STAFF REPORT
DATE: February 14, 2023
TO: Justin Hess, City Manager
FROM: Marisa Garcia, Parks, Recreation and Community Services Director BY: Kristen Smith, Parks, Recreation and Community Services D eputy Director
SUBJECT: Introduction of an Ordinance Amending Burbank Municipal Code Sections 1-1-105 Violations of the Code and 1-1- 108.1 Administrative Citations and Approval of a 5-year Contract w ith Data Ticket Inc. for Administrative Citation Services
RECOMMENDATION
1. Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK AMENDING BURBANK MUNICIPAL CODE SECTIO NS 1 -1-105 V IOLATIONS OF THE CODE AND 1-1-108.1 ADMINISTRATIVE CITATIONS.
2. Approve a 5-year Contract with Data Ticket Inc. for Administrative Citation Services.
BACKGROUND
Administrative citations are a va luable enforcement tool to gain com pliance with th ose who violate the Burbank Municipal Code (BMC). Multiple City departments currently use the administrative citation process found in the BMC at Sections 1-1-105 and 1-1-108.1 to enforce the provisions fou nd therein. For example, the Community Development Department (CDD) Building and Safety License and Code D ivision issues ci tations for building related health and safety or zoning violations. Burbank Water and Power (BWP) issues citati ons for water waste duri ng droughts. However, t he existing provisions only authorize the Public Works Director, the CDD Director and the General Manager of BWP or their designees to use the enforcement process described. (See BMC § 1 -1-105, subd (C)). The existing provisions also require that an attempt first be made to personally serve citations which may make the process overly burdensome to assert in certain contexts ( BMC § 1 -1-108.1, subd. (E)). The practical enforcement process, which involves the collection of fines and potential appeal of the citation varies for each department. Though the BMC allows the violator to appeal citations through a hearing with a hearing officer, a consistent or formalized citywide process for conducting such hearings is not available.
PARKS AND
RECREATION
2 On July 1, 2 022, t he Burbank Animal Shelter tra nsitioned from the Burbank Police Department (BPD) to the Parks , Recreation and Community Ser vices Department (P&R). Animal Control Officers (ACO) regularly need to educate and enforce relevant provisions of the BMC , yet P&R does not have the authority to issue administ rative citations under the BMC, nor a process for an appeal review following those citations.
Staff has vett ed a third- party vendor , Data Tick et, Inc., (Data Ticke t) w ho has br oad experience in processing citations, collection of fines, appeals and conducting administrative hearings. Data Ticket will allow the process to be streamlined and uniform city-wide alleviating administrative pressure from existing enforcement staff.
DISCUSSION
A local agency's police power is the legal basis for the enactment and enforcement of municipal ordinances regulating conditions that may become a nuisance, health hazard, or that promote social, economic, or aest hetic considerations 1. I nstead of pursuing criminal prosecution or a civil injunction, the C ity may determine that administrative or summary abatement is the more appropriate remedy. The procedures for administrative and summary abat ement of public nuisanc e must be adopted by o rdinance. (Govt.
Code §§ 38773.5, 53069.4.) This method may be pursued instead of, or in addition to, any other remedy (criminal or civil) established by law to address municipal code or applicable state code vi olations
2. The City has a strong interest in a robust and
consistent administrative process for citing code violators while p romoting social , economic, and aesthetic welfare.
Proposed BMC Amendments:
Staff is requesting Council approve the amendment of BMC Sections 1-1-105 Violations of the Code and 1-1008.1 Administrative Citations in the following ways : (1) to vest the P&R Director in addition to existing depar tment heads with the a uthority to issue administrative citations ; (2) to allow for citations to be mailed rather than personally served when they arise from or relate to real property; (3 ) to allow for a third party to assist with c ollection of fines and appeals; (4) to allow for t he referral o f any nonpayment to the Franchise Tax Board for collection; and (5) other minor grammatical improvements.
BMC Section 1-1-105 Violations of the Code Proposed Amendments Subsection C currently authorizes only the Public Works Director, the CDD Director and the General Manager of BWP, or their designated deputies or employees to enforce the provisions of the C ode by citing violators for infractions or is suing administrative citations. The amended language will allow access to the process for the P&R Director or any of their designated deput ies or emp loyees. Specifically, ACOs will be able to issue adm inistrative citations for animal services infractions at the ACO ’s d iscretion.
Using th e administrative cit ation process for a nimal services-related violations w ill improve efficiencies internally and gain compliance without the need to invoke the civil or criminal courts. Currently, criminal infractions are being dismissed or are not filed due to a backlog of cases. For example, a recent civil filing to declare a dog vicious after a
1 Cal Const art XI, §7.
2 See Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 655, citing Cal. Const. art. XI, § 7. 3 grievous dog bite was s et out many months for a hearing. Internal, administrative citations will provide ACOs with greater enforc ement options such as the ability to impose fines. Animal neglect or animal c ruelty cases will continue to be handled with criminal filings through BPD, City Attorney’s Office (CAO), and the LA County Superior Court.
BMC Section 1-1-108.1 Administrative Citations Proposed Amendments Subsection B.5. is amended to edit the words “on site” to read “on-site”.
Subsection E currently requires an “attempt to locate and personally serve th e responsible person on the adm inistrative citation” and if “ unable to locate the responsible person, the administrative citation shall be mailed. ” The amendment would allow for mailing a citation when it i s related to or arises fro m the use of real proper ty.
Before taking action that w ill affect a protected property interest, such as imposing a fine, due process requires that the government provide notice to interested parties. The notice m ust be reasonably calculated, u nder all the circumstances, to appri se the interested parties of th e pendency of the action and afford them with the right to be heard at a meaningful time and in a meaningful mann er3. As long as reasonable efforts to p rovide notice are made, due proces s is sati sfied, even when actual notice is not provided4. (Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 356.)
Subsection G.1. is amended to allow the Financial Services Department to designate a third-party vendor to collect and manage fines.
Subsection H .1 is amended to allow a third- party vendor to accept Requests for Hearing, allows such requests to be made onl ine, and provides that relevant forms be made available on the City’s website.
Subsection H.4.a is amended to remove the comma after the wor d “and” to read, “No hearing to contest an adminis trative citation before a Hear ing Officer shall be hel d unless and until a timely “Request for Hearing” form has been completed and submitted, and the fine has been deposited in advance.”
Subsection H.4.b is amended to edit the wor d “an” to “a” to read, “After receipt of the “Request for Hearing” form and fi ne deposit, a hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the “Request for Hearing” is filed in acc ordance with the provisions of this section. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) day s prior to the date of the hearing. The failure of an recipient of an administrative citation to appear at the hearing shall c onstitute a forfeiture of the fine and be a bar to judicial review of the Hearing Officer decision based upon a failure to exhaust administrative remedies.”
Subsection I is amended to allow for t he referral of any non payment to the Franchise Tax Board for collection.
3 D & M Fin. Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165, 174. 4 Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 356. 4 Fines
Fines for violators are proscribed by subsection F , which provides a fine of $100 for a first offense, $200 for a second offense, and $500 for any subsequent violations within the same year period. Mayor An thony has previously requested staff consider whether our existing administrative citation process could b e amended to include investigative costs in addition to the fines already imposed on offenders.
This fine schedule expressly comports with Government Co de section 36900, subdivision (b), for violations of a city ordinance. Further, California Penal Code section 688.5 prohibits cities from charging a defendant for the costs of investigation, prosecution, or appeal in a criminal case. This includes, but is not limited to, criminal violation of a local ordinance. There are some civil statutes that allow for investigative costs to be recouped through civil action, which the City has taken advantage of in the context of extreme health and safety violating nuisa nce properties. However, the City is precluded by this provision from fining people for its investigatory work in addition to the fines already prescribed by our Munici pal Code. Adding investigatory costs to fines, along with compounding fees or interest f or any nonpayment could unjustly burden people with debt or limited financial means, and it is not clear how or if additional fines might lead to increased compliance. For these reasons, s taff recommends maintaining the current provisions regarding fines.
Administrative Citation Vendor Contract Approval:
Staff is separately requesting approval to enter into a 5-year agreement with Data Ticket to assist staff with thi s enforcement and to provi de its administrative services. The City does not have a dequate resources to ma nage citation processing, appeals, a hearing process, and collection services for multiple departments.
Data T icket, founded in 1 989, i s located in Irvine, C alifornia. D ata Ticket provides administrative citation proces sing and collectio n serv ices, admin istrative hearing coordination, accounting services, and customer service through a web-based system.
The system is u sed by mu ltiple municipalities within L os A ngeles County to pr ocess administrative ci tations such as Alhambra, A rtesia, A zusa, Baldwin Park, Cerritos, Claremont, Diamond Bar, Down ey, Duarte, El Monte, Gl endale, Glendora, La Canada Flintridge, La Puent e, L os Angeles, No rwalk, Pomona, S an Gabriel, Santa Monica, South Gate and Temple City to name a few.
The Data T icket we b-based plat form provides pa trons with access to look up their citation, process payment, obtain information about their citation, appeal citations and attach supporting documents all online. P atrons can proces s payment f or citations online, via p hone or m ail. Additionally, Data Ticket provides adjudication service s through an online appeals website or United States mail. Data Ticket will co ordinate an Administrative Hearing with a certified, independent Hearing Officer on the City’s behalf.
Hearing Officer s will rev iew and hear the c ases a nd ent er a judgment an d gener ate written notification of the results.
5 Data Ticket will provide the necessary administrative support to manage ad ministrative citations (Attachment 3 ) u tilizing the Cost M odel 1 Option ( Attachment 4). Model 1 - $14.00 per citation is an all -inclusive option that includes : citation processing; courtesy noticing; delinquent collections ; adjudication holds and sc anning; and adjudication letters. Data Ticket will coordi nate Adm inistrative He arings w ith independent Hearing Officers in person, phone, ZOO M, or wri tten hearings for $85.00 per hour. The fee to the Cit y is calculated by the volume of administrative ci tations written on a monthly basis. Data Ticket has a monthly minimum fee of $200. 00 if services do not reach this threshold.
ENVIRONMENTAL REVIEW
This activity involves admi nistrative enforcement of the B MC and has no potential for resulting in either a dir ect physical change in the enviro nment, or a reasona bly foreseeable indirect physical change in the environment, and as such, is not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) 14 Ca l.
Code Regs § 15378.
FISCAL IMPACT
The City expects to re ceive revenue from the collection of fines for the administrative citations that are issu ed, but administrative citatio ns are me ant pr imarily as a tool to gain compliance with the esta blished BMC and not a revenue ge nerator. The revenue received will help offset the cost for Data Ticket’s services.
Any f unds needed to su pport using Data Ticket to conduct the administrative citation process will be requ ested by individual Departments during the F iscal Year 2023-2024 Budget Process. The estimated annual cost for P&R is $4,000.00.
CONCLUSION
The proposed amendments to BMC sections 1-1-105 and 1-1-108.1 will allow ACOs to utilize the administrative citation process to deter BMC violators and improve public safety related to ani mals. The changes to the BMC will make the process more user- friendly for any department using the administrative enforcement process, and al low for the opportunity to streamline fine collection, appeals and appeal hearings.
A five-year contract with the third-party administrative citation vendor , Data Ticket will provide ad ministrative support neede d for staff to issue and manage a ro bust administrative citation process and help ensure the health, safety , and welfare of the community.
ATTACHMENTS
Attachment 1– Ordinance – Code Amendment BMC 1-1-105 and 1-1-108.1 Attachment 2– Amended BMC Sections 1-1-105 and 1-1-108.1 Redline Attachment 3– Data Ticket, Inc. Agreement
Attachment 4– Data Ticket, Inc. Executive Summary