Loading...
HomeMy WebLinkAbout1998-10-06 - AGENDA REPORTS - CODE ENFORCEMENT SERVICES (2)CITY OF SANTA CLARITA INTEROFFICE MEMORANDUM TO: Mayor and Councilmembers FROM: George A. Caravalho, City Manager DATE: October 6, 1998 SUBJECT: CITY PROSECUTOR/CODE ENFORCEMENT SERVICES RECOMMENDED ACTION Receive staff report and discuss the City's prosecution and code enforcement objectives and alternatives. . The City has available to it a number of alternatives by way of pursuing prosecution of municipal code violations and achieving code enforcement. A discussion of those alternatives is set forth in Attachment A to this staff report. ALTERNATIVE ACTION Other action as determined by .Council. FISCAL IMPACT Variable. A more aggressive and pro -active code enforcement prosecution program would increase costs. Utilization of Administrative Nuisance Abatement Procedure could generate revenues. ATTACHMENT Santa Clarita City Prosecutor / Code Enforcement Alternatives gbryanxode Santa Clarita City Prosecutor./ Code Enforcement Alternatives A well-designed code enforcement program is an essential municipal function reflecting the attitude of a city towards the quality of life for its residents. Most cities have adopted code enforcement measures, such as nuisance abatement ordinances. Santa Clarita is among the first cities in the state to adopt an administrative citation procedure. It is important that all such ordinances be periodically updated, whether they are designed for criminal, civil, or administrative enforcement. I. The Process The goal of code enforcement is to obtain voluntary compliance by property owners with local codes. In our experience seventy to eighty percent of the property owners will voluntarily comply after contact by city enforcement offices. Once it is determined that a code violation exists, staff must conduct a detailed investigation. During this stage, the city attorney should be only minimally involved. However, the city attorney does consult with code enforcement staff to ensure that a suspected violation can be proven in a court of law. Detailed narrative logs of all code enforcement activity, such as interviews and site inspections, must be kept. .It is highly recommended that photographs be taken. The importance of detailed documentation and photographs cannot be overstated. These records are not only the investigative report but are a means to support claimed abatement costs which the city will try to recover at the conclusion of a case. An important tool at the disposal of city staff is the inspection warrant. If a property owner or tenant will not consent to an inspection by a city inspector or code enforcement officer, the officer may seek an inspection warrant from the Municipal Court. The warrant allows the officer or inspector to enter onto the property to further investigate alleged violations. Because the warrant must be supported with probable cause, our office has assisted cities in preparing and obtaining inspection warrants which meet the legal standards. II. Enforcement Options If voluntary compliance cannot be obtained, the matter typically proceeds to the second stage which involves a city attorney office conference. Another fifteen to twenty percent of the violations will be corrected at this stage. As to the remaining violations, a decision has to be made to select the appropriate option. The three primary methods of eliminating violations of municipal codes are (1) an administrative public nuisance abatement proceeding; and/or (2) a criminal prosecution, and/or (3) a civil action for injunctive relief. The facts in each case will determine the most appropriate remedy. Ref. 10160 v1 - -1- A. Administrative Nuisance Abatement Proceeding Or Citation Procedure. In most cases where voluntary compliance is not- forthcoming, an administrative nuisance abatement hearing is most appropriate. Although the administrative . enforcement procedure is fairly new, those cities which have embarked upon a program of administrative enforcement have found it to be a cost-effective -- and, frequently, a revenue -generating -- alternative to either criminal prosecution or a civil action for an injunction. The procedure for conducting such a public hearing should be set forth in the city's municipal code. At thehearing, the hearing officer will' -accept relevant testimony from all interested persons. Upon the conclusion of the hearing, if a public nuisance exists, the hearing officer issues an administrative order of abatement. The order can be enforced by City forces and/or by a civil action. A city can recover its costs of abatement, including attorney's fees, if the municipal code contains a provision for such recovery. B. Criminal Prosecution. The second option is a criminal prosecution, misdemeanor or infraction. The relative advantages and disadvantages of criminal enforcement must be carefully evaluated. A defendant charged with a misdemeanor is entitled to a jury trial, which can be time-consuming and expensive. A defendant who is convicted of a misdemeanor may be placed on up to three years' probation. The city prosecutor can recommend a sentence to the judge which contains terms and conditions to ensure future compliance. A defendant who is convicted of an infraction can be ordered to correct existing violations, but cannot be placed on probation. Because the courts are crowded, increasingly, judges do not want to hear cases involving municipal code violations. Time delays in setting matters for trial may be encountered, or outright judicial reluctance to entertain cases involving violations of municipal codes. A final major consideration is that the city cannot recover its full costs in criminal prosecutions. In certain circumstances, the city can receive an award of restitution to recover staff costs, or can enter into a "civil compromise," pursuant to Penal Code § 1377, wherein the defendant pays money directly to the city. However, a city is not' allowed to recover the cost of city attorney services, but can recover only staff time expended in investigation and prosecution of the offense. C. Civil Actions. The third option, a civil action for injunctive relief, should be reserved for cases where the violation warrants such an action. A civil action is appropriate when significant economic interests are involved, such as if the city wishes to shut down an adult business or demolish a building. In such cases, it is advisable to conduct an administrative nuisance abatement proceeding to create a record for the court to review. Ref. 10160 v1 —2— III. Discussion Burke, Williams & Sorensen, LLP has successfully prosecuted several individuals who maintain public nuisances. While the overwhelming majority of cases are concluded prior to trial, the firm's prosecutors have successfully obtained convictions at both court trials and jury trials. Successful prosecutions also include obtaining probation orders and, when necessary, revoking probation and sending a chronic violator to jail. Burke, Williams & Sorensen, LLP has also abated public nuisances through the civil courts by obtaining court orders, including temporary restraining. orders, preliminary injunctions, and abatement warrants, for cities. The civil court order compels a violator to comply or allows the city itself to abate a public nuisance. Counsel works carefully with city staff, including code enforcement officers, law enforcement officers, fire officials, and building and safety staff; among others, to determine which remedy is most appropriate, taking into account the efficient use of staff resources, urgency and nature of the nuisance, and the history of the individual violator. IV. Conclusion. An effective code enforcement program involves evaluating the city's financial and staff resources, an effective organizational structure appropriate for the city's needs, and determining the extent of enforcement for particular violations. When voluntary compliance cannot be informally achieved at the city staff level and the city prosecutor must necessarily be involved, an effective city prosecutor evaluates the facts of each case to determine the most effective means to achieve compliance. Code enforcement is a necessary program but is one which puts the public and the city in a confrontational mode. Accordingly, code enforcement must be concluded in an even-handed. reasonable manner. Ref. 10160 v1 -3- About the Author Elizabeth R. Feffer is a senior associate and trial attorney for Burke, Williams & Sorensen, LLP. She presently serves as the City Prosecutor for the City of Downey. In addition, since 1993, Elizabeth has represented approximately twenty public entities in the enforcement of their municipal codes, in Los Angeles, Ventura, Orange, Riverside, San Bernardino, and Santa Barbara Counties. She has enforced traditional municipal laws, including property maintenance, building, zoning,. fire, and licensing codes, as well as red light abatement laws to close properties at which chronic prostitution activities are occurring. Elizabeth actively. participates in ongoing legal and practical' training for code enforcement officials throughout the state of California. She is a lecturer for the basic, intermediate, and advanced level certification courses conducted by the Southern California Association of Code Enforcement Officials' (SCACEO) through Rio Hondo Community College. In addition, she was a lecturer at the 1997 California Association of Code Enforcement Officials' annual educational seminar on the topic of enforcement options. Elizabeth has also served as a reserve police officer for the City of Montebello since 1990. Ref. 10160 v1. -4-