DATE:
June 4, 2024
TO:
Paul Buddenhagen, City Manager
FROM:
John I. 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 II Amendments”; Repealing Chapter 11 Of Title 4 (“Electronic Personal Assistive Mobility Devices”) In Its Entirety.
CEQA Determination: Not A Project And Exempt Pursuant To CEQA Guidelines Sections 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 II Amendments,” and repealing Chapter 11 of Title 4 (“Electronic Personal Assistive Mobility Devices”) in its entirety.
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 at that time to repeal several EMC Chapters in their entirety.
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 direction, staff grouped the proposed code amendments for the Council’s consideration with the following:
Group I Amendments. These were “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). The “clean-up” amendments were approved by the City Council on October 3, 2023 (Ord. No. 23-003). As a result of the revisions to the penalty charts and the “clean-up” amendments, criminal penalties were either eliminated or reduced in forty-five (45) of the EMC Chapters.
Group II Amendments. As directed by Council at the December 15, 2020 Council meeting, nine (9) Chapters of the EMC were scheduled to be brought to the Transportation and Public Safety Sub-Committees for review. The Transportation Committee met on April 15, 2024 and its recommendations are provided below. The Public Safety Committee meeting was scheduled for May 21, 2024 but was canceled due to lack of a quorum. Accordingly, the proposed amendments for the review by the Public Safety Committee are now presented to the full Council for review at the June 4, 2024 meeting.
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 estimates that the final Group III Amendments will be brought to the City Council as a future Study Session in Fall, 2024.
Staff now brings forward the Group II Amendments for Council review and approval.
Discussion
Group II Amendments:
The following is a list of the EMC Chapters that were designated by the City Council for further review by the Transportation and Public Safety Sub-Committees:
Transportation Sub-Committee:
EMC 4-8 (Vehicles for Hire)
EMC 4-11 (Electric Personal Assistive Mobility Devices) EMC 5-24 (Public Sidewalks)
Public Safety Sub-Committee:
EMC 4-5 (Fire Code)
EMC 4-6 (Fireworks)
EMC 5-14.05 (Interfering with Free Ingress & Egress)
EMC 5-20 (Weapons)
EMC 5-21 (Bingo Games)
EMC 5-23 (Community Events)
EMC 5-24 (Parks)
EMC 5-27 (Sidewalk and Street Vendors)
EMC 1.107 (Keeping of Vicious Animals
EMC 7-5 (Grading: False Statements and Data).
In making recommendations as to the appropriate penalty provision for code violations, staff considered whether a person could evade enforcement of the EMC, or whether swift enforcement was necessary to protect life and safety. Staff also noted that while criminal penalties have not been often utilized, the possibility of a criminal penalty could act as a deterrent for violations of building or other health/safety codes. Finally, in those instances where state law has already provided for a criminal remedy, staff also considered whether a criminal penalty imposed by the City’s municipal code was necessary.
In addition to the above EMC Chapters, staff also recommends that the Council consider certain amendments to the penalty provisions of the code or EMC 1-2.01. For instance, staff recommends amendments to the code to: 1) eliminate the option of imposing a misdemeanor penalty for the fourth or more infraction occurring within one year; 2) to increase the fine amounts for a third infraction to $500, and to add increased fines of $130 for a first violation, $700 for a second violation, and $1,300 for the third violation for building and safety violations, as provided by state law; and, 3) to add a hardship waiver process for fines levied as a result of a second or more violation of the same ordinance within the same year, which is also required by state law. (Government Code Section 36900).
Finally, due to changes imposed by state law, staff also recommends substantial changes to EMC 4-8 (Vehicles for Hire) and EMC 5-27 (Sidewalk and Street Vendors) to bring these codes into compliance with recent legislative developments. With the changes to the sidewalk vendor ordinance, staff also notes that a cross-reference to the sidewalk vendor ordinance in EMC 5-35 (Certified Farmers’ Markets) should be amended.
Transportation Sub-Committee Recommendations: Following a public hearing that took place on April 15, 2024, the Transportation Sub-Committee recommended that Chapter 11 of Title 4 of the EMC (“Electronic Personal Assistive Mobility Devices”) be repealed in its entirety, Chapter 34 of Title 5 (“Signs on Public Sidewalks”) be approved as recommended with additional revisions to Section 5-34.11, and the recommended changes to Chapter 2 of Title 1 (“Penalty Provisions – Violations, Misdemeanors or Infractions”) and Chapter 4 of Title 8 (“Vehicles for Hire”) be forwarded to the Council with no further revisions.
Public Safety Sub-Committee Recommendations: As noted above, since the May 21, 2024 Public Safety Sub-Committee meeting was canceled, the amendments referred to that committee have been pulled for the full Council to consider on June 4, 2024.
Summary of Proposed Amendments: All of staff’s recommended changes to the EMC Chapters for the Group II Amendments are summarized in the chart included in Attachment B. The amended language to the codes are also included in Exhibits 1A through 1J of the attached proposed Ordinance, included as Attachment A.
In general, except as noted with the recommendation to repeal the Electronic Personal Assistive Mobility Device ordinance (EMC 4-11) and the removal of any criminal penalties imposed for violations of the sidewalk vendor ordinance (EMC 5-27), the proposed amendments to the penalty provisions are consistent with staff’s initial recommendations made to the Council in 2020. In addition, where relevant and as an additional code enforcement measure, staff proposes amendments to the respective penalty provisions to also allow for the imposition of an administrative citation penalty.
Further, in order to further implement Council’s direction to limit criminal penalties as necessary, staff recommends the removal of a misdemeanor penalty for the fourth or more infraction, as set forth in EMC 1-2.01. As part of the review of the penalty provisions, staff also recommends amending the infraction fine schedule to: increase the amount of a fine for the fourth infraction; to impose increased fines for violations of building and safety codes; and to provide for a hardship waiver process, as permitted by state law. The penalty charts in EMC 1-2.01(e) and (f) are also amended to reflect the newly amended penalties.
Finally, staff also recommends substantive amendments to the City’s taxicab ordinance (EMC 4-8) and sidewalk vendor ordinance (EMC 5-27) to bring these ordinances in compliance with recent changes in state law.
Staff Communication with the Public
As noted above, all of the recommended code amendments were brought forward to the Transportation Sub-Committee on April 15, 2024.
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 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:
PREPARED BY: John I. Kennedy, City Attorney
Approved and Forwarded to the
City Council of the City of Emeryville:
Paul Buddenhagen, City Manager
Attachments
Attachment A – Draft Ordinance, with Exhibits 1A – 1J
Attachment B – Summary of Group II Amendments
Ordinance to Eliminate or Modify Criminal Penalties for Code Violations City Council Meeting | June 4, 2024
City of Emeryville
CALIFORNIA
MEMORANDUM