DATE:
October 3, 2023
TO:
Paul Buddenhagen, City Manager
FROM:
John Kennedy, City Attorney
Christie Crowl, Special Counsel
SUBJECT:
An Ordinance of the City Council of the City of Emeryville Repealing And Replacing Various Municipal Code Provisions to Eliminate or Modify Criminal Penalties for Code Violations, Identified as “Group I Amendments;” Repealing and Replacing Chapter 14 (“Sandblasting”) of Title 8 (“Building Regulations”) and Chapter 1 (“Planning Regulations – General Provisions”) of Title 9 (“Planning Regulations”) to Correct Typographical Errors or Inconsistencies; and Repealing Chapter 16 ("Pawnbrokers, Secondhand Jewelry Dealers and Auction Sales”) of Title 5 (“Public Welfare”) In Its Entirety CEQA Determination: Not a Project and Exempt Pursuant To CEQA Guidelines Section 15378(b)(5) and 15061(b)(3) Recommendation
Staff recommends that the City Council waive first reading and introduce by title only the attached Ordinance repealing and replacing various Municipal Code provisions to eliminate or modify criminal penalties, identified as “Group I Amendments,” repealing and replacing Chapter 14 ("Sandblasting”) of Title 8 (“Building Regulations”) and Chapter 1 “Planning Regulations – General Provisions”) of Title 9 “(Planning Regulations”) to correct typographical errors or inconsistencies, and repealing Chapter 16 (“Pawnbrokers, Secondhand Jewelry Dealers and Auction Sales”) of Title 5 (“Public Welfare”) in its entirety, as set forth in Exhibits 1 and 2 to Attachment A.
Background
Article XI, Section 7 of the California Constitution grants cities the power to make and enforce all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. In order to protect and safeguard the public health, welfare and safety of its citizens, the City of Emeryville Municipal Code (“EMC”) includes the use of criminal, civil and administrative penalties to enforce compliance with City codes and regulations. In connection with the permitted criminal penalties, Sections 1-2.01(e) and (f) of the EMC include penalty charts that designate whether a misdemeanor or infraction penalty is available as a remedy for code violations of identified EMC Chapters.
On July 21, 2020, following national attention on the issue that criminal penalties for certain municipal code violations tended to disproportionately impact people of color, the City Council requested that staff bring forward an agenda item to eliminate some or all of the criminal penalties in the EMC, while leaving in place civil and administrative penalties to enforce compliance. Thereafter, on September 15, 2020 and December 15, 2020, the City Council reviewed staff’s recommendations on the suggested penalties for specific municipal code violations and provided direction as to which criminal penalties were to be removed or modified or kept in place. Council also directed that several code sections be sent to either the Transportation Committee or Public Safety Committee for further review, and that other provisions be brought back to the Council for a later study session for further review of the City’s administrative citation/code enforcement procedures. The Council also agreed to repeal several EMC Chapters in their entirety. A summary of the direction provided by Council for each code section is set forth in Attachment B.
On December 12, 2022, as an interim measure, the City Council approved and introduced Ordinance No. 22-015, which amended the penalty charts set forth in Chapter 2 of Title 1 of the EMC to either eliminate or modify the criminal penalty (either misdemeanor or infraction) for violations of the EMC provisions as directed by the City Council. At that time, staff intended to bring back further code amendments for Council consideration to bring the EMC into compliance with the revised penalty charts and to make other necessary code amendments as directed in the future by the relevant sub-committee or at City Council Study Session.
Due to the number of amendments necessary to comply with Council’s directions, staff has grouped the proposed code amendments for the Council’s consideration with the following:
Group I Amendments. These are “clean-up” amendments identified by staff to be made to thirty-five (35) EMC Chapters in order to bring the Chapters into compliance with the penalty charts included in the revised EMC Sections 1-2.01(e) and (f).
Group II Amendments. As directed by Council at the December 15, 2020 Council meeting, nine (9) Chapters of the EMC will be brought to the Transportation and Public Safety Sub-Committees to be reviewed for possible amendment.
Group III Amendments. As identified by the Council, seventeen (17) EMC Chapters will be brought forward for review at a future City Council Study Session.
Staff now brings forward the Group I Amendments for Council review to bring the penalty provisions in the thirty-five (35) identified Chapters of the EMC into compliance with the revised penalty charts, as indicated in Exhibit 1 to Attachment A. In addition, staff has also identified typographical errors or inconsistencies in two EMC Chapters – Chapter 14 of Title 8 and Chapter 1 of Title 9 - and now brings forward those amendments for Council approval at the same time, as indicated in Exhibit 2 of Attachment A. As another “clean-up” item, Chapter 16 (“Pawnbrokers, Secondhand Jewelry Dealers and Auction Sales”) of Title 5 is recommended to be repealed in its entirety as the permitting and regulating scheme included in this chapter is deemed to be antiquated and no longer used by the Police Department.
Staff estimates that the Group II and Group III Amendments will be brought to the Council for review in Spring, 2024.
Discussion
As indicated above, on December 12, 2022, the City Council approved and introduced Ordinance No. 22-015, which amended the criminal penalty charts in the EMC by either eliminating or modifying the available criminal penalty for a violation of a specific code section. Staff now brings forward the proposed “Group I Amendments” as a clean-up measure, in order to bring the specific EMC sections into compliance with the newly revised penalty charts.
Group I Amendments: In general, the “clean-up” Group I Amendments were made with the following in mind:
If the specific EMC Chapter included a criminal penalty provision that conflicted with the corresponding entry in the revised penalty chart, staff amended these provisions to reflect the Council’s direction on whether a misdemeanor or infraction penalty should remain. Language was also added to clarify that a violation of the particular code section was subject to an administrative citation, as provided in Chapter 7 of Title 1 of the EMC.
In addition, while some code sections did not reference or recommend a specific criminal penalty, many code sections stated that a violation of the requirements therein were considered “unlawful.” As the term “unlawful” typically has a criminal connotation, the word “unlawful” was removed and language was added to clarify that that a violation of the code was subject to administrative citation.
Below is a list of the specific EMC Chapters included in the Group I “clean-up” amendments, as set forth in Exhibit 1 of Attachment A.
Title 3 Finance
Chapter 1 (“Business Taxes”)
Chapter 3 (“Taxes”)
Chapter 7 (“Permits and Licenses”)
Title 4 Public Safety
Chapters 2 (“Emergency Plans”)
Chapter 12 (“Emergency Medical Services”)
Title 5 Public Welfare
Chapter 1 (“Abandoned Vehicles”)
Chapter 3 (“Air Pollution”)
Chapter 11 (“Massage Establishments”)
Chapter 16 (“Pawnbrokers, Secondhand Jewelry Dealers”)
Chapter 17 (“Alarm Systems”)
Chapter 18 (“Poolrooms”)
Chapter 19 (“Streets and Sidewalks”)
Chapter 25 (“Hotels, Motels and Lodging Hotels”)
Chapter 28 (“Cannabis”)
Chapter 35 (“Certified Farmers’ Markets”)
Chapter 36 (“Irrigation Water Waste Prohibition”)
Title 6 Sanitation and Health
Chapter 1 (“Animals and Fowl”)
Chapter 2 (“Dangerous and Insanitary Conditions”)
Chapter 4 (“Collection of Solid Waste and Recyclables”) Chapter 5 (“Laundries”)
Chapter 7 (“Rodent Harborage”)
Chapter 9 (“Water Wells”)
Chapter 10 (“Weed and Refuse Abatement”)
Chapter 11 (“Property Maintenance”)
Chapter 12 (“Operation and Maintenance of Off-Street Parking Facilities”) Chapter 14 (“Food Service Waste Reduction”)
Title 7 Public Works
Chapter 3 (“Sidewalks, Curbs and Driveways”)
Chapter 7 (“Standard Specifications for Public Works Construction”) Chapter 10 (“Urban Forestry Ordinance”)
Title 8 Building Regulations
Chapter 18 (“Seismic Hazard Identification and Mitigation Program for Unreinforced Masonry Buildings”) Chapter 21 (“Floodplain Management”)
Chapter 26 (“Construction and Demolition Waste Requirements”) Title 9 Planning Regulations
Chapter 5 (“Planning Regulations”)
Chapter 7 (“Enforcement and Revocation”)
Title 10 Tidelands
Chapter 1 (“Rules and Regulations for the Emeryville Marina”) A description and summary of the specific amendments, together with the Council’s recommendation, is also included as Attachment C.
Further “Clean-Up” Amendments
As part of staff’s review of the EMC, other necessary amendments were identified to be corrected due to typographical errors or inconsistencies.
For example, in EMC Section 8-14.07 (“Sandblasting” - “Hours and Days”), the incorrect section is cross-referenced in connection with the special permission necessary to conduct sandblasting outside the required hours. Instead of “Section 5-12.05(e),” the correct code section should be referred to “Section 5-13.04(e),” which refers to the general requirements concerning construction noise in the City.
Also, EMC Section 9-1.301 of the Planning Regulations includes a list of Municipal Code provisions that are related to planning-related matters. Because Chapter 7 of Title 5 (“Fortunetelling”) was repealed in its entirety with Ordinance No. 22-016, this section was amended to delete reference to this Chapter.
Finally, Chapter 16 of Title 5 requires that all pawnbrokers and secondhand jewelry dealers obtain permits from the City and adhere to certain operational regulations, including recordkeeping, required time duration of merchandise retention, and required days and hours of operations. The Chapter also regulates auctions of merchandise or jewelry and requires a permit for conducting auction sales. The Police Department has determined that the regulations included in Chapter 16 of Title 5 are antiquated and no longer followed or actively enforced by the Police Department or City staff. Therefore, staff recommends that this Chapter be repealed in its entirety and other code sections (such as the cross-references in EMC Sections 3-1.125 and 9-1.301) be amended accordingly.
These amendments are included in Exhibit 2 of Attachment A.
CEQA DETERMINATION
Adoption of the Ordinance is not a project as defined by the California Environmental Quality Act (“CEQA”) because it is an organizational or administrative activity that will not result in direct or indirect physical changes to the environment pursuant to CEQA Guidelines 15378(b)(5). In addition, the adoption of the Ordinance is covered by the “common sense” exemption of CEQA Guidelines 15061(b)(3) in that it can been seen with certainty that there is no possibility that the adoption of the clean-up code amendments may have a significant effect on the environment.
RECOMMENDATION
Staff recommends that the Council waive first reading and introduce by title only the attached Ordinance:
Ordinance of the City Council of the City of Emeryville Repealing And Replacing Various Municipal Code Provisions to Eliminate or Modify Criminal Penalties tor Code Violations, Identified as “Group I Amendments;” Repealing and Replacing Chapter 14 (“Sandblasting”) of Title 8 (“Building Regulations”) and Chapter 1 (“Planning Regulations – General Provisions”) of Title 9 (“Planning Regulations”) to Correct Typographical Errors or Inconsistencies, and Repealing Chapter 16 ("Pawnbrokers, Secondhand Jewelry Dealers and Auction Sales”) of Title 5 (“Public Welfare”) In Its Entirety.
PREPARED BY: John Kennedy, City Attorney
Approved and Forwarded to the
City Council of the City of Emeryville:
Paul Buddenhagen, City Manager
Attachments
Attachment A – Draft Ordinance of the City Council of the City of Emeryville Repealing And Replacing Various Municipal Code Provisions to Eliminate or Modify Criminal Penalties tor Code Violations, Identified as “Group I Amendments;” Repealing and Replacing Chapter 14 (“Sandblasting”) of Title 8 (“Building Regulations”) and Chapter 1 (“Planning Regulations – General Provisions”) of Title 9 (“Planning Regulations”) to Correct Typographical Errors or Inconsistencies, and Repealing Chapter 16 ("Pawnbrokers, Secondhand Jewelry Dealers and Auction Sales”) of Title 5 (“Public Welfare”) In Its Entirety.
Exhibits 1A-1HH – Group 1 Amendments
B. Exhibits 2A-2B – Group 1 Amendments – Typographical Errors Attachment B – Summary of Emeryville Municipal Code (EMC) Penalties, with Council direction Attachment C – Summary of Group I “Clean-Up Amendments” It should be noted that the ability to issue an administrative citation remains available for any violation of any code, regardless of whether it is included as a specific penalty within the EMC Chapter itself.
Ordinance to Eliminate or Modify Criminal Penalties for Code Violations City Council Meeting | October 3, 2023
City of Emeryville
CALIFORNIA
MEMORANDUM