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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Subject: ORDINANCE OF THE CITY
OF SAN BERNARDINO AMENDING
SECTION 5.04.497 OF THE SAN
BERNARDINO MUNICIPAL CODE
OR1G1NAIRELATING TO SEIZURE AND
"'-HEARINGS REGARDING TRANSIENT
MERCHANT MERCHANDISE.
From: JAMES F. PENMAN
City Attorney
Date: April I , 2003
Synopsis of Previous Council Action:
Ord. MC-8l7, 1-6-92.
Recommended motion:
That said ordinance be laid over for final adoption.
~9t~
dgnature
Contact person: Michael Reiter
Phone:
5355
Supporting data attached:
Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount:
Source:
None at this time.
Finance:
Council Notes:
Agenda Itl
#q
LJ /i J /03
STAFF REPORT
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: Aprill,2003
AGENDA: April 7, 2003
RE: An Ordinance Amending Section 5.04.497 of the San Bernardino Municipal
Code.
This ordinance amends section 5.04.497 relating to the seizure and hearing regarding
transient merchant merchandise. This amendment adds language to allow merchants who have
goods valued at more than $100 to appeal to the Common Council pursuant to Chapter 2.64.
Previously, though not explicitly stated in the section, a merchant with any amount of seized
goods could appeal pursuant to Chapter 2.64. This amendment specifically allows the City to
destroy perishable items of any value. This ordinance also allows the City to donate perishable
items to any bona fide charitable organization. The amendment also updates a reference to Title
6, Animals, which was recently amended. The definition of "authorized officer" is updated to
include the officers specified in 9.90.01 O.A.S, (Code Compliance), as amended in the companion
ordinance. If the seller waives his or her right to a hearing or fails to appear at the noticed
hearing, then the goods may be immediately disposed of or destroyed. The amendment also
breaks the Section into six Subsections for ease of use.
City Attorney Investigators reports are attached detailing their research regarding selling
seized perishable items to local merchants. Almost uniformly, there is no market in San
Bernardino for these goods. The City Attorney's Office contacted the County Health Department
and they stated they would not approve such food for resale. Therefore, the reference to selling
perishable goods has been deleted.
The City Clerk circulated a March 17,2003 memorandum regarding the proposed
amendments. The answers to the questions posed by the memorandum are as follows: the City
Attorney's Office is responsible for prosecuting this Section, and should be contacted before
destroying any items. The City Clerk or his or her designee, shall, after listening to the
information presented by staff and by the transient merchant, decide any disputes regarding the
value of the seized merchandise. If the seller fails to appear at the noticed hearing, the goods can
be destroyed immediately. The reference to Code of Civil Procedure 1094.6 does not have any
effect on the disposition of the seized items.
.'
ORDINANCE NO.
2 AN ORDINA:\ICE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.497 OFTHE SAN BER"IARDINO MU:\'ICIPAL CODE RELATING TO SEIZURE AND
3 HEARINGS REGARDING TR.\NSIENT VENDOR MERCHANDISE.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
5 ORDAIN AS FOLLOWS:
6 SECTION 1. San Bernardino l'vlunicipal Code Section 5.04.497 is amended to now read in
its entirety as follows:
7 "5.04.497 Seizure; hearing.
A. In addition to any criminal action which may be taken, any authorized officer may
8 seize the items offered for sale contrary to Sections 5.04.495 and 5.04.496 and hold said
items pending a hearing before the City Clerk or his or her designee. Said hearing must be
9 held within thirty (30) days following the giving of notice of such seizure to the seller. If
the seller is unavailable or unknown, notice of the hearing may be posted at the location
10 where the items were offered for sale.
B. At the hearing the City Clerk or his or her designee shall determine whether a
1 J business registration certificate pursuant to this Chapter has been issued. If he or she
determines that such certificate has not been issued he or she may destroy or otherwise
12 dispose of the items or may return such items to the seller upon the payment of all costs
of the seizure and hearing by the seller. If there is a dispute over the value of the seized
13 items, between the seizing officer and the seller, the City Clerk or his or her designee
shall make a determination of the value of the seized items based upon the evidence
14 presented at the hearing.
C. If the seized items have a value greater than S 1 00.00, the seller may appeal the
15 decision of the City Clerk or his or her designee to the Common Council pursuant to
Chapter 2.64. For seized items that have a value 01'$100.00 or less, the decision of the
16 City Clerk or his or her designee shall be final.
D. Ifthe items seized are evidence in a criminal proceeding they shall not be returned
17 or destroyed pending release by the appropriate authorities. If the items seized are
perishable, the City may donate the property to any bona fide charitable organization
18 provided that said donation is in confornlance with the requirements of Health and Safety
Code Section 113740(b) as interpreted by the San Bernardino County Department of
19 Public Health, or the City may otherwise dispose of the perishable items. If the seller
waives his or her right to a hearing pursuant to this section, then the goods may be
20 immediately destroyed or otherwise disposed of by the City. If the seller or his or her
agent does not appear for the hearing provided for in this section the items shall be
2 J deemed abandoned and may immediately be disposed of as other surplus City property.
Any animals seized pursuant to this section shall be impounded or returned pursuant to
22 Title 6.
E As used in this section "officer" or "authorized officer" shall mean any police officer
23 of the City of San Bernardino, any of the officers specified in Section 9.90.01 O.A. 7 of this
Code with regard to animals, and any of the officers specified in Section 9.90.010.A.5,
24 Section 9.90.01 0.A.6, and Section 9.90.01 0.A.8.
F. Pursuant to Code of Civil Procedure Section 1094.6, any action to review the
25 decision of the City Clerk or his or her designee, or the Common Council, shall be
commenced no later than the ninetieth day after the date said decision is adopted."
26 II
II
27 II
28
J\1R'drn [504497 OR!) WPD]
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2
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 5.04.497
OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO SEIZURE AND
HEARINGS REGARDING TRAl\'SIENT MERCHAl\'T MERCHANDISE.
3
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a meeting thereof, held on the
4
5 _ day of
6 COUNCIL MEMBERS:
7 ESTRADA
8 LONGVILLE
9 MCGli'-'l\'IS
]0 DERRY
1] SUAREZ
]2 ANDERSON
13 MCCAMMACK
]4
, 2003, by the following vote, to wit:
AYES
NAYS
ABST AIN ABSENT
15
City Clerk
]6
The foregoing Ordinance is hereby approved this _ day of
,2003.
17
18
19
JUDITH V ALLES, Mayor
City of San Bernardino
20
2]
Approved as to form
and legal content:
22
23
JAJ\1ES F. PENMAN
City Attorney
24
7-
25
26
27
28
MR'dm [504497 ORDWPDj
.
CITY OF SAN BERNARDINO
INTER-OFFICE MEMORANDUM
TO:
James Penman, City Attorney
FROM:
Hugh Gonthier, Investigator
DATE:
March 17, 2003
SUBJECT:
Disposal of ConfIScated Perishable items
The attached list of grocery marketsloudets in the City of San Bernrdino was contacted
regarding the purchasing of fruits & vegetables that may be confIScated from transient
vendon. They were told that the items were recovered from unlicensed vendon in the City
of San Bernardino. They were asked if they would consider purchasing the confIScated
items.
Aidas Market, 2937 I" Avenue said they would purchase the items as long as they were
fresh and approved by the health department.
A1bertsons Market (major chain) said they would accept the items and drop them at tbe
local food bank where they send their old bread and bakery products.
Stater Brotben (major chain) advise that they have contract vendon and do not purchase
outside ofthat.
All of the other markets, mosdy independents, said that they would not purchase these
items. In most cases they had their own sources or contracts with local supplien.
Submitted for your information.
SAN BERNARDINO GROCERY STORES
Aida's Market: 2397 1" Avenue. - 880-1045
Albertson's: 140 W. 40th Street - 883-5666
EI Toro Market: 2868 W. Rialto - 875-5533
Family Market: 1993 N. "E" Street - 883-1205
Fiesta Warehouse: 1578 W. Baseline - 884-6771
Food4Less: 555 W. 2nd Street - 888-5654
India Foods & Spices: 725 W. Highland - 881-2034
J&J Market: 24901 5th Street - 888-4411
Jimmie's Market: 2928 Duffy - 887-1800
Mike & Judie's Grocery: 508 S. Inland Center - 885-8381
98 & Up: 495 N. "G" Street - 888-9868
One Stop Market: 4090 Acre Ln. - 886-8007
Ralph's: 4444 University Pkwy - 880-2253
Rocky Market: 2007 E. Highland - 884-1902
San Bernardino Grocery Outlet: 2337 N. Sierra - 886-2367
Save-A-Lot: 1035 W. Highland - 883-3884
7 -11 Food Store: 797 W. Highland - 883-3090
207 W. Highland - 883-2620
1395 Kendall- 887-8851
Stater Bros: 1522 E. Highland - 882-3214
1085 W. Highland - 886-1517
977 Kendal- 882-0461
1269 N. Waterman - 889-6270
648 W. 4th Street - 888-0048
277 E. 40th Street - 886-4517
Ybarra's Grocery: 914 W. Spruce - 889-5605
CITY OF SAN BERNARDINO
INTER-OFFICE MEMORANDUM
TO:
James Penman, City Attorney
Hugh ~ Investigator
March 24, 2003
FROM:
DATE:
SUBJECT: Public Health inquiry regarding confiscated fmits & Vegetables.
March 24, 2003, I made contact with the San Bernardino County Public Health Department. I
spoke with Mr. Scott Maass, a Supervisor in the Food Protection Program. I advised Mr. Maass
that the City is actively involved in addressing the Transient Vendors that are on the on-ramps and
street comers.
In that process, we confiscate many items, however some of them are perishables such as fruits
and vegetables. Because of the nature of these perishable products, we are unable to store them
for any period of time pending a court appearance by the person selling them. We have canvassed
the grocery outlets with-in the City to determine if they would purchase these items. One said
that they would purchase this produce, if it was fresh and approved by the Health Department.
The others all indicated they have their own vendors and would not purchase these items. I
advised that we were also considering donating these items to the food programs administered by
the various charity and church groups.
Mr. Maass advised that they would have no problem inspecting the items, however, they would
not approve them for sale by any commercial grocery outlet, unless these items came from an
"approved source" which is determined by the Department of Agriculture. Things they take into
consideration are what pesticides or chemicals have been used, type of manure (human or
organic) and if the product has been cut or sliced. Mr. Maass advised they would not approve
these items for resale but did not rule out donating the items for feeding -the homeless programs.
,........
"'"
.r.JUll.D1C A
tt '**FOR OFFICE USE ONLY. NOTA PUBLIC DOCUMENT**'"'"
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c,~.', CI1Y OF SA~;~~;~ARDINg~:~frv ClERK;SOFFICE ""\8~i~?;i!0K::'';:>
RECORDS & INFORMATION MANAGEMENT PROGRAM
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Meeting Date/Date Adopted:
AGENDA ITEM TRACKING FORM
L/-.2/-03 Item No. 9
I n/O d ,1.1(',' " If Lit
Reso utio , r inance No.. __+"
Effective Date: ~ :7:3
Vote: Ayes:' (l /" 7
/~
Abstain, '--t7'
Date Sent to Mayor: '1/1-'--/. 0'3
7 /, )
Date of Mayor's Signature: ' 2.
<-
Ordinance Urgency: Yes
Termination/Sunset Date:
/~
?tOI
,
Nays: .4.
Absent:-h)
'7
Date of Clerk's Signature:
Date Summary Returned from Attorney:
Date Returned from Mayor:
Date Published:
Meeting Type: ~..f.....:..Jf
Continued From &'Item No,
Date Seal Impressed:
? ','"
Date Sent for Signature:
Expiration Date:
Copies Distributed To:
.J ,
&c.e:.. , ./~L;
Exhibits Complete & AttachlcJ to Resolution/Ordinance:
Reminder Letter Sent:
-#"
Reminder Letter Sent:
Reminder Letter Sent:
Request for Council Action & Staff Report Atta5hed~ ,~
Notes: If~~..( ~ - ~l?}/O)
~.L
Yes
No
Ready to File:
Date:
DOCUMENT tOCA TK)N:
FORMS/~ 118ft TradUnI Fonn. cc Fotm No. 111 . Use u~ 12J[W1996