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HomeMy WebLinkAboutSS2 - Fine Schedule for Administrative CitationsCITY OF °� mz NEWPORT BEACH C9C /Fp0.N`P City Council Staff Report Agenda Item No. SS2 February 14, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt(�i)newportbeachca.00v City Attorney's Office Aaron C. Harp, City Attorney aharp(a)newportbeachca.gov PREPARED BY: Matt Cosylion, Code Enforcement Supervisor Kyle Rowen, Deputy City Attorney APPROVED: TITLE: Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties ABSTRACT: Per Council's request made at the July 12, 2011, study session, the following is an overview of potential amendments to Newport Beach Municipal Code ( "NBMC ") Chapter 1.05 to increase the administrative fines, allow for recovery of enforcement costs and enhance code enforcement penalties applicable to violations of specific sections of the NBMC. RECOMMENDATION: After Council discussion on the matter, direct staff to prepare an ordinance to (1) establish a two- tiered administrative fine schedule, as shown in Table 1; (2) allow for the recovery of investigative and enforcement costs against all persons that violate the NBMC; and (3) establish civil penalties against the operators and property owners, should they be different, that violate the NBMC. FUNDING REQUIREMENTS: Other than the staff involved in preparing the draft ordinance, there are no direct City expenses for implementing the proposed fine schedule. Additional revenue may be generated as a result of the penalty increases; however, staff does not have an 1 Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties February 14, 2012 Page 2 estimate at this time. Implementation of the amended fine schedule is also anticipated to reduce the time needed to gain compliance from persons and businesses operating in conflict with City laws. DISCUSSION: Background At the July 12, 2011, City Council Study Session, staff presented current code enforcement practices and procedures for addressing problem cases and repeat offenders. At this meeting, it was noted that cases involving violations related to discretionary approvals, certain land uses, and uses established without approval from the City require a significant amount of staff time and resources to investigate and abate the violation(s). Staff provided the following recommendations for addressing repeat offenders of the aforementioned issues, which City Council supported: • Issue a separate administrative citation for each code section violated when the code enforcement case involves violations of multiple NBMC sections. • Issue a separate administrative citation for each violation of the required conditions of approval for a discretionary permit. Refer cases to the City Attorney's office after three consecutive administrative citations have been issued. Additionally, City Council requested that staff return with further information on increasing fines and penalties for violations of specific NBMC sections. Issue /Analysis The goal of the Newport Beach administrative citation program is to prevent illegal conduct and encourage compliance with the NBMC. Any violation of the NBMC is deemed to be a public nuisance, which the City may address by: (1) pursuing administrative fines through the issuance of an administrative citation; (2) filing a civil action in the Orange County Superior Court ( "OCSC ") seeking to abate the public nuisance; or (3) filing a criminal complaint in the OCSC. In addition to the foregoing enforcement options, other jurisdictions in California have enacted ordinances to allow for increased administrative fines, cost recovery and the assessment of civil penalties. Attached hereto as Exhibit A, is a table setting forth examples of the code enforcement remedies and penalties adopted by other jurisdictions. 2 Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties February 14, 2012 Page 3 Increased Administrative Fines Staff has found that the current fine structure associated with administrative citations ($100, $200, $500) has proven to be ineffective in deterring certain violations of the conditions for use permits, outdoor dining permits, Live Entertainment and Cafe Dance Permits, and other discretionary permits. Investigations involving violations of discretionary permits are often difficult to conduct since staff is required to be present to observe the violation(s). Frequently, these violations occur after regular business hours when staff availability is limited. Additionally, violations of discretionary permits generate a high number of complaints from residents regarding noise and traffic as these issues affect the health, safety, and general welfare of the community. Furthermore, staff has found in many instances, the current fines imposed for violating discretionary permits do not necessarily outweigh the potential for business profits to be gained. As such, many businesses accept citations as the "cost of doing business" and continue operating in violation of the use permit. By increasing the penalties for such violations, the likely result is greater compliance and reduced enforcement costs. Recommendation Staff recommends adopting a two- tiered fine schedule associated with administrative citations. As shown in Table 1, Tier One reflects the current fine schedule which is $100 for the first violation, $200 for a second violation, and $500 for subsequent violations. Violators would be subject to Tier Two penalties of $1,000, $2,000, and $3,000 if determined to be necessary by the City Manager, Police Chief, Fire Chief, Public Works Director, and /or Community Development Director to address problem cases, such as repeat offenders and /or blatant intent to violate the code provisions listed below. TABLE 1 Proposed Administrative Citation Fine Schedule Citation Level Tier One Tier Two First Violation $100 $1,000 Second Violation $200 $2,000 Third Violation $500 $3,000 3 Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties February 14, 2012 Page 4 Citations would be issued in the following manner: Tier One — With the exception of those violations subject to Tier Two level fines, Tier One fines would be imposed for violations of the NBMC as provided by NBMC Chapter 1.05. Tier Two — At the discretion of the City Manager or his /her designee, violations of the following NBMC sections will be assessed at a Tier Two level: • NBMC Section 5.25.100 - Violations of the conditions of approval for an Operator's License. • NBMC Chapter 5.28 - Violations of the conditions of approval for a Live Entertainment Permit or operation without the required permit. • NBMC Chapter 5.32 - Violations of the conditions of approval for a Cafe Dance Permit or operating without the required permit. • California Fire Code Sections 107.6 or 107.6.1 as adopted by NBMC Section 9.04.020 - Exceeding maximum occupancy. • NBMC Section 10.50.020(H) - A violation of any of the terms or conditions of a use permit granted by the City of Newport Beach. • NBMC Section 14.36.030 - Prohibited discharges affecting the Bay or Ocean. The violations of permit conditions that would be subject to Tier Two citations would include, but not be limited to: hours of operation; maximum occupancy; providing live entertainment and dance without a permit or in violation of the permit; excessive noise; and /or other operational conditions that create a nuisance or disrupt the peace and tranquility of nearby residences and businesses. Staff recommends NBMC Section 14.36.030, Prohibited Discharges, also be included in the Tier Two fine schedule when the discharge results in a closure of the Bay or Ocean. Staff believes a $100 administrative citation for the first violation is not a sufficient deterrent to prevent illegal discharges and is minimal when compared to the environmental damage resulting from the prohibited discharge. Recovery of Investigative and Enforcement Related Costs In general, the City has not been able to recover the investigative and enforcement related costs in regards to code enforcement matters. For instance, over the last year, City staff has successfully abated five medical marijuana establishments operating within the City. Compliance in each of these cases was obtained through the issuance of administrative citations and /or by placing the owner /operator on notice that the City intended to pursue a civil nuisance abatement action. While compliance was achieved 21 Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties February 14, 2012 Page 5 in each of these instances, the cost and expense of these enforcement actions were not recovered because the NBMC does not provide for the recovery of investigative and enforcement related costs. Recommendation To ensure the City is recovering its investigative and enforcement related costs, and as a further deterrent to violate the NBMC, staff recommends that the City Council direct staff to prepare, for the City Council's consideration, an ordinance amending the NBMC to allow the City to fully recover administrative costs, such as the investigative and enforcement - related costs, associated with administrative proceedings. This would include all costs and expenses incurred by, or on behalf of, the City from the first discovery of the code violation until compliance was achieved, such as the following: • Staff time investigating the violation; • Staff time conducting inspections of the property where the violation occurred; • Staff time preparing investigation reports; • Staff time and cost to send notice to the responsible party; • Staff time preparing for and attending administrative hearing on the violation; • Attorney's fees; and • Any other costs or expense which the City would be entitled to recover under California law. It should be noted that the City's recovery cannot exceed the City's actual cost incurred and, therefore, such costs would need to be substantiated. Further, any recovery of costs by the City would be dependent on the City prevailing in the administrative proceedings. Additional Penalties in Administrative Proceedings and /or Civil Actions Based on Nature and Severity of Violation Currently, the NBMC does not authorize the City to seek the imposition of civil monetary penalties. The NBMC could be amended to allow for the imposition of a civil penalty separate, and in addition to, the City- adopted administrative fine against any operator and property owner, should they be different, for every day in which the establishment operates in violation of the NBMC. This penalty would be assessed by the Hearing Officer via the City's administrative hearing process or by a court if the City elected to file a civil action to abate the violation. In either the administrative or civil proceeding, the hearing officer or judge would establish the appropriate civil penalty after reviewing all the facts and evidence, and considering a set of factors that may include the following: 9 Amendments to the Fine Schedule for Administrative Citations / Recovery of Enforcement Costs and Enhanced Code Enforcement Penalties February 14, 2012 Page 6 • The duration of the violation; • The frequency of the violation; • The seriousness of the violation; • The history of the violation; • The responsible party's conduct after being notified of the violation; • Any good faith efforts by the responsible party to comply with the NBMC; • The impact the civil penalty would have on the responsible party; and/or • The impact the violation had on the community. Recommendation Staff recommends that the City Council consider adopting an ordinance that authorizes the City to request that civil monetary penalties be levied against any operator, as well as the property owner, should they be different, for every day in which the establishment operates in violation of the NBMC. Additionally, staff recommends minor changes to NBMC Chapter 1.05, Administrative Citations, related to the current notification process, civil citation process, and appeal process. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: Kintberly Brandt, AtCP, Director ' Community Develd�ment Department Aa n C. Harp, City A orney Attachment: Table of Enforcement Remedies of other Jurisdictions EN Table of Enforcement Remedies of other Jurisdictions City Admin. Costs Recovery Increased Admin. Fines Civil Penalty San Diego Yes Yes Yes Anaheim Yes No No Huntington Beach No Yes No Santa Barbara No Yes Yes Santa Clarita Yes No No Lake Forest Yes No No Riverside Yes No Yes Palm Springs No No Yes San Jose Yes Yes Yes West Hollywood Yes Yes No 7 Newport Beach Community Development Department Code Enforce ent Division _________________________________________________________ _______________________________ O -__________________________________________________________ _______________________________ Presented by Matt Cosyhon, Code Enforcement Supervisor Kyle Rowen, Deputy City Attorney WP() T ° v � �9LIFOR��� Why We're Here -------------------------------- no, --------- • Address chronic violators and repeat offenders • Reduce time for complaint resolution • Recover investigative and enforcement costs Administrative Fines Current Administrative Citation Fine Schedule First Violation $100 Second Violation $200 Third Violation $500 • Issued for violations of the Newport Beach Municipal Code • Issued at Officer's discretion • Subject to review at an administrative appeal hearing Administrative Fines Proposed Administrative Citation Fine Schedule First Violation $100 $1,000 Second Violation $200 $2,000 Third Violation $500 $3,000 Administrative Fines V� Tier One: Issued for violations of the NBMC. Tier Two: Requires approval by City Manager or his /her designee. Limited to violations of the following: • Operator's License • Live Entertainment Permits ■ Cafe Dance Permits ■ Discretionary Permits (i.e. outdoor dining, use permits, etc.) ■ Exceeding maximum occupancy ■ Prohibited discharges resulting in the closure of the Bay or Ocean Cost Recovery ------------------ • Cannot exceed actual cost • Fees can be appealed at an administrative hearing • Allows City to recover administrative costs associated with an investigation including staff time for the following: Conducting inspections and preparing investigation reports Costs associated with sending notices to the responsible party Preparing for and attending administrative hearings Attorney's fees Other expenses the City is entitled to recover under California law Civil Penalties Can be assessed in addition to an administrative fine • May be imposed each day the violation exists • Not to exceed $1, o o o per day • Civil penalties can be assessed by: Hearing Officer at an administrative hearing Judge if the City files a civil case in court Civil Penalties ------------ - - - - -- - Civil penalties are assessed using the following criteria: Duration and frequency of the violation Seriousness of the violation History of the violation Good faith efforts made by the responsible party to comply with the NBMC The impact the civil penalty would have on the responsible party; and /or The impact the violation had on the community ---------------------------- 0 Questions ??