HomeMy WebLinkAboutItem 4.08 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.
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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.
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StfRpt DMC Penalty Provision--fina1.DOC; 114.1015
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Misdemeanors and Infractions under State Law
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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).
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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
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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
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