HomeMy WebLinkAbout27-City Attorney ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN Subject: An Ordinance of the City of San Bernardino
City Attorney Adding Chapter 9.93 to the San Bernardino Municipal
Code and Establishing Administrative Civil Penalties for
Dept: CITY ATTORNEY Violations of the Municipal Code.
Date: November 1, 2007
MCC Date: November 5,2007
Synopsis of Previous Council Action:
October 1, 2007 - Council referred matter to the Legislative Review Committee.
October 16,2007- Legislative Review Committee unanimously moved this matter forward to the Mayor
and Council with a recommendation for approval.
Recommended motions:
Continue this matter until the California Attorney General issues an Opinion which we anticipate may
be in January 2008. 1
James F. Penman, City Attorney
Contact person: HM Empeiio Jr Sr Deputy City Attorney Phone: 5255
Supporting data attached: Staff Rgort Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
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Agenda Item No.
FAEMPENO\Ordinances\SBMC 9.93 RCA-11-5-07.wpd
STAFF REPORT
Council Meeting Date: November 5, 2007
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: November 1, 2007
AGENDA ITEM: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the
San Bernardino Municipal Code and Establishing Administrative Civil
Penalties for Violations of the Municipal Code
The Mayor and Council have asked the City Attorney's Office to review what other cities are doing
to address violations of their municipal codes,and to bring forward for Mayor and Council consideration
similar ordinances. In response to the Mayor and Council's request, attached is a proposed Ordinance
adding Chapter 9.93,which establishes Administrative Civil Penalties for any violation of the Municipal
Code, and which is taken from a nearby city's ordinances.
Pursuant to Chapter 1.12, currently any violation of the San Bernardino Municipal Code may be
prosecuted as a misdemeanor unless the offense is designated as an infraction by the Municipal Code. The
maximum punishment for a misdemeanor violation of the Municipal Code is imprisonment in the county
jail not exceeding six months and/or a fine not exceeding $1,000. The maximum punishment for an
infraction violation of the Municipal Code is a fine not exceeding $100 for a first violation, a fine not
exceeding$200 for a second violation within one year,and a fine not exceeding$500 for each additional
violation within one year. Upon conviction of a fourth violation within one year,the violator is guilty of
a misdemeanor. These fines are payable to the Court.
Pursuant to Chapter 9.92,certain minor violations of the Municipal Code may also be enforced by
issuance of an Administrative Citation,where an Administrative Fine in the same amounts as an infraction
fine, may be assessed for each day a violation exists and for each section of certain chapters of the
Municipal Code violated. The Administrative Citation fines are payable to the City of San Bernardino.
i The proposed Ordinance adding Chapter 9.93 establishes another enforcement tool to address
violations of the Municipal Code. Code Enforcement Officers,or any other City employee with authority
to enforce the Municipal Code, can issue an Administrative Civil Penalties Notice and Order. Based on
criteria listed in Section 9.93.040, Administrative Civil Penalties up to $1,000 per violation per day can
be assessed,which are payable to the City of San Bernardino. The maximum amount of Administrative
Civil Penalties is set at$100,000 per parcel or structure for any related series of violations. The proposed
Ordinance sets the maximum rate for Administrative Civil Penalties at$1,000 per violation,although one
nearby city sets this maximum rate at $2,500 per violation. State law, at Government Code Section
53069.4, states that these administrative fines or penalties, where the violation would otherwise be an
infraction, shall not exceed the maximum fine or penalty amounts for infractions. Government Code
Section 53069.4 is silent regarding the maximum administrative fine or penalty amounts where the
violation would otherwise be a misdemeanor. Our Office currently has an Opinion request pending with
the California Attorney General, which may resolve this issue. The Attorney General's Office has
informed us that their Opinion may not be issued until January 2008. Until the Attorney General's
Opinion is issued,we have reservations regarding the validity of this proposed Ordinance.
FAEMPENO\Ordinances\SBMC 9.93 Staff Report.I 1-5-07.wpd
Page 2
Staff Report
Agenda Item: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the San
Bernardino Municipal Code and Establishing Administrative Civil Penalties for
Violations of the Municipal Code
November 1, 2007
On October 16,2007,the Legislative Review Committee discussed the proposed Ordinance adding
Chapter 9.93 after referral by the Mayor and Council. The Legislative Review Committee, voted
unanimously to move this matter forward to the Mayor and Council with a recommendation for approval.
Recommended motion: Continue this matter until the California Attorney General issues an Opinion which
we anticipate may be in January 2008.
FAEMPENO\Ordinances\SBMC 9.93 Staff Report I1-5-07.wpd
I ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE
SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL
3 PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
ORDAIN AS FOLLOWS:
5
Section 1. Chapter 9.93 Administrative Civil Penalties,is hereby added to the San Bernardino
6 Municipal Code to read as follows:
7 Chapter 9.93
8 ADMINISTRATIVE CIVIL PENALTIES
9 Sections:
10 9.93.010 Administrative Civil Penalties.
9.93.015 Definitions.
11 9.93.020 Authority.
9.93.030 Administrative Civil Penalties Notice and Order; Procedures.
12 9.93.035 Service of Notices.
9.93.040 Determination of Administrative Civil Penalties.
13 9.93.050 Administrative Costs.
9.93.060 Failure to Comply with Administrative Civil Penalties Notice and Order.
14 9.93.070 Administrative Hearing; Declaration of Purpose.
9.93.080 Administrative Hearing; Notice.
15 9.93.090 Qualifications of Administrative Law Officer.
9.93.100 Disqualification of Administrative Law Officer.
16 9.93.110 Powers of Administrative Law Officer.
9.93.120 Administrative Hearing; Procedures.
17 9.93.130 Failure to Attend Administrative Hearing.
9.93.140 Administrative Enforcement Order.
18 9.93.150 Failure to Comply with the Administrative Enforcement Order.
9.93.160 Judicial Review.
19 9.93.170 Collection of Administrative Citation Fines and Administrative Civil
Penalties.
20
Section 9.93.010 Administrative Civil Penalties.
21
The assessment of Administrative Civil Penalties established in this Chapter is in addition to
22 any other administrative or judicial (civil or criminal) remedy established by law which may be
pursued to address any violation of the Municipal Code.
23
Section 9.93.015 Definitions.
24
The following definitions shall apply in the interpretation and enforcement of this Chapter.
25
A. "Administrative Law Officer" shall mean any person appointed by the City Manager, or
26 his/her designee, to preside at Administrative Hearings.
27 B. "Enforcement Officer"shall mean any Code Enforcement Officer or other City employee or
agent of the City with the authority to enforce any provision of the Municipal Code.
28
FAEMPEN0\0rdinances\9.93 Ordinance.wpd 1
I C. "Person" shall mean any individual or entity, including but not limited to any corporation,
company,partnership, association, trust, or any other form of business entity.
2
D. "Responsible Party"shall mean any person or persons in charge of the business,premises,or
3 location, or the person or persons responsible for the event or incident, and shall include any
of the following:
4
(1) The person or persons who own the business or property where the violation exists.
5
(2) The person or persons in charge of the business or premises where the violation exists.
6
(3) The person or persons using the premises where the violation exists.
7
(4) If any of those persons are minors, the parent or guardians of such minor(s) shall be
8 the Responsible Party.
9 (5) If the person or persons is a business entity, the manager or on-site supervisor where
the violation exists shall also be a Responsible Party.
10 Section 9.93.020 Authority.
11 A. Any person violating any provision of the Municipal Code may be subject to the assessment
of Administrative Civil Penalties payable to the City of San Bernardino, pursuant to the
12 administrative procedures provided in this Chapter.
13 B. For the purposes of assessing Administrative Civil Penalties, each and every day a violation
14 of any provision of the Municipal Code exists, constitutes a separate and distinct violation.
C. Administrative Civil Penalties may be directly assessed by means of an Administrative Civil
15 Penalties Notice and Order issued by an Enforcement Officer, as provided in this Title.
Administrative Civil Penalties may be recovered by assessment of a lien or subsequent legal
16 action brought by the City.
17 D. Administrative Civil Penalties for violations of any provision of the Municipal Code shall be
assessed at a daily rate determined by the Enforcement Officer,or by the Administrative Law
18 Officer pursuant to the criteria listed in Section 9.93.040 of this Chapter. The maximum rate
shall be$1,000 per violation per day.The maximum amount of Administrative Civil Penalties
19 shall not exceed$100,000 per parcel or structure for any related series of violations.
20 Section 9.93.030 Administrative Civil Penalties Notice and Order; Procedures.
21 A. Whenever an Enforcement Officer determines that a violation of one or more provisions of the
Municipal Code or applicable state law has occurred or continues to exist, a written
22 Administrative Civil Penalties Notice and Order may be issued to the Responsible Party.
B. The Administrative Civil Penalties Notice and Order shall identify laws or code sections
23 violated and describe how each section has been violated.
24 C. The Administrative Civil Penalties Notice and Order shall identify the dates and locations of
the violations.
25 D. The Administrative Civil Penalties Notice and Order shall establish a daily amount of
26 Administrative Civil Penalties. The Enforcement Officer shall determine the daily amount of
Administrative Civil Penalties pursuant to the criteria in Section 9.93.040 of this Chapter.
27 E. The Administrative Civil Penalties Notice and Order shall identify the factors used in
28 determining the duration and daily amount of Administrative Civil Penalties.
FAEMPEN0\0rdinances\9.93 Ordinance.wpd 2
I F. The Administrative Civil Penalties Notice and Order shall identify the date when the civil
2 penalties began to accrue and the date when the assessment of Administrative Civil Penalties
ended, unless the violation is continuous. In the case of continuous violations, there shall be
3 an ongoing assessment of Administrative Civil Penalties at the daily rate established in the
Administrative Civil Penalties Notice and Order until the violations are corrected,or until such
4 time that the total amount of Administrative Civil Penalties reaches the maximum amount
allowed by this Chapter.
5 G. If the Enforcement Officer determines that the violations are of a continuous nature, the
Administrative Civil Penalties Notice and Order shall demand that the Responsible Party cease
6 and desist from further action causing the violations and commence and complete all action
7 to correct the outstanding violations under the guidance of the appropriate City Departments.
H. The Administrative Civil Penalties Notice and Order shall describe all remedial action
8 required to permanently correct outstanding violations and establish time frames for
completion.
9
I. The Administrative Civil Penalties Notice and Order shall enumerate any other consequences
10 should the Responsible Party fail to comply with the terms and deadlines as prescribed in the
Administrative Civil Penalties Notice and Order.
I I J. More than one Administrative Civil Penalties Notice and Order may be issued against the
12 same Responsible Party if they encompass either different dates, separate or different
violations, or different locations.
13 K. The Administrative Civil Penalties Notice and Order shall be served upon the Responsible
Party by any one of the methods of service as set forth in Section 9.93.035.
14 L. The Administrative Civil Penalties Notice and Order shall identify appropriate hearing
15 procedures as required by this Chapter.
Section 9.93.035 Service Of Notices
16 A Whenever a notice is required to be given under this Chapter,the notice shall be served by any
17 of the following methods unless different provisions are otherwise specifically stated to apply:
18 (1) Personal service; or
(2) Certified mail, postage prepaid, return receipt requested. Simultaneously, the same
19 notice may be sent by regular mail. If a notice that is sent by certified mail is returned
unsigned,then service shall be deemed effective pursuant to regular mail,provided the
20 notice that was sent by regular mail is not returned; or
21 (3) Posting the notice conspicuously on or in front of the property.The form of the notice
shall be approved by the City Attorney and the City Manager or his/her designee.
22 B. Service by certified or regular mail in the manner described above shall be effective on the
23 date of mailing.
24 C. The failure of any person with an interest in the property to receive any notice served in
accordance with this section shall not affect the validity of any proceedings taken under this
25 Chapter.
26
Section 9.93.040 Determination of Administrative Civil Penalties.
27 A. In determining the date when Administrative Civil Penalties start to accrue, an Enforcement
28 Officer may consider the date when the City first discovered the violation as evidenced by the
FAEMPEN0\0rdinances\9.93 Ordinancempd 3
I issuance of a Notice of Violation or any other written correspondence.
2 B. The assessment of Administrative Civil Penalties shall end when all corrections or other action
required by the Administrative Civil Penalties Notice and Order have been completed.
3
C. In determining the amount of the Administrative Civil Penalties to be assessed on a daily rate,
4 an Enforcement Officer may consider some or all of the following factors:
5 (1) The duration of the violation.
6 (2) The frequency of recurrence of the violation.
(3) The seriousness of the violation.
7 (4) Whether the violation is also designated as an infraction or a misdemeanor by the
8 Municipal Code.
9 (5) The history of the violation.
(6) The Responsible Party's conduct after issuance of the Administrative Civil Penalties
10 Notice and Order.
11 (7) The good faith effort by the Responsible Party to comply.
12 (8) The economic impact of the penalty on the Responsible Party.
13 (9) The impact of the violation upon the community.
14 (10) Any other factors that justice may require.
D. The City Manager has the authority to establish procedures and a penalty schedule for
15 Enforcement Officers or Administrative Law Officers to use as a guideline in determining the
16 amount of Administrative Civil Penalties in appropriate cases.
Section 9.93.050 Administrative Costs.
17
An Enforcement Officer or Administrative Law Officer is authorized to assess any reasonable
18 administrative costs. Administrative costs may include scheduling and processing of the hearing and
all subsequent actions related to the hearing.
19
Section 9.93.060 Failure to Comply with Administrative Civil Penalties Notice and
20 Order.
21 The City Manager shall appoint an Administrative Law Officer and establish a date,time,and
place for the Administrative Hearing in accordance with this Chapter 9.93 when the Responsible Party
22 requests a Hearing or if the Responsible Party fails to comply with the terms of the Administrative
Civil Penalties Notice and Order.Failure to comply includes failure to pay the assessed Administrative
23 Civil Penalties,failure to commence and complete corrections by the established deadlines or failure
to refrain from continuing violations of the Municipal Code.
24 Section 9.93.070 Administrative Hearing; Declaration of Purpose.
25 It is the purpose and intent of the City Council to afford due process of law to any person who
is directly affected by an administrative enforcement action. Due process of law includes: adequate
26 notice,an adequate explanation of the evidence and reasons supporting the administrative enforcement
action, and an opportunity to present evidence and reasons opposing the administrative enforcement
27 action in the Administrative Hearing. These procedures are also intended to establish a forum to
efficiently, expeditiously and fairly resolve issues raised in any administrative enforcement action.
28
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1 Section 9.93.080 Administrative Hearing; Notice.
2 A. Where an administrative enforcement remedy or proceeding authorized by Chapter 9.93
provides for a hearing,the Enforcement Officer or the Responsible Party may request the City
3 Manager,or his/her designee,to appoint an Administrative Law Officer and schedule a date,
time and place for the hearing.
4 B. Written notice of the time and place of the hearing shall be served at least ten calendar days
prior to the date of the hearing on the Responsible Party.
5 C. The format and contents of the hearing notice shall be in accordance with rules and policies
promulgated by the City Manager, or his/her designee.
6 D. The notice of hearing shall be served by any of the methods of services listed in Section
7 9.93.035 of this Chapter.
Section 9.93.090 Qualifications of Administrative Law Officer.
8
A. The City Manager or his/her designee shall promulgate rules and procedures as are necessary
9 to establish a pool of qualified persons who are capable of acting on behalf of the City as
Administrative Law Officers.
10 B. The City Manager is authorized to develop policies and procedures relating to the
qualifications, appointment and compensation of hearing officers,hearing officer powers,
11 hearing procedures, scope of the hearing, and other matters relating to Administrative
12 Hearings.
Section 9.93.100 Disqualification of Administrative Law Officer.
13 Any person designated to serve as an Administrative Law Officer is subject to disqualification
14 for bias,prejudice,interest,or for other reason for which a judge maybe disqualified in a court of law.
Rules and procedures for the disqualification of an Administrative Law Officer shall be promulgated
15 by the City Manager or his/her designee.
Section 9.93.110 Powers of Administrative Law Officer.
16
A. The Administrative Law Officer shall only consider evidence that is relevant to the following
17 issues:
18 (1) Whether the Responsible Party has caused or maintained a violation of the Municipal
Code that existed on the dates specified in the Notice and Order; and
19 (2) Whether the amount of the Administrative Civil Penalties assessed by the Enforcement
20 Officer pursuant to the procedures and criteria outlined in this Chapter Section 9.93
was reasonable.
21 B. The Administrative Law Officer may continue a hearing based on good cause shown by one
of the parties to the hearing or if the Administrative Law Officer independently determines that
22 due process has not been adequately afforded.
23 C. The Administrative Law Officer has continuing jurisdiction over the subject matter of an
Administrative Hearing for the purposes of granting a continuance,ensuring compliance with
24 an Administrative Enforcement Order, modifying an Administrative Enforcement Order, or
where extraordinary circumstances exist, granting a new hearing.
25
D. The Administrative Law Officer may require a Responsible Party to post a Performance Bond
26 to ensure compliance with an Administrative Enforcement Order.
27 Section 9.93.120 Administrative Hearing; Procedures.
28 A. Administrative Hearings are intended to be informal in nature. Formal rules of evidence and
FAEMPEN0\0rdinances\9.93 Ordinance.wpd 5
1 discovery do not apply. The procedure and format of the Administrative Hearing shall follow
the procedures promulgated by the City Manager or his/her designee.
2
B. The City bears the burden of proof at an Administrative Hearing to establish the existence of
3 a violation of the Municipal Code.
4 C. The standard of proof to be used by the Administrative Law Officer in deciding the issues at
an Administrative Hearing is by a preponderance of the evidence.
5 D. Each party shall have the opportunity to cross-examine witnesses and present relevant
6 evidence in support of that party's case.
Section 9.93.130 Failure to Attend Administrative Hearing.
7
Any person whose property or actions are the subject of an Administrative Hearing and who
8 fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the
issues related to the hearing provided that proper notice of the hearing as required by this Chapter has
9 been provided.
Section 9.93.140 Administrative Enforcement Order.
10 A. After the presentation of all evidence and testimony, the Administrative Law Officer shall
11 issue an Administrative Enforcement Order which affirms or rejects the Administrative Civil
Penalties Notice and Order or which modifies the daily rate or duration of the Administrative
12 Civil Penalties depending upon the review of the evidence and application of the criteria in
Section 9.93.040 of this Chapter. The Administrative Law Officer may increase or decrease
13 the total amount of civil penalties and costs that are assessed by the Administrative Civil
Penalties Notice and Order.
14 B. The Administrative Law Officer may issue an Administrative Enforcement Order that requires
the Responsible Party to cease from violating the Municipal Code and to make necessary
15 corrections.
16 C. As part of the Administrative Enforcement Order, the Administrative Law Officer may
establish specific deadlines for the payment of penalties and costs and condition the total or
17 partial assessment of Administrative Civil Penalties on the Responsible Party's ability to
complete compliance by specified deadlines.
18 D. The Administrative Law Officer may issue an Administrative Enforcement Order which
imposes additional Administrative Civil Penalties that will continue to be assessed until the
19 Responsible Party complies with the Administrative Law Officer's decision and corrects the
violation.
20 E. The Administrative Law Officer may schedule subsequent review hearings as may be
necessary or as required by a party to the hearing to ensure compliance with the Administrative
21 Enforcement Order.
22 F. The decision of the Administrative Law Officer shall be entitled"Administrative Enforcement
Order" and shall be issued in accordance with the rules and procedures promulgated by the
23 City Manager or his/her designee.
G. The Administrative Enforcement Order shall become final on the date of service of the order.
24 H. The Administrative Enforcement Order shall be served on all parties by any one of the
25 methods listed in Section 9.93.035 of this Chapter.
Section 9.93.150 Failure to Comply with the Administrative Enforcement Order.
26 A. Upon the failure of the Responsible Party to comply with terms and deadlines set forth in the
27 Administrative Enforcement Order, the Enforcement Officer may use all appropriate legal
means to recover the Administrative Civil Penalties, administrative costs and obtain
28 compliance with the Administrative Enforcement Order.
F:\EMPENO\Ordinances\9.93 Ordinancempd 6
.0
1 B. After the Administrative Law Officer issues an Administrative Enforcement Order,the
2 Enforcement Officer shall monitor the violations and determine compliance.
C. It is unlawful for a party to an Administrative Enforcement Hearing,who has been served with
3 a copy of the final Administration Enforcement Order pursuant to this Chapter, to fail to
comply with the order.Failure to comply with a final Administrative Enforcement Order may
4 be prosecuted as an infraction or misdemeanor at the discretion of the City Attorney.
Section 9.93.160 Judicial Review.
5
Once an Administrative Enforcement Order becomes final as provided in this Chapter,the time
6 in which judicial review of the Order must be sought shall be governed by California Code of Civil
Procedure Section 1094.6 or such section as may be amended from time to time.
7
Section 9.93.170 Collection of Administrative Citation Fines and Administrative Civil
g Penalties.
9 Administrative citation fines and civil penalties shall be a debt to the City and subject to all
remedies for debt collection as allowed by law. When a violation involves privately owned real
10 property and the administrative citation fines or civil penalties are unpaid within the prescribed time,
the amount of the fines or penalties may be recorded as a lien upon and against the real property
11 without further hearing, subject to notice of the lien as required by law.
12 Unpaid administrative citation fines or civil penalties involving privately owned real property
may also constitute assessment liens and be collected as special assessments by the San Bernardino
13 County Treasurer-Tax Collector as set forth in Chapter 3.68 of the Municipal Code.
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F:\EMPENO\Ordinances\9.93 Ordinancempd 7
1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE
2 SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL
PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE.
3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
4 Common Council of the City of San Bernardino at a meeting thereof,held on the
5 day of , 2007,by the following vote, to wit:
6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
7
ESTRADA
8
9 BAXTER
10 BRINKER
11
12 DERRY
13 KELLEY
14
JOHNSON
15
16 MC CAMMACK
17
18
19 City Clerk
20 The foregoing Ordinance is hereby approved this_day of , 2007.
21
22
23 PATRICK J. MORRIS, Mayor
24 City of San Bernardino
Approved as to form:
25
26 JAMES F. PENMAN
City Attorney
27
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