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~;~Yof City Council Report
Santa Monica
City Council Meeting: March 24, 2009-
. Agenda Item: ~''"J
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Proposed Amendments to the Santa Monica Municipal Code Chapter 1.10
Regarding Code Compliance Regulations.
Recommended Action
Staff recommends that the City Council approve on first reading the attached Ordinance
amending Santa Monica Municipal Code Chapter 1.10 regarding code compliance
regulations.
Executive Summary
This staff report provides information relating to the City's Code Enforcement Program,
discusses the need'to amend certain sections within Chapter 1.10 of the Municipal
Code in order to enhance the City's Code enforcement efforts and to give notice to the
public regarding the same, and includes a recommendation that the City Council
introduce for first reading the attached ordinance.
The recommended changes include: 1) authorization for the recordation of any issued
compliance order with the County Recorder's Office; 2) granting of prosecutorial
discretion to the City Attorney's Office in pursuing Code Compliance matters; 3)
clarification of the City's"ability to criminally prosecute personslparties that commit Code
violations; 4) clarification of -the City's ability to-seek administrative penalties and
administrative costs when faced with substantially delayed compliance with an issued
compliance order; and 5) various technical clarifications.
Background
Chapter 1.10 is an essential part of the City's Code Compliance ordinance, which
guides Code Enforcement efforts by various City departments charged with enforcing
compliance with the Municipal Code. The chapter was added to the Municipal Code on
May 14, 2002, in .response to the Council's directive that code enforcement be
enhanced in order to protect residents' quality of life, preserve public safety, effectuate
the community's aesthetic values, and promote the City's continued economic success.
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Santa Monica Municipal Code Chapter 1.10 is designed to provide a mechanism to
address serious code violations. It authorizes the issuance of a compliance order and
administrative penalties for violations of Municipal Code Articles 4, 6, 7, 8, and 9 that
are ongoing and correctable but relatively permanent in nature. Such violations would
typically relate to building, plumbing, electrical, or other similar structural or zoning
issues. Common examples .would include illegal garage conversions, substandard
housing, and construction without a permit. However, compliance orders could also be
issued for less common violations. If the violation is corrected timely, no further action
would occur. If not, the City would set the matter to be heard by a hearing officer. Any
person who objects to the decision of the hearing officer has the right to seek judicial
review.
Discussion
City legal staff recommends -the following updates to Chapter 1.10 to clarify and
enhance enforcement rights by the City
S.M.M.C 1.10.030
In order to properly notify all current and future interested parties of a pending Code
violation at a particular property and to aid code enforcement efforts, staff recommends
amending the Municipal Code to authorize the recordation of any compliance order
issued against a property with the County Recorder's office. As soon as the violations
identified in the compliance order are abated at the property, the amendment would
require the City to remove the recordation or record a notice of satisfaction of the
compliance order. Notably, the California State Attorney General has opined that such a
recordation ordinance is lawful and does not conflict with State law. (See 63 Ops. Cal.
Atty. Gen. 905 (1980).)
Staff believes this amendment is a particularly useful tool to inform and protect the
public, in light of the fact that substantial property transactions occur within the City, and
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that without recordation, subsequent buyers or lenders may be unaware of an
outstanding compliance order when a transaction is consummated. Staff further
believes recordation would encourage responsible parties to promptly comply with an
issued compliance order.
While staff believes that the City's broad police powers may already provide the legal
authority to undertake such recordation even without this amendment, having this
amendment would serve the benefit of clearly notifying the public of how the City will
exercise its police powers when enforcing its Code. This amendment would also
alleviate any potential future concerns by the public that the City may be acting outside
of its enforcement authority when it engages in recordation because there is no specific
Municipal Code authorization for recordation.
S.M.M.C. 1.10.060
Staff recommends amending S.M.M.C. 1.10.060 to provide the City Attorney's Office
with a choice, when faced with non-compliance with an issued compliance order, of
criminal prosecution of the responsible persons and/or parties, in addition to or in lieu of,
proceeding with an administrative hearing. Criminal prosecution of Code violations is
already authorized pursuant to S.M.M.C. 1.08.010. This addition would bring Code
enforcement efforts in harmony with S.M.M.C. 1.08.010 and it would serve to provide an
additional level of notice to the public of this potentially serious consequence for non-
compliance.
Having the choice of criminal prosecution provides greater Code enforcement options
and flexibility to the City. The criminal justice system provides remedies, such as jail
time, that are unavailable in the administrative context. That system also operates at a
faster pace than the administrative system. Accordingly, criminal prosecution can be a
more effective tool in bringing about compliance in certain instances, such as when time
is of the essence or when the Code violations present significant and imminent threats
to the health and safety of the public.
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Staff further recommends amending S.M.M.C. 1.10.060 by granting the City Attorney's
Office prosecutorial discretion on whether to proceed with an Administrative Hearing
and/or criminal prosecution on any particular Code compliance matter. The United
States Department of Justice has described prosecutorial discretion as "the authority
that every law enforcement agency has to decide whether to exercise its enforcement
powers against someone:" .Courts have long recognized that prosecutorial discretion
applies in the civil, administrative arena just as it does in the criminal context. In this
context, it would provide the City Attorney's Office with greater flexibility in allocating
City resources to achieve the City's Code compliance goals and thereby effectuate local
law and policy.
Staff further recommends amending S.M.M.C. 1.10.060 by adding language to inform
the public of the City's right to proceed with a scheduled hearing, even if full compliance
is achieved after service of the written notice of hearing, in order to seek administrative
penalties and administrative costs. Staff believes that this right currently exists and is
implied under the current Code;. but finds that it would be helpful to clearly inform the
public of the City's ability to exercise this enforcement option.
Availability of this enforcement option is particularly helpful to gain early compliance and
prevent any person from timing the Code enforcement system by waiting until a hearing
is scheduled before remedying the code violations identified in an issued compliance
order.
S.M.M.C. 1.10.130
Staff recommends amending S.M.M.C. 1.10.060 to provide clearer guidance regarding
the options that the City may undertake. to compel compliance with an administrative
order from a Hearing Examiner. More specifically, even without this proposed
amendment, criminal .prosecution of any person who refuses to comply with an
administrative order could be initiated pursuant to S.M.M.C. 1.08.010. Nonetheless,
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inclusion of the proposed text amendment would provide an additional level of notice to
the public of this potentially serious consequence for non-compliance.
S. M.M.C. 1.10.150
Staff recommends amending S.M.M.C. 1.10.150 to correct a typographical error. This
section currently references S.M:M.C. 1.09.180; however, it was, and is, intended to
reference S.M.M.C. 1.10.180.
S.M.M.C. 1.10.240
Staff recommends repealing S.M.M:C. 1.10.240 because the recommended
amendments to S:M.M.C. 1.10.130, as discussed above, incorporate the function
served by S.M.M,C. 1.10.240, thus making it duplicative.
Financial Impacts & Budget Actions
There are no financial impacts associated with the adoption of the proposed ordinance.
Prepared by:
Yibin Shen, Deputy City Attorney
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Approved: Forwarded to Council
Council Meeting: March 24, 2009 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
UPDATING CHAPTER 1.10 OF THE SANTA MONICA MUNICIPAL CODE TO
CLARIFY CODE ENFORCEMENT RIGHTS AND EFFORTS BY THE CITY
WHEREAS, the City of Santa Monica is committed to protecting its residents',
businesses' and visitors' health, safety, welfare, and quality of life; and
WHEREAS, the City is also committed to preserving aesthetic qualities and
charm which enrich residents' lives and attract visitors; and
WHEREAS, effective code enforcement is vital to effectuatioh of these
commitments; and
WHEREAS, achieving effective code enforcement in Santa Monica is
complicated by various factors including the City's unusual density (11,200 persons per
square mile), its age, its diversity of structures, and the variety of sometimes conflicting
activities and land uses. occurring within the City's eight square miles; and
WHEREAS, the City has a broad array of regulations and permit requirements
governing the use of land in the City; and
WHEREAS, code enforcement is the method by which the City assures that the
use of land continues to comply with the laws and policies adopted by the City Council;
and
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WHEREAS, it is critical that the City have a full range of remedies available to
protect the community, ensure compliance with local law and, vvhere necessary,
penalize violators for the failure to comply with these laws; and
WHEREAS, enforcement of this Code and conditions on entitlements are matters
of local concern and serve important public purposes; and
WHEREAS, recordation of uncorrected Code violations is an effective means of
providing notice to interested parties and to the public, and to ensure prompt
compliance with this Code; and
WHEREAS, the California State Attorney General has opined, in 63 Ops. Cal.
Atty. Gen. 905 (1980), that recordation of uncorrected Code violations is lawful and
consistent with State law; and
WHEREAS, enabling the City to seek administrative costs and penalties when
faced with unduly delayed compliance would encourage early correction of Code
violations and allow the City to recover costs it incurred to gain compliance; and
WHEREAS, criminal prosecution is an effective means of gaining prompt
compliance and is particularly appropriate for certain types of cases, such as cases
where time is of the essence or where the health and safety of the public is being
placed at significant and imminent risk by ongoing Code violations;
WHEREAS, criminal prosecution of responsible persons andlor parties who
refuse to comply with the administrative order of a Hearing Examiner is an important
and effective tool for gaining prompt compliance of uncorrected Code violations,
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WHEREAS, enabling the City to exercise prosecutorial discretion does not
lessen the City's commitment to enforce its Code, nor is it an invitation to violate or
ignore the law, but a means to effectively use the City's resources in a way that best
accomplishes the City's mission of administering and enforcing its Municipal Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Section 1.10.030 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.10.030 Compliance order.
(a) Whenever the City Official determines that a violation of any provision of
this Code, or other provisions asset forth in Santa Monica Municipal Code Section
1.08.010(c), within the City Official's responsibility is occurring or exists, the City Official
may issue a written compliance order to any person responsible for the violation.
(b) A compliance order issued pursuant to this Chapter shall-contain the
following information: .
(1) The date, approximate time and location of the violation;
(2) The section of this Code violated and a description of the violation;
(3) The actions required to correct the violation;
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(4) The time period after which administrative penalties will begin to accrue if
compliance with the order has not been achieved. No administrative penalty shall be
imposed for violations of City building, plumbing, electrical or structural codes or
provisions of the City Zoning Ordinance unless the responsible party has been provided
a reasonable period of time to correct the violation before imposition of the penalty,
except in those cases in which there is an immediate danger to health or safety.
(5) Either a copy of this Chapter or an explanation of the consequences of
noncompliance with this Chapter and a description of the hearing procedure and appeal
process to the responsible party.
(c) If compliance with an issued compliance order is not achieved within the
time period prescribed by the order at issue, the City Official may file and record a
Notice of Compliance Order in the Office of the County Recorder to certify that: (i) the
subject property is being maintained in violation of the Municipal Code and/or applicable
statue, rule, code and regulation; (ii) penalties, including liens, special assessments.
and/or other penalties, may be imposed; and (iii) the property owner has been so
notified.
(d) Whenever the Citv Official determines that the Compliance Order has
been fully complied with, including correction of all identified violations payment of all
penalties, and satisfaction of all other requirements imposed by the Compliance Order,
and if a compliance order has been recorded pursuant to sub-section (c) the City
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Official shall cause the removal of the recordation of the applicable compliance order or
file and record a Notice of Satisfaction of Compliance Order certifying that the
violation(s) of the Municipal Code at the subject property which caused the issuance of
the compliance order has been corrected.
Section 2. Section 1.10.060 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.10.060 Hearing.
(a) If the City Official determines that all violations have been corrected
within the time specified in the compliance order, no further action shall be taken.
(b) If full compliance is not achieved within the time specified in the
compliance order, the City Official shall advise the City Attorney's Office which shall
mav, consistent with well established principles of prosecutorial discretion schedule a
hearing before the Hearing Examiner and/or pursue criminal prosecution of the
responsible persons and/or parties as authorized by Section 1.08.010.
(c) The Gity Attorney's Office shall cause a written notice of the hearing to be
served on the violator and, where real property is involved, a notice of hearing shall be
served on the property owner at the address as it appears on the last equalized County
assessment roll available on the date the notice is prepared.
(d) If full compliance is achieved after service of the written notice of the
hearing, the City Attorney's Office mav, nonetheless continue to proceed with the
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scheduled hearing before the Hearing Examiner in order to seek Administrative
Penalties as authorized by Section 1.10.110 and Administrative Costs as authorized
by Section 1.10.120.
Section 3. Section 1.10.130 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.10.130 Failure to comply with administrative compliance order
Failure to comply with the administrative order of the Hearing Examiner, including
failure to pay the assessed administrative penalties and pay administrative costs
specified in the administrative order ^* *"° u^~~ ^^ ~~^^,~^^• may be enforced as:
(a) A personal obligation of the violator; and/or
(b) If the violation is in connection with real property, a lien or special
assessment upon the real property. The lien or special assessment shall remain in
effect until all of the administrative penalties, interest and administrative costs are paid
in full-; and/or
(c) An infraction which shall be punishable by a fine not exceeding two
hundred fifty dollars, or a misdemeanor, which shall be punishable by a fine not
exceeding one thousand dollars per violation or by imprisonment in the County Jail for
a period not exceeding six months or by both such fine and imprisonment as
authorized by Section 1.08.010.
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Section 4. Section 1.10:150 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.10.150 Recovery of administrative civil penalties.
The City may collect the assessed administrative penalties and administrative
costs by use of all available legal means, including recordation of a lien pursuant to
Section 1.108.180 or imposition of a special assessment. pursuant to the procedures
established in Section 8.96.190(1).
Section 5. Section 1.10.240 of the Santa Monica Municipal Code is hereby
repealed.
Section 6. Any provision. of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance,, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
Section 7. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
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Section 8. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance shall become effective 30
days from its adoption.
APPROVED AS TO FORM:
MAR HA JO MOU RIE
City orney
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