Ordinance 2782 and Staff ReportCITY OF ALAMEDA ORDINANCE NO. 2782
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY REPEALING
SECTION 1 -5 (PENALTY PROVISIONS) OF CHAPTER I (GENERAL) IN ITS
ENTIRETY AND ADDING A NEW SECTION 1 -5 (PENALTY PROVISIONS;
ENFORCEMENT) TO CHAPTER I
BE IT ORDAINED by the Council of the City of Alameda that:
Section 1. The Alameda Municipal Code is hereby amended by repealing
section 1 -5 (Penalties Provisions) of Chapter I (General) in its entirety.
Section 2. The Alameda Municipal Code is hereby amended by adding a new
section (Penalty Provisions; Enforcement) to Chapter I (General) to read:
1 -5 PENALTY PROVISIONS; ENFORCEMENT
1 -5.1 Misdemeanors; Infractions; General Penalty; Continuing Violations.
a. Whenever in this Code or in any other ordinance of the City or in any
order, rule or regulation issued or promulgated by any duly authorized officer or agent of the -
City, any act is prohibited or is made or declared to be unlawful or an offense, or the failure to
do any act is declared to be unlawful or an offense, the violation of any such provision of the
Code or any other ordinance of the City or any such order, rule or regulation shall be a-
misdemeanor or infraction.
b. Whenever in this Code or in any other ordinance of the City or in any
order, rule or regulation issued or promulgated by any duly authorized officer or agent of the
City, any act is prohibited or is made or declared to be a misdemeanor, where no specific penalty
is provided therefor, the violation of any such provision shall be punishable by a fine not to
exceed one thousand dollars ($1,000.00) or imprisonment for a term not exceeding six months,
or by both such fine and imprisonment.
c. Whenever in this Code or in any other ordinance of the City or in any
order, rule or regulation issued or promulgated by any duly authorized officer or agent of the
City, any act is prohibited or is made or declared to be an infraction, where no specific penalty is
provided therefor, the violation thereof shall be punished by a fine not exceeding five hundred
dollars ($5,00.00).
d. Any offense which would otherwise be an infraction is a misdemeanor if a
defendant has previously been convicted thereof three times or more, and such prior convictions
are admitted by the defendant or alleged in the accusatory pleading. For this purpose, a bail
forfeiture shall be deemed to be a conviction of the offense charged.
e. Every day any violation of this Code or any other ordinance of the City or
any such order, rule or regulation continues to occur shall constitute a separate offense, except as
otherwise provided.
1 -5.2 Arrests for Code or Ordinance Violations; Written Promise to Appear.
a. If any person is arrested for a violation of any provision of this Code or
any other ordinance, and such person is not immediately taken before a magistrate, as prescribed
in the Penal Code of the State, the arresting officer shall prepare in duplicate a written notice to
appear in court, containing the name and address of such person, the offense charged, and the
time and place when and where such person shall appear in court.
b. Any person wilfully violating his written promise to appear in court is
guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was
originally arrested.
1 -5.3 Civil Action Enforcement
a. In addition to the penalties provided for in this chapter, any violation of
this code or City ordinance may be redressed by civil action. Any condition existing in violation
of this code or a City ordinance or any order, rule or regulation issued or promulgated by any
duly authorized officer or agent of the City, is deemed to be a public nuisance.
b. The City attorney may bring civil suit or other action to enforce any
ordinance or section of this Code, to enjoin or prevent any violation of any ordinance, or to abate
any public nuisance as defined or declared by this Code.
c. The remedy by civil action to enforce any ordinance or section of this
Code is in addition to any other remedies available under ordinance, City code or statute and
does not replace or support any other remedy but is cumulative thereto.
1 -5.4 Liability for Costs.
Any person against whom such civil action is filed shall be liable for the costs
thereof, which shall include but not be limited to the costs of investigation, court costs,
reasonable attorney fees and costs of monitoring compliance.
1 -5.5 Additional Liability for Costs of City.
If any person causes, suffers or permits a public nuisance to continue after written
notice is given to such person by the City, directing such person to cease the nuisance, and such
continuation goes beyond the time set for abatement in the notice, then such person shall be
liable to the City for the expenses incurred in detecting, investigating and abating the violations,
including attorney fees and the costs of monitoring compliance. The City may'recover such costs
by civil action or by billing said person.
1 -5.6 Authorization of Code Enforcement Officers; Limitations.
a. The following classification of City employees and agents shall have the
authority under Penal Code Section 836.5 to issue citations for violations of the Alameda
Municipal Code:
Code Compliance Officer
Planner I, II and III
Associate Planner
Planning Manager
Planning Director
Public Works Director
Maintenance Superintendent
Deputy Public Works Director
City Engineer
Building Official
Building Services Manager
Combination Building Inspector
Housing Inspector
Building Inspector
Community Service Officer (CSO)
b. The authorization herein does not include the use of any weapon or
physical force or restraint in the issuance of a citation.
1 -5.7 Training Standards.
Notwithstanding the statutory authorization to issue citations for violations of
Alameda Municipal Code violations, prior to issuing citations each authorized City employee is
required to successfully complete a standard 40 hour training course in arrest, search and seizure
procedures pursuant to Section 832 of the Penal Code.
1 -5.8 Judicial Review; Administrative Decisions.
The provisions of Section 1094.6 of the California Code of Civil Procedure are
applicable to the City.
Section 3. If any section, subsection, sentence, clause, or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect
the validity or constitutionality of the remaining portions of this ordinance. The City Council of
the City of Alameda hereby declares that it would have passed this ordinance, and each section,
subsection, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases are declared to be invalid or. unconstitutional.
Section 4. This ordinance shall be in full force and effect from and after the
expiration of thirty (30) days from the date of its final passage.
Attest:
5/61/1e
City Clerk
I, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted
and passed by the Council of the City of Alameda in regular meeting assembled on the 1st day of
December , 1998, by the following vote to wit:
AYES: Councilmembers Daysog, DeWitt, Kerr, Lucas and
President Appezzato - 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City
this 2nd day of December , 1998.
/P 43
Diane Felsch, City Clerk
City of Alameda
City of Alameda
Inter - department Memorandum
November 12, 1998
TO: Honorable Mayor and
Members of the Council
FROM: Carol A. Korade
City Attorney
RE: Introduction of Ordinance Amending Alameda Municipal Code Section 1 -5
(Penalty Provisions) of Chapter I (General)
Background:
In 1995, the City implemented a code compliance program based on the authority
provided in the California Constitution, the City Charter and the Government Code.
Discussion:
While reviewing the Alameda Municipal Code as part of our continuing efforts to
update the Code language for clarity as well as legal requirements, it became apparent that section
1 -5 of the Administration Chapter contained sections which attempted to regulate federal and state
law, contained cumbersome and unnecessary language, failed to contain the required "enabling
clause" for code enforcement and did not address recovery of costs. In addition, it contained certain
provisions that would be more appropriately placed in a different section of the Code.
The modifications to the Code do not involve any substantive or policy changes to
the current practices of the City. The purpose is to simplify the language and comport with
applicable law.
Municipal Code Cross Reference:
Following is a brief summary of the modifications, which include deletions, additions
and modifications:
1. Deletion of section 1 -5.1 which created a sliding scale for infraction
"convictions." This raises the constitutional due process issue of notification of "priorable offenses."
Since infractions are essentially treated as non - criminal, judges do not provide necessary
admonishments prior to accepting plea.
2. Deletion of section 1- .5.1(c) This language is unnecessary as well as
redundant and fails to reflect the continual changing, deleting and adding of ordinances as well as
the renumbering of specific section numbers and subsections as various changes are made over the
course of time.
Re: Introduction of Ordinances #4 -E CC
11 -17.98
Honorable Mayor and November 12, 1998
Members of City Council Page 2
3. Deletion of section 1- 5.1(e) which duplicates federal constitutional law. Any
attempted regulation of this subject matter is preempted by federal law.
4. Amend section 1 -5.2 as written, since it duplicates state law and is preempted
by the Penal Code as well as certain due process constitutional rights.
5. Deletion of section 1 -5.3. The Notice and Order procedures are located in
Chapter 13, which regulates those specific situations where a Notice and Order is used.
6. Addition of a civil action enforcement subsection to codify the City's existing
authority and addition of a section that enables the City to seek recovery of costs. This provides the
required statutory authority for such recovery.
7. Addition of an enabling ordinance to meet the legal requirements that the City
have an ordinance authorizing municipal code enforcement by specified positions. The identified
positions include possible future additional staff..
8. Addition of 1 -5.7 provides for training standards in conformity with the legal
requirements of the Penal Code.
Budget Consideration/Fiscal Impact:
None.
Recommendation:
It is recommended that the City Council introduce and adopt the attached ordinance
which repeals section 1 -5 in its entirety and add a new section 1 -5 to the Alameda Municipal Code.
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Respectfully submitted,
/
clo&
Caro . Korade
City Attorney