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HomeMy WebLinkAbout09-City Attorney 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] ~'i#Jd :;it- ~ Cl Lf/7/tJJ .. 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**'"'" ,'.',...,',<....,','".~~..._.,,~.'..~. ., . ...:'i.', '-;r??'i:'f!.:'i:,~; . ...f1 ~~.... '--, c,~.', CI1Y OF SA~;~~;~ARDINg~:~frv ClERK;SOFFICE ""\8~i~?;i!0K::'';:> RECORDS & INFORMATION MANAGEMENT PROGRAM .".." 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