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HomeMy WebLinkAbout2011/12/06 - ADMIN - Agenda Packets - Charter Commission - RegularAGENDA CHARTER COMMISSION MEETING ST. LOUIS PARK, MINNESOTA December 6, 2011 7:00 p.m. – City Hall Council Chambers The mission of the Charter Commission is to evaluate and propose changes which are warranted in the city Home Rule Charter as provided by State Statute. Home Rule Charters are, in effect local constitutions passed by local voters and cannot conflict with state laws. Commissioners are appointed by the Chief Judge of Hennepin County District Court and serve on a volunteer basis. (Commissioners are not appointed by City Council.) Staff provides assistance to prepare agendas and performs other ministerial duties. 1. Call to Order 2. Roll Call & Attendance a. Requests for Excused Absences b. Introduction of New Member and Reappointments c. 2012 Term Expirations 3. Approval of Minutes – March 9, 2011 Charter Commission Meeting 4. Old Business a. Review of 2011 elected officers 5. New Business a. Proposed Civil Penalty Charter amendment 6. Future Meetings 7. Communications a. Outstanding Citizen Award Program 8. Adjournment For more information or questions regarding this agenda, please contact Nancy Stroth at (952) 928-2840 Auxiliary aids for individuals with disabilities are available upon request. To make arrangements, please call Administrative Services at (952) 924-2525. Meeting Date: December 6, 2011 Agenda Item #: 3 UNOFFICIAL MINUTES CHARTER COMMISSION MEETING ST. LOUIS PARK, MINNESOTA March 9, 2011 7:00 p.m. – Westwood Room City Hall 1. Call to Order Chair Fiderlein called the meeting to order at 7:00 p.m. 2. Roll Call and Attendance Members Present: JC Beckstrand, Gary Carlson, Lynne Carper, Jim de Lambert, Terry Dwyer, Brian Fiderlein, Matthew Flory, Ken Gothberg, Tamara Nugteren, Nathan Prosser, Pat Skinner, Erica Gutmann Strohl and Brittney Turner. Members Absent: Jim Brimeyer (excused). Others Present: Nancy Stroth, City Clerk/Charter Commission Liaison. 2a. Requests for Excused Absences It was moved by Commissioner Skinner, seconded by Commissioner Carlson to accept the excused absence of Jim Brimeyer. The motion was unanimously approved. 2b. Introduction of New Member and Reappointments Ms. Stroth introduced new Commissioner Tamara Nugteren appointed November 12, 2010 with a term expiration on November 12, 2014 and filling the vacancy of James Kelly. She also indicated that Gary Carlson was reappointed with a new term expiring October 2, 2014. Introductions followed as each commissioner introduced themselves. 2c. 2011 Term Expirations Chair Fiderlein reviewed terms of commissioners and indicated Ken Gothberg’s term will expire in June 2011. Commissioners will need to inform Ms. Stroth or the Hennepin County Chief Judge regarding reappointments. The City will help the District Court advertise any Commission openings that become available. 3. Approval of Minutes It was moved by Commissioner Carlson, seconded by Commissioner Turner to approve the minutes of April 14, 2010 as submitted. The motion passed unanimously. 4. Old Business 4a. Charter Amendments Primary Election and candidate filing dates, Finance Director/City Treasurer Ms. Stroth reviewed the Charter approved amendments to Sections 4.03, 4.06, 6.09, and 6.10 regarding municipal elections and city staff positions. She indicated on June 28, 2010 these section amendments were approved by the City Council as Ordinance 2386-10 which became effective October 6, 2010. 5. New Business Page 2 Charter Commission Meeting of December 6, 2011 (Item No. 3) Subject:Approval of Minutes of March 9, 2011 5a. Election of Officers Chair Fiderlein indicated that Election of Officers needed to take place and inquired regarding interest of current officers. Chair Nominations: Commissioner Turner nominated Lynne Carper as Chair, and Commissioner Carper accepted. There were no other nominations. It was moved by Commissioner Turner, seconded by Commissioner Carlson to nominate Commissioner Lynne Carper as Chair of the Charter Commission until the next annual meeting of the Charter Commission. The motion was unanimously approved. Vice Chair Nominations: Commissioner Carlson nominated Pat Skinner as Vice Chair and Commissioner Skinner accepted. There were no other nominations. It was moved by Commissioner Carlson, seconded by Commissioner Prosser to nominate Commissioner Patrick Skinner as Vice Chair of the Charter Commission until the next annual meeting of the Charter Commission. The motion was unanimously approved. Secretary Nominations: Commissioner Gothberg nominated Brian Fiderlein as Secretary, and Commissioner Fiderlein accepted. There were no other nominations. It was moved by Commissioner Gothberg, seconded by Commissioner Carper to nominate Commissioner Fiderlein as Secretary of the Charter Commission until the next annual meeting of the Charter Commission. The motion was unanimously approved. 5b. Proposed Annual Report for District Court - Year 2009 Chair Fiderlein inquired if anyone had any changes to the Annual Report to the District Court for the year 2010. It was moved by Commissioner Beckstrand, seconded by Commissioner Skinner to approve the 2010 Charter Commission Annual Report for submittal to Hennepin County District Court. The motion was unanimously approved. 5c. Legislative Update – Gary Carlson Commissioner Carlson presented an update on proposed legislative changes. He stated there were no legislative changes to report that would affect the St. Louis Park City Charter. He indicated one proposed change in state statutes that would impact cities with odd year elections regarding redrawing redistricting boundaries this year from the census data and again after legislative redistricting. This would only have an impact on the city but not the city charter. Commissioner Carlson reviewed other proposed legislation regarding regulation of private wells, variances to property owners, levy limits restrictions replacing loss of money, restricting use of interim ordinances, and street improvements Chapter 435. He also mentioned that relationships with city and state will continue to function regardless of a shut down. The next session was scheduled for May 23 and he stated if anything comes up that would affect the city charter he would let the commission know. Page 3 Charter Commission Meeting of December 6, 2011 (Item No. 3) Subject:Approval of Minutes of March 9, 2011 6. Future Meetings Discussion took place regarding future meetings. Commissioner Carper felt there was not a reason to meet until after the end of the legislative session, and if a meeting was necessary a notice would go out. Commissioner Gothberg recommended the next official meeting be set for 2012. It was the consensus of the commissioners to set the next meeting for Wednesday, March 14th at 7:00 p.m. 7. Communications All commissioners were invited to participate in the Citizens Academy (originated by the Charter Commission) held on March 22, 29 and April 5 from 7-9 at the Lenox Community Center and our Police Station for the low cost of $5. Commissioner Beckstrand recommended commissioners attend the State of the City at MSC. 8. Adjournment Motion by Commissioner Carlson, seconded by Commissioner Strohl to adjourn the meeting at 7:30 p.m. The motion passed unanimously. Respectfully submitted by: Nancy Stroth, Liaison and Brian Fiderlein, Secretary Charter Commission Meeting Date: December 6, 2011 Agenda Item 5a TITLE: Proposed Civil Penalty Charter Amendment RECOMMENDED ACTION: Recommend a Charter Amendment pertaining to civil penalties and assessment of unpaid fines. INTRODUCTION: The City Council is considering amending the Civil Penalties section of the City Code to make it a more effective tool for code enforcement. A civil penalty is a citation issued to the owner of a property where a code violation exists. It imposes a fee to a property owner or citizen charged with a code violation. While the City has a civil penalty procedure in place now, the proposed change is to use the process for many more items, including zoning violations. It would also include a city process to appeal such fees, and a process for assessing unpaid fines in a manner similar to a special assessment. The proposed changes will streamline the process and reduce the cost of code enforcement. Upon review of the Civil Penalty process, the City Attorney recommended that an amendment to the City Charter be adopted to provide better legal foundation for the new proposed Civil Penalty ordinance. The purpose of this agenda item and report is to explain the proposed amendment, and ask the commission to initiate the amendment process by recommending the attached Charter Amendment to the City Council. CHARTER AMENDMENT PROCESS: The Charter Commission is meeting to consider the proposed Charter Amendment. The Amendment would specifically address civil penalties, and give the City the authority to assess the penalties against property in certain circumstances when they are unpaid. The proposed amendment is attached. If the Charter Commission recommends the Charter Amendment, it will be forwarded to the City Council for consideration. Under this method of amending the Charter, the Council would need to adopt the Charter Amendment unanimously in order for it to be put in place. Council action is followed by a 60 day waiting period in which residents can petition for a referendum on the Charter Amendment. If a petition is not received, the Council can then begin the process for amending the City Code to add the new civil penalty process. ORDINANCE AMENDMENT: The process to amend the City Code would not begin until after the process to amend the City Charter has been completed. The proposed Ordinance Amendment would modify the current ordinance found in City Code Section 1-14. The Civil Penalty would not replace the Hennepin County court procedure, but be another method of code enforcement available to city staff; the City would still utilize the court system when necessary. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 2 Subject: Proposed Civil Penalty Charter amendment BACKGROUND: City Charter: The City’s authority to do code enforcement of all kinds comes from Section 1.02 of the City Charter and from general police powers found in the State Statutes. Below is the existing Charter language. Section 1.02. Powers of the City briefly states in general terms the powers the City may exercise. This list includes general statements about enforcement, such as: may define, prohibit, abate and suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the City and all nuisances and causes thereof, may regulate the construction, height and materials used in all buildings and the maintenance and occupancy thereof, may regulate and control the use of the streets and other public places; may make and enforce local police, sanitary and other regulations; may pass ordinances for maintaining and promoting the peace, good government and welfare of the City and for the performance of all the functions thereof; shall have all the powers possessed by municipal corporations at common law; While the City Charter does not specifically address the question of civil penalties, the City can adopt a Civil Penalty Ordinance by drawing its authority from the statements above, and from the general police powers allowed by State Statute. In fact, the City already adopted a Civil Penalty Ordinance in 2001. That Ordinance, however, has limitations which are explained later in this report, and it does not allow for the assessment to property of unpaid fines. While a Charter Amendment may not be required to adopt a Civil Penalty ordinance, the City Attorney has advised staff that a Charter Amendment will place the ordinance on a more solid legal foundation. Additionally, a Charter Amendment is needed if the City is going to assess unpaid fines. Authority to Issue Civil Penalties and Assess Unpaid Fines: Staff contacted the League of Minnesota Cities to determine what authority is granted to cities to impose civil penalties and assess unpaid fines. The League informed us that State Statute gives cities specific authority to impose administrative fines in three areas – certain traffic violations, liquor law and tobacco violations. Many cities, however, have adopted civil penalties for a more broad range of code violations based upon general police power authority. As a Charter City, St. Louis Park has the right to exercise the general police powers available to all cities and to place th is specific authorization for a civil penalty ordinance in its Charter. The League also informed us that State Statute does not specifically give cities the authority to assess unpaid penalties resulting from civil penalties. However, the lack of specific authority does not necessarily conclude that it can’t be done. Many Charter cities have successfully adopted Charter language to give their city authority to assess unpaid penalties in a manner similar to collecting unpaid utility fees or unpaid costs associated with nuisance abatement. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 3 Subject: Proposed Civil Penalty Charter amendment There are many cities in the state that utilize the civil penalty and assessment of unpaid fines process. For purposes of research, staff reviewed ordinances from Minnetonka, Hopkins, Woodbury, Brooklyn Park, and Bloomington. Staff also interviewed staff from Minnetonka and Brooklyn Park. Attached, as background material, is a more detailed description of the proposed Civil Penalty program and City Code Amendment. Proposed Charter Amendment: To provide the best legal foundation for our proposed Civil Penalty Ordinance, The City Attorney recommends we adopt the attached Home Rule Charter Amendment. The amendment adds a new section to Chapter 11 of the Charter, which expressly allows the City to establish a Civil Penalties Ordinance and to assess unpaid fines. RECOMMENDATION: Recommend a Charter Amendment pertaining to civil penalties and assessment of unpaid fines. NEXT STEPS: The following steps will be followed, if the Charter Commission recommends the City Council enact by Ordinance a Charter Amendment granting authority to impose civil penalties and assess unpaid fines. 1. City Council will conduct a public hearing on the proposed Ordinance for the Charter amendment on either January 16 or February 6, 2012. 2. Begin the 90 day publication period for the Charter Amendment immediately following the Council’s final adoption of the Ordinance, 3. After the expiration of the 90 day publication period, the City Council will consider the proposed amendment to City Code adopting the Civil Penalties ordinance. Attachments: Proposed Draft Charter Amendment Summary of Civil Penalty Process Proposed Civil Penalty Ordinance Prepared by: Gary Morrison, Assistant Zoning Administrator Reviewed by: Meg McMonigal, Planning & Zoning Supervisor Kevin Locke, Community Development Director Tom Scott, City Attorney Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 4 Subject: Proposed Civil Penalty Charter amendment Proposed Charter Amendment The following is Draft language for a Charter Amendment to allow for a process to issue and appeal Civil Penalties, and for collecting unpaid fines through an assessment process. If approved, this amendment would be added to the Charter as a new Section to Chapter 11. HOME RULE CHARTER CHAPTER 11. MISCELLANEOUS PROVISIONS Section 11.05. Civil Penalties. (a) The City Council may establish by ordinance a procedure for imposing a civil penalty for any violation of a city ordinance. The procedure must provide an opportunity for any person charged with a civil penalty to be notified of the penalty and to have an opportunity to be heard in response to the charge. (b) The City Council may provide by ordinance that unpaid civil penalties be collected through a process similar to a special assessment against real property if the violation relates to the maintenance of the property or to an activity, use, or delivery of City service associated with the property. The ordinance must provide that the City should first attempt to obtain voluntary payment of the penalty. The ordinance must also provide that notice and an opportunity to be heard be given to the property owner listed on the official tax records before the penalty is assessed. (c) With respect to unpaid civil penalties assessed against real property pursuant to Paragraph (b) of this Section, the assessment may include a late payment penalty to cover the administrative and legal costs incurred by the City in connection with collecting the unpaid penalties. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 5 Subject: Proposed Civil Penalty Charter amendment Summary of Civil Penalty Process Civil Penalty Process: The City currently has a civil penalty process established in the City Code. The city first adopted the in 2001. The intent of the ordinance as described in the staff report is “… to provide an alternative to the county court system in enforcing violations of the city’s ordinance code. The City currently issues county citations or files formal complaints which require the violator’s appearance in court. The civil penalty procedure allows for another tool for enforcement administered at the City level. Rather than issuing citations and processing through the county court system, a city citation will be issued and a civil fee imposed. The intent of this process is to provide a cost effective and efficient method for charging persons with code violations.” The Civil Penalty gives staff the alternative of issuing an administrative citation instead of a criminal citation. When staff determines that enforcement action is required, he or she will consider which method is appropriate for the situation. The choices include: 1. Filing a formal complaint, this requires an appearance before a judge in district court. 2. Issuing a county citation, this does not require an appearance before the judge, but does require a fine. 3. Issuing a civil penalty which does not involve the county, and still requires a fine. The civil penalty process is similar to the current enforcement process, which is as follows: 1. Up to three notifications of the violation. The number of notices depends on the severity of the violation. Violations that are easily remedied, or are reoccurring, may require fewer notices. 2. Opportunity to comply without penalty. The length of time given to comply depends on the severity of the violation, and the ease of complying. Recurring violations are given less time, and in some cases no time to comply. 3. Issuance of a citation for non-compliance or formal complaint. 4. Opportunity to appeal. All methods of enforcement have an opportunity to appeal the determination of non-compliance and the fine. Existing Civil Penalty Ordinance: While the intent of the original ordinance hasn’t changed, an amendment is proposed to better define the steps staff will follow when issuing a citation and processing an appeal. The amendment also resolves two problems with the existing process by making it mandatory for the person receiving the citation, and by establishing a method to collect unpaid fines. The existing civil penalty process is voluntary on the part of the person being charged. At any time the person charged may withdraw from the administrative process at which time the city would have to begin the process for a criminal complaint. The proposed amendment would make the civil penalty process mandatory in a similar manner that a county citation process is mandatory. The amendment will also address the problem of how to handle unpaid fines by creating the process to assess the unpaid fine to the property owner in a manner similar to a special assessment. According to the existing ordinance, if the person charged completes the voluntary civil penalty process and decides not to pay, the city then has to initiate a formal complaint in Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 6 Subject: Proposed Civil Penalty Charter amendment court to seek compliance and payment. This combined voluntary administrative and formal process is time consuming and costly. The proposed amendment will streamline the process and reduce the cost of code enforcement. Proposed Civil Penalty Process: Process: The proposed civil penalty process does not replace any existing enforcement tool or procedure. It does, however, make it more effective and cost efficient than issuing a county citation because: 1. The entire process is handled by St. Louis Park staff, 2. The entire fine is paid to the city, and 3. The city can gain payment of unpaid fines through the property assessment process. The process leading up to the issuance of the civil penalty will continue to be the same as the process followed today. The city’s first goal will remain to gain compliance through an educational and non-confrontational first contact. Staff assumes the property owner is not aware of the code, and therefore, does not know they are in violation. Staff will review the violation with the property owner, work with them to find alternatives and methods to come into compliance, and give a reasonable amount of time to complete the task. It is expected that most people will comply with code at this time, just like they always have. However, when a property owner decides not to comply, staff will choose which enforcement process will most quickly and cost-effectively gain compliance. Most situations will call for the civil penalty. The most problematic situations, which are few, will require a formal complaint. The county citation, most likely, will rarely be used. Staff involvement: In most cases, the property owner will pay the fine. In this case, staff involvement is minimal. Staff will issue the citation, enter it into the computer records, receive payment, verify compliance and close the record. When the property owner does not pay the fine, staff will add an overdue charge to the fee, and assess the penalty to the property owner. The assessment process is the same process currently used to assess unpaid utility fees and other charges incurred by the city as a result of property owner action/inaction. Rather than duplicate the process, staff will simply add the unpaid penalty to the list of other unpaid fees and the council will act on all of them at the same time. This way, additional process is not created and additional staff and council time is not required. In some cases, a property owner may appeal the civil penalty. When this happens, the city will conduct an administrative hearing. (The process is outlined in the attached handout.) It is anticipated that this will rarely happen. The City of Minnetonka conducts 3-4 hearings a year. They experience so few mainly because the fines are not intended to be a revenue generator; they are reasonable and appropriate for the violation. They also continue to work with property owners to gain compliance, even a after a civil penalty is issued. Their goal is to work in a respectful and reasonable manner from the first contact to resolution of the violation. This approach maintains a good relationship between property owner and the city, even through a difficult encounter, and it seems to avoid appeals. St. Louis Park staff believes this is the appropriate philosophy. It is the way we currently conduct code enforcement, and we propose to continue in this manner with the civil penalty process if it is adopted. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 7 Subject: Proposed Civil Penalty Charter amendment Existing Code Enforcement Tools: When a property owner continues to maintain their property in a manner that violates code, staff has to enforce the code by using one of three enforcement tools available: 1. Issuing a County citation (which is the same style of ticket issued by a police officer), 2. Filing a formal complaint in district court, or 3. Issuing a civil penalty. There are problems associated with each of these enforcement tools. These problems arise from the amount of time it takes the city to process a complaint/violation and how much it costs to process it compared to how much the City recovers in fines. By the time staff writes the first citation or files the complaint, the inspector has already: 1. Inspected the property at least three times. 2. Written three letters. 3. Had several conversations with the property owner and the complainant. 4. Updated the tracking files after each inspection, letter and contact with property owner and complainant. 5. Discussed the case with other staff and the city attorney. Issuing a Citation: The citation used is the same citation form used by the Police Department often referred to as a “ticket”. By code, every day the property remains in violation constitutes a separate violation. If the violation still exists after issuing 2 citations staff will notify the property owner that the city is going to file a formal criminal complaint. There are problems with the County citation: 1. People are not paying citations, and Hennepin County does not pursue payment. As a result, staff is relying less on citations, and more on filing a formal criminal complaint, which costs the city considerably more in staff time and because the City Attorney gets involved. 2. In 2010 1/3 of the citations issued by the Community Development and Inspections Departments were not paid. 3. Approximately ½ of citations issued in 2007 have been paid. 4. The typical citation fine issued for a zoning violation is approximately $42, approximately $30 of that goes to St. Louis Park. Other health and safety related fines can exceed $100. Filing a Formal Complaint: Filing a complaint in district court is time consuming, expensive, and adds petty misdemeanors to a court agenda filled with more serious crimes and behavioral issues. 1. A formal complaint can take 60 or more days from the time staff first made contact with the property owner to when the judge hears the complaint. 2. The judge will typically waive most of the fine even though the city has incurred staff and legal expenses in excess of the fine. 3. Occasionally, the defendant does not show up for the court appearance. When this happens, the judge will issue a bench warrant, which effectively closes the file unless the defendant is picked up on other charges. As a result, the defendant may continue to violate, and the city does not receive any fines. If the defendant continues to violate, the city has to re-file a complaint with the possibility of little action. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 8 Subject: Proposed Civil Penalty Charter amendment Issuing a Civil Penalty: When a violation is confirmed, and the person in violation refuses to comply with City Code, the enforcing officer may issue a civil penalty. According to the existing ordinance, staff can only issue a civil penalty if the person in violation of City Code agrees to abide by it. This condition is problematic because at any time during the administrative process, the person in violation may choose to withdraw from the administrative process, at which point, staff has to start over with the enforcement action. This adds to the time and cost the city spends on the enforcement process, and prolongs the time in which neighbors have to endure the violation. It is for this reason that staff does not choose to pursue the administrative penalty process, and that an amendment to the City Code will be requested. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 9 Subject: Proposed Civil Penalty Charter amendment Proposed Civil Penalty Ordinance Sec. 1-14. Civil Penalties. (a) Purpose. (1) Administrative offense procedures established pursuant to this section are intended to provide the public and the city with an informal, cost effective and expeditious alternative to traditional criminal charges for violations of certain ordinance provisions. (2) The procedures are intended to be voluntary on the part of those who have been charged with administrative offenses. At any time prior to the payment of the administrative penalty as is provided for hereafter, the individual may withdraw from participation in the procedures in which event the city may bring criminal charges in accordance with law. Likewise, the city, in its discretion, may choose not to initiate an administrative offense and may bring criminal charges in the first instance. (3) In the event a party participates in the administrative offense procedures but does not pay the monetary penalty which may be imposed, the city will seek to collect the costs of the administrative offense procedures as part of a subsequent criminal sentence in the event the party is charged and is adjudicated guilty of the criminal violation. (b) Administrative offense defined. An administrative offense is a violation of a provision of this Code and is subject to the administrative penalties set forth in the schedule of offenses and penalties referred to in subsection (h), hereafter. (c) Notice. Any person employed by the city, authorized in writing by the city manager, shall, upon determining that there has been a violation, notify the violator, or in the case of a vehicular violation, attach to the vehicle a notice of the violation. Said notice shall set forth the nature, date and time of violation, the name of the official issuing the notice and the amount of the scheduled penalty. (d) Payment. Once such notice is given, the alleged violator may, within seven days of the time of issuance of the notice, pay the amount set forth on the schedule of penalties for the violation. The penalty may be paid in person or by mail, and payment shall be deemed to be an admission of the violation. (e) Appeal. Any person who is required by the city to pay an administrative penalty may make a written appeal of the penalty to the city manager, or designee, within seven days of notice by the city of the penalty. The city manager, or designee, will have authority to reduce the fine or determine whether the appellant is to be charged with a penalty. (f) Failure to pay. In the event a party charged with an administrative offense fails to pay the penalty, a misdemeanor or petty misdemeanor charge may be brought against the alleged violator in accordance with applicable statutes. (g) Disposition of penalties. All penalties collected pursuant to this section shall be paid to the city and may be deposited in the city's general fund. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 10 Subject: Proposed Civil Penalty Charter amendment (h) Offenses and penalties. Offenses which may be charged as administrative offenses and the penalties for such offenses may be established by resolution of the city council from time to time and listed in appendix A to this Code. (i) Subsequent offenses. In the event a party is charged with a subsequent administrative offense within a 12-month period of paying a penalty for the same or substantially similar offense, the subsequent administrative penalty shall be increased by $10.00 above the previous administrative penalty. *** (a) Purpose. The city council finds that there is a need for alternative methods of enforcing the city code. While criminal fines and penalties have been the most frequent enforcement mechanism, there are certain negative consequences for both the city and the accused. The delay inherent in that system does not ensure prompt resolution. Citizens resent being labeled as criminals for violations of the City Code. The higher burden of proof and the potential of incarceration do not appear appropriate for most Code violations. The criminal process does not always regard city code violations as being important. Accordingly, the city council finds that the use of administrative citations and the imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This method of enforcement is in addition to any other legal remedy that may be pursued for city code violations. (b) Alternative methods of enforcement. (1) The administrative hearing process provided for in this Article shall be in addition to any other legal or equitable remedy available to the city for city code violations. (2) The city may initiate a civil enforcement action to obtain code compliance before, during or after an administrative enforcement proceedings. (3) If the final adjudication in the administrative penalty procedure is a finding of no violation, then the city may not prosecute a criminal violation in district court based on the same set of facts. This does not preclude the city from pursuing an administrative penalty or a criminal conviction for a violation of the same provision of the City Code based on a different set of facts. A different date of violation will constitute a different set of facts and a separate offense. (c) General provisions. (1) A violation of a provision of the city code or a violation of the terms and conditions of a city approval, including permits and licenses, required and granted under this code is an administrative offense that may be subject to an administrative citation and civil penalties. Each day a violation exists constitutes a separate offense. (2) An administrative offense may be subject to a civil penalty not exceeding $2000.00 per separate offense. (3) The city council will adopt by resolution or ordinance a schedule of fines for offenses initiated by administration citation. The city council is not bound by the schedule when a matter is appealed to it for administrative review. (4) The city council may adopt a schedule of fees to be paid to administrative hearing officers for his her services. (5) The city manager must adopt procedures for administering the administrative citation program. Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 11 Subject: Proposed Civil Penalty Charter amendment (d) Administrative citation. (1) A person authorized to enforce provisions of the city code may issue an administrative citation upon belief that a code violation has occurred. The citation must be issued in person or by first class mail to the person responsible for the violation. The citation must state the date, time, and nature of the offense, the identity of the person issuing the citation, the amount of the scheduled fine, and the manner for paying the fine or appealing the citation. If the city seeks to impose more than one fine for a continuing violation, a separate citation shall be issued for each violation date. (2) The person responsible for the violation must either pay the scheduled fine or request a hearing within seven days after issuance of the citation. Payment of the fine constitutes admission of the violation. A late payment fee of 10% of the scheduled fine amount will be imposed in accordance with section 1-14(h). (e) Administrative hearing. (1) The city council will periodically approve a list of lawyers licensed to practice law in the State of Minnesota, from which the city manager will randomly select a hearing officer to hear and determine a matter for which a hearing is requested. The accused will have the right to request no later than five days before the date of the hearing that the assigned hearing officer be removed from the case. One request for each case will be granted automatically by the city manager. A subsequent request must be directed to the assigned hearing officer who will decide whether he or she cannot fairly and objectively review the case. The city enforcement officer may remove a hearing officer only by requesting that the assigned hearing officer find that he or she cannot fairly and objectively review the case. If such a finding is made, the officer shall remove himself or herself from the case, and the city manager will assign another hearing officer. The hearing officer must not be a city employee. The city manager must establish a procedure for evaluating the competency of the hearing officers, including comments from accused violators and city staff. These reports must be provided to the city council. (2) Upon the hearing officer's own initiative or upon written request of a party demonstrating the need, the officer may issue a subpoena for the attendance of a witness or the production of books, papers, records or other documents that are material to the matter being heard. The party requesting the subpoena is responsible for serving the subpoena and for paying the fees and expenses of a witness in accordance with the same rules governing civil lawsuits in state court. A person served with a subpoena may file an objection with the hearing officer promptly but no later than the time specified in the subpoena for compliance. The hearing officer may cancel or modify the subpoena if it is unreasonable or oppressive. A person who, without just cause, fails or refuses to attend and testify or to produce the required documents in obedience to a subpoena is guilty of a misdemeanor. Alternatively, the party requesting the subpoena may seek an order from district court directing compliance. (3) Notice of the hearing must be served in person or by mail on the person responsible for the violation at least 10 days in advance, unless a shorter time is accepted by all parties. At the hearing, the parties will have the opportunity to present testimony and question any witnesses, but strict rules of evidence will not apply. The hearing officer must tape record the hearing and receive testimony and exhibits. The officer must receive and give weight to evidence, including hearsay evidence, which possesses Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 12 Subject: Proposed Civil Penalty Charter amendment probative value commonly accepted by reasonable and prudent people in the conduct of their affairs. (4) The hearing officer has the authority to determine that a violation occurred, to dismiss a citation, to impose or modify (increase or decrease) the scheduled fine, and to modify, stay, or waive a scheduled fine either unconditionally or upon compliance with appropriate conditions. When imposing a penalty for a violation, the hearing officer may consider any or all of the following factors: a. The duration of the violation; b. The frequency or reoccurrence of the violation; c. The seriousness of the violation; d. The history of the violation; e. The violator's conduct after issuance of the notice of hearing; f. The good faith effort by the violator to comply; g. The economic impact of the penalty on the violator; h. The impact of the violation upon the community; and i. Any other factors appropriate to a just result. (5) The hearing officer's decision and supporting reasons must be in writing. (6) Except for matters subject to administrative review under section 1-14(f), the decision of the hearing officer is final without any further right of administrative appeal. In a matter subject to administrative review under section 1-14(f), the hearing officer's decision may be appealed to the city council by submitting a request in writing to the city clerk within 10 days after the hearing officer's decision. (7) The failure to attend the hearing constitutes a waiver of the violator's rights to an administrative hearing and an admission of the violation. A hearing officer may waive this result upon good cause shown. Examples of “good cause” are: death or incapacitating illness of the accused; a court order requiring the accused to appear for another hearing at the same time; and lack of proper service of the citation or notice of the hearing. “Good cause” does not include: forgetfulness and intentional delay. (f) Appeal to City Council. (1) The hearing officer's decision in any of the following matters may be appealed by a party to the city council for administrative review: a. An alleged failure to obtain a permit, license, or other approval typically granted by the city council as required by an ordinance; b. An alleged violation of a permit, license, other approval, or the conditions attached to the permit, license, or approval, that was granted by the city council; and c. An alleged violation of regulations governing a person or entity who has received a license granted by the city council. (2) The appeal will be heard by the city council after notice served in person or by registered mail at least 10 days in advance. The parties to the hearing will have an opportunity to present oral or written arguments regarding the hearing officer's decision. (3) The city council must consider the record, the hearing officer's decision, and any additional arguments before making a determination. The council is not bound by the Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 13 Subject: Proposed Civil Penalty Charter amendment hearing officer's decision, but may adopt all or part of the officer's decision. The council's decision must be in writing. (4) If the council makes a finding of a violation, it may impose a civil penalty not exceeding $2000.00 per violation, and may consider any or all of the factors contained in section 1-14(e)4. The council may also modify, stay, or waive a fine unconditionally or based on reasonable and appropriate conditions. (5) In addition to imposing a civil penalty, the council may suspend or revoke a city-issued license, permit, or other approval associated with the violation, if the procedure in the city code for suspension or revocation has been followed. (g) Judicial review. An aggrieved party may obtain judicial review of the decision of the hearing officer or the city council in accordance with state law. (h) Recovery of civil penalties. (1) If a civil penalty is not paid within the time specified, it constitutes: a. A personal obligation of the violator; and b. A lien upon the real property upon which the violation occurred if the violation relates to the maintenance of the property or to an activity, use or delivery of City services associated with the property. (2) A lien may be assessed against the property and collected in the same manner as taxes. The lien may include the administrative and legal costs incurred by the city in connection with collecting the unpaid administrative penalty. Prior to assessing the lien against the property, the city must attempt to obtain voluntary payment of the administrative penalty and provide the property owner listed on the tax record with notice and an opportunity to be heard. (3) A personal obligation may be collected by any appropriate legal means. (4) A late payment fee of 10% of the fine will be assessed for each 30-day period, or part thereof, that the fine remains unpaid after the due date. (5) During the time that a civil penalty remains unpaid, no city approval will be granted for a license, permit, or other city approval sought by the violator or for property under the violator’s ownership or control. (6) Failure to pay a fine is grounds for suspending, revoking, denying, or not renewing a license or permit associated with the violation. (i) Applicable laws. Where differences occur between provisions of this chapter and other applicable code sections, this chapter applies. *** Sec. 36-33. Application and review process for conditional use permits and variances. (a) Application of section provisions. This section shall apply to all conditional use permits and variances. (b) General provisions. *** Charter Commission Meeting of December 6, 2011 (Item No. 5a.) Page 14 Subject: Proposed Civil Penalty Charter amendment (13) Duration and enforcement. Conditional use permits and variances shall remain in effect as long as the conditions stated in the permit or variance are observed. Failure to comply with the those conditions of the conditional use permit or variance will results in either: termination of the conditional use permit or variance. a. A civil penalty; or b. Termination of the conditional use permit or variance. *** APPENDIX A – 2011 FEE SCHEDULE CITY CLERK'S OFFICE Administrative Penalties First Violation $25 Each Subsequent in Same Calendar Year add $10 to previous fine The existing penalty schedule is to be replaced with a new penalty schedule. The proposed penalties are currently being reviewed by staff, and will be proposed to the Council at the same time as the ordinance is presented.