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HomeMy WebLinkAboutSS4 - Enhancement of Code Enforcement AbilitiesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No.SS a November 10. 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Sharon Z. Wood, Assistant City Manger 949 - 644 -3222, swood @newportbeachca.gov SUBJECT: Consideration of Updates for the Municipal Code to Enhance the City's Code Enforcement Abilities ISSUE: Should the City Council adopt any ordinances to update the Newport Beach Municipal Code to enhance the City's code enforcement abilities? RECOMMENDATION: Review the issues and provide staff input and direction on further action, if any, that the Council may desire regarding: (1) establishing uniform penalties and (2) an update to the administrative fine levels for a violation that can be prosecuted as a misdemeanor. Background: Consistent with Council Policy K -9, staff currently utilizes a wide variety of means to seek compliance when a violation of the City's municipal code is discovered. For most violations, staff first tries to work with the responsible party to obtain voluntary compliance without the need to take formal enforcement action. However, should this prove to be unsuccessful, staff needs the ability to enforce the City's municipal code to the fullest extent available under the law. When formal enforcement action is required, City staff may utilize any one of the following three enforcement options: (1) issue administrative citations, (2) file a criminal complaint, and/or (3) file a civil action. The following are additional ways staff has identified that the municipal code could be enhanced to improve the City's code enforcement abilities. Implement Uniform Penalties: The California Government Code allows the City Council to establish criminal penalties for violations of the City's municipal code. If the Council desires to attach criminal Consideration of Updates for the Municipal Code to Enhance the City's Code Enforcement Abilities November 10, 2009 Page 2 penalties to a violation of the municipal code, it must do one of three things: (1) deem the violation a misdemeanor; or (2) deem the violation an infraction; or (3) provide the enforcement officer and /or prosecutor with discretion to charge the violation as a misdemeanor or infraction. Currently, the City's municipal code utilizes a combination of all three. Currently, the maximum punishment that may be imposed for a violation of the City's municipal code varies throughout. For violations deemed an infraction, the maximum fine amount can be as low as $50 to as high as $500. (See e.g.: Alarm System regulations [Chapters 5.48 and 5.49], Tattoo Establishment regulations [Chapter 6.20], Smoking in Public Places [Chapter 6.25], Noise Control [Chapter 10.261, Oceanfront Boardwalk Safety Program [Chapter 12.54]) For violations deemed a misdemeanor, the maximum fine amount varies from $100 to $1,000. Additionally, for some misdemeanor violations the responsible person could be subject to a jail sentence of up to six months or not be subject to any incarceration at all. (See e.g.: Escort Services [Chapter 5.90], Graffiti [Chapter 10.59], Vehicular Nuisances [Chapter 12.64], and various tax related violations in Titles 3 and 5) This patchwork of penalty provisions can be confusing to staff, the public and the Courts. Creating uniform penalty provisions for municipal code violations will greatly reduce any possible confusion. The municipal code currently has a default penalty provision in section 1.04.010. This default penalty provision allows the enforcement officer and /or prosecutor discretion to charge the violation as a misdemeanor or infraction. Thus, if the municipal code section does not specify a specific punishment for a violation, the default penalty provision in section 1.04.010 would apply. Then, depending on the individual facts and circumstances surrounding the violation, the enforcement officer and /or prosecutor can allege the violation as a misdemeanor or infraction. Staff believes this uniform, or default, penalty provision allows greatest flexibility to seek compliance with the municipal code, while at the same time allowing the enforcement officer and/or prosecutor the discretion to seek harsher punishment when justified by the facts and circumstances of an individual case. To the extent the Council desires to adopt a uniform penalty provision, staff could prepare a proposed ordinance for the Council's consideration on a future date that implements section 1.04.010 as a uniform penalty provision throughout the municipal code. Update Administrative Fine Levels: Currently, Section 1.05.020(D) of the Newport Beach Municipal Code establishes fine amounts for administrative citations issued outside of a Safety Enhancement Zone in the following amounts: ➢ $100 for the first violation; Z Consideration of Updates for the Municipal Code to Enhance the City's Code Enforcement Abilities November 10, 2009 Page 3 ➢ $200 for the second violation within a year; and ➢ $500 for the third violation within a year. These amounts represent the maximum fine amount the City can impose if the violation of the municipal code is only subject to criminal prosecution as an infraction. However, if the violation of the municipal code could be subject to criminal prosecution as a misdemeanor, the City can lawfully increase the fine amount up to a maximum of $1,000 per violation. (In the context of administrative citations and fines, the reference to criminal prosecution only determines the maximum fine amount. The issuance of an administrative citation is not a criminal prosecution and will not appear on the responsible party's criminal history or "rap sheet. ") The City's administrative fine amounts have not been raised since this ordinance was first enacted in 1997. During this same twelve year time span, the Orange County Superior Court has drastically increased the total fine amount they impose for violations of state laws. The courts now impose fines of between $150 and $350 for traffic violations. For other offenses that are classified as misdemeanors, the Court can impose fines that exceed $2,500. As such, the City's fine amounts for administrative citations may not have the same deterrent effect they had twelve years ago when first enacted. Staff believes the administrative fine amounts for violations of the City's municipal code that could be prosecuted as a misdemeanor should be increased. The Government Code only imposes a maximum fine amount of $1,000 for any violation of the City's municipal code that could be prosecuted as a misdemeanor. It does not impose any other limit on the administrative fine amount the City can impose on a first, second and third violation of the municipal code that is subject to prosecution as a misdemeanor. However, City staff believes a gradual approach to increasing the fine amount imposed for repeat violations is appropriate. Additionally, because the administrative citations are processed by the City, and not the Courts, the City retains the full fine amount versus only getting a small fraction of any fine imposed by the Courts returned to the City. Therefore, staff is seeking direction from the City Council on whether it would like to increase the administrative citation fine amounts for violations of the City's municipal code that could be prosecuted as a misdemeanor. If the Council believes such an increase is warranted, staff can return to the council at a future date with a proposed ordinance consistent with the Council's direction. Environmental Review: This is not a project under CEQA. 3 Consideration of Updates for the Municipal Code to Enhance the City's Code Enforcement Abilities November 10, 2009 Page 4 Public Notice: Notice has been given consistent with the Ralph M. Brown Act. No other public notice is required by this item. Funding Availability: Not applicable. Alternatives: The City Council has a full breadth of options available. No action is needed. The Council can choose to take no action; provide staff with further direction and request either an additional Study Session; or request that staff prepare any ordinance(s) pursuant to Council's direction. Prepared le Rowen Deputy City Attorney Attachment: Council Policy K -9 Submitted by: I CODE ENFORCEMENT PURPOSE K -9 The City of Newport Beach devotes substantial resources to the enforcement of its Ordinances. The City's Ordinances are intended to protect and preserve public health and safety, the charm of our residential neighborhoods, and the overall quality of life enjoyed by Newport Beach residents. The City Council understands the importance of enforcing our Ordinances and is committed to doing so. However, enforcement of these Ordinances affects the rights of citizens who are the subject of complaints or enforcement actions. Accordingly, the City Council directs that all code enforcement activity= shall be conducted in accordance with the following: A. The City may initiate a formal code enforcement action based on any of the following: An enforcement officer's observation; • written complaint; • complaint from an individual that an enforcement officer deems reliable. B. Requests for inspections of private property not open to the general public or not visible from adjoining public or private property shall not be made unless there is sufficient evidence to support the issuance of an inspection warrant for the property that is the subject of the request; C. Written code enforcement complaints shall identify the complainant, specific facts, acts, or events and occurrences which establish the violation and describe any documentation which would establish a violation or is otherwise required by law; D. The City considers code enforcement complaints to be confidential. The City will use its best efforts to preserve the confidentiality of any complaint with the understanding that the City will be required to disclose the identity of the complainant to the extent required by law; E. All code enforcement activities, including investigative property inspections, requests for consent to inspect, and related activities shall be conducted such that the civil rights of the individual or individuals who are the subject of the investigation are fully protected; i 5 K -9 F. The City Council believes that nuisance -type violations (such as noise, trash violations, fire hazards, unlawful encroachments, unruly conduct, and more) and Building Code violations like illegal construction and illegal dwelling units significantly and adversely impact a neighborhood's ability to quietly enjoy their community. As such, Code Enforcement Officers are encouraged to pursue violations aggressively with limited grace periods for compliance, limited use of authorization of additional time after a grace period closes, and full and prompt use of the Newport Beach Municipal Code's monetary fine and civil and criminal penalty authorizations; and G. The provisions of this Policy do not apply to inspections of property requested by the owner or to inspections conducted by the Building Department personnel pursuant to construction being conducted, which is authorized, pursuant to an active permit issued by the Building Department. Adopted - June 26,1995 Amended - October 10, 2006 Amended - July 10, 2007 2 I Study Session Item No. SS4 November 10, 2009 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY DATE: November 10, 2009 TO: Honorable Mayor and City Council FROM: Kyle E. Rowen, Deputy City Attorney RE: Study Session on Enhancement to the City's Code Enforcement Abilities This memorandum concerns Agenda Item No. SS4 and attempts provide the City Council with further information and data relative to the cost effectiveness of the Citys Code Enforcement efforts. These figures are tentative estimates of City staff in response to questions recently posed by Council Member Daigle. As these figures are tentative estimates, City staff can return at a future meeting to provide this Council more detailed and accurate information in this area should the Council desire. For Fiscal Year 2008 -2009, the all City departments issued a total of 2,240 Administrative Citations. The total fine amount for all administrative citations issued by the City was $305,950. Below is a breakdown of the number of citations issued by each department. Police 1,602 Revenue 4 243 Code Enforcement -) 225 Building 4 143 Fire 4 20 Harbor Resources -> 7 Various City departments referred 74 code enforcement matters to the Office of the City Attorney ("OCA") in 2008 -2009. 49 of these 74 matters were referred to the OCA in calendar year 2009. In these 74 matters, City staff requested legal advisement and/or further enforcement action that required more than one letter and /or phone call. Of the 49 referred to the OCA this year, further legal action was required in 9 mattersz. This further legal action included filing 6 criminal complaints; preparing and recording 3 Notices of Violation; preparing and recording 1 Covenant and Condition Restriction against the property; and filing and obtaining 2 inspections warrants. The OCA currently has 48 open code enforcement matters at various stages of enforcement activity and/or staff advisement. The OCA, with the assistance of City staff, believes it was able to achieve substantial compliance on all 26 cases that have been closed. ' The OCA only opens a new matter when the request takes more than one phone call and/or letter to restive. 2 This number does not include cases from prior years where legal action is still pending and/or those cases where further legal action may be required if the responsible party does not comply with an abatement / compliance plan.