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HomeMy WebLinkAbout04 - Trash Picking OrdinanceCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 4 February 8, 2011 II soIP►[ 0]: 7_\: 1I: a�L /_YLS):LVl9ldjI :I &l:1 :I ;We]a I.I: tyIWYK011P►INII FROM: Police Department Jay R. Johnson, Chief of Police; 949 - 644 -3701; JJohnson @nbpd.org Rob Morton, Lieutenant; 949 - 644 -3730; RMorton @nbpd.org SUBJECT: SECOND READING AND ADOPTION OF AN ORDINANCE AMENDING SECTIONS 6.04.070 AND 6.04.240 OF TITLE 6 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO COLLECTION OF GARBAGE AND RECYCLABLES AND PENALTIES FOR VIOLATIONS OF CHAPTER 6.04 ISSUE: The amendment of Sections 6.04.070 and 6.04.240 of Title 6 of the Newport Beach Municipal Code ( "NBMC ") pertaining to collection of garbage and recyclables and penalties for violations of NBMC Chapter 6.04. RECOMMENDATION: Conduct a Second Reading and adopt Ordinance No. 2011 -7 amending Sections 6.04.070 and 6.04.240 of Title 6 of the Newport Beach Municipal Code pertaining to the collection of garbage and recyclables and penalties for violations of Newport Beach Municipal Code Chapter 6.04. DISCUSSION: Ordinance No. 2011 -7 was introduced at the City Council meeting on January 25, 2011. Staff recommends adopting Ordinance No. 2011 -7 amending Sections 6.04.070 and 6.04.240 of Title 6 of the Newport Beach Municipal Code pertaining to collection of garbage and recyclables and penalties for violations of Chapter 6.04. FUNDING IMPACTS: This action will not require any budget change or amendment Second Reading NBMC Amendment to Sections 6.04.070 and 6.04.240 February 8, 2011 Page 2 of 2 ENVIRONMENTAL REVIEW: The proposal is not a "project' under CEQA in that it has no possibility of creating substantial impact upon the environment. Thus, no environmental review is necessary. PUBLIC NOTICE: Notice has been given consistent with the Brown Act and no further notice is necessary. CONCLUSION: Staff recommends the Council by motion adopt Ordinance 2011 -7. Prepared and Submitted by: Attachment A: Proposed Ordinance 2011 -7 Approved by: ;eleR Johnson CHIEF OF POLICE ATTACHMENT A ORDINANCE NO. 2011 -L AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 6.04.070 AND 6.04.240, OF CHAPTER 6.04 OF TITLE 6 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO COLLECTION OF GARBAGE AND RECYCLABLES AND PENALTIES FOR VIOLATIONS OF CHAPTER 6.04 WHEREAS, the City of Newport Beach is authorized, by virtue of the California State Constitution and the City Charter to enact ordinances to protect the public health, safety and welfare; and WHEREAS, the City of Newport Beach has received numerous complaints from residents within the City regarding individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers; and WHEREAS, in some instances these individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers have entered past closed gates and onto private property despite the posting of signs reading "KEEP OUT" or "No Trespassing" and leave the remaining items once within the trash containers scattered around on the ground to be cleaned up by residents and /or sanitary disposal personnel; and WHEREAS, trash containers often contain documents with personal identifying information that can be utilized to facilitate and commit identify theft against City residents by individuals and groups of people who search through trash containers whether the trash containers are on private property or awaiting collection by the City's refuse . personnel; and WHEREAS, residential refuse collection is a service provided by the City to approximately 27,000 homes in the City. The City's Refuse personnel manually collects residential refuse each day; and WHEREAS, these individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers are stealing from the City of Newport Beach and its residents as once the materials within the trash containers are collected, the material is then transferred to a Materials Recovery Facility (MRF), where it is sorted for recyclables which have monetary value and thereby reduces the overall costs to the City and its residents to dispose of the remaining refuse. 1 ATTACHMENT A NOW, THEREFORE, the City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code sections are amended to read, in full, as follows: SECTION 1: Section 6.04.070 of Chapter 6.04 of Title 6 is amended to read as follows: 6.04.070 Collection of Garbage and Recyclables. A. All refuse, garbage, cuttings or recyclables which are placed in the vicinity of any curb or alley for collection purposes shall become the property of the City of Newport Beach. B. No person, except an individual acting within the course and scope of their agency or employment with the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach, shall remove from any place or premises in the City, or transport over public streets, any garbage, refuse, cuttings or recyclables. C. No person shall enter onto private property for the purpose of collecting or inspecting refuse, garbage, cuttings or recyclables, except the owner, occupant, manager, person in control of the premises, or a person employed to do so by the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach who is then acting within the course and scope of their agency or employment. D. No person shall knowingly aid and abet another person in committing a violation of subsections A, B, or C of this Section. A person is guilty of aiding and abetting another person in committing a violation of subsection A, B, or C of this Section if the person knows of the other person's unlawful purpose and the person specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the other person's commission of a violation of subsections A, B, or C of this Section. E. The provisions of this section shall not prohibit: 1. Any person, with the permission and consent of the property owner, from gathering and removing refuse or cuttings generated by construction, landscaping or gardening on the property when the refuse and cuttings have not been set out for collection by the City of Newport Beach, a sanitary district, or a private collector licensed by the City of Newport Beach; 2 ATTACHMENT A 2. Any person from removing garbage, refuse or cuttings generated on property owned or controlled by that person; 3. The immediate removal by any person of garbage, refuse or cuttings which the Health Officer, City Manager, Municipal Operations Director, Fire Chief, Building Official or their agents have determined to constitute a nuisance or an immediate threat to the public health, safety and welfare; 4. Any nonprofit organization from collecting. recyclables in any manner which does not conflict with this ordinance or any other provision of this Code. SECTION 2: Section 6.04.240 of Chapter 6.04 of Title 6 is amended to read as follows: 6.04.240 Violations, Penalties and Enforcement. A. It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this chapter. B. Any person violating any of the provisions or failing to comply with any of the requirements of section 6.04.070 of this chapter shall be guilty of a misdemeanor pursuant to the provisions of section 1.04.010(C) of this Code, however, the violation may be prosecuted as an infraction pursuant to the provisions of section 1.04.010(A) of this Code. C. Except for section 6.04.070, any person violating any of the provisions or failing to comply with any of the requirements of this Chapter shall be guilty of an infraction pursuant to the provisions of section 1.04.010(A) of this Code. D. In addition to, or separate from, the foregoing criminal penalties, any person violating any of the provisions or failing to comply with any of the requirements of this Chapter is subject to the issuance of an Administrative Citation pursuant to the provisions of section 1.04.010(E) and Chapter 1.05 of this Code. SECTION 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: This ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to sections 15060(c)(2) [the activity will not result in a direct or 3 I ATTACHMENT A reasonably foreseeable indirect physical change in the environment] and 15060(c)(3) [the activity is not a project as defined in section 15378] of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change in the environment, directly or indirectly. SECTION 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 25th day of January, 2011, and adopted on the 8th day of February, 2011, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY -�' N.ATY ATTORNEY CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 23 January 25, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Police Department Jay R. Johnson, Chief of Police; 949 - 644 -3701; JJohnson @nbpd.org Rob Morton, Lieutenant; 949 - 644 -3730; RMorton @nbpd.org SUBJECT: FIRST READING AND INTRODUCTION OF AN ORDINANCE AMENDING SECTIONS 6.04.070 AND 6.04.240 OF TITLE 6 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO COLLECTION OF GARBAGE AND RECYCLABLES AND PENALTIES FOR VIOLATIONS OF CHAPTER 6.04 ISSUE: The amendment of Sections 6.04.070 and 6.04.240 of Title 6 of the Newport Beach Municipal Code ( "NBMC ") pertaining to collection of garbage and recyclables and penalties for violations of NBMC Chapter 6.04. RECOMMENDATION: Introduce Ordinance No. 2011 - amending the Newport Beach Municipal Code Section 6.04.070 and 6.04.240 pertaining to the collection of garbage and recyclables and penalties for violations of Newport Beach Municipal Code Chapter 6.04, and pass to second reading on February 8, 2011. DISCUSSION: 1. Reasons for the Amendments The City of Newport Beach has received numerous complaints from residents and business owners within the City regarding individuals and groups of people who scavenge for recyclables and other items of value placed in trash containers. Many times, these individuals will enter onto private property past closed gates and despite the posting of signs reading "Keep Out' or "No Trespassing." The individuals will leave refuse once within the trash containers scattered around on the ground to be cleaned up by residents, business owners, or sanitary disposal personnel. Also, many of these individuals and groups will commit opportunistic property theft crimes and /or collect personal identifying information in the trash containers to facilitate and commit identity theft crimes. Additionally, the individuals and groups who collect recyclables from trash containers are effectively stealing from the City, which transfers refuse to a Materials NBMC Amendment to Sections 6.04.070 and 6.04.240 January 25, 2011 Page 2 of 3 Recovery Facility to be sorted for recyclables, which have monetary value. This process offsets the costs to the City and its residents to dispose of the remaining refuse. Despite increased enforcement efforts by Code Enforcement and the Police Department, which issued over 100 citations in 2009 and over 120 citations in 2010, the scavenging of recyclables and other items of value in City trash containers continues unabated. When interviewed by a police officer, one violator stated that he keeps coming to Newport Beach because there are so many recyclable goods in a relatively small area. He further said the containers behind residences are not secured and are easily accessible. The monetary value of recyclables has also spawned a cottage industry of "commercial" operators who hire others to collect recyclables for them. These operators provide the transportation to Newport Beach and pay a fee for the amount of recyclables collected. In this manner, the operators maximize their gains and minimize their risk by attempting to insulate themselves from law enforcement. In examining this growing problem, the Police Department determined that violations of Chapter 6.04 of the NBMC are specifically designated as infractions which are punishable only by fines pursuant to NBMC 1.04.010. Most other NBMC Chapters enforced by the Police Department are misdemeanors punishable by higher fines and /or imprisonment for a term not exceeding six months pursuant to NBMC 1.04.010. The infraction /misdemeanor distinction is also significant in a police officer's ability to physically arrest repeat offenders and /or those suspected of committing other crimes. Pursuant to California Penal Code § 853.5(a), special procedures apply when persons are arrested for non - Vehicle Code infractions. So long as the arrestee provides the officer with a driver's license or other satisfactory evidence of identity and signs a promise to appear, he or she must be released without being taken into custody. This differs from California Penal Code § 853.6(g), which allows officers to book arrestees at the Police Department for misdemeanor violations which include City ordinances. 2. Substance of Changes a. Section 6.04.070 — Collection of Garbage and Recyclables A redline of the proposed amendment to Section 6.04.070 is presented in Attachment "B" to this staff report. In essence, staff has added language indicating that no person shall knowingly aid and abet another person in committing violations of 6.04.070. Staff has also changed the title of "General Services Director" to the current title of "Municipal Operations Director." NBMC Amendment to Sections 6.04.070 and 6.04.240 January 25, 2011 Page 3 of 3 b. Section 6.04.240 – Violation an Infraction A redline of the proposed amendment to Section 6.04.240 is presented in Attachment "C" to this staff report. In essence, staff has changed the title of the section to "Violations, Penalties and Enforcement" and has made a violation of 6.04.070 a misdemeanor, although the violation can still be prosecuted as an infraction. Additionally, staff has added language indicating that violators are subject to Administrative Citations in addition to, or separate from, criminal penalties. FUNDING IMPACTS: This action will not require any budget change or amendment. ENVIRONMENTAL REVIEW: The proposal is not a "project' under CEQA in that it has no possibility of creating a substantial impact upon the environment. Thus, no environmental review is necessary. PUBLIC NOTICE: Notice has been given consistent with the Brown Act and no further notice is necessary. CONCLUSION: Staff recommends the Council by motion introduce Ordinance No. 2011 -_ for first reading and pass the matter to its February 8, 2011 agenda for second reading and adoption. Staff will submit a City Council staff report addressing the second reading of the Ordinance. Prepared and Submitted by: UWE Approved by: (aa�— J nson CHIEF OF POLICE Attachment A: Proposed Ordinance 2011 - Attachment B: Redline of Proposed Amendments to NBMC Section 6.04.070 Attachment C: Redline of Proposed Amendments to NBMC Section 6.04.240 ATTACHMENT A ORDINANCE NO. 2011- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 6.04.070 AND 6.04.240, OF CHAPTER 6.04 OF TITLE 6 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO COLLECTION OF GARBAGE AND RECYCLABLES AND PENALTIES FOR VIOLATIONS OF CHAPTER 6.04 WHEREAS, the City of Newport Beach is authorized, by virtue of the California State Constitution and the City Charter to enact ordinances to protect the public health, safety and welfare; and WHEREAS, the City of Newport Beach has received numerous complaints from residents within the City regarding individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers; and WHEREAS, in some instances these individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers have entered past closed gates and onto private property despite the posting of signs reading "KEEP OUT" or "No Trespassing" and leave the remaining items once within the trash containers scattered around on the ground to be cleaned up by residents and /or sanitary disposal personnel; and WHEREAS, trash containers often contain documents with personal identifying information that can be utilized to facilitate and commit identify theft against City residents by individuals and groups of people who search through trash containers whether the trash containers are on private property or awaiting collection by the City's refuse personnel; and WHEREAS, residential refuse collection is a service provided by the City to approximately 27,000 homes in the City. The City s Refuse personnel manually collects residential refuse each day; and WHEREAS, these individuals and groups of people who go through various neighborhoods within the City scavenging for recyclables and other items of value placed in trash containers are stealing from the City of Newport Beach and its residents as once the materials within the trash containers are collected, the material is then transferred to a Materials Recovery Facility (MRF), where it is sorted for recyclables which have monetary value and thereby reduces the overall costs to the City and its residents to dispose of the remaining refuse. ATTACHMENT A NOW, THEREFORE, the City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code sections are amended to read, in full, as follows: SECTION 1: Section 6.04.070 of Chapter 6.04 of Title 6 is amended to read as follows: 6.04.070 Collection of Garbage and Recyclables. A. All refuse, garbage, cuttings or recyclables which are placed in the vicinity of any curb or alley for collection purposes shall become the property of the City of Newport Beach. B. No person, except an individual acting within the course and scope of their agency or employment with the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach, shall remove from any place or premises in the City, or transport over public streets, any garbage, refuse, cuttings or recyclables. C. No person shall enter onto private property for the purpose of collecting or inspecting refuse, garbage, cuttings or recyclables, except the owner, occupant, manager, person in control of the premises, or a person employed to do so by the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach who is then acting within the course and scope of their agency or employment. D. No person shall knowingly aid and abet another person in committing a violation of subsections A, B, or C of this Section. A person is guilty of aiding and abetting another person in committing a violation of subsection A, B, or C of this Section if the person knows of the other person's unlawful purpose and the person specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the other person's commission of a violation of subsections A, B, or C of this Section. E. The provisions of this section shall not prohibit: Any person, with the permission and consent of the property owner, from gathering and removing refuse or cuttings generated by construction, landscaping or gardening on the property when the refuse and cuttings have not been set out for collection by the City of Newport Beach, a sanitary district, or a private collector licensed by the City of Newport Beach; 2 ATTACHMENT A 2. Any person from removing garbage, refuse or cuttings generated on property owned or controlled by that person; 3. The immediate removal by any person of garbage, refuse or cuttings which the Health Officer, City Manager, Municipal Operations Director, Fire Chief, Building Official or their agents have determined to constitute a nuisance or an immediate threat to the public health, safety and welfare; 4. Any nonprofit organization from collecting recyclables in any manner which does not conflict with this ordinance or any other provision of this Code. SECTION 2: Section 6.04.240 of Chapter 6.04 of Title 6 is amended to read as follows: 6.04.240 Violations, Penalties and Enforcement. A. It shall be unlawful for any person to violate any provisions or to fail to comply with any of the requirements of this chapter. B. Any person violating any of the provisions or failing to comply with any of the requirements of section 6.04.070 of this chapter shall be guilty of a misdemeanor pursuant to the provisions of section 1.04.010(C) of this Code, however, the Violation may be prosecuted as an infraction pursuant to the provisions of section 1.04.010(A) of this Code. C. Except for section 6.04.070, any person violating any of the provisions or failing to comply with any of the requirements of this Chapter shall be guilty of an infraction pursuant to the provisions of section 1.04.010(A) of this Code. D. In addition to, or separate from, the foregoing criminal penalties, any person violating any of the provisions or failing to comply with any of the requirements of this Chapter is subject to the issuance of an Administrative Citation pursuant to the provisions of section 1.04.01 O(E) and Chapter 1.05 of this Code. SECTION 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: This ordinance is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to sections 15060(c)(2) [the activity will not result in a direct or ATTACHMENT A reasonably foreseeable indirect physical change in the environment] and 15060(c)(3) [the activity is not a project as defined in section 15378] of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change in the environment, directly or indirectly. SECTION 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 25th day of January, 2011, and adopted on the 8th day of February, 2011, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By DAf3PJfiU 7 ITY ATTORNEY 4 ATTACHMENT B 6.04.070 Collection of Garbage and Recyclables. A. All refuse, garbage, cuttings or recyclables which are placed in the vicinity of any curb or alley for collection purposes shall become the property of the City of Newport Beach. B. No person, except an individual acting within the course and scope of their agency or employment with the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach, shall remove from any place or premises in the City, or transport over public streets, any garbage, refuse, cuttings or recyclables. C. No person shall enter onto private property for the purpose of collecting or inspecting refuse, garbage, cuttings or recyclables, except the owner, occupant, manager, person in control of the premises, or a person employed to do so by the City of Newport Beach, a sanitary district, or private collector licensed by the City of Newport Beach who is then acting within the course and scope of their agency or employment. D. No person shall knowingly aid and abet another person in committing a violation of subsections A, B, or C of this Section. A person is guilty of aiding and abetting another person in committing a violation of subsection A, B, or C of this Section if the person knows of the other person's unlawful purpose and the person specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the other person's commission of a violation of subsections A, B, or C of this Section. �- - - Formatted: Normal, Left, No bullets or numbering, Hyphenate, Tab stops: Not at -0.5" 4)-.E. The provisions of this section shall not prohibit: 1. Any person, with the permission and consent of the property owner, from gathering and removing refuse or cuttings generated by construction, landscaping or gardening on the property when the refuse and cuttings have not been set out for collection by the City of Newport Beach, a sanitary district, or a private collector licensed by the City of Newport Beach; 2. Any person from removing garbage, refuse or cuttings generated on property owned or controlled by that person; 3. The immediate removal by any person of garbage, refuse or cuttings which the Health Officer, City Manager, Genefa'w el -4,eP ^ ^^ Municipal Operations Director, Fire Chief, Building Officia'Direster or their agents have determined to constitute a nuisance or an immediate threat to the public health, safety and welfare; 4. Any nonprofit organization from collecting recyclables in any manner which does not conflict with this ordinance or any other provision of this Code. ATTACHMENT C 6.04.240 Violations an IniFaetien, Penalties and Enforcement. A. It shall be unlawful for any person to violate any provisions or to fail to comply with•-- - any of the requirements of this chapter. Any person violating any of the provisions or failing to comply with any of the-, ' requirements of section 6.04.070 of this chapter shall be guilty of an iflfrastien Formatted: Numbered+ Level; 1 + Numbering Style: A, B, C, ... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Indem: Left: 0.5" Formatted: Numbered + Level: 1 + Numbering Style: A, B, C, ... + Start at: 1 + Alignment: Left + Aligned at: 0.25' + Indent at: 0.5" a- - - Formatted: Normal, Left, No bullets or C. Except for section 6.04.070, anv person violating any of the provisions or failing to numbering, Hyphens e, Tab stops: Not at -0.5" comply with any of the requirements of this Chapter shall be guilty of an infraction pursuant to the provisions of section 1.04.010(A) of this Code. D. In addition to, or separate from, the foregoing criminal penalties, any person violating any of the provisions or failing to comply with any of the requirements of this Chapter is subject to the issuance of an Administrative Citation pursuant to the provisions of section 1.04.010(E) and Chapter 1.05 of this Code.