SR-9A (37)
CA atty\muru\strpts\bar\abate rpt
CIty Council Meetmg 4-15-97
Kev,9QA
APR 1 5 1997
Santa Maruca, Cahforma
TO
Mayor and City CouncIl
FRO:\f
City Attorney
SUBJECT
RecommendatIon to Amend Chapter 8 12 Of The
Santa I\.fomca MumcIpal Code Relatmg To The Abatement
Of Public NUisances
I~TRODUCTION
On June 11, 1996, the City CounCIl amended the CIty" s MumcIpal Code govermng the abatement of
public nUlsances ("NUIsance Abatement Ordmance") The purpose of the amendment was to
strengthen the Nmsance Abatement Ordmance to ensure that the CIty could effectlvely and
expedltlously ehmmate pubhc nmsances m the commumty The amendment, m pan, expanded the
lIst ofcondmons which constItuted or Ill1ght constItute a pubhc nUlsance, altered the make-up of the
:\"Ulsance Abatement Board, slgmficantly modlfied the baSK abatement procedures, mcludmg the
process for conductmg the nUIsance abatement proceedmg before the Board, and detatled the vanous
remedIes aVaIlable to the CIty to recoup the CIty'S costs of abatement
Thus far, the amended ordInance has been an effectIve and sIgmficant Improvement over ItS
predecessor However, as dIscussed belm.v, III light of a recent appellate deCISIon and m the mterest
of streamlIrung certaIn abatement procedures, we recommend that the NUisance Abatement Ordmance
be amended In the followmg respects 1) to expressly authonze the NUlsance Abatement Board to
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Re \/iSt!d
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APR 1 5 1997
impose condmons and reqUlrements on the operatIOn of bus messes whIch are found by the Board to
be operated as pubhc nUIsances, and 2) to estabhsh the NUIsance Abatement Board as the body to
hear appeals from City orders requinng the abatement and removal of abandoned, wrecked,
dIsmantled, or moperatlve vehlcles
DISCUSSION
A ImpositiOn of Condltions and RestnctlOns on Busmess Operatlons
In Suzukl v Cay of Los Angeles. 44 Cal App 4th 263, 51 Cal Rptr 2d 880 (1996), the court
affirmed a city's nght to lmpose such condltlons and restnclloos on the operatlon of a buslOess
pursuant to a CIty'S OUlsance abatement ordznance as are necessary to abate nUIsance condltwos at
that busIness In SuzukL the problem busmess was a lzquor store The pohee department had
reported several arrests and detentIons for 1llegal actlvlty at the store mcludmg gambhng, dnnkmg
In public, assault, and battery Nelghbors had also complamed about lllegal conduct at and around
the propeny Addltlonally, the Department of AlcoholIc Beverage Control had sent a warnmg letter
to the hquor store regardmg thIS conduct The City of Los Angeles subsequently held nUIsance
abatement proceedmgs whIch resulted in numerous condmons bemg Imposed on the operation of the
busmess mcludmg restnctmg the hours of operatIon, requmng patrols by a secunty guard, and
ehmmatmg pubhc telephones on the premises The appellate court upheld the CIty'S actIOns
Whlle we belIeve that City" s NUlsanee Abatement Board presently has the authonty to order a
busmess to undertake aeuons necessary to abatement nUIsance condltlons at the busmess, we also
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beheve It would be appropnate for the NUIsance Abatement Ordmance to expressly provIde that the
Board can Impose conditions and restnctions on a busmess operatmg as a nuisance
B Procedures for the Abatement of C ert am VehIcles
Vehicle Code SectIOn 22660 authonzes a CIty to adopt an ordmance establIshmg the procedures for
the abatement and removal of abandoned. wrecked, dIsmantled, or moperatIve vehIcles from pnvate
or public property VehIcle Code SectIOn 22661 reqUIres that any such local ordmance contam
cenam specIfied procedural reqUirements The Cny's ordmance IS presently codIfied as Santa MOnIca
MUlUclpal Code SectIon 748090(8), a sectIon of the ~1umcIpal Code that addresses, In general, the
removal of lItter from pnvate property ThIs sectIOn prov1des that any appeal of a City notIce
pursuant to tins section requmng the removal of a velncle shall be heard by the Zonmg AdmInIstrator
We belIeve that It would be more appropnate for thIS ordmance to be recodIfied In the NUIsance
Abatement Ordmance and for the Nmsance Abatement Board be the body whIch hears appeals from
CIty orders regardmg nUIsance vehIcles
C Other Legal Developments
We also want to bnng to your attentlOn two other recent appellate declSlons, one WhICh IS qUIte
favorable to the CIty, the other which IS less favorable
InJ'vlolnlefv JanovIcL 51 Cal App 4th 267,58 Cal Rptr 2d 721 (1996), the court held that In an
admullstratIve proceedmg brought by a mumclpalny to abate a pubhc nmsance, the offendmg property
owner does not have a nght to a fuU, JudICial-type heanng pursuant to the due process clauses of the
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state and federal ConstltuUons More specifically, the court held that due process was not vlOlated
even though the property owner dId not have the fIght to CTOss-examme WItnesses. did not have the
nght to preheanng dIscovery, did not have the nght to subpoena wItnesses and the nUisance
abatement deCiSion was not based on sworn testimony So long as the property owner received
adequate notice of the nature of the alleged nUIsance and a meamngful opponumty to be heard, due
process was satIsfied
In City of St Petersburg v. Bowen, 675 So 2d 626 (1996), a Flonda court held that a mUnicipal
nUIsance abatement order whIch disallowed the leasmg of apartments m a crack house for a penod
of one year effected a compensable "temporary taking" under the Fifth Amendment Slllce the order
purponedly depnved the O\.vner of any econonucaIly Viable use of the property and the property's fair
market value was substantially dllUlmshed The court reached tlus result even though both state and
local law declared the sellmg of cocame to be a nUisance and prescnbed the procedures and remedies
to abate trus nUlsance, includmg closure of the offendmg busmess for one year, and the owner of the
apartment buIldmg dId not dIrectly challenge the nUIsance abatement order The court was
partlcularly trouble-d by the city's use of'one of the most mvaslve methods of abatmg the purported
nUisance that was avadable" Id at 629
In sum. Janovlcl establishes that the procedure utJ..hzed ill nUisance abatement heanngs can be flexIble
so long as the baSiC due process reqUIrements of notice and a mearungful opponumty to be heard are
fulfilled Bowen provIdes that a CIty may be liable for damages If the abatement remedy It Imposes
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renders the property econonucally invIable, partIcularly If less mtruslve remedIes are avaIlable whIch
would more dIrectly address the nUlsance condItIOns
RECO~1.MENDATION
It IS respectfully recommended that the City Councd dlrect the preparatIOn of an ordmance whIch
would amend the NUisance Abatement Ordinance to explIcItly authonze the NUisance Abatement
Board to Impose condltlons and restnctlons on busmesses whlch are found to operate as nUlsances
and to estabhsh a specIal procedure for the abatement and removal ofvehrc1es conSIstent \Vlth State
law
Prepared by Marsha Jones Moutrie, CIty Attorney
Barry A Rosenbaum, Deputy Cny Attorney
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