the chatter of the staff, he's not monitoring residents or their rooms. No violation. -Rod-

 

[JoeyC]

It pays to read carefully. Good catch Rod.

 

[ke4wkp]

Just buy everyone in the home a scanner with the home frequency entered. They won't make everyone leave lol
and/or
setup a meeting get everyone in the home involved somehow. A petition or something.

 

[DaveNF2G]

Getting everyone involved could backfire.

Many people believe that scanning is illegal, or that it should be. If management sends a notice or a person around to scare the other residents about their privacy, then they will unite against the scanner user instead of with him.

 

[Hooligan]

Hi all.

My father lives in an assisted living home. He's a retired firefighter and scanner buff. With his scanner(s), he's found the frequencies that are in use by the staff at the home and has been listening in to the local chatter. Managment has learned of this

The smart thing to do is to keep quiet that you're monitoring the internal comms of a facility you live/work in, for several common-sense reasons. 20+ years ago while in college & tuning-in the 46/49MHz phone conversations of my hot coed neighbors, I learned how to use some of that communications intelligence to my benefit, while never revealing the ability to anyone. Obviously I expect you to deny it, but the reality is that your dad could have created quite a stupid mess for the place if he's gossiped to others about how the real reason bingo was canceled last Tuesday is because the staff wanted to catch the American Idol finals instead, or how Bernice down the hall is apparently going through two boxes of Depends per day.


HOWEVER, perhaps in the past, your father has legally intercepted internal management/operations communications which lead him to believe some real (but minor) client abuse or malfeasance has transpired. If the staff thinks this is possible, it can be suggested to them that if they leave your dad & his passive hobby alone, he will opt not to alert the proper authorities (including media) & keep quiet about what he hears in the future.

You/he could also just go directly to the local media with this story & play it up that a bored old man might be kicked out of a nursing home due to the evil management not liking the passive hobby which helps the elderly, retired public-servant pass time, etc.

Either of the above though risk them getting more annoyed & making life for your dad miserable, though I don't know that the place really has the legal grounds to boot him. I'm not attorney, but contrary to what others are saying, just because the place is 'private property,' they cannot enact whatever rules they want at any time -- it is a residential facility, and especially as a nursing home facility, it is regulated by numerous local & state laws. Monitoring a scanner can't be construed as violating the 'peace & quiet' clause unless the volume is too loud, or your dad has some sort of boisterous flashback whenever he hears a tone-out for a third-alarm fire. The spirit of their rule sounds OK, but the letter of the rule could technically mean that your dad & other residents aren't even allowed to observe a staffer giving another resident a pill.

If you & your dad opt not to challenge them directly, then:

1.Mea Culpa - Have a meeting with the management, & have your dad profusely apologize for the soap-operas his loose-lips have apparently caused, that's he learned his lesson, will STFU about what he hears on the scanner, will always use headphones when listening to the scanner(s), and won't tune in the facility's frequencies.
2. Get rid of the scanner(s) & you'll just have to set up an audio feed he can listen to over the internet.
3. Have your dad get his ham license & replace the scanner(s) with a VHF/UHF ham radio, give the nursing home management all sorts of propaganda about amateur radio (there are plenty of stories of nursing home residents being able to operate ham radio & even doing community service with it). Hope that the nursing home management is too ignorant to realize that most ham radios these days can receive non-ham stuff. Set up the ham radio so that a staffer can't easily turn it on when your dad's not around, flip thru the programmed channels & see a channel called 'Acme Nursing Home Staff' or whatever on it!
4. Get rid of the scanner(s), but buy him one of those '10-band' receivers with the AM/FM/SW bands, but that also happens to tune-in the VHF/UHF land mobile radio spectrum...
5. Get rid of the scanner(s) & buy him a near-field receiver that he can use with headphones to covertly monitor any RF in the vicinity.
6. Get rid of the scanner(s) but have your dad go through scanner-withdrawal symptoms that will annoy the staff even more than they were annoyed by his scanner monitoring/gossiping. They may let him have the scanner(s) back to pacify him.
7. If your dad still has contacts at the local FD, have the local fire marshal (& local building inspector) come inspect the nursing home each week, telling the staff that since your dad got his scanner taken away, he's bored & depressed, so they're going to come to try to cheer him up each week, and while they're there, they might as well also do comprehensive inspections...
8. Have the local FD make your dad an Auxilliary Fire Fighter, & as such, issue him a Minitor or handheld radio. As long as the volume isn't disturbing others, staff might have a hard time restricting his use of the radio, since in the event of a 10-Alarm fire, he will be needed at the scene!
9. You & your dad can try to foment a movement amongst other residents to cause them to lobby/protest against this new policy. Unionize them or create a tenant's association.



Tim
Office of Dirty Trix