SR 07-12-2011 7B (2)~~r
~; y o, City Council Report
Santa Monica"
City Council Meeting: July 12, 2011
Agenda Item:
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Proposed Ordinance Modifying Hearing Officer Responsibilities and Code
Enforcement Regulations
Recommended Action
Staff recommends that the City Council introduce for first reading the attached
Ordinance updating Articles I and. VI of the Santa Monica Municipal Code in order to
modify the role of hearing officers and hearing examiners within the City and to update
and clarify the City's existing code enforcement regulations.
Staff further recommends that the City Council authorize the City Manager to negotiate
and execute an agreement with California :office of Administrative Hearings to provide
administrative hearing services to the City on an as-needed basis.
Executive Summary
The Council has adopted various ordinances that permit professional hearing officers or
hearing examiners to be hired, when the need arises, to preside over the administrative
appeals of various decisions or actions taken by City staff. Additionally, in certain
classes of cases, various high-level City employees, such as certain City department or
division heads, are also empowered to serve as City hearing officers. Experience has
shown that some of the hired hearing officers, who were attorneys, have not performed
adequately, partly because many lacked required legal expertise in the subject matter of
the hearing. Additionally, the cost of hiring attorneys to serve as hearing officers is
significant. Accordingly, this ordinance reassigns most hearing responsibilities to high-
level City staff, while reserving more complex cases to be heard by the California Office
of Administrative Hearings.
This ordinance also authorizes an expansion in the use of administrative citations to
remedy code violations. Administrative citations are one of the least onerous code
enforcement remedies available to the City,; yet-it has also been proven to be a highly
effective tool in bringing about code compliance. This ordinance further clarifies existing
practices; including making clear that paying the administrative citation fines does not
relieve the recipients of the citation from remedying the underlying code violations and
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recognizing the City Attorney's Office's prosecutorial discretion in pursuing code
compliance matters originated by administrative citation.
Background
California law specifically authorizes cities to impose administrative fines or penalties for
municipal code violations. See Government-Code Section 53069.4. Moreover, charter
cities, like Santa Monica, possess the inherent power to impose such fines even without
state law authorization. In recent years, increasing numbers of California cities have
exercised this authority, augmenting their code enforcement efforts by .adopting
ordinances establishing administrative fines and penalties.
On May 14, 2002, the Council adopted a comprehensive administrative code
enforcement program, which added Chapters 1.09 (administrative citations) and
Chapter 1.10 (compliance orders) to the Municipal Code. This administrative code
enforcement program was amended in 2009 to clarify the range of enforcement tools
available to the City and recognize the City Attorney's Office's authority to exercise
prosecutorial discretion in the administrative enforcement context.
Santa Monica Municipal Code Chapter 1:09-authorizes the issuance of administrative
citations. This process has been used 'as an alternative to criminal prosecution for
violations of Articles 4, 6, 7, 8, and 9 of the Santa Monica Municipal Code that are
transitory and relatively minor. Currently, administrative citations cannot be used if the
code violation at issue is ongoing and relatively permanent in nature (e.g. many building
and zoning code violations). In such a case, enforcement staff must either pursue the
more onerous compliance order process under SMMC Chapter 1.10 or request civil or
criminal prosecution by the City Attorney's Office.
If the Responsible Party contests an administrative citation or compliance order, he/she
may request an administrative hearing. Consistent with federal and California state
constitutional mandates, the City's Municipal Code currently authorizes hiring outside
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hearing officers or examiners to preside over some of these administrative hearings
(usually more complex cases, e.g. compliance order review or first amendment cases).
The City Attorney's Office maintains a list of private attorneys who serve in these
capacities and are compensated by the day or half day of service. Additionally, various
high-level City employees, such as certain City department heads or division heads, are
also empowered to serve as City hearing officers for less complex cases (usually
administrative citation appeals).
These hearings are analogous to judicial proceedings, except that they occur in the
context of the executive function of the City. An administrative hearing provides an
opportunity for a party affected by a City decision or action ("Responsible Party") to fully
present its position and/or objections to a neutral arbiter (i.e. the hearing officer). The
City staff involved in the underlying decision or action also has an opportunity to present
its positions at the administrative hearing. The hearing officer, after taking evidence
from both sides, renders an administrative decision with respect to the matter at issue.
Such a decision constitutes the final decision from the City. A party aggrieved by an
administrative decision may seek judicial review.
Discussion
Hearing Officers
The City has now had many years of experience in hiring attorneys to preside over a
variety of administrative hearings. This .experience has often been unsatisfactory.
Many of these hearing officers did not have adequate legal expertise to analyze the
pending legal issues; thus they often rendered decisions that were plainly erroneous.
Additionally, some hearing officers failed to adhere to basic professional responsibilities
by being repeatedly tardy or absent from scheduled hearings. Moreover, the cost of
hiring private attorneys to serve as hearing officers is significant.
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On the other hand, hearings conducted, by high level City employees (e.g. Zoning
Administrator, Fire Marshal, Building Officer) have been highly successful. The City
employees, acting under advice from the City Attorney's Office, have consistently
observed all constitutional requirements for administrative hearings and have generally
conducted each hearing with high levels of professionalism and competence.
Additionally, the City has had some experience in using the California Office of
Administrative Hearings ("OAH") to conduct administrative hearings for the City. City
staff involved in the process has found OAH hearing officers to be highly professional
and competent. Additionally, the OAH fees are not significantly more expensive than
fees charged by the current hired hearing officers. This makes OAH a desirable choice
for more complex cases.
Accordingly, the proposed ordinance eliminates hired professional hearing officers, and
authorizes high level City employees `'ta;, conduct most of the administrative hearings
originally handled by these hired hearing .officers (e.g. code enforcement, permit
revocation/denial and airport noise hearing). The City Attorney's Office will continue to
provide legal advice and support, to the extent necessary, to each City employee sitting
as a hearing officer. In cases where there is significant legal complexity (e.g. first
amendment cases) or where City employees are legally disqualified from serving as the
hearing officer (e.g. legal conflicts due to prior involvement), the propose ordinance
authorizes the City to contract with the California Office of Administrative Hearings to
conduct the hearing.
Code Enforcement
Along with the above recommendation to streamline the hearing officer assignment
process, staff further recommends changes and clarifications to the administrative
citation process.
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Pursuant to ,Council's direction, enforcement staff generally provides warnings and
education to non-compliant parties when initially faced with code violations. However, if
warnings and education do not bring about compliance, enforcement staff must have
tools available to incentivize or compel compliance. Of the panoply of tools currently
available (administrative citation, compliance order, and civil or criminal prosecution),
the administrative citation involves the least onerous process and the smallest
penalties. Experience has also shown that the administrative citation is also one of the
most effective tools in bringing about code compliance.
Currently, local law limits the use of administrative citations to transitory and relatively
minor code violations. When faced with other types of code violations (e.g. building or
zoning violations that are not transitory but correctable with diligent efforts, including the
need to obtain a permit), enforcement staff is currently limited to the use of stronger
remedies (e.g. compliance order or criminal prosecution). The proposed ordinance
authorizes the use of administrative citatiohs in all cases, thus giving enforcement staff
the flexibility to choose the remedy most appropriate to the situation. This authorization
does not limit enforcement staffs' ability to resort to stronger remedies when the
circumstances of a particular case call for their use (e.g. repeated offenses or danger to
community).
This ordinance further clarifies existing practices; including making clear that paying the
administrative citation fines would not relieve the recipients of the citation from
remedying the underlying code violations, and recognizing the City Attorney's Office's
prosecutorial discretion in pursuing Code Compliance matters originated by
administrative citation. Courts have long recognized that prosecutorial discretion
applies in the administrative enforcement arena just as it does in the criminal context.
In 2009, the Council confirmed the City Attorney's Office's ability to use prosecutorial
discretion in administrative cases when it amended the City's administrative code
enforcement program. See Ordinance Number 2286(CCS).
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Financial Impacts & Budget Actions
There are no foreseeable financial impacts associated with the adoption of the
proposed ordinance. Existing City staff will be used to handle much of the hearing and
enforcement work contemplated by this ordinance. Staff does not expect that OAH will
be used very frequently. Additionally, use of OAH is not expected to generate more
costs to the City than the current practice of hiring outside hearing officers.
Prepared by: Yibin Shen, Deputy City Attorney
Approved:
Forwarded to Council:
~~ p
Rod Gould
City Manager
Attachments:
PROPOSED ORDINANCE
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Council Meeting 7-12-2011
ORDINANCE NUMBER (CCS)
(City Council Series)
Santa Monica, California
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
UPDATING ARTICLES I AND VI OF THE SANTA MONICA MUNICIPAL CODE
RELATING TO ADMINISTRATIVE HEARINGS AND CODE ENFORCEMENT
EFFORTS BY THE CITY
WHEREAS, California law authorizes local agencies, including the City of Santa
Monica, to promulgate rules and regulations governing the conduct of local
administrative hearings presided by a hearing officer or a hearing examiner;. and
WHEREAS, California Government Code Section 53069.4 specifically authorizes
local agencies to make any violation of any ordinance enacted by the local agency
subject to an administrative fine or penalty; and
WHEREAS, in adopting Government Code Section 53069.4 the State Legislature
has found that "code enforcement is complex and, therefore, there is a need for many
tools, including fines, to help and maintain an effective, efficient, and responsive
enforcement of codes;" and
WHEREAS, this finding is partictala~ly applicable in Santa Monica, as achieving
effective code enforcement in Santa Monica is complicated by various factors including
the. City's unusual density (11,200 persohs 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
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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 effectuation of these
commitments; 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
WHEREAS, it is critical that the City have a full range of remedies available to
protect the community, ensure compliance with local law and, where 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, 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; and
WHEREAS, setting clear rules regarding the City's administrative hearing
process serves to inform and benefit the public, hearing officers/examiners and local
administrative practitioners; and
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WHEREAS, the City intends for its hearing officers and hearing examiners to
adhere to well established principles of administrative law; and
WHEREAS, a comprehensive code enforcement system that uses a combination
of judicial and administrative remedies is critical to ensure code compliance; and
WHEREAS, the City adopts the administrative fine and penalty provisions of this
ordinance pursuant to the City's powers as a charter city and Government Code Section
53069.4;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Section 1.09.010 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.09.010 Applicability.
(a) This Chapter provides for the issuance of administrative citations which
are in addition to all other legal remedies, criminal or civil, which may be pursued by the
City to address any violation of this Code.
(b) The administrative citations process set forth in this Chapter applies to
d' nro+a ~+nrJ +r..no'+.,,-„ „ cil„ rr~morJ'nhla violations of the Code that (11 are transitory
or immediately remediable (2) create an immediate danger to health or safety, or (3)
are continuing violations pertaining to building, plumbing, electrical or other similar
structural or zoning issues that persist after the Responsible Party has been given
notice and failed to comply within the specified time frame. T"'° ^r^^°°° ~'^°° ^^! apP y
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(c) Use of this Chapter shall be at the sole discretion of the City, subject to
subsection (b) of this Section.
Section 2. Section 1.09.030 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.09:030 Administrative citation.
(a) Whenever an enforcement officer charged with the enforcement of any
provision of this Code determines thaf a violation of that provision has occurred, the
enforcement officer shall have the authority to issue an administrative citation to any
person responsible for the violation.
(b) Each administrative citation shall contain the following information:
(1) The date of the violation or, if the date of the violation is unknown then
the date the violation is identified;
(2) The address or a definite description of the location where the violation
occurred;
(3) The section of this Code violated and a description of the violation;
(4) The amount of the fine for the Code violation;
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(5) A description of the fine payment process, including a description of the
time within which and the place to which the fine shall be paid;
(6) An order prohibiting the continuation or repeated occurrence of the Code
violation described in the administrative citation;
{7) The time limits for payment of the fine and abatement of the Code
violations
(8~) A description of the administrative citation review process, including the
time within which the administrative citation may be contested and the place from which
a request for hearing form to contest the administrative citation may be obtained; and
(9S) The name and signature of the citing enforcement officer.
Section 3. Section 1.09.050 of the-Santa Monica Municipal Code is hereby
amended to read as follows:
1.09.050 p~;~eT# ^f *-o,-~ ~f;==.eCompliance with Administrative Citations.
(a~The Responsible Party shall comply with any administrative citation by
abating the Code violations described in the. citation and by paying the required fines
within the time allotted by the citation.
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(b) -Any administrative citation fine paid pursuant to subsection (a) of this
Section shall be refunded in accordance with Section 1.09.100 if it is determined, after a
requested review, that the person charged in the administrative citation was not
responsible for the violation or that there was no violation as charged in the
administrative citation.
(c) Payment of a fine under this Chapter shall not excuse or discharge any
continuation or repeated occurrence of the Code violation that is the subject of the
administrative citation.
Section 4. Section 1.09.080 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.09.080 Hearing Officer.
The review of the administrative citation. requested pursuant to Section
1.09.060 may be conducted by the Building Officer, Zoning Administrator, Fire Marshall,
the department or division head of the department which issued the citation, the Citv
Manager or his/her designee, any individual acting in one of the above-enumerated
positions or a Hearing Examiner appointed in accordance with the procedures set forth
in Section 1.10.050. The Hearing Officer must be qualified by experience or training to
conduct the review. In no event, however, shall the administrative review be conducted
by the person who issued or who was directly involved in the issuance of the citation. A
Hearing Examiner shall be required where there is no uninvolved City employee
qualified to conduct the review.
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Section 5. Section 1.09.080 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.09.090 Hearing procedure.
(a) No hearing to contest an administrative citation before a Hearing Officer
shall be held unless the fine has been deposited in advance in accordance with Section
1.09.050 or an advance deposit hardship waiver has been issued in accordance with
Section 1.09.070.
(b) A hearing before the Hearing Officer shall be set for a date that is not
less than five days and not more than thirty days from the date that the request for
hearing is filed in accordance with the provisions of this Chapter unless the City Official
or the City Attorney determines that the matter is urgent or that good cause exists for an
extension of time.
(c) At the hearing, the party contesting the administrative citation shall be
given the opportunity to testify and to present evidence concerning the administrative
citation.
(d) Unless the recipient of an administrative citation requested a paper
review pursuant to Section 1.09.060(e); `the failure of the recipient to appear at the
administrative citation hearing shall constitute a forfeiture of the fine and a failure to
exhaust his or her administrative remedies.
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(e) The administrative citation and any additional report submitted by City
staff shall constitute prima facie evidence of the respective facts contained in those
documents.
(f) The Hearing Officer may continue the hearing and request additional
information from the enforcement officer or the recipient of the administrative citation
prior to issuing a written decision.
{g) The Hearing Officer may grant any request for a continuance of the
hearing from either party upon a showing of good cause
{h) At anv time prior to or during the hearing, the City Attorney's Office
may exercise its prosecutorial discretion to reach a plea agreement or compromise with
the Responsible Partv or to dismiss anv citation.
Section 6. Section 1.09.160 of the Santa Monica Municipal Code is hereby
amended to read as follows:
1.09.160 Failure to pay administrative fine
The failure to comply with an administrative citation, including any failure to
pay an administrative fine is a misdemeanor. The filing of a criminal misdemeanor
action does not preclude the City from using any other legal remedy available to gain
compliance with the administrative citation.
Section 7. Section 1.10.050 of the Santa Monica Municipal Code is hereby
amended to read as follows:
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1.10.050 Hearing Examiner.
The Hearing Examiner shall be the City Manager or his or her designee. The
Hearing Examiner shall not have had any prior direct involvement with the matter
pending before him/her. If no City staff is capable of conducting the hearing, then the
City shall contract with the California Office of Administrative Hearings to conduct the
hearing,
Section 8. Section 6.04:260 of the Santa Monica Municipal Code is hereby
amended to read as follows:
6.04.260 Revocation of license.
Any license issued pursuant to this Code may be suspended or revoked by the
City Manager or his or her designee when it shall appear that the business of the
person to whom such license was granted has been conducted in a disorderly or
improper manner, or in violation of any statute of the State, or ordinance of this City or
of this Code, or that the person conducting said business is of an unfit character to
conduct the same, or the purpose for which the license has been issued is being
abused to the detriment of the public, or is being used for a purpose different from that
for which the license was issued. If the license of any person shall be so revoked,
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another such license shall not be granted to such persons within twelve months after
the date of such revocation.
Section 9. Section 6.16.030 of the Santa Monica Municipal Code is hereby
amended to read as follows:
6.16.030 Appeal procedure.
/a\ d 1-laorin,v Cvo m'w a'n+ar1 L.~, +ho t"4 i R++n rn a.. chnll hnnr
Cesno +in~ nr ~n a n+h ear rla+arm n~~~ ni~h~nh 'n +ha rJ'c ra+'n of +ha t"+~, fiA.s n.~nar n
~j ..
('i~iH~n r~n~y~~h~n„I~h~n~fnrrnrJ fnr n l7nn'o'nn h" n I-lahrinn Cv.~rrv'nnr "~'h~s Hearing
Examiner shall be the City Manager or his or her designee. The Hearing Examiner shall
not have had any prior direct involvement with the matter pending before him(her. If no
City staff is capable of conducting the hearing then the Git~shall contract with the
California Office of Administrative Hearings to conduct the hearing.
(b) Standards. The Hearing Examiner may suspend, revoke or deny a
license or permit whenever, in the reasonable judgment of the Hearing Examiner, the
suspension, revocation or denial is in accordance with any applicable law.
-~8~~l;eS: ?-fin r"+~, ran n'i .,-. ~~g91Staw;,Sk1-r=ales-f~2
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(c~) Hearing. Any person aggrieved by an action appealable to a Hearing
Examiner shall be entitled to a hearing upon filing a written request therefor with the City
Clerk not later than the tenth day following the mailing of a notice of the action from
which the appeal is taken. The Hearing Examiner shall. hold a hearing not later than
thirt~si~_days following receipt of the request by the City Clerk, unless an extension of
the time therefanis granted by the Hearing Examiner upon a finding of good cause.
The applicant shall be given no less than five days' notice of the time and
place of said hearing. The hearing shall be open to the public. Any interested party is
entitled to be heard and may be represented by counsel.
(de) Decision of Hearing Examiner. The decision of the Hearing Examiner
shall be made ~ prompfly after the conclusion of the hearing. Notice
of the decision shall be mailed to the applicant at his or her last known mailing address
(e#) Stay Pending Hearing. The suspension or revocation of any permit or
license for which a request for review has been timely filed under this Section, shall be
stayed pending decision of the Hearing Examiner. Nothing in this subsection shall be
construed to require any officer or employee of the City to issue any permit or license.
(fg) Review of Hearing Examiner's Decision.-The stay expires ten days after
the Hearing Examiner issues the decision. The Hearing Examiner's decision in all cases
is final except for judicial review. Such review must be sought by petition under Code of
Civil Procedure Section 1094.5, not later than ninety days after the decision is issued.
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Section 10. 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 11. 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.
Section 12. 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.
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APPROVED AS TO FORM: