DATE:
September 9, 2024
TO:
Paul Buddenhagen, City Manager
FROM:
John I. Kennedy, City Attorney
Christie Crowl, Special Counsel
SUBJECT:
Study Session: Group III Amendments To Various Municipal Code Provisions To Eliminate Or Modify Criminal Penalties For Code Violations Recommendation
This item offers the City Council the opportunity to discuss and provide direction to staff on options to eliminate or modify criminal penalties for code violations for those code chapters identified as “Group III Amendments.” 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.
In December 2022, as an interim measure, the City Council approved 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). These amendments were approved by the City Council on October 3, 2023 (Ord. No. 23-003).
Group II Amendments. On June 4, 2024, the City Council considered the amendments as proposed by staff and recommended by the Transportation Committee on eleven chapters, identified as the “Group II Amendments.” In addition, the City Council also approved an amendments to Chapter 1 of Title 1 (“Penalty Provisions”) to eliminate the option to escalate an infraction penalty to a misdemeanor as a result of four or more infractions within one year, and amended the associated fines for infractions, as set forth in EMC 1.2.01(b)(1). (Ord. No. 24-007).
Group III Amendments. At the December 20, 2020 meeting, the City Council identified specific EMC Chapters that warranted further study and review as to the appropriate remedy for violations. These EMC Chapters have been grouped as the “Group III Amendments” and are the subject of this Study Session.
Staff now brings forward the Group III Amendments for Council study and recommendation.
Discussion
In preparation of this Study Session, the City Attorney’s office researched the relevant law for each EMC Chapter and its corresponding penalty. The City Attorney’s Office also consulted with the relevant City departments responsible for enforcing these code provisions.
The following is a list of the EMC Chapters that were designated by the City Council to be studied at a study session, together with staff’s recommendations. A summary of the Group III EMC Chapters and staff’s recommendations is also attached as Attachment A.
EMC 5-2 (Advertising): EMC 5-2 prohibits advertising or signage on private premises and public places, and also prohibits individuals from carrying or distributing signs on any City sidewalk, street or public places. Staff recommends repealing this entire chapter in its entirety based on the following:
Signs on private property and public property are already regulated by other City ordinances, including Article 16 of Title 9 (Sign Ordinance), Chapter 34 of Title 5 (Signs on Public Sidewalks), EMC 5-35.06 (Signs for Certified Farmers’ Markets) and Chapter 15 of Title 8 (Signs Adjacent to Landscaped Freeways).
EMC 5-2.02 (Displaying: Locations Limited) prohibits signs to be located within fifty (50) feet from any dwelling or residence. This code may conflict with the City’s sign ordinance and with the permits that may have been issued pursuant to the City’s sign ordinance and Master Sign Programs.
EMC 5-2.04 (Powell Street Overpass) was originally adopted to accommodate the removal of existing signage due to the construction of the Powell Street overpass. This code language is now outdated and no longer relevant for enforcement.
Staff has not relied on EMC 5-2 to regulate signage in the City in recent history. It appears that this EMC Chapter is outdated and no longer relevant or necessary.
EMC 5-4 (Cabarets and Dances): Staff recommends that no changes be made to this Chapter or its remedies because:
On November 1, 2022, the City Council approved a new permitting process for businesses interested in activities that would require a cabaret license from the City. (Ord. No. 22-012; the “Cabaret Ordinance.”) The new permitting process removed the requirement for a Conditional Use Permit and created an administrative process for the Chief of Police to issue licenses to operate cabarets or dances at business establishments.
As part of the establishment of a new permitting process, the City Council confirmed that violation of the Cabaret Ordinance would be an infraction. (See EMC 5-4.24 (Violations – Penalties).) Accordingly, staff has no further recommendations to amend this Chapter or its enforcement penalties.
EMC 5-8 (Gas, Water and Electric Meters): This chapter provides that anyone who tampers with a gas, water or electric meters shall be prosecuted for a misdemeanor. Staff recommends repealing this chapter because there is already an existing criminal penalty available under state law (Penal Code Section 498) that provides that anyone who tampers with a utility meter is subject to a misdemeanor.
EMC 5-9 (Intoxication): This chapter provides that it is unlawful for any person to appear in a public place while intoxicated (EMC 5-9.01), or to be in possession of an open alcoholic container (EMC 5-9.02). The code also provides that it is unlawful to consume alcoholic beverages on public streets or within 50 feet of any public street, sidewalk or park, unless permitted by the property owner. Alcohol consumption at special events may be allowed by permit.
The Police Department does not support eliminating or reducing criminal penalties for EMC 5-9.02 (Open Containers) and EMC 5-9.03 (Consumption in Public) because:
The Police Department wishes to preserve its authority to cite individuals with open containers or consume alcohol in public; Decriminalizing this conduct could lead to open parties in the street and excessive consumption of alcohol which in turn could lead to traffic collisions, loitering, bar hopping with open containers, and other instances of neighborhood blight; and Eliminating criminal penalties could also adversely affect individuals with substance abuse problems or mental challenges.
Staff also notes that alcoholic beverages still may be consumed at special events or block parties, subject to a permitting process.
EMC 5-13 (Noise): This chapter prohibits excessive or annoying noises, amplified sound or vibration that are prolonged, unnatural or unusual so as to disturb the peace and comfort of residents, or detrimentally or adversely affect residences or places of business.
In 2017/2018, in response to increased noise complaints, the City Council engaged in an extensive review of the noise ordinance, including hiring a consultant to conduct a noise study. The City Council ultimately did not take any further action to amend the ordinance due in part with difficulties in enforcing objective standards to measure “excessive noise.” At that time, most noise complaints received by the City were related to construction noise and short term, transient noise from loud parties and amplified music.
Since that time, the City has continued to regulate construction noise through a Council-approval process in allowing waivers to the construction noise hours and standards. The City also recently prohibited the use of gas-powered blowers due in part to excessive noise. Finally, there are standard permit conditions that relate to construction noise and to the implementation of design and building standards designed to reduce noise exposure in excess of levels established by the General Plan.
Since 2018, City staff have not received a significant number of complaints from residents about excessive noise. Accordingly, City staff does not recommend amending the City’s noise ordinance at this time.
EMC 5-14 (Obstructions to Streets and Sidewalks): The Council had previously recommended amendments to this Chapter as part of its Group II Amendments approvals on June 4, 2024. No further amendments are now recommended.
EMC 5-29 (Smoking Pollution Control): This chapter prohibits smoking in public places and in multi-family residences. Violations are subject to infraction, administrative citation or possible liability for breach of the lease. In 2023, the Alameda Health division contacted staff and expressed concerns about misdemeanor penalties being imposed in the case of repeated infractions (more than three within a year). However, the misdemeanor option for excessive infractions was eliminated when the City Council approved changes to EMC 1.2 as part of the Group II Amendments on June 4, 2024. Therefore, staff does not believe further changes are necessary.
EMC 5-30 (Regulations of Firearms Dealers): EMC 5-30 provides for a permitting process for businesses that wish to engage in the sales of firearms. This permitting process was created in response to inquiries made in 2010 regarding the possible establishment of firearm sales businesses on San Pablo Avenue. At that time, the City Council passed a temporary moratorium on the establishment of any retail firearms businesses in order to provide staff adequate time to draft appropriate zoning and permitting regulations. Subsequently, at its April 22, 2010 meeting, the City Council approved a zoning text amendment with a new zoning and permitting process included in EMC 5-30.
Staff notes that the permitting process in EMC 5-30 is similar to the City’s permitting scheme for obtaining cannabis business permits. As with cannabis businesses, firearms sales are conditionally permitted in certain locations, and the applicant must submit to a background check and meet the application requirements before obtaining a permit from the Chief.
City staff believes that the existing permitting process regarding firearms sales sufficiently protects the health and safety of the community. Accordingly, staff does not recommend any amendments or changes to the EMC 5-30 at this time. Should the City Council desire further study of changes to EMC 5-30, staff would study those separately from these Group III amendments.
EMC Codes Related to Building Standards (EMC 8-1 through EMC 8-11): As allowed by state law, the City has chosen to adopt standard industry building regulations to put in place uniform standards that protect the health and safety of the community. Once adopted, cities may modify the uniform code requirements, but only if the City can make express findings that the change is necessary due to local climatic, geological, or topographical conditions, and such findings are filed with the California Building Standards Commission. (Health & Safety Code Sec. 17958.5). In connection with the City’s ability to enforce adopted codes, the City is not precluded from utilizing its civil, administrative, or criminal procedures and remedies available for enforcing code violations. (See Health & Safety Code Section 18909(c)).
Currently, under the City’s Municipal Code, violations of building standard codes are subject to infraction, administrative citation, and other civil remedies, such as nuisance or abatement actions. Additionally, as recently modified by the City Council at its June 4th meeting on the Group II Amendments, infraction penalties for violations of building standards have been increased to $130 for the first violation, $700 for the second violation and $1,300 for subsequent violations within one year. A $2,500 fine may also be imposed for each additional violations that occur within two years. A hardship waiver was also established with the code amendments.
City staff does not recommend any further changes to these penalties for building standards violations.
FISCAL IMPACT
There is no direct fiscal impacts from this study session.
STAFF COMMMUNICATION WITH PUBLIC
None.
CONFLICT OF INTEREST
No conflict of interest has been identified.
CONCLUSION
Staff requests the City Council discuss and provide direction regarding the above discussion questions.
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 – Summary of Group III Amendment recommendations Study Session to Eliminate or Modify Criminal Penalties for Code Violations City Council Meeting | September 9, 2024
City of Emeryville
CALIFORNIA
MEMORANDUM