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CI10 OF SAN BERNARDIO - REQUEC7 FOR COUNCIL ACON
From: Ralph H. Prince
Subject:
Fines for Misdemeanors and
Infractions
Dept: City Attorney
Date: February 8, 1985
Synopsis of Previous Council action:
On January 23, 1984, the City Attorney recommended and the Council
approved the amendment of Chapter 1.12 to increase the amount of
fines for infractions. This amendment is related to the second
ordinance concerning the major overhaul of the penalty provisions
of the Code, the removal of outdated provisions, the improved
drafting of penalty clauses and the reduction of some misdemeanors
to infractions as approved by enforcement personnel.
Recommended motion:
Waiver further first reading of the ordinances and layover for
final adoption.
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Signature
Contact person: SUSAJ.'iI A. HOPKINS
Supporting data attached: Yes
Phone:
5056
Ward:
N/A
FUNDING REQUIREMENTS:
Amount:
Sou rce:
Finance:
Council Notes:
75-0262
Agenda Item N~
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CI'C) OF SAN BERNARDIO) - REQUEOI' FOR COUNCIL AC'O>>N
STAFF REPORT
The first ordinance increases the penalties for infractions
from $50.00 to $100.00 for a first offense, from $100.00 to
$200.00 for a second offense, and from $250.00 to $500.00 for a
third offense. The fine for a misdemeanor could not be increased
to $1000.00 because Charter Section 40(r) limits such fine to
$500.00.
The second ordinance constitutes a major overhaul of the
penalty provisions of the San Bernardino Municipal Code. Through
this overhaul, three things are sought to be accomplished: (1)
the removal of outdated provisions from the Municipal Codej (2)
the rewording of inarticulately drawn provisions of the Municipal
Codej and (3) the reduction from misdemeanor to infraction of the
majority of violations of the Municipal Code.
With respect to the reduction of some offenses as
recommended by the enforcing departments from misdemeanor to
infraction, such reduction is sought as a means of obtaining more
effective enforcement of the provisions. As a defendant charged
with a misdemeanor, an individual is entitled to all of the
constitutional protections, including right to counsel provided
at taxpayers' expense if the individual is unable to afford an
attorney, right to a jury trial and right to certain pre-trial
proceedings. Such rights are not granted to an individual
charged with an infraction. ln the routine enforcement of the
various matters covered by the San Bernardino Municipal Code,
correction of the matter is often delayed because of the
necessity of arraignment, pre-trial negotiations, trial setting,
and by delays in obtaining a jury in a matter of this type.
In most instances of court enforcement of the Municipal
Code, pre-trial compliance rather than punishment is the end the
City has traditionally sought as a policy matter. The long
delays which are associated with the prosecution of a misdemeanor
often defeat the purpose of the prosecution.
It should be noted that although these sections have been
reduced to infractions, provision is made for the prosecution of
a case as a misdemeanor in instances involving repeat violators.
This allows for a weeding out from the process of those
individuals who, for one reason or another, have not complied
with the law, although they have a bona fide intent to do so, as
opposed to those individuals who have no intent of complying with
the law under any circumstances.
The move from misdemeanors toward prosecution as an
infraction is a trend in modern progressive municipal code
enforcement. A paper presented at the recent National Institute
of Municipal Law Officers meeting in Forth Worth, Texas offers an
excellent description of the rationale for adoption of this
approach and the means of implementation of alternative code
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enforcement techniques. The paper, entitled "Alternatives in
Code Enforcement: An Experiment in Decriminalization", was
prepared by Richard E. Whinney, the City Attorney for Oakland,
California. A copy of the first two pages of this report is
attached hereto as being descriptive of the type of experience
which has led to this current revision of the San Bernardino
Municipal Code.
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ALTF.RNATIVES IN CODE ENFORCEMENT:
AN EXPERIMENT IN DECRIMINALIZATION
On January 1, 1984 a new method of enforcing the
municipal code for Oakland, California went into effect.
Previously, all code violations had been designated as
misdemeanors and subject to the criminal enforcement process. By
converting to a system based upon infraction citations, which
subjects violators to lesser penalties and involves an informal
hearing procedureJ the City hoped to increase the efficiency and
effectiveness of its overall code enforcement program.
oakland's municipal code is probably typical of those
in effect in most cities. It establishes standards for building
construction and maintenance, safety conditions in public
facilities, and zoning regulations. The code also supplements
state criminal law in regulating human activity in controlling
the use of municipal property, such as on housing authority
property and in park and recreation facilities, and in
prohibiting certain activities not reached by state law, such as
animal control.
Prior to the beginning of 1984, enforcement of the
municipal code was achieved largely through a combination of
warning letters and persuasion. Formal misdemeanor complaints
were rarely filed, due to the cumbersome criminal procedure and
inspectors' belief that misdemeanor penalties were dispro-
portionate to the offense.
The deficiencies in the enforcement system became
obvious as the City received increasing pressure from community
organizations to assist them in removing blight conditions and
health and safety hazards from residential neighborhoods.
Perhaps the culmination of these demands occurred in the Autumn
of 1982 when, in response to community demands, the City
government organized an interdepartmental task force to conduct
an intensive code enforcement effort targeted at removing illegal
scrap yards, abandonded automobiles, and hazards on vacant lots
from residential neighborhoods.
The efforts of the task force revealed several
practical problems in using the code. The most important was
the code's almost total reliance upon the cumbersome and
disproportionate misdemeanor penalty. The experience of the task
force also demonstrated several common problems 1n Ci ty
enforcement activities. These problems included the need for
better interdepartmental coordination in code enforcement and the
need to approach enforcement strategically.
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As the result of that eXi'erience, the City of Oakland
reviewed the remedies in the municipal code, and converted its
penalties from misdemeanor to infraction. The City also reviewed
its overall enforcement program to develop strategic techniques
to improve the effectiveness and efficiency of enforcement. This
paper summarizes these efforts.
MUNICIPAL CODE PENALTIES
Problems with Misdemeanor Sanctions
Since adoption of Oakland's Municipal Code more than
a century ago, all code violations have been designated
misdemeanors. Under California State law misdemeanors are
subject to the criminal process, with a maximum penalty of six
months in jail and a five hundred dollar fine.
This maximum penalty has rarely been invoked, for
several reasons. First, the objective of most City code
enforcement efforts, is correction, rather than punishment.
Second, the maximum statutory penalty is disproportionate to the
most common violations of the code. By seeming to seek an
exaggerated penalty for an apparently minor first offense, such
as for animal control or building code violations, the City lost
credibility before the court and provoked needlessly ardent
confrontations with offenders.
Reliance upon misdemeanor complaint for code
enforcement also actually slowed enforcement efforts by requiring
a rigid and cumbersome adversary process. The Oakland City
Attorney's Office does not include a criminal prosecution
unit. Instead, the City government must rely upon the District
Attorney for prosecution of offenses.
Prosecution of misdemeanors requires the District
Attorney to file a formal criminal complaint in the municipal
court. This is followed by two pre-trial hearings at which City
code violations are calendared by the court among a wide variety
of seemingly more severe criminal violations. Moreover,
prosecutors of ten 'place low priority upon City code violations,
probably because code violations paled by comparison to the more
dramatic and familiar criminal violations of state law for which
prosecutors are responsible. If the misdemeanor complaint
survived the initial hearing and arraignment, the defendant could
demand a jury trial.
Together these steps require extensive time of both
public officials and the defendant, and do not ensure fairness to
any party. Each misdemeanor prosecution consumes several months,
thereby slowing, rather than impelling, correction of a
violation.
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ORDINANCE NO.
ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTRR
1.12 OF' THE SAN BERNARDINO 11!lNICIPAL CODE TO INCRF.ASF. PENALTIES
FOR INFRACTION VIOLATIONS, AND MAKING TECHNICAL CHANGES RELATIVF
TO MISDF.tlF.ANORS.
THE MAYOR AND COMMON COUNCIL OF THl': CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1. Chapter 1.17. of the San Bernardino Municipal
Code is amended to read:
"Chapter 1.12
GENERAL PENALTY
1.12.010 Designated.
A. The punishment for any offense declared to be a
misdemeanor Dr declared to be unlawful with no designation as to
the nature of the offense by the Charter or an ordinance, except
in cases where a different offense or a different punishment is
prescribed by ordinance or any applicable law of this state, is
imprisonment in the county jail not exceeding six months, or a
fine not exceeding five hundred dollars, or both such
imprisonment and fine.
B. The punishment for any offense declared to be an
infraction by the Charter or an ordinance, excepting places where
8 different offense or a different punishment is prescribed by
ordinance or any applicable law of this state, is a fine not
exceeding one hundred dollars for a first violationj a fine not
exceeding two hundred dollars for a second violation thereof
within one yearj and a fine not exceeding five hundred dollars
for each additional violation thereof within one year. Upon
conviction of a fourth violation thereof within one year, the
violator is guilty of a misdemeanor, which upon conviction
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thereof is punishable as i.n Subsection A.
1.12.020 Separate Offense.
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Every person continuing or committing the violation of any
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provisions of an ordi.nance declaring any act or omissi.on to be
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unlawful is gui.lty of a separate offense for each and every day
or portion of any day during which any violation of any provision
of such ordinance is committed."
I HEREBY CERTIFY that the foregoing ordinance was duly
9 adopted by the Mayor and Common Counci 1 of the Ci ty of San
Bernardino at a
meeting thereof, held
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on the
day of
, 1985, by the
12 following vote, to wit:
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AYES:
Council Members
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NAYS:
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ABSENT:
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City Clerk
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The foregoing ordinance is hereby approved this
day
of
, 1985.
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Hayor of the City otSan Bernardi.no
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Approved as to form:
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ity A orney
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