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HomeMy WebLinkAbout6.03 Amend Bldg Zoning Code Violations AGENDA STATEMENT 4 CITY COUNCIL MEETING DATE: January 26, 1987 SUBJECT: PUBLIC HEARING: Ordinance Changing Violations of Building and Zoning Regulations from a Misdemeanor to Infractions EXHIBITS ATTACHED: 1) Draft Ordinance 2) Draft Policy and Procedure 3) Copy of Government Code Section 39600 and Penal Code 19 4) Draft Resolution RECOMMENDATION: 1. Open Public Hearing CV 2. Hear Staff presentation and testimony 3. Pose questions 4. Close Public Hearing 5. Waive reading and adopt Ordinance 6. Approve Policy and Procedures FINANCIAL STATEMENT: The City will incur approximately $300.00 in form printing costs. This procedure will reduce Staff time and enforcement procedures. In addition the City will receive 79% of the fines. DESCRIPTION: I. BACKGROUND The overriding goal of the City is to encourage compliance with building. and zoning regulations rather than to punish violators. This goal is frustrated however, where citizens are aware that swift and sure prosecution is unlikely. The current enforcement ,procedure followed by the City is cumbersome and time consuming. Normally a verbal request is made for compliance. Then written notice of the violation is given. If compliance is not obtained an informal Office Hearing is held. If compliance is not obtained as the result of the hearing a Citation Hearing is scheduled by the District Attorney, and if compliance is not obtained a Criminal Complaint is obtained and the issue goes to court. This procedure assures that the person involved has ample time to correct the violation and assures that civil rights are respected. However, citizens affected by the violation often do not receive the same consideration given violators and often must put up with the nuisance caused by the violation for extended periods. The procedure is also not very cost effective. Several jurisdictions have recognized that the misdemeanor crime is not an appropriate category for most land use construction, and development code violations. Use of the infraction procedure is a simplified cost effective enforcement technique with realistic penalties that are swiftly imposed. At the present time violation of building and zoning regulations are misdemeanors. A misdemeanor is punishable by imprisonment and fines, and results in a criminal record for those convicted. Trial by jury is available if requested. Misdemeanors are tried by the District Attorney and defendants are entitled to the services of a Public Defender if they cannot afford an attorney. Prosecution is ofen prolonged by crowded criminal calendars of • prosecuting attorneys and the Courts. In order to improve the City's enforcement capability, it is proposed that the violation of the following be subject to infraction penalties as allowed by the Government Code of the State of California: ITEM NO. .' COPIES TO: 1 . Building Code 2. Electrical Code 3. Plumbing Code 4. Mechanical Code 5. Housing Code 6. Abatement Procedures 7. Zoning Ordinance II. NATURE AND USE OF INFRACTIONS It is the intent of the City to obtain compliance by traditional means of inspection, notification, and granting a reasonable time for compliance and the right to administrative remedies. Except for transient violations and construction work in progress without permits, a citation (Notice to Appear) will only be issued after all reasonable means to gain compliance have failed. A transient violation is one in which the violation is of limited duration and/or not occuring continuously at a fixed location. In general, the violation of land use and development ordinances are amendable to reversible and corrective actions. It is the intent of the infraction procedures to encourage corrective action, but also to penalize deliberate violations. An infraction is a public offense which is not punishable by imprisonment. Infractions result in monetary fines. Trial by jury is not available and no record results. An infraction does not require formal preparation of the case by the District Attorney. A written citation similar to a traffic ticket, will be issued by authorized personnel requiring that a violator post a predetermined bail amount and/or appear in Court. Normally, the bail schedule will provide for reduction in the fine where the violation is corrected prior to adjudication. The Government Code (Section 36900) presently allows penalties of up to $100.00 for the first offense, $200.00 for the second offense, and $500.00 for the third offense. In most cases, the issuance of a citation will be preceded by the issuance of a written warning notice. The exception to this procedure is in cases where the violation presents an immediate threat to Health and Safety or is a transient violation or building construction without a permit is in. progress. Although most of the land use and development ordinances are amendable to infraction penalties, there are certain situations where misdemeanor restrictions are still appropriate. The ordinance amendments proposed herein, provide that conviction (or bail forfeiture) for three infractions for the same offense in a period of twelve months shall automatically escalate the fourth offense to a misdemeanor. The retention of misdemeanor penalties is also proposed for violation of - "Stop Work" Notice in order to eliminate those situations where a violator would profit more from the continuation of unauthorized work than he would be penalized by the eventual assessment of infraction penalties. A misdemeanor is also retained for persons who obstruct or prevent the City from proceeding with an abatement. Although the citation/infraction procedure will not solve all code enforcement problems, the relatively quick processing and monetary impact are expected to lead to a higher compliance rate. The State laws (Government and Penal Code) affecting infraction provisions are found in Exhibit 3. This Ordinance was introduced at the City Council meeting of January 12, 1987. ORDINANCE NO . AN ORDINANCE OF THE CITY OF DUBLIN AMENDING 11 . 15 OF CHAPTER 1 , ORDINANCE 02-84 , AMENDING SECTION 8- 107 OF ARTICLE 9 , PART 2 , CHAPTER 2 , TITLE 8 ALAMEDA COUNTY ORDINANCE CODE AS ADOPTED BY THE CITY OF DUBLIN : AND REPEALING SECTION 8- 107 . 1 ARTICLE 9 PART ` 2 CHAPTER 2 TITLE 8 ALAMEDA COUNTY ORDINANCE CODE AS ADOPTED BY THE CITY OF DUBLIN The City Council of the City of Dublin , does ordain as follows : SECTION I Section 11 . 15 of Ordinance 02-84 is amended to read : Section 11 . 15 Violation and Penalties : ( a ) Any person , firm, or corporation violating or causing , or permitting to be violated any of the provisions of this Ordinance shall be deemed guilty of an infraction unless such violation is described as a misdemeanor by specific provisions of this Ordinance . ( b ) Any person , firm, or corporation convicted of a misdemeanor under the provisions of this Ordinance shall be subject to a fine , or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19 . ( c ) Any person , firm, or corporation convicted of an infraction under the provisions of this Ordinance shall be punishable upon a first conviction of a fine not more than $ 100 . 00 , and for a second conviction within a period of one year by a fine of not more than $200 . 00 , and for a third or any subsequent conviction within a one-year period by a fine of not more than $500 . 00 . Any violation beyond the third conviction within a one-year period may be charged by the District Attorney as a misdemeanor and the penalty for conviction of the same shall be subject to a fine , or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19 . (d) In addition to the penalties here and above provided any condition caused or permitted to exist in violation of any of the provisions of this Ordinance shall be deemed a public nuisance and may be by the City of Dublin summarily abated as such . (e ) Each person , firm, or corporation shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Ordinance is committed, continued or permitted by such person and shall be punishable accordingly. (f) The Building Official shall have the power to designate by written order that particular officers or employees shall be authorized to enforce particular provisions of this Ordinance . Officers or employees so designated shall have the authority to arrest persons who violate any of said provisions . SECTION II Section 8- 107 of Article 9 , Part 2 , Chapter 2 , Title 8 of Alameda County Ordinance code as adopted by the City of Dublin is amended to read : Section 8- 107 , Article 9 , Part 1 , Chapter 2 , Title 8 of the Alameda County Ordinance Code as adopted by the City of Dublin is amended as follows : ( a ) Any person , firm, or corporation violating or causing , or permitting to be violated any of the provisions of this Part shall be deemed guilty of an infraction unless such violation is described as a misdemeanor by specific provisions of this Part . • ( b ) Any person , or 'firm, or corporation convicted of a misdemeanor under the provisions of this Part shall be subject to a fine or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19 . ( c) Any person , firm or corporation convicted of an ' infraction under the provisions of this Part shall be punishable upon a first conviction of a fine not more than $ 100 . 00 , and for a second conviction within a period of one year by a fine of not more than $200 .00 , and for a third or any subsequent conviction within a one-year period by a fine of not more than $500 . 00 . Any violation beyond the third conviction within a one-year period may be charged by the District Attorney as a misdemeanor and the penalty for conviction of the same shall be subject to fine or imprisonment or both not to exceed the limits set forth in California Penal Code Section 19 . • ( d ) In addition to the penalties here and above provided any condition caused or permitted to exist in violation of any of the provisions of this Part shall be deemed a public nuisance and may be by the City of Dublin summarily abated as such . ( e) Each person , firm, or corporation shall be guilty of a separate offense for each day and every day during any portion of which any violation of any provision of this code is committed , continued or permitted by such person and shall be punishable accordingly. ( f) The Building Official shall have the power to designate by written order that particular officer or employees shall be authorized to enforce particular provisions of this Part . Officers or employees so designated shall have the authority to arrest persons who violate any of said provisions . SECTION III Section 8- 107 . 1 Article 9 , Part 1 , Chapter 2 , Title 8 of the Alameda County Ordinance Code as adopted by the City of Dublin is hereby repealed . SECTION IV POSTING OF ORDINANCE 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 of the Government Code of the State of California . PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF DUBLIN ON THIS TH DAY OF , 1987 . AYES : NOES : ABSENT : • Mayor ATTEST : City Clerk BUILDING INSPECTION DEPARTMENT POLICY AND PROCEDURES FOR CITATIONS Policy It is the overriding goal of the City to obtain compliance with lawful requirements , and not to punish violators . In general the violation of zoning and construction ordinances are amendable to reversible and corrective actions . It is the intent of the City to encourage corrective action . The citation procedure is to supplement and not to replace the normal enforcement -process which involve verbal notification , written notice and pursuit of administrative remedies . Except for transient violations , and performing construction without permits , a citation ( Notice to Appear) shall be issued only after reasonable means to gain compliance have failed . - A specific written "Warning Notice" will be given prior to the issuance of a citation unless the citation is issued for an imminent hazard , transient violation , or work in progress without a permit ( a transient violation is a violation of limited duration and/or not occurring continuously at a fixed location ) . A citation shall only be issued where the violation of a specific section of an ordinance has been observed. Applicable provisions of the State Government Code and Penal Code shall be followed in all the instances . Procedure 1 . Prior to writing a citation for work without a permit the inspector shall contact the office to determine whether a permit has been issued . In the case of transient violations the inspector shall check with the office where- practical . In the case of land use violations the circumstances shall be reviewed in the office prior to issuing a citation . 2 . Fill out "Notice to Appear" completely. The date for court appearance (mandatory) should be no sooner than 20 days and . no more than 30 days from the date of issuance . Appearances should be scheduled in the Livermore-Pleasanton Municipal Court, Department 3 , at 11 : 00 a .m. Monday through Thursday. Request the violator to sign the citation . Explain that signing is simply a promise to appear in court and the signature is not an admission of guilt . The third page of the citation will be given to the violator . A record of- the date, time and circumstances of the citation are to be entered on a Special Investigation Form. - If the inspector is unable to obtain the signature of the violator, following reasonable attempts and- a: complete explanation , the inspector shall contact the police and request assistance . The police officer will explain the necessity for a Yin signature . . If the violator still refuses to sign, the police - officer will take the violator into custody for failure to sign the "Notice to Appear" , which is a misdemeanor. 3 . On the same day as issuance the first and second pages of the "Notice to Appear" along with the Special Investigation Form, copy of Warning Notice, pertinant information, pictures , diagrams , etc . and historical file records are given to the. Building Inspection clerk . a . The clerk will take the first page of the "Notice to Appear" along with copies of ordinance sections cited and personally deliver both documents to the Livermore Pleasanton Municipal Court, 39 South Livermore Avenue , no later than the next day. A docket -number should be obtained and noted in the Building Department file . b . The clerk will establish and maintain a Citation Notice File by address and date, with materials turned in by the inspector . The clerk will retrieve the file one day before the scheduled court date noted on the citation. The clerk will . • contact the Court Clerk and ascertain if the matter has been - continued prior- to returning the file to the -inspector. 4 . The. Inspector' will appear in court at the date :and -time of the scheduled hearing , and testify as required and note the disposition of the case . a . The file will be returned to the clerk with a notation as to disposition ( guilty; fined $ not guilty; dismissed ; continued to ; violator to ma e corrections by ; etc . ) The clerk will take appropriate action relative to handling of the file in compliance with the court decision . b . The clerk will maintain a log of all citations issued showing status and final dispo sition. In the event that a 2nd, 3rd , or 4th citation has been issued for the same offense at a particular location , this information must be transmitted to the court with the "Notice to Appear" . c . Where a violator has requested that the inspector inspect and sign off a corrected violation prior to the court date the insPector will , if appropriate sign the violator ' s copy of the citation and instruct him to take it to the Clerk of the Court . The inspector will inform the clerk of this action . . d . If the violator applied for an administrative remedy designed to eliminate the violation ( application for a- Building Permit ; variance.; Conditional Use Permit, etc. ) the inspector will . reference .the citation number and docket number and make a written request to the court for continuance outlining the reason for the continuance. • -2.- C-AL IFORN GOVERNMENT CODE : CHAPTER 2 ORDLNAls;CES -- .- § 36900. Violation;•offense; prosecution; action; penalty. (a) Violation of a city ordinance is a misdemeanor•unless by ordinance it is made an infraction. name of Such a violation may be prosecuted by city authorities in the namf the people of the State of California, or redressed by civil action. •(b) Every violation determined to be an infraction is punishable by (1) a fine not exceeding one hundred dollars($100)for a first violation; (2)a fine not exceeding two hundred dollars(3200)for a secon violation of the same ordinance within one year; (3)a fine not exceeding five hund—reCidollats 5600 for each additional violation of the same ordinance within one year. _ _ (Amended by'Stats.1974, c. 677, p. 1543,-§ 1;.Stats.1983,c.1092,p,- 27, 1983, operative Jan. 1, 1984.) - - § 138,urgency,eff.Sept.• • CALIFORNIA PENAL CODE:, § 19. [Punishment for misdemeanor] Except in cases where a different punishment is prescribed of� state,-every offense declared to be a misdemeanor eano p i hable by imprisonment 'in,the county emcanor u punishable . fine not y jail not exceeding six months, or by exceeding one thousand dollars (S 1,C00), or by both. § 19c. (Punishment for infractions] An infraction is not punishable by imprisonment. A • - with an infraction shall not be entitled to a trial by peron charged charged with an infraction shall not be entitled to a jury.t e publlic defender or other counsel apppointed at him unless.he is arrested and not releason hhis write to represent to appear, his own recognizance, or a deposit of bail. Promise to 119d. [Same: Applicability of misdemeanor Except as otherwise provided by law, all provisions]of - provisions.of law relating_to . , ` misdemeanors shall apply to infractions, including but not wed`to powers of peace officers, jurisdiction of coo mg action and for bringing courts, periods for cammeac. ` 8m8 a case to trial and burden of proof. - § 853.5. (Release of person arrested for infraction) . Except as otherwise provided by law, in any arrested for an offense declared to be an infraction in the e a person - released according to the procedures set forth Pete may be - release of persons arrested for an offense decd this chapter for the meanor. In all cases, except as specified in Sections to 40 a 40303, 40305, and 40305.5 of the Vehicle Code, in.which a 40303, for an infraction, a person is arrested - r peace officer shall only require the arrestee to p- esent his driver's license or other satisfactory evide of_his identity for examination and to sign a written promise to a Only if the arrester refuses to present such identification or, refuses sign such a written promise may the arrestee be taken, into custody. t 3 .. { • RESOLUTION NO. -87 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN . APPROVING BUILDING INSPECTION DEPARTMENT POLICY AND PROCEDURE FOR CITATIONS WHEREAS, the . City of Dublin has changed violations of Building and Zoning Regulations from misdemeanors to infractions ; and WHEREAS, the Building Inspection Department has developed policy and procedures for issuing citations ; NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby approve said policy and procedures for. citations . PASSED, APPROVED AND ADOPTED this 26th day of January, 1987 . AYES : NOES : ABSENT : Mayor ATTEST : City Clerk