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HomeMy WebLinkAbout6/29/2005 - STAFF REPORTS (22) c U N t x t c w o q��FORN` City Council Staff Report DATE: June 29, 2005 LEGISLATIVE SUBJECT: PROPOSED ORDINANCE RELATING TO PUBLIC NUISANCES, COMMUNITY IMPROVEMENT, AND THE PROVISION OF ADMINISTRATIVE CITATIONS AS A REMEDY FOR SECURING ABATEMENT OF PUBLIC NUISANCES AND COMPLIANCE WITH THE PROVISONS OF THE PALM SPRINGS MUNICIPAL CODE FROM: David H. Ready, City Manager BY: Douglas Holland, City Attorney SUMMARY A review of city code compliance processes was the subject of a Study Session on January 12, 2005. The current provisions of the Palm Springs Municipal Code provide for criminal and civil remedies to as enforcement tools to resolve violations of the Code. These remedies are judicial in nature and are ultimately predicated on the commencement of criminal or civil actions in Superior Court. The concept of an administrative citation program was identified at the Council's Study Session as a potential tool that could assist in the City's efforts to preserve its neighborhoods and timely resolve chronic non-compliance with the Municipal Code. The proposed ordinance establishes administrative citations as an additional tool to resolve code enforcement issues. Pursuant to the ordinance, City code enforcement officers could issue administrative citations, which would require the payment of administrative fines to the City, instead of a issuing criminal citations or referral to the City Attorney to commence criminal or civil prosecution. The ordinance provides for certain administrative review and appeal opportunities. Staff anticipates that the proposed ordinance will provide an efficient and cost-effective means of enforcing the Palm Springs Municipal Code and applicable State statutes and provide costs savings on attorney fees, court appearances, and trials for criminal prosecution of municipal code violations. RECOMMENDATION: 1. Waive the reading of the Ordinance text in its entirety and introduce by title only. 2. Introduce on first reading Ordinance No. _, "ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTIONS 1.01.170, 1.08.050, Item No. 3.A. City Council Staff Report June 29, 2005 -- Page 2 Administrative Citations Ordinance 11.72.010, 11.72.180, 11.72.220, AND 11.72.225 OF, ADDING SECTION, 1.01.171, 1.01.172, AND 1.01.240 TO, ADDING CHAPTER 1.06 TO, AND REPEALING SECTIONS 11.72.186 AND 11.72.195 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC NUISANCES, COMMUNITY IMPROVEMENT, AND THE PROVISION OF ADMINISTRATIVE CITATIONS AS A REMEDY FOR SECURING ABATEMENT OF PUBLIC NUISANCES AND COMPLIANCE WITH THE PROVISIONS OF THE PALM SPRINGS MUNICIPAL CODE." STAFF ANALYSIS: The City Council has made community preservation and beautification a high priority and recognizes that code enforcement is a very important tool for stopping blight before it has a chance to spread. Your code enforcement staff for the most part has been successful in eliminating unsightly conditions and gaining voluntary compliance when violations are discovered. However, from time to time staff encounters chronic violators who continuously plague their neighborhoods with unsightly property, inoperative vehicles, overgrown vegetation, and other nuisances. The Administrative Citation program is proposed to be used as an alternate administrative approach to resolving code violations. Issuing an Administrative Citation (and any pre-citation courtesy notice) will be solely at the City's discretion, and simply considered one option the City may use to address violations of the Municipal Code. By adopting an Administrative Citation program, the City does not abrogate its discretion to utilize any other remedy, civil or criminal, to address such violations. The proposed ordinance has been drafted in accordance with Section 53069.4 of the Government Code which expressly authorizes cities to make violations of any ordinance subject to an administrative fine or penalty instead of criminal prosecution. Once the City adopts the proposed ordinance, a violator of a Municipal Code provision subject to the administrative penalty will be required to pay a fine to the City rather than to the court. Violators will not be subject to a jail or probation term for violation of a Code provision, which would otherwise have been a misdemeanor offense. This process will eliminate the need for court appearances for arraignments, pre-trials and trials for violations of the Municipal Code section. Responsible parties who violate the Code and who are subject to an administrative penalty will be assessed a fine by means of an administrative citation issued by an Enforcement Officer. Currently, fines resulting from criminal prosecution are paid to the court and the City ultimately receives a small percentage of the fine. Administrative fines, however, are paid entirely to the City. The administrative citation process will typically commence with a courtesy notice that will advise the responsible party that unless the violation is cured within a specified time, a citation will issue and a fine will be assessed. Upon receipt of the courtesy notice, the responsible party must remedy the violation or the violator will be issued an City Council Staff Report June 29, 2005 — Page 3 Administrative Citations Ordinance administrative citation. If the violation is not remedied, the violator will be cited and the violator will still be required to correct the violation as well as pay the fine. The violator can also request an administrative hearing to appeal the administrative citation. Upon request for an administrative hearing, a Hearing Officer, appointed by the City Manager, shall conduct a hearing. At the conclusion of the hearing, the Hearing Officer will issue a written decision. Unless the Hearing Officer finds that there is no violation, compliance will continue to be mandatory even upon the paying of the fine, and subsequent administrative citations may be issued with increased fine amounts for continued non-compliance. Violations of the Code would be punishable by a fine not exceeding $100 for a first violation, a fine not exceeding $250 for a second violation of the same Palm Springs Municipal Code section within one year, and a fine not exceeding $500 for the third violation of the same code provision within one year. FISCAL IMPACT: Staff does not anticipate an adverse fiscal impact from this program. The impact should be positive as the City will (1) significantly reduce the number of criminal cases and chronic violators of the Municipal Code; and (2) recoup one hundred percent (100%) of the fine. Douglas o afl nd, City Attorney David H. Ready, City W20 r Attachment: Proposed Ordinance ORDINANCE NO. ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTIONS 1.01.170, 1.08.050, 11.72.010, 11.72.180, 11.72.220, AND 11.72.225 OF, ADDING SECTION, 1.01.171, 1.01.172, AND 1.01.240 TO, ADDING CHAPTER 1.06 TO, AND REPEALING SECTIONS 11.72.186 AND 11.72.195 OF, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC NUISANCES, COMMUNITY IMPROVEMENT, AND THE PROVISION OF ADMINISTRATIVE CITATIONS AS A REMEDY FOR SECURING ABATEMENT OF PUBLIC NUISANCES AND COMPLIANCE WITH THE PROVISONS OF THE PALM SPRINGS MUNICIPAL CODE City Attorney's Summary The current provisions of the Palm Springs Municipal Code provide for criminal and civil remedies as enforcement tools to resolve violations of the Code. These remedies are judicial in nature and are ultimately predicated on the commencement of criminal or civil actions in Superior Court. This ordinance establishes administrative citations as an additional tool to resolve code enforcement issues. Pursuant to this ordinance, City code enforcement officers could issue administrative citations, which would require the payment of administrative fines to the City, instead of a issuing criminal citations or referral to the City Attorney to commence criminal or civil prosecution. The ordinance provides for certain administrative review and appeal opportunities. The City Council of the City of Palm Springs ordains: SECTION 1. Section 1.01.170 of the Palm Springs Municipal Code is amended to read: 1.01.170 Abatement of Nuisance The City Manager and all other code enforcement officials or officers of the City have the authority and powers necessary to abate public nuisances and gain compliance with the provisions of this Code and applicable state codes. These powers include but are not limited to the power to enter and inspect public and private property and the authority to use whatever judicial and administrative remedies are available under this Code and any applicable state codes, including the issuance of administrative citations pursuant to Chapter 1.06 of this Code, and in the case of Enforcement Officers designated pursuant to the provisions of Chapter 1.08 of this Code (other than peace officers whose powers are otherwise specified in the Penal Code), the power to arrest and issue criminal citations as provided under Penal Code Section 836.5 with respect to provisions of this Code and applicable state codes it is their discretionary duty to enforce. Administrative Citation Ordinance t SECTION 2. Section 1.01.171 is added to the Palm Springs Municipal Code to read: 1.01.171 Judicial Abatement Pursuant to California Government Code Section 38773, the city has authority to judicially abate public nuisances by filing criminal or civil actions. The city also has the authority under state law to make the expense of abatement of the nuisance a special assessment, or a lien against the property on which it is maintained and a personal obligation against the property owner, in accordance with California Government Code Section 38773.1 or 38773.5. SECTION 3. Section 1.07.172 is added to the Palm Springs Municipal Code to read: 1.01.172 Non Liability of Enforcement Officer There shall be no civil liability on the part of and no cause of action shall arise against any Enforcement Officer acting pursuant to this Section and within the scope of his or her authority for false arrest or false imprisonment arising out of any arrest which is lawful or which the Enforcement Officer at the time of such arrest had reasonable cause to believe was lawful. An Enforcement Officer shall not be deemed an aggressor or lose his or her right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. SECTION 4. Section 1.01.240 is added to the Palm Springs Municipal Code to read: 1.01.240 Civil Actions - Injunction, Civil Penalties, and Administrative Costs. In addition to all other remedies, the City may bring a civil action to enforce the provisions of this Code, in which a court may impose the following remedies: (1) An injunction or any other appropriate equitable remedy; (2) Civil penalties in an amount not to exceed five hundred dollars ($500.00) per violation for each day, payable to the city, against any person who commits, continues, operates, allows or maintains any violation of any provision of this code; (3) Reimbursement of city administrative and abatement costs, including but not limited to investigative costs incurred in the enforcement of the provisions of this code; and (4) Award of attorneys' fees, where the City has elected at the initiation of the action to seek the recovery of such fees, in which case the prevailing party in such action shall be entitled to an award of attorneys' fees in an amount which shall not exceed the reasonable attorneys' fees incurred by the City. SECTION 5. Chapter 1.06 is added to the Palm Springs Municipal Code to read: Administrative Citation Ordinance 2 Chapter 1.06 Community Improvement and Administrative Citations Sections: 1.06.010 Intent 1.06.020 Definitions 1.06.030 Administrative Citation and Pre-Citation or Courtesy Notice 1.06.040 Imposition of Penalties 1.06.050 Action Required Upon Receipt of an Administrative Citation 1.06.060 Hearing Procedure 1.06.070 Collection of Fines 1.06.080 Civil or Criminal Actions Not Affected 1.06.090 Neighborhood Involvement 1.06.010 Intent. A. This Chapter provides for administrative citation remedies, 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, including any codes adopted by reference, or other public nuisance. B. This Chapter establishes an administrative citation process and monetary penalties to encourage and expedite compliance with the provisions of the Palm Springs Municipal Code. This Chapter encourages voluntary compliance through the implementation of a process that informs responsible parties of violations by giving a written warning before taking action and allowing reasonable time lines for compliance. C The goals of this Chapter focus on minimizing the number of code violations made by property owners, renters, business owners, and other stakeholders of the City by instituting a citation process and promoting a positive city image. The goals of this Chapter are as follows: 1. To improve the quality of life for Palm Springs residents and business owners by reducing the number of code violations through the encouragement of expedient compliance; 2. To protect the health, safety, and welfare of the general public by minimizing potentially harmful municipal code violations; 3. To provide a simplified administrative citation process in order to encourage its implementation; 4. To minimize the time and expense associated with code enforcement action; 5. To provide a methodology to hold noncompliant parties responsible for continuous violations; and 6. To provide for the enhanced collection of delinquent code enforcement fines, costs, fees and penalties by conditioning issuance and renewal of city licenses and permits upon payment of such delinquent code enforcement fines, costs, fees and penalties. Administrative Citation Ordinance 3 D. The Council finds that the enforcement throughout the City of the provisions of the Code, including such codes as have been incorporated by reference and any applicable state codes, is an important public service. Code enforcement is vital to the protection of the public's health, safety, and quality of life. The Council recognizes that code enforcement depends upon the codification and implementation of fair, reasonable, and consistent regulations that can be effectively applied in administrative and judicial proceedings. The Council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with the Code and the regulations contained in this Code. 1.06.020 Definitions In construing the provisions of this Chapter 1.06 of the Code, the following definitions shall apply: "Administrative Citation" means a monetary penalty issued after failure to abate a violation of the Palm Springs Municipal Code. "City Manager" means the City Manager of the City or the City Manager's designee or designees. "Enforcement Officer" means a code compliance officer, police officer, building inspector, or any other city employee designated by the City Manager to enforce the provisions of the Palm Springs Municipal Code and granted authority to issue notices and administrative citations pursuant to this Title. The term "Enforcement Officer" also includes any city employee or official expressly provided enforcement authority pursuant to the provisions of this Code. "Hearing" means a hearing conducted by a Hearing Officer regarding an appeal of the issuance of an administrative citation submitted by a responsible party. "Hearing Officer" means an individual or board (including, but not limited to, the Administrative Appeals Board) as may be designated by the City Manager to conduct hearings, including appeals hearings, and make decisions as provided in this Chapter. "Responsible Party" means the owner of property upon which a violation of the Palm Springs Municipal Code exists. This term shall also include any non-owner, occupant, or other person or entity in control of the property who is creating, causing, or maintaining any condition in violation of the Palm Springs Municipal Code. 1.06.030 Administrative Citation and Pre-Citation or Courtesy Notice A. Whenever an Enforcement Officer charged with the enforcement of any provision of this Code determines that a violation of that provision has occurred, either by receiving a complaint or being witness to the violation, the Enforcement Officer has the authority to take the actions identified in this Section and issue an administrative citation to a Responsible Party for the violation, as provided herein, unless the violation is deemed to be an immediate threat to life and safety, at which time the matter shall be referred to the Building Official, Police Department, Fire Department, or other applicable agency, depending on the nature of Administrative Citation Ordinance 4 the violation, for immediate action. B. Prior to issuing an administrative citation for a violation of this Code that does not create an immediate danger to health or safety, the Enforcement Officer shall serve a pre- citation or courtesy notice on the Responsible Party for the violation containing the following information: 1. The date the violation was observed; 2. The address or a definite description of the location where the violation was observed; 3. The section of this code violated and a description of the violation; 4. The compliance date by which the violation shall be corrected or otherwise remedied, which shall be no less than fifteen (15) days and no more than sixty (60) days from the date the pre-citation notice is given, as determined to be reasonable by the code enforcement official; 5. A statement that if the violation is not corrected by the specified compliance date, that an administrative citation will be issued which imposes a fine, for the amount of which will be specified; and 6. The name, signature and department of the Enforcement Officer issuing the pre-citation notice. C. Each administrative citation shall contain the following information: 1. The date of the violation; 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; 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. 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 8. The name, signature, and department of the citing Enforcement Officer. D. An administrative citation shall be issued and served in accordance with Section 1.06.040. 1.06.040 Imposition of Penalties A. First Administrative Citation. If the violation is not abated by the date set forth in the courtesy notice, a first administrative citation shall be issued. The first administrative citation shall carry a fine of $100.00, or such amount as the City Council may establish by resolution, and shall require abatement of the violation within ten (10) calendar days from the date of the first administrative citation. If an extension of the compliance date set forth in the first administrative citation is requested and approved in accordance with Section 1.06.050, the fine must be paid prior to the city's grant of the extension. The first administrative citation Administrative Citation Ordinance 5 shall warn the responsible party of an additional $250.00 penalty, or such amount as the City Council may establish by resolution, for not abating the violation by the compliance date set forth in the first administrative citation or the extension period granted by the city. B. Second Administrative Citation. If the violation continues after the compliance date in the first administrative citation or any extension period granted by the city, a second administrative citation shall be issued. The second administrative citation shall carry a fine of $250.00, or such amount as the City Council may establish by resolution, and shall require abatement of the violation within ten (10) calendar days from the date of the second administrative citation, and shall clearly indicate "SECOND ATTEMPT TO OBTAIN COMPLIANCE." If an extension of the compliance date set forth in the second administrative citation is requested and approved in accordance with Section 1.06.050, the full amount of all fines must be paid prior to the city's grant of the extension. The second administrative citation shall warn the responsible party of an additional $500.00 penalty for not abating the violation by the compliance date set forth in the second administrative citation or the extension period granted by the city. C. Third Administrative Citation. If the violation continues after the compliance date in the second administrative citation or any extension period granted by the city, a third administrative citation shall be issued. The third administrative citation shall carry a fine of $500.00, or such amount as the City Council may establish by resolution, and shall require abatement of the violation within ten (10) calendar days from the date of the third administrative citation, and shall clearly indicate "FINAL ATTEMPT TO OBTAIN COMPLIANCE — FAILURE TO COMPLY MAY RESULT IN PUBLIC NUISANCE PROCEEDINGS AND OTHER ENFORCEMENT ACTIONS — ALL COSTS ASSOCIATED WITH PUBLIC NUISANCE PROCEEDINGS MAY BE LIENED AGAINST THE SUBJECT PROPERTY IF NOT PAID BY THE RESPONSIBLE PARTY." If an extension of the compliance date set forth in the third administrative citation is requested and approved in accordance with Section 1.06.050, the full amount of all fines must be paid prior to the city's grant of the extension. 1.06.050 Action Required Upon Receipt of an Administrative Citation. A. Upon receipt of an administrative citation, the responsible party must take one of the following actions to avoid additional penalties: 1. Correct the violation, pay the corresponding fine(s), if any, and contact the city to request a re-inspection, prior to the compliance date specified in the administrative citation; or 2. Request an extension of time in writing, which shows a reasonable hardship pursuant to Subsection B of this Section, prior to the compliance date specified in the administrative citation; or 3. Request a hearing to appeal the administrative citation pursuant to Subsection C of this Section. B. All requests for extensions must be made in writing, submitted to the Enforcement Officer, and present a reasonable hardship. The Enforcement Officer may grant a one-time extension at his/her discretion after payment of the fine due. The extension shall not exceed Administrative Citation Ordinance 6 thirty (30) days unless the matter is referred to the City Manager for additional time. The City Manager may grant additional time as determined in the City Manager's reasonable discretion, considering all relevant facts and circumstances of the hardship. If the case has been referred or appealed to the Hearing Officer, extensions may not be granted. C. A Responsible Party receiving an administrative citation may appeal such citation within ten (10) calendar days from the date the citation is deemed served, or such extended date, if an extension is granted pursuant to Section 1.06.050. 1. The appeal must be in writing and must indicate the appellant's full name and mailing address. It must be accompanied by the penalty amount and appeal fee which shall be set by City Council Resolution, must specify the basis for the appeal in detail, and must be filed with the City Clerk's office. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. 2. As soon as practicable after receiving the written notice of appeal, the City Manager shall fix a date, time, and place for the hearing before a Hearing Officer. Hearings shall take place once per month at a set time and date, unless the city finds it necessary to conduct hearings more frequently. Written notice of the time and place for the hearing may be served by first class mail, at the mailing address indicated on the written appeal. Service of the appeal notice must be made at least ten (10) calendar days prior to the date of the hearing to the party appealing the administrative citation. 3. The failure of any person with an interest in the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this chapter. Service by first class mail, postage prepaid shall be effective on the date of mailing. 4. Failure of any responsible party to file an appeal in accordance with the provisions of this section shall constitute a waiver of that responsible party's rights to administrative determination of the merits of the administrative citation and the amount of the penalty. If no appeal is filed, the administrative citation shall be deemed a final administrative order and a failure to exhaust the responsible party's administrative remedies. 1.06.060 Hearing Procedure A. The City Manager shall designate a Hearing Officer to conduct appeals under this Chapter. The Hearing Officer shall be an individual or appointed person or board, subject to the provisions of the Political Reform Act of 1974 and all other laws, ordinances, or regulations of the State or the City relating to conflicts of interest. All costs associated with the Hearing Officer shall be paid from the appeal hearing fees and fines collected from administrative citations. The responsible party may request the City Manager to excuse a Hearing Officer upon a showing of actual prejudice against the party's cause. The Hearing Officer shall conduct an orderly fair hearing and accept evidence on which persons would Administrative Citation Ordinance 7 commonly rely in the conduct of their ordinary business affairs as follows: 1. A valid citation shall be prima facie evidence of the violation. 2. The Hearing Officer shall administer oaths and accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation. 3. The owner, agent, person responsible for the violation, or any other interested person, may present testimony or evidence concerning the violation and the means and time frame for correction. B. The City Manager shall establish all appropriate administrative regulations for implementing this Chapter, including the conduct of hearings and rendering decisions pursuant to this Section. C. The Hearing Officer may modify the penalties stated in an administrative citation depending upon the circumstances of each case and the evidence presented and the Hearing Officer provides specific grounds for such modification in the written decision. The Hearing Officer has authority to reduce, conditionally reduce, or increase the amount of any penalties, subject to the fine amounts or limits established by the Council by resolution. The Hearing Officer may impose conditions and deadlines for correction of violations or payment of outstanding penalties. D. The failure of the responsible party or duly authorized representative to appear at the hearing shall constitute a forfeiture of the fine and appeal fees and a failure to exhaust the responsible party/appellant's administrative remedies. E. The Hearing Officer shall make findings based on the record of the hearing and make a written decision based on the findings. The city shall preserve all exhibits submitted by the parties and shall serve the decision by first class mail on the appellant within ten (10) calendar days after the hearing. The decision of the Hearing Officer dismissing the administrative citation is final and conclusive. The decision of the Hearing Officer affirming the administrative citation is final and conclusive, subject only to review by the Superior Court in accordance with State law pursuant to an appeal to Superior Court filed by the appellant within twenty (20) days of the date that the administrative citation is served upon the appellant. There are no appeals to the City Council. F. If the Hearing Officer dismisses the administrative citation, all fines and appeal fees shall be refunded to the responsible party/appellant within thirty (30) calendar days. G. The Responsible Party who requested the hearing may obtain review of the Hearing Officer's administrative decision regarding the administrative citation by filing a petition for judicial review pursuant to the provisions of California Government Code Section 53069.4. 1.06.070 Collection of Fines A. The failure of any person to pay a fine assessed by administrative citation within the time specified on the administrative citation constitutes a debt to the City. To enforce that debt, the City Manager may file a civil action, impose a special assessment as set forth Administrative Citation Ordinance 8 below, or pursue any other legal remedy to collect such debt, including reasonable costs of collection and attorneys' fees. B. The City Council may impose a special assessment against the property that is the subject of a citation if the citation has been issued to the property owner. The City Manager shall record a notice of lien in the Office of the County Recorder when the special assessment procedure is used. When so made and confirmed, the cost shall constitute a lien on that property for the amount of the assessment. C. After confirmation and recordation, a copy shall be turned over to the Riverside County tax collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular property tax bills levied against the lots and parcels of land for municipal purposes. Those amounts shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale as provided for with ordinary municipal taxes. Or, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law. D. Non-payment of fines which the City has made reasonable effort to collect shall be deemed a misdemeanor for which the responsible party may be prosecuted. E. Administrative citation fines collected pursuant to this Chapter shall be deposited into a an appropriate fund to be administered in furtherance of the purposes of this Chapter and to fund such code enforcement and public nuisance abatement actions and proceedings as the City Council may identify or proscribe. 1.06.080 Civil or Criminal Actions Not Affected Any administrative citations pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate the public nuisance or violation or to seek compensation for damages suffered. A civil or criminal action may be brought concurrently with any other process regarding the same public nuisance or violation. 1.06.090 Neighborhood Involvement The City Manager shall cooperate with Neighborhood Organizations and the Neighborhood Involvement Committee, as may be organized pursuant to the provisions of Chapter 2.55 of this Code, in the implementation of this Chapter 1.06. Such cooperation may include the provision of information and the establishment of forums for dialogue and communication on the requirements of the City's Code and the City's enforcement of the Code. Nothing in this Chapter shall be construed as authorizing the City Manager to appoint or designate any member of any Neighborhood Organization or the neighborhood Involvement Committee as an Enforcement Officer. SECTION 6. Section 1.08.050 of the Palm Springs Municipal Code is amended to read: Administrative Citation Ordinance 9 1.08.050 Issuance of Citations by Designated Officers and Employees A. Officers and employees of the City who have the discretionary duty to enforce a statute or ordinance may, pursuant to Section 836.5 of the Penal Code, as may be amended from time to time, and subject to the provisions of this Section of the Code, arrest a person without warrant whenever such officer or employee has reasonable cause to believe that the person to be arrested has committed a misdemeanor in the officer's or employee's presence which he or she has the discretionary duty to enforce, and to issue a notice to appear, and to release such person on his or her written promise to appear in court pursuant to Section 853.6 of the Penal Code, as may be amended from time to time. B. No officer or employee shall be allowed by his or her superior to exercise the arrest and citation authority conferred in this section unless such officer or employee is within a classification of city officers and employees designated by the City Manager to exercise such arrest and citation authority as to specified misdemeanor violations. C. The City Manager shall establish and cause to be administered a special enforcement training program designed to instruct each officer or employee who will exercise such arrest and citation authority, regarding the provisions of the statutes and ordinances to be enforced, the evidentiary prerequisites to proper procedures for making arrests, or otherwise prudently exercising such arrest and citation authority or alternative enforcement authority provided in this Code, and the legal and practical ramifications and limitations attendant thereto. Any such officers or employees shall be appropriately instructed to deposit executed citations for criminal violations or notices related thereto with the police department for the filing with the court, after review for legal sufficiency. SECTION 7. Section 11.72.010 of the Palm Springs Municipal Code is amended to read: 11.72.010 Definitions. A. In addition to conditions identified elsewhere in this Code as constituting a public nuisance, the materials and conditions identified in Sections 11.72.020 through 11.72.174 shall constitute public nuisances. B. In construing the provisions of this Chapter 11.72, the following definitions shall apply: "City Manager" means the City Manager of the City or the City Manager's authorized representative designee or designees. "Director' means the City Manager of the City or the City Manager's authorized representative designee or designees. "Enforcement Officer" means a code compliance officer, police officer, building inspector, or any other city employee designated by the City Manager to enforce the provisions of the Palm Springs Municipal Code and granted authority to issue notices and orders, citations, notices to comply, or initiate any other administrative remedy pursuant to this Code. The term "Enforcement Officer' also includes any city employee or official Administrative Citation Ordinance 10 expressly provided enforcement authority pursuant to the provisions of this Code. "Hearing" means a hearing conducted by a Hearing Officer regarding the abatement of a public nuisance or to decide on an appeal of an administrative decision submitted by a responsible party. "Hearing Officer" means an individual or board (including, but not limited to, the Administrative Appeals Board or Board of Appeals created pursuant to any adopted uniform building, housing, or safety code) as may be designated by the City Manager to conduct hearings, including appeals hearings, and make decisions as provided in this Chapter. "Responsible Party" means the owner of property upon which a violation of the Palm Springs Municipal Code exists. This term shall also include any non-owner, occupant, or other person or entity in control of the property who is creating, causing, or maintaining any condition in violation of the Palm Springs Municipal Code. SECTION 8. Section 11.72.180 of the Palm Springs Municipal Code is amended to read: 11.72.180 Authority to Enter and Inspect Property A Whenever possible to make an inspection to enforce any of the provisions of this Chapter, or whenever the Enforcement Officer has reasonable cause to believe that there exists in any building or on any property any public nuisances, the Enforcement Officer may enter such building or property at all reasonable times to inspect the same and ascertain whether the provisions of this Code or applicable state codes are being obeyed and to make any examinations and surveys as may be necessary in the performance of their enforcement duties. These may include the taking of photographs, samples or other physical evidence. All inspections, entries, examinations and surveys shall be done in a reasonable manner. If such building or property is occupied, the Enforcement Officer shall first present proper credentials or identification and request entry. If the building or property is unoccupied, the Enforcement Officer shall make a reasonable effort to locate the owner or other persons having charge or control of the building or property and request entry. If entry is refused, the Enforcement Officer shall have recourse to every remedy provided to secure entry, including, but not limited to, securing an administrative inspection warrant pursuant to the procedures provided in state law, including California Civil Procedure Section 1822.50 et seq., as it may be amended from time to time. B. When the Enforcement Officer shall have first obtained a proper administrative inspection warrant or other remedy provided by law to secure entry, no owner or occupant of the building or property shall fail or neglect, after proper request is made as provided in this Section, to promptly permit entry therein by the Enforcement Officer for the purpose of inspection and examination pursuant to this Chapter. SECTION 9. Section 11.72.220 of the Palm Springs Municipal Code is amended to read: 11.72.220 Appeal and Hearing A. The City Manager shall designate a Hearing Officer to conduct appeals under this Chapter. The Hearing Officer shall be an individual or appointed person or board, subject to Administrative Citation Ordinance t l the provisions of the Political Reform Act of 1974 and all other laws, ordinances, or regulations of the State or the City relating to conflicts of interest. All costs associated with the Hearing Officer shall be paid from the appeal hearing fees and fines collected pursuant to this Chapter. The responsible party may request the City Manager to excuse a Hearing Officer upon a showing of actual prejudice against the party's cause. The Hearing Officer shall conduct an orderly fair hearing and accept evidence on which persons would commonly rely in the conduct of their ordinary business affairs. B. The Hearing Officer shall follow the notice requirements and hearing procedures substantially similar to those required of the administrative appeals board pursuant to Chapter 2.50 of this Code. C. The Hearing Officer may modify any decision or action of an Enforcement Officer depending upon the circumstances of each case and the evidence presented and the Hearing Officer provides specific grounds for such modification in the written decision. The Hearing Officer has authority to reduce, conditionally reduce, or increase the amount of any penalties, subject to the guidelines or fine amounts or limits established by the City Council by resolution. The Hearing Officer may impose conditions and deadlines for correction of violations or payment of outstanding penalties. D. The failure of the Responsible Party or duly authorized representative to appear at the hearing shall constitute a forfeiture of any fine paid and appeal fees and a failure to exhaust the responsible party/appellant's administrative remedies. E. The Hearing Officer shall make findings based on the record of the hearing and make a written decision based on the findings. The City shall preserve all exhibits submitted by the parties and shall serve the decision by first class mail on the appellant within ten (10) calendar days after the hearing. SECTION 10. Section 11.72.225 of the Palm Springs Municipal Code is amended to read: 11.72.225 Judicial Review Any decision and administrative order or supplemental decision and administrative order of a Hearing Officer, except as otherwise provided in Section 1.06.060, shall be subject to judicial review in the Riverside County courts by filing with the court a petition for writ of mandate pursuant to the provisions and time limits set forth in Section 1094.6 of the Code of Civil Procedure. SECTION 11. Section 11.72.186 of the Palm Springs Municipal Code is repealed. SECTION 12. Section 11.72.195 of the Palm Springs Municipal Code is repealed. SECTION 13. The City Council declares that, should any provision, section, paragraph, sentence, or word of this ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, section, paragraphs, sentences or words of this ordinance shall remain in full Administrative Citation Ordinance 12 force and effect. SECTION 14. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect thirty (30) days after passage. PASSED AND ADOPTED THIS DAY OF 12005. AYES: NOES: ABSTAIN: ABSENT: RONALD ODEN, MAYOR ATTEST: James Thompson, City Clerk APPROVED AS TO FORM: Douglas Holland, City Attorney E:\Admin Citation Ord\Fourth Revision.doc Administrative Citation Ordinance 13