EMC CODE CHAPTER/
SECTION
Proposed ORDINANCE EXHIBIT NO.
SUBJECT
EMC EXISTING CRIMINAL PENALTY
2020 STAFF RECOMMEND-ATION
PROPOSED MODIFICATION/AMENDMENT*
EMC 1-2.01
Exhibit 1A
Penalty Provisions: Violations, Misdemeanors or Infractions 4th of more infraction in one year is considered a misdemeanor Not Applicable
Remove misdemeanor penalty for 4th or more infractions; increase the fines and add language to EMC 1-2.01(b):
“(b) Any person convicted of an infraction under the provisions of this Code shall be punishable for a first conviction by a fine of not more than one hundred dollars ($100.00), for a second conviction within a period of one (1) year by a fine of not more than two hundred dollars ($200.00), and for a third or any subsequent conviction within a period of one (1) year by a fine of not more than five four hundred dollars ($5400.00). After the third conviction, any repeat violation within one (1) year may be charged as a misdemeanor. (1) Pursuant to Government Code Section 36900, a violation of a building and safety code determined to be an infraction is punishable by a fine not exceeding one hundred thirty dollars ($130) for the first violation, a fine not exceeding seven hundred ($700) for a second violation of the same ordinance within one year, and a fine not exceeding one thousand three hundred dollars ($1,300) for each additional violation of the same ordinance within one year of the first violation. A fine not exceeding two thousand five hundred dollars ($2,500) for each additional violation of the same ordinance within two years of the first violation if the property is a commercial property that has an existing building at the time of the violation and the violation is due to failure by the owner to remove visible refuse or failure to prohibit unauthorized use of the property. (2) Any infraction fines levied as result of a second or more violations of the same ordinance within one year may be entitled to a hardship waiver. Any person seeking a hardship waiver must submit a written request within fifteen (15) days of issuance of the fine(s) to the City Clerk’s office to be reviewed by the City Manager. The hardship waiver request must include evidence that the responsible party has made a bona fide effort to comply with the first violation and that payment of the full amount of the fine would impose an undue financial burden on the responsible party, including evidence that the responsible party is enrolled in a State of California public assistance program, such as Medi-Cal. The City Manager shall issue a written determination on the hardship waiver request to be served by regular mail on the requesting party. The City Manager’s determination on the hardship waiver is final and not subject to further appeal. “ EMC 4-5
Fire Code
Infraction
Maintain infraction penalty
No recommended amendments.
EMC 4-6
Exhibit 1B
Fireworks
Infraction
Maintain infraction remedy
Add “and a violation of the Emeryville Municipal Code” to Secs. 4-6.01 (Sales; Possession) and 4-6.02 (Discharging).
Add new penalty section: “4-6.03 Penalties.
Any violation of this chapter shall be punishable as an infraction as set forth in Chapter 2 of Title 1 or may also be subject to administrative citation pursuant to Chapter 7 of Title 1 of this Code.” EMC 4-8+
Exhibit 1C
Vehicles For Hire
Infraction
Maintain infraction penalty
Revise code to comply with Govt. Code Secs. 53075.5 through 5375.7 ( AB 1069 – enacted in 2017 and AB 939, enacted in 2018). Substantive changes include the following:
Add to 4-8.1.1 “Definitions”:
“(g) “Prearranged trip” means a trip using an online enabled application, dispatch or Internet Web site. (i) “Substantially located” means that the owner or taxicab company meets either of the following 1) has its primary business address within the City, or 2) the total number of prearranged and non-prearranged trips that originate within the City’s jurisdiction accounts for the largest share of the taxicab’s company total number of trips over the previous calendar year, as determined annually. A taxicab company may be substantially located in more than one location.” (ih) “Taxicab” shall mean every passenger vehicle used to carry not more than eight (8) passengers. . .” Add to 4-8.1.3 Fleet Management Permit:
“(a) It shall be a violation of the Emeryville Municipal Code unlawful for any taxicab entity that is substantially located in the City of Emeryville . . .” (d) Fleet management permittees shall be responsible for all aspects of the fleet management and day-to-day management operations, including but limited to drivers and taxicabs operated under the fleet management permit, and shall be responsible for the following:
(1) Maintain reasonable financial responsibility to conduct taxicab transportation services in accordance with this chapter. (2) Participate in the pull-notice program pursuant to Section 1808.1 of the Vehicle Code to regularly check the driving records of all taxicab drivers, whether employees or contractors. (3) Maintain a safety education and training program in effect for all taxicab drivers, whether employees or contractors. (4) Maintain a disabled access education and training program to instruct its taxicab drivers on compliance with state and federal disability laws. (5) Maintain its motor vehicles used in taxicab transportation services in a safe operating condition, and in compliance with the Vehicle Code, subject to annual inspection by the City. (6) Provide the City with an address of an office or terminal where documents supporting the factual matters specified in this section may be inspected by the City. (7) Provide for a taxicab driver fingerprint-based criminal history check and drug and alcohol testing program pursuant to Government Code Section 53075.5(b)(3). (8) Comply with all of the provisions of this chapter;
(9) Provide documentation and trip data in the format required by the Chief of Police substantiating that the total number of prearranged and non-prearranged trips that originate within the City account for the largest share of the permittee’s total number of trips in the previous calendar year.
Add to 4-8.1-15 Violations:
“If the Chief of Police determines that a violation of this article chapter has occurred the entity in violation shall be guilty of an infraction punishable as set forth in Chapter 2 of Title 1 of this Code. In addition, any violation of this chapter may be subject to the following:
(a) Administrative citation, as set forth in Chapter 7 of Title 1 of this Code. (b) Immediate seizure and removal of vehicles being operated in violation of this chapter, as set forth in Section 4.8-7 above or in Vehicle Code Section 21100.4. (c) If the Chief of Police makes a determination, after a hearing, that any person or entity operating as a taxicab transportation service without a valid permit issued by the City, the Chief may impose a fine of up to five thousand dollars ($5,000) for each violation. (d) Any fines issued by the Chief of Police may also include an amount sufficient to cover the reasonable expense of investigation costs incurred by the City, and may assess interest of any fine to commence on the day that the payment is deemed delinquent. All fines, assessments, and interest collected by the Chief of Police shall be deposited in a fund established for the purpose of enforcing this article.” EMC 4-11+
Electric Personal Assistive Mobility Devices
Misdemeanor and Infraction
Eliminate misdemeanor penalty but maintain infraction
Repeal in its entirety, pursuant to recommendation by Transportation Committee.
EMC 5-14.05
Exhibit 1D
Interfering with Free Ingress & Egress (Willful and Malicious Obstruction of Public Rights-of-Way) Misdemeanor
Eliminate misdemeanor and reduce to infraction
Add “Street or Sidewalk” to section title for 5.14.01 and add “a violation of the Emeryville Municipal Code unlawful for any person to obstruct any street or sidewalk in the City . . .” Repeal following language:
5-14.05 Interfering with Free Ingress or Egress – Willful and Malicious Obstruction of Public Rights-of-Way. (a) A person shall not willfully and maliciously obstruct the free movement of the public upon any public highway, alley, sidewalk or crosswalk, or other public place open for pedestrian travel. (b) A person shall not willfully and maliciously obstruct the normal use of the entrance to any house of worship, hall, theater, moving picture theater, or other place of public assemblage. (c) For the purposes of this section, “willfully” means a purpose or willingness to commit an act. “Maliciously” means a wish to vex, annoy, or injure another person or an intent to do a wrongful act.
Add “5-14.05 Penalty for Violations.
Any violation of this chapter shall be punishable as an infraction as set forth in Chapter 2 of Title 1. In addition, any violations may be subject to administrative citation under Chapter 7 of Title 1 of this Code.” EMC 5-20
Weapons
Misdemeanor and Infraction
Maintain misdemeanor and infraction remedies
No proposed amendments to code.
EMC 5-21
Exhibit 1E
Bingo Games
Infraction, except for misdemeanor penalty for 5-21.12
Maintain infraction penalty and misdemeanor penalty for 5-21.12.
Maintain infraction and misdemeanor penalty for EMC 5-21.12. Add following language to EMC 5-21.12 (“Profits: Separate Accounts: Records: Violations: Penalties”):
“(a) It is a violation of this chapter for any person to receive or pay a profit, wage or salary from any bingo game authorized by Section 19 of Article IV of the State Constitution. All profits derived from a bingo game shall be kept by the permittee in a special fund or account and shall not be commingled with any other fund or account. (b) The permittee shall keep detailed and accurate records of the income and expenses received and disbursed in connection with the operation, conduct, promotion, and supervision of bingo games authorized by this chapter. (c) The City, by and through its authorized officers, shall have the right to examine and audit such records at any reasonable time, and the permittee shall keep such records open to inspection by the City. (d) Any person or corporation violating any of the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable as set forth in Chapter 2 of Title 1 of this Code. Pursuant to Penal Code section 326.5, a violation of subsection (a) above shall be punishable by a fine not to exceed $10,000, which fine shall be deposited in the general fund of the City.
Add language to EMC 5-21.18 Violations: Criminal Prosecutions:
“Other than the misdemeanor penalty for violation of Section 5-21.12 above, all other violations of this Chapter shall be subject to infraction.” EMC 5-23
Exhibit 1F
Community Events
Infraction
Maintain infraction penalty
Add language to EMC 5-23.22 (“Penalties”) -
“(a) Anyone violating or failing to comply with any of the requirements of this chapter will be guilty of an infraction pursuant to Section 1-2.01(f) of the City Municipal Code, or may also be subject to administrative citation under Chapter 7 of Title 1 of this Code.” (b) The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter. (c) Any person who conducts an event without obtaining a community events permit shall be held responsible for any costs, including clean-up and waste disposal costs and administrative costs resulting from the event as if the community events permit had been otherwise obtained. (d) The remedies and penalties provided in this section are cumulative and not exclusive of one another.
EMC 5-24
Exhibit 1G
Parks
Infraction
Maintain infraction remedy
Add to Sec. 5-24.12 (Administration and Enforcement: Penalties). "Any violation of this Chapter or the rules promulgated by the City Manager shall be punishable as an infraction as set forth in Chapter 2 of Title 1 and may also be subject to administrative citation pursuant to Chapter 7 of Title 1 of this Code.” EMC 5-27
Exhibit 1H
Sidewalk and Street Vendors
Infraction
Maintain infraction remedy – may require substantial revisions Ordinance revised to comply with state law (SB 946 – Safe Sidewalk Vending Act), including:
Addition of “Purpose” section.
Removal of criminal penalties and addition of new penalties authorized by Govt. Code Sec. 51039 Modification of City regulations and restrictions of sidewalk vendor operators in compliance with Safe Sidewalk Vending Act.
Addition of “Prohibited Vending Items” section.
Elimination of “Peddlers” from Article 2 as peddlers are now included in the definition of a “sidewalk vendor.” EMC 5-34+
Exhibit 1I
Signs on Public Sidewalks
Infraction
Maintain Infraction remedy
Add language to EMC 5-34.11 (“Penalties and Enforcement”) “Violations of this chapter shall be punishable as an infraction as provided in Chapter 2 of Title 1 or may also be subject to administrative citation under Chapter 7 of Title 1 of this Code. Each and every day of violation shall punishable as a separate offence or citation. In addition, the City may remove and dispose of any sign in violation of this chapter.” EMC 5-35
Exhibit 1J
Certified Farmers’ Markets
Not Applicable
Not Applicable
Cross-reference to EMC 5-27 Sidewalk and Street Vendors changed to:
5-35.04 Farmers’ Market Permit to Operate.
“(2) Notwithstanding the provisions of Chapter 27 of Title 5, Sections 5-27.1056(eg), (fh), and (gi) and Sections 5.27.2.05(e) and (f) shall not apply to vendors, peddlers, or solicitors operating in a certified farmers’ market permitted under this chapter. All other provisions of this code shall apply to vendors, peddlers, and solicitors operating in a certified farmers’ market.” EMC 6-1.1.07
Keeping of Vicious Animals
Misdemeanor
Maintain misdemeanor penalty
No proposed amendments to code.
EMC 7-5
Grading: False Statements and Data
Misdemeanor
Maintain misdemeanor penalty
No proposed amendments to code.
2 *Deletions are indicated by strikethrough text and additions are indicated in bold. +EMC Chapter recommendations were reviewed by Transportation Sub-Committee City of Emeryville
Decriminalization of EMC
Summary of Group II Amendments