Subject: ADMINISTRATIVE
CITATION SCHEDULE OF FINES
COUNCIL DISTRICT: City-wide
It is recommended that the City Council adopt a resolution to amend the Administrative Citation Schedule of Fines to incorporate new and/or progressive fines for various sections of the Municipal Code as follows:
1. Window Tinting at Beverage Service Businesses – Ordinance 26133
a. Establish a graduated schedule of $250, $500 and $1000 for each occurrence of non-compliance with either Section 6.82.110 (Compliance with Chapter) or Section 6.82.120 (Window Tint Specifications – visibility into establishment).
2. Abandoned Cart Prevention – Ordinance 26292
a. Establish a fee of $50 for each occurrence of non-compliance with Section 9.60.300 (Cart Abandonment Prohibited); and
b. Establish a graduated schedule of $50, $100, and $250 for each occurrence of non-compliance with either Section 9.60.320 (Unauthorized removal prohibited) or Section 9.60.330 (Compliance with Prevention Plan).
3. Amendment to Blight Code - Ordinance 26443
a. Establish a graduated schedule of $250, $500, and $1,000 for each occurrence of non-compliance with either Section 17.72.015 (Prohibition of Blighted Property) or Section 17.72.020 Enforcement (Compliance with Chapter).
4. Zoning Ordinance - Ordinance 26248
a. Establish a fine of $50 for each occurrence of non-compliance with Section 20.30.430 (Front Set Back – Parking and Storage).
In recent months, the City Council has adopted amendments and additions to the San José Municipal Code that requires renumbering of existing code sections and/or the addition of new sections. In revising the Code, it is necessary to adopt a Resolution of Fines for violations of these regulations to enable staff to facilitate compliance through the use of the Administrative Citation tool.
In November 1994, the City Council approved the Administrative Citation Ordinance (Ordinance No. 24725), which established administrative citations as an alternative enforcement tool to address more discrete and transient Municipal Code violations. This ordinance was developed to provide a quick and effective enforcement alternative to criminal prosecution in these situations.
On July 6, 1995, the Council adopted Resolution No. 65950 setting forth the Administrative Citation Schedule of Fines. This resolution created a standard fine of $25 for violation of the Municipal Code unless a different amount for a particular section was adopted by the City Council.
The purpose of this memorandum is to request Council authorization to establish an alternative schedule of fines for particular sections of the Municipal Code related to Window Tinting at Beverage Service Businesses, Abandoned Cart Prevention, Amendment to the Blight Code, and the City’s Zoning Ordinance.
It is the goal of the Code Enforcement Division to obtain
voluntary compliance for violations of the Municipal Code. It is standard practice to provide
education, outreach and an appropriate opportunity for compliance prior to the
use of punitive measures (unless there is an imminent hazard to the public).
The majority of violations are resolved through voluntary
compliance. In those instances where
stronger measures are necessary to gain compliance, the Administrative Citation
is the most effective tool to quickly address property blight issues and
conditions. However, the standard fine
of $25 is not sufficient to encourage compliance for some violations. Consequently, it is recommended that a
progressive schedule of fines be adopted in lieu of the standard $25 fine for
violation of the certain Municipal Code provisions in order to facilitate
continued use of the Administrative Citation process.
It is recommended that alternate fines be adopted as
follows:
Window Tinting Ordinance
On May 8, 2001, City Council adopted Ordinance No. 26359,
amending Title 6 of the San Jose Municipal Code to add a new chapter to
regulate tinted windows at beverage service businesses. The ordinance was
adopted as a result of Council referral and recommendation by the ENYS
Committee to address issues of safety for both officers and patrons at these
businesses. The ordinance specified that windows at these businesses allow a
clear view into the interior of the establishment for persons within twenty
feet of the establishments’ exterior.
It is recommended that failure to comply with the ordinance
be subject to a progressive fine structure of $250, $500, and $1,000 so as to
provide an opportunity and motivation for compliance if not achieved or the
window tinting is reapplied after initial compliance.
Abandoned Cart Ordinance
On February 6, 2001, the City Council adopted Ordinance No.
26292, amending Title 9 of the San Jose Municipal Code and adding a new Chapter
9.60 regarding the prevention of abandoned carts. The adoption of the new
chapter to address abandoned carts was as a result of a Council referral and
recommendation by the ENYS Committee. The Department of Transportation recovers
as many as 1400 carts each month found abandoned on city streets, sidewalks and
parks. The ordinance requires additional responsibility by the owner of the carts
and those who take the carts without permission of the owner. The goal of the
ordinance is to significantly reduce the number of carts found abandoned. The
fine for abandonment of a cart (Section 9.60.300) is limited by the Business
and Professions Code to $50. However,
there is no such limitation as it relates to the unauthorized removal of a cart
or the failure to submit a prevention plan.
For these sections, it is recommended that the fine for non-compliance
be set at $50 for the first offense and that it progress to $100 and $250 for
each subsequent offense.
On June 26, 2001, City Council adopted Ordinance No. 26443 amending Part 1 of Chapter 17.72 and adding a new Part 1.5 to Chapter 17.72. The ordinance and amendments are as a result of Council referral and recommendation by the ENYS Committee. The Blight Code was amended to allow for broader scope of violations that would be subject to the Administrative Citation process. This included conditions such as: graffiti; inoperable vehicles on residential properties; commercial vehicle storage in residential areas; overgrown weeds and lack of property maintenance; commercial property landscape maintenance and lack of landscaping in the front yards of duplex and multi-family residences.
The existence of blighted conditions in neighborhoods not only creates unsafe conditions, but also negatively impacts the perceived quality of life in San José neighborhoods. For this reason, it is recommended that a progressive schedule of fines be established as follows: $250 for a first offense; $500 and $1000 for second and subsequent violations.
A comprehensive revision of the San José Zoning Code (Ordinance No. 26248) was adopted by the City Council and became effective on February 19, 2001. As a result, the number sequencing has been altered to accommodate expansions and reorientation of the Code.
Section 20.30.430 (previously 20.08.130) prohibits storage
of boats, trailers and vehicles other than passenger motor vehicles in the
front set back of residential properties for more then forty-eight consecutive
hours. The current Administrative Fine
for violation is $50 (Resolution No. 69201). While no change in the fee is
being recommended, it is necessary for the Council to authorize incorporation
of the new code section into the Schedule of Administrative Fines in order to
continue the utilization of the Administration Citation process to achieve
compliance with this section. It is
recommended that the City Council authorize this inclusion.
In the event that compliance is still not achieved through the Administrative Citation process, it is important to note that the City can pursue the administrative remedies process. This entails the issuance of a Compliance Order and a timeframe to correct the violation. If the violation is not corrected by the required date on the Compliance Order, a hearing is scheduled before the San Jose Appeals Hearing Board. The Appeals Hearing Board may then issue an order to correct the violation, require payment of administrative cost and issue administrative penalties of up to $2,500 per each day of non-compliance to a maximum of $100,000. While this is an important tool for significant on-going code violations, it is a time-consuming process and not considered an effective way to quickly resolve minor code violations.
The administrative citation process is an effective tool in achieving compliance. However, the standard fine of $25 is not a sufficient deterrent in all instances. While it is the goal of Code Enforcement to achieve voluntary compliance whenever possible, it is essential that staff have at its disposal sufficient leverage to motivate violators into compliance. The progressive fines recommended in this memorandum are considered to be reasonable but not prohibitive. It is important to note that where an escalation of fees has been recommended, Code Enforcement will continue to work to achieve compliance voluntarily before additional fines are levied. In addition, Code Enforcement will continue to provide Warning Notices and an opportunity to comply prior to the issuance of Administrative Citations. The Warning Notice contains specific information about the violation, required corrective actions, the potential Administrative Fine amounts and a period of time to comply to avoid the fines. This should afford ample opportunity for corrective action to be taken prior to the issuance of any administrative citation.
Staff has conducted external and internal outreach in the development of the adopted ordinances. This outreach included various stakeholders including citizen focus groups, inspection staff, Tri-County Apartment Owners Association, Northern California and California Grocers Association and individual Council Offices.
This memorandum has been coordinated with the City Manager’s and City Attorney’s Office.
JOSEPH HORWEDEL, ACTING DIRECTOR
Planning, Building and Code Enforcement