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Home My WebLink About4.08 Amend Muni Code Penalty Provisions CITY CLERK File # 0[6][[1[0]-[210] AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 20, 2007 SUBJECT: Amendment of Dublin Municipal Code Penalty Provisions Report prepared by Elizabeth H Silver, City Attorney and Leah Peachey, Associate Attorney ATTACHMENTS: Staff Report from February 6,2007, Council meeting, including proposed Ordinance. RECOMMENDATION: /''0t'\) Waive reading and adopt Ordinance Amending Section 1.04.030 of " the Dublin Municipal Code relating to Penalties for Violation of the Municipal Code. FINANCIAL STATEMENT: None DESCRIPTION: A comprehensive update to the Dublin Municipal Code (DMC) is currently underway. Staff anticipates that each chapter will include an enforcement provision, which indicates whether a violation of the chapter constitutes a misdemeanor or an infraction. Rather than listing the penalties for a misdemeanor or infraction in each chapter, the chapters will reference DMC Section 1.04.030, which establishes the general penalty provisions for the DMC. Thus, Staff recommends that DMC Section 1.04.030 be revised at the outset to properly serve as the DMC's general penalty provision. At its February 6, 2007, meeting, the City Council conducted a public hearing, waived the reading and introduced the Ordinance amending Section 1.04.030 of the DMC. Recommendation: Staff recommends that the City Council waive the second reading and adopt the Ordinance Amending Section 1.04.030 of the Dublin Municipal Code relating to Penalties for Violation of the Municipal Code. ------------------------------------------------------------------------------------------------------------- COpy TO: Page 1 of 1 ITEMNO.~ G:\CC-MTGS\2007 cc mtgs\2007-qtrl\02-Feb\02-20-07\as-penalty provisions. doc CITY CLERK File # O[6][IHQ]-[2][QJ I 'b L\ AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 6, 2007 SUBJECT: Amendment of Dublin Municipal Code Penalty Provisions Report Prepared by Elizabeth H Silver, City Attorney and Leah Peachey, Associate Attorney ATTACHMENTS: 1) Ordinance Amending Section 1.04.030 ofthe Dublin Municipal Code Relating to Penalties for Violation of the Municipal Code RECOMMENDATION: 1) W' 2) \ 3) 4) 5) Receive Staff presentation; Open public hearing; Receive public testimony; Close public hearing and deliberate; Waive reading and INTRODUCE the Ordinance Amending 1.04.030 ofthe Dublin Municipal Code Relating to Penalties for Violation of the Municipal Code (Attachment 1). FINANCIAL STATEMENT: None. DESCRIPTION: At its March 22, 2006 Goals and Objectives meeting, the City Council reviewed and approved with high priority the proposed comprehensive update of the Dublin Municipal Code (DMC). Thus, over the next two years, Staff will review the DMC and present to Council proposed amendments and additions to such chapters. In updating the chapters of the DMC, Staff anticipates that each chapter will include an enforcement provision, which indicates whether a violation of the chapter constitutes a misdemeanor or an infraction. Rather than listing the penalties for a misdemeanor or infraction in each chapter, the chapters will reference DMC Section 1.04.030, which establishes the general penalty provisions for the DMC. Thus, the Staff recommends that DMC Section 1.04.030 be revised at the outset to properly serve as the DMC's general penalty provision. ------------------------------------------------------------------------------------------------------------- COpy TO: Page 1 of2 1 ..... . StfRpt DMC Penalty Provision--fina1.DOC; 114.1015 I I\E) "I Q 2-'LO-.O, ~ Misdemeanors and Infractions under State Law ~CbLf The Government Code provides that violation of a city ordinance is a misdemeanor, unless by ordinance it is made an infraction. (~36900(a).) A misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. (pen. Code ~ 19.) An infraction is publishable by fines ranging from $100 to $500 per violation, depending on the number of such violations, but is not punishable by jail time. (Gov. Code ~ 36900.) A person charged with a misdemeanor has a right to a jury trial and representation by a public defender, whereas a person charged with an infraction is not entitled to a jury trial or representation by a public defender (pen. Code ~ 19.6). Many cities now provide that misdemeanor violations of their municipal codes may be charged as infractions. Proposed Amendments to the Penalty Provisions DMC Section 1.04.030 currently provides that any violation of the DMC constitutes a misdemeanor, although some provisions throughout the DMC are specifically made infractions. The proposed amendment adds a provision that grants the designated enforcement officer, or ifno enforcement officer is indicated, the City Attorney, the prosecutorial discretion to charge and prosecute any violation ofthe DMC as an infraction, even if such violation is designated as a misdemeanor. Such prosecutorial discretion provides negotiating authority to the enforcement officer or City Attorney to charge violations as misdemeanors or as infractions. However, the defendant may elect to have the case proceed as a misdemeanor, thereby giving the defendant the right to an attorney and jury trial. (penal Code ~ 17(d)(I).) Because the District Attorney must decide to prosecute a misdemeanor, this flexibility allows the City to cite violations for an infraction in situations where it is unlikely the District Attorney will prosecute a violation as a misdemeanor. The proposed amendment clarifies the following penalties for an infraction, which are consistent with state law: a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation ofthe same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinan~e within one year. (Gov. Code ~ 36900(b).) Finally, the proposed amendment would grant the designated enforcement officer, or if no enforcement officer is indicated, the City Attorney, the discretion to charge and prosecute any person convicted of three (3) or more infractions within a twelve (12) month period for a misdemeanor for any additional violations of the same code section. RECOMMENDATION Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open public hearing; 3) Receive public testimony; 4) Close public hearing and deliberate; 5) Waive reading and INTRODUCE the Ordinance Amending 1.04.030 ofthe Dublin Municipal Code Relating to Penalties for Violation of the Municipal Code (Attachment 1). /\ ,.\ c.>i. t:}, ~ " ~ (" J)'-\ ORDINANCE NO. - 07 AN ORDINANCE OF THE CITY OF DUBLIN AMENDING SECTION 1.04.030 OF THE DUBLIN MUNICIPAL CODE RELATING TO PENALTIES FOR VIOLATION OF THE MUNICIPAL CODE RECITALS WHEREAS, the California Government Code Section 36900 provides that a violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction; and WHEREAS, several provisions of the Dublin Municipal Code (DMC) establish violations of the DMC as infractions: and WHEREAS, DMC Section 1.04.030 provides for the penalties associated with misdemeanor violations of the DMC, but does not provide for penalties associated with infraction violations of the DMC; and WHEREAS, the City Council desires to amend Section 1.04.030 to provide that misdemeanors may be charged as infractions and to clarify the penalty provisions associated with violations ofthe DMC. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows: Section 1. Section 1.04.030 of the Dublin Municipal Code is revised to read as follows: "Violations as misdemeanors or infractions-Penalties. A. Violation of any provision of this code shall constitute a misdemeanor and shall be punishable by imprisonment in the County Jail not exceeding six (6) months, or by fine not exceeding one thousand dollars ($1,000), or by both, unless expressly described as an infraction. Notwithstanding the preceding sentence. or any other provision of this code, a violation of this code may, in the discretion of the designated enforcement officer, or if no enforcement officer is indicated, in the discretion of the City Attorney, be charged and prosecuted as an infraction. B. Except as otherwise provided in this code, any person convicted of an infraction under this Code shall be punished by a fine of not more than one hundred dollars ($100) for a first violation~ a fine not exceeding two hundred dollars ($200) for a second violation of the same code section within one vear of the first violation~ and a fine not exceeding five hundred dollars ($500) for each additional violation of the same code section within one year ofthe first violation. Any person convicted of three (3) or more infractions within a twelve (12) month period Page 10f2 )"(/1' D7 . ')'-+"'"1 . f'" j ~--' + . . ~~ti following the first violation may, in the discretion ofthe designated enforcement officer. or ifno enforcement officer is indicated, in the discretion of the City Attorney. be charged and prosecuted for a misdemeanor for any additional violations of the same code section. CB. Causing, permitting, aiding, abetting or concealing a violation of any provision of this code shall constitute a violation of such provision. DG. A separate offense shall be deemed committed each day a violation of any provision of this code occurs or continues." Section 2. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any ofthe remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 3. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 4. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 ofthe Government Code of the State of California. PASSED, APPROVED AND ADOPTED this day of ,2007. AYES: NOES: ABSENT: ABSTAIN: Janet Lockhart, Mayor 864738_1; 114.1015 Page 2 of2