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HomeMy WebLinkAbout29-City Attorney c c c CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN City Attorney Subject: 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 ofthe Municipal Code. Dept: CITY ATTORNEY Date: November 16, 2007 MCC Date: November 19, 2007 Synopsis of Previous Council Action: October I, 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. November 5, 2007 - Council tabled this matter. Recommended motions: Continue this matter until the California Attorney General issues an Opinion which we anticipate may be in January 2008. .Ie Contact person: Henry Emneiio. Jr.. Sf. Denuty City Attornev Phone: 5255 Supporting data attached: StaffRenort Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. :::J '7 11-/9-0) F:IEMPENOIOrdinancesISBMC 9.93 RCA.11-19-07.wpd c STAFF REPORT Council Meeting Date: November 19, 2007 TO: FROM: DATE: AGENDA ITEM: Mayor and Common Council James F. Penman, City Attorney November 16, 2007 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. c Pursuant to Chapter 1.12, currently any violation ofthe 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. c 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. F:\EMPENOIOrdinancesISBMC 9.93 Staff Report. 1 1-19-Q7.wpd c c c 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 ~ovember 16,2007 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. F:\EMPENOIOrdinancesISBMC 9.93 Staff Report.lJ-J9'{)7.wpd c 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 I. 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 10 11 12 C 13 14 15 16 17 18 19 20 21 22 23 24 9 Sections: 9.93.010 9.93.015 9.93.020 9.93.030 9.93.035 9.93.040 9.93.050 9.93.060 9.93.070 9.93.080 9.93.090 9.93.100 9.93.110 9.93.120 9.93.130 9.93.140 9.93.150 9.93.160 9.93.170 Section 9.93.010 Administrative Civil Penalties. Definitions. Authority. Administrative Civil Penalties Notice aud Order; Procedures. Service of Notices. Determination of Administrative Civil Penalties. Administrative Costs. Failure to Comply with Administrative Civil Penalties Notice and Order. Administrative Hearing; Declaration of Purpose. Administrative Hearing; Notice. Qualifications of Administrative Law Officer. Disqualification of Administrative Law Officer. Powers of Administrative Law Officer. Administrative Hearing; Procedures. Failure to Attend Administrative Hearing. Administrative Enforcement Order. Failure to Comply with the Administrative Enforcement Order. Judicial Review. Collection of Administrative Citation Fines and Administrative Civil Penalties. Administrative Civil Penalties. The assessment of Administrative Civil Penalties established in this Chapter is in addition to any other administrative or judicial (civil or criminal) remedy established by law which may be pursued to address any violation of the Municipal Code. Section 9.93.015 Definitions. The following definitions shall apply in the interpretation and enforcement of this Chapter. "Administrative Law Officer" shall mean any person appointed by the City Manager, or his/her designee, to preside at Administrative Hearings. "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. F:\EMPENO\Ordinances\9.93 Ordinance.wpd I c 1 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. "Responsible Party" shall mean any person or persons in charge of the business, premises, or location, or the person or persons responsible for the event or incident, and shall include any of the following: 2 3 4 D. The person or persons who own the business or property where the violation exists. The person or persons in charge of the business or premises where the violation exists. 5 6 (1) (2) (3) (4) The person or persons using the premises where the violation exists. If any of those persons are minors, the parent or guardians of such minor( s) shall be the Responsible Party. 7 8 9 10 (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. Section 9.93.020 Authority. 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 administrative procedures provided in this Chapter. For the purposes of assessing Administrative Civil Penalties, each and every day a violation of any provision of the Municipal Code exists, constitutes a separate and distinct violation. Administrative Civil Penalties may be directly assessed by means of an Administrative Civil 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 action brought by the City. 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 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 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. 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 Administrative Civil Penalties Notice and Order may be issued to the Responsible Party. The Administrative Civil Penalties Notice and Order shall identify laws or code sections violated and describe how each section has been violated. The Administrative Civil Penalties Notice and Order shall identify the dates and locations of the violations. The Administrative Civil Penalties Notice and Order shall establish a daily amount of 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. The Administrative Civil Penalties Notice and Order shall identify the factors used in determining the duration and daily amount of Administrative Civil Penalties. F:\EMPENO\Ordinances\9.93 Ordinance.wpd 2 c c c 16 17 The Administrative Civil Penalties Notice and Order shall identify the date when the civil 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 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 time that the total amount of Administrative Civil Penalties reaches the maximum amount allowed by this Chapter. 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 and desist from further action causing the violations and commence and complete all action to correct the outstanding violations under the guidance of the appropriate City Departments. The Administrative Civil Penalties Notice and Order shall describe all remedial action required to permanently correct outstanding violations and establish time frames for completion. The Administrative Civil Penalties Notice and Order shall enumerate any other consequences should the Responsible Party fail to comply with the terms and deadlines as prescribed in the Administrative Civil Penalties Notice and Order. More than one Administrative Civil Penalties Notice and Order may be issued against the same Responsible Party if they encompass either different dates, separate or different violations, or different locations. The Administrative Civil Penalties Notice and Order shall be served upon the Responsible Party by anyone of the methods of service as set forth in Section 9.93.035. The Administrative Civil Penalties Notice and Order shall identify appropriate hearing procedures as required by this Chapter. Section 9.93.035 Service Of Notices A. Whenever a notice is required to be given under this Chapter, the notice shall be served by any of the following methods unless different provisions are otherwise specifically stated to apply: 18 19 20 Personal service; or Certified mail, postage prepaid, return receipt requested. Simultaneously, the same 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 notice that was sent by regular mail is not returned; or (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. Service by certified or regular mail in the manner described above shall be effective on the date of mailing. (I) (2) 21 22 23 24 25 26 B. 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 Chapter. Section 9.93.040 Determination of Administrative Civil Penalties. 27 28 A. In determining the date when Administrative Civil Penalties start to accrue, an Enforcement Officer may consider the date when the City first discovered the violation as evidenced by the F:\EMPENO\Ordinances\9.930rdinance.wpd 3 c c c 1 2 B. 3 C. 4 5 6 7 8 9 10 11 12 13 14 D. 15 16 17 issuance of a Notice of Violation or any other written correspondence. 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. In determining the amount of the Administrative Civil Penalties to be assessed on a daily rate, an Enforcement Officer may consider some or all ofthe following factors: (1) The duration of the violation. (2) The frequency of recurrence of the violation. (3) The seriousness of the violation. (4) Whether the violation is also designated as an infraction or a misdemeanor by the Municipal Code. (5) The history of the violation. (6) The Responsible Party's conduct after issuance of the Administrative Civil Penalties Notice and Order. (7) The good faith effort by the Responsible Party to comply. (8) The economic impact of the penalty on the Responsible Party. (9) The impact of the violation upon the community. (10) Any other factors that justice may require. The City Manager has the authority to establish procedures and a penalty schedule for Enforcement Officers or Administrative Law Officers to use as a guideline in determining the amount of Administrative Civil Penalties in appropriate cases. Section 9.93.050 Administrative Costs. An Enforcement Officer or Administrative Law Officer is authorized to assess any reasonable 18 administrative costs. Administrative costs may include scheduling and processing ofthe hearing and all subsequent actions related to the hearing. 19 20 21 22 23 24 25 26 27 28 Failure to Comply with Administrative Civil Penalties Notice and Order. 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 requests a Hearing orifthe 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 Civil Penalties, failure to commence and complete corrections by the established deadlines or failure to refrain from continuing violations of the Municipal Code. Section 9.93.070 Administrative Hearing; Declaration oCPurpose. It is the purpose and intent of the City Council to afford due process oflaw to any person who is directly affected by an administrative enforcement action. Due process oflaw includes: adequate 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 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. Section 9.93.060 F:\EMPENO\Ordinances\9.93 Ordinance.wpd 4 c c c I Section 9.93.080 Administrative Hearing; Notice. 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 Manager, or his/herdesignee, to appoint an Administrative Law Officer and schedule a date, time and place for the hearing. 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. 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. D. The notice of hearing shall be served by any of the methods of services listed in Section 9.93.035 of this Chapter. Section 9.93.090 Qualifications of Administrative Law Officer. A. The City Manager or his/her designee shall promulgate rules and procedures as are necessary to establish a pool of qualified persons who are capable of acting on behalf of the City as Administrative Law Officers. B. The City Manager is authorized to develop policies and procedures relating to the qualifications, appointment and compensation of hearing officers, hearing officer powers, hearing procedures, scope of the hearing, and other matters relating to Administrative Hearings. Section 9.93.100 Disqualification of Administrative Law Officer. Any person designated to serve as an Administrative Law Officer is subject to disqualification for bias, prejudice, interest, or for other reason for which a judge may be disqualified in a court oflaw. Rules and procedures for the disqualification of an Administrative Law Officer shall be promulgated by the City Manager or his/her designee. Section 9.93.110 Powers of Administrative Law Officer. !he Administrative Law Officer shall only consider evidence that is relevant to the following Issues: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (I) 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 (2) Whether the amount of the Administrative Civil Penalties assessed by the Enforcement Officer pursuant to the procedures and criteria outlined in this Chapter Section 9.93 was reasonable. 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 due process has not been adequately afforded. 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 an Administrative Enforcement Order, modifying an Administrative Enforcement Order, or where extraordinary circumstances exist, granting a new hearing. The Administrative Law Officer may require a Responsible Party to post a Performance Bond to ensure compliance with an Administrative Enforcement Order. 27 28 Section 9.93.120 Administrative Hearing; Procedures. A. Administrative Hearings are intended to be informal in nature. Formal rules of evidence and F:\EMPENO\Ordinances\9.93 Ordinance.wpd 5 c 5 6 7 8 9 10 11 12 13 - '- 14 15 16 17 18 19 20 21 22 23 24 25 c 1 2 3 4 discovery do not apply. The procedure and format ofthe Administrative Hearing shall follow the procedures promulgated by the City Manager or his/her designee. The City bears the burden of proof at an Administrative Hearing to establish the existence of a violation of the Municipal Code. 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. D. Each party shall have the opportunity to cross-examine witnesses and present relevant evidence in support of that party's case. Section 9.93.130 Failure to Attend Administrative Hearing. B. C. Any person whose property or actions are the subject of an Administrative Hearing and who 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 been provided. Section 9.93.140 Administrative Enforcement Order. A. After the presentation of all evidence and testimony, the Administrative Law Officer shall 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 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 the total amount of civil penalties and costs that are assessed by the Administrative Civil Penalties Notice and Order. 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 corrections. 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 partial assessment of Administrative Civil Penalties on the Responsible Party's ability to complete compliance by specified deadlines. 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 Responsible party complies with the Administrative Law Officer's decision and corrects the violation. 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 Enforcement Order. 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 City Manager or his/her designee. G. The Administrative Enforcement Order shall become fmal on the date of service of the order. H. The Administrative Enforcement Order shall be served on all parties by any one of the methods listed in Section 9.93.035 of this Chapter. Section 9.93.150 Failure to Comply with the Administrative Enforcement Order. 26 27 A. Upon the failure ofthe Responsible Party to comply with terms and deadlines set forth in the Administrative Enforcement Order, the Enforcement Officer may use all appropriate legal means to recover the Administrative Civil Penalties, administrative costs and obtain compliance with the Administrative Enforcement Order. 28 F:\EMPENO\Ordinances\9.93 Ordinance.wpd 6 c c c 1 2 3 B. After the Administrative Law Officer issues an Administrative Enforcement Order, the 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 a copy of the final Administration Enforcement Order pursuant to this Chapter, to fail to comply with the order. Failure to comply with a fmal Administrative Enforcement Order may be prosecuted as an infraction or misdemeanor at the discretion of the City Attorney. Section 9.93.160 Judicial Review. 4 5 Once an Administrative Enforcement Order becomes fmal 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 8 9 10 11 12 13 14 15 16 17 Collection of Administrative Citation Fines and Administrative Civil Penalties. 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 property and the administrative citation fmes or civil penalties are unpaid within the prescribed time, the amount of the fmes or penalties may be recorded as a lien upon and against the real property without further hearing, subject to notice of the lien as required by law. Section 9.93.170 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 County Treasurer-Tax Collector as set forth in Chapter 3.68 of the Municipal Code. III III 18 19 20 21 22 23 24 25 26 27 28 F:\EMPENO\Ordinances\9.93 Ordinance.wpd 7 c c c 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 day of , 2007, by the following vote, to wit: 5 6 COUNCIL MEMBERS: 7 NAYS ABSTAIN ABSENT AYES ESTRADA 8 9 BAXTER 10 BRINKER 11 12 DERRY 13 KELLEY 14 JOHNSON 15 16 MC CAMMACK 17 18 19 City Clerk 20 21 22 23 24 25 26 JAMES F. PENMAN City Attorney The foregoing Ordinance is hereby approved this _ day of ,2007. PATRICKJ. MORRIS, Mayor City of San Bernardino Approved as to form: 27 28 F:\EMPENO\Ordinances\9.930rdinance.wpd 8