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SR 07-25-2017 7C Ci ty Council Report City Council Meetin g : July 25, 2017 Agenda Item: 7.C 1 of 5 To: Mayor and City Council From: Joseph Lawrence, Interim City Attorney , City Attorney's Office, Code Enforcement Subject: Introduction and First Reading of Ordinance to Amend Administrative Citation Hearing Procedures Recommended Action Staff recommend s that the City Council (“Council”) introduce for first reading the attached ordinance amending Sections 1.09.090, 6.16.030, 8.08.040 and 10.04.04.040 of the Santa Monica Municipal Code ("SMMC") to provide greater flexibility, clarity, and consistency rega rding the procedures for administrative citation appeal hearings . Executive Summary The Council has adopted various ordinances that set forth procedural requirements governing administrative hearings presided by a City of Santa Monica (“City”) Hearin g Officer. Those hearings generally cover appeals of City -issued a dministrative c itations and appeals of City decisions/orders relating to licensing and permitting. During the course of managing and undertaking a dministrative h earings over the past seve ral years, s taff has gained valuable experience about the process. Staff now brings this proposed Ordinance to make minor procedural enhancements to h earings, provide clarification and align local law with longstanding practices. Background The Santa Mo nica Municipal Code sets forth the procedures for appeals of administrative citations or decisions. Generally , Chapter 1.09 governs appeals of a dministrative c itations, and Chapter 6.16 governs appeals of orders that consist of denial, suspension, or revo cation of permits or licenses. The proposed changes to Chapters 1.09 and 6.16 of the SMMC would recognize and codify existing practices, provide consistency to the existing framework of administrative citation appeals procedures, and give flexibility to C ity staff responsible for scheduling the hearings. The 2 of 5 proposed changes would also add necessary or clarifying language, and delete extraneous and /or confusing language from relevant sections of the SMMC. The proposed change to Section 8.08.040 would co dify the current practice of limiting appeals of building and work permits or orders to persons who are directly involved in the permitting process , including the permit applicant, owner of the property, and/or recipient of the order. The change would min imize confusion by the public, and provide guidance to City staff when processing appeal requests by parties who are not authorized to file or when eligible parties file competing requests. The proposed change to Section 10.04.04.040(e) is intended to corr ect the reference to an ill -fitting chapter for appeals in the Aircraft Noise Abatement Code, bring the Aircraft Noise Abatement Code appeals process in conformity with other City department's enforcement practices, and provide consistency within the admin istrative citation appeals framework of the SMMC. Discussion Amendments to Section 1.09.090 of SMMC Santa Monica Municipal Code Chapter 1.09 authorizes the issuance of administrative citations; Section 1.09.090 of the SMMC specifically addresses the hea ring procedures for the appeal of an administrative citation brought by the recipient of the citation. The proposed changes would provide City staff with greater flexibility when scheduling the hearings to meet deadlines; recognize Hearing Officers’ inher ent power to maintain order during hearings; and recognize the City Attorney’s Office’s discretion to resolve dispute s even after the hearing s ha ve been conducted. The proposed changes include the following:  Amend Section 1.09.090(b) of the SMMC to extend the deadline for scheduling an appeals hearing from thirty to sixty days from the date the hearing request is filed with the City. The City Attorney's Office staff coordinat es the hearings and experience has shown that thirty days can sometimes be inadequ ate, as staff needs to schedule a time that works for 3 of 5 the party seeking the hearing, the City's enforcement officer who issued the citation, as well as the Hearing Officer. Scheduling conflicts and requests for changes are not uncommon, and can delay the p rocess and inadvertently cause time limits established by the SMMC to be exceeded . Accordingly, the proposed amendment would provide staff with greater flexibility to schedule a hearing in time to meet the deadline. Additionally, changing the period to s ixty days would align this deadline with SMMC Section 6.16.030(d), which requires a hearing contesting the denial/suspension/revocation of a City permit or license to be not later than sixty days following receipt of the request by the City Clerk.  The word s "City Official or the City Attorney" would be replaced by "Hearing Officer" as the decision -maker of whether there is good cause to extend the scheduling of the hearing beyond the sixty -day time limit. This proposed change would provide consistency with SMMC Section 1.09.090(g), which states the Hearing Officer may continue the hearing upon a showing of good cause.  New subsection "h" would insert the language "The Hearing Officer shall have the power to issue orders to keep order and decorum during an Adm inistrative Hearing. No person shall fail to comply with any such order." This language codifies what is already well recognized to be one aspect of the inherent powers of the Hearing Officer. The Hearing Officer is charged with "conducting the review" under SMMC Section 1.09.080.  And finally, new subsection (i) would insert the word "after" to clarify that the City Attorney's O ffice has discretion to reach a plea agreement, settle, or dismiss the citation after the hearing has been conducted. The amen dment would codify the tradition and well -recognized prosecutorial discretion of the City Attorney's Office to reach a settlement of the dispute before, during, or after the hearing has been conducted. Amendments to Section 6.16.030 of SMMC 4 of 5 Chapter 6.16 of the SMMC governs appeals of persons contesting "the action of any officer or employee of the City suspending, revoking, or denying any permit or license." The proposed amendments to this Chapter are intended to clarify and recognize existing practices a nd provide consistency with other provisions of the SMMC.  Amend Section 6.16.030(b) to insert the word "grant" to clarify the Hearing Officer's existing powers. This section, as amended, would also insert the following language: "The Appellant has the b urden of proving, based on the preponderance of the evidence , that the City's action is not in compliance with applicable laws." The insertion would recognize the basic rule of law that the party seeking an appeal of a decision carries the burden of proof . This amendment would also maintain consistency with the burden of proof requirement for civil actions.  And finally, the proposed insertion of the language at Section 6.16.030(d) empowering the Hearing Exami ner to maintain order during a hearing, is alrea dy addressed above. Amendment to Section 8.08.040 of SMMC Chapter 8.08 of the SMMC provides for an appeals process for parties seeking to challenge any decisions, orders, or determinations issued by the Building Officer or the Fire Marshal, including stop work, suspension or revocation orders. Consistent with longstanding City practice, such appeals can only be sought by the permit applicant, the property owner of any permit at issue, or the recipient of any order from the Building Officer or the Fire Mar shal. The proposed amendment makes this practice explicit. Furthermore, the proposed amendment would also clarify that when there are multiple parties with the right to appeal, the property owner's decision to appeal shall control. Codification and clarif ication of this longstanding practice would serve to minimize confusion by the public, and be helpful to City staff . Amendment to Section 10.04.040 of SMMC 5 of 5 The Aircraft Noise Abatement Code (Section 10.04.04) of the SMMC provides for an appeal process of a n order by the Airport Director. The Aircraft Noise Abatement Code empowers the Airport Director to impose civil and administrative remedies for violations of the Aircraft Noise Abatement Code, including monetary fines and suspension or revocation of Airp ort privileges or permits. Currently Section 10.04.04.040(e) of the SMMC provides, in part, that persons “aggrieved by an order of the Airport Direct or may appeal to the City's Hearing E xaminer pursuant to the time limits and procedures of Chapter 6.16 of this Code." However, this reference to Chapter 6.16 is inconsistent with the other parts of the SMMC because most of the orders issued by the Airport Director under the Aircraft Noise Abatement Code consist of monetary fines and Chapter 6.16 sets forth processes for appealing the denial or revocation of permits, not monetary fines. The procedures set forth in Chapter 1.09 of the SMMC are more appropriate for appealing monetary fines. As to the appeals of order s of the Airport Director that include susp ending or revoking Airport privileges or permits, the appeal procedure would reference Chapter 6.16. Financial Impacts and Budget Actions There is no immediate financial impact or budget action necessary as a result of the recommended action. Prepa red By: Eda Suh, Deputy City Attorney Approved Forwarded to Council Attachments: A. First Reading Ordinance