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Ordinance - 2183ORDINANCE NO. 2183 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEST COVINA AMENDING PROVISIONS OF THE WEST COVINA MUNICIPAL CODE TO ALLOW AN ADMINISTRATIVE CITATION TO BE ISSUED TO THOSE WHO VIOLATE GRAFFITI PROVISIONS, AND TO THE PARENTS OF MINORS WHO VIOLATE GRAFFITI PROVISIONS WHEREAS, in 1994, the West Covina City Council adopted Ordinance No. 1932, which increased penalties and expanded the scope of West Covina Municipal Code ("WCMC") provisions prohibiting graffiti; WHEREAS, the current WCMC prohibits causing or attempting to cause graffiti (Section 15-100), selling or loaning an implement used to cause graffiti (Section 15-101(a)), possession of a graffiti implement (Section 15-102), and requires removal of graffiti (Section 15- 103 ); WHEREAS, despite these efforts, graffiti continues to exist within the City, thereby contributing to blight in the community, depreciating the value of adjacent and surrounding properties, and serving as a sign of gang activities; WHEREAS, in response, the West Covina Police Department has determined that the issuance of an administrative citation for those who violate WCMC provisions prohibiting graffiti will serve as another deterrent to those who commit and/or foster graffiti in the City; WHEREAS, in addition, the West Covina Police Department desires to hold the parents and/or legal guardians of minors who violate WCMC graffiti provisions jointly and severally responsible for the minor's fine, in an effort to encourage parents and legal guardians to assist the City in preventing graffiti caused by minors; WHEREAS, pursuant to Government Code Sections 53069.4, the City Council desires to issue an administrative citation per violation of WCMC provisions prohibiting graffiti; WHEREAS, pursuant to Government Code Section 36901, the City may impose fines and penalties for violations of ordinances, so long as the fine does not exceed one thousand dollars ($1,000); and WHEREAS, the City Council also desires to amend the current administrative citation procedure (Chapter 15, Article X), so that West Covina Police Department officers may issue the administrative citations for violations of WCMC graffiti provisions. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of West Covina as follows: SECTION 1. West Covina Municipal Code Chapter 1, Section 1-37 is hereby amended to read as follows: Sec. 1-37. General penalty; continuing violations. (a) Whenever in this Code or in any ordinance of the city an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor, or whenever in such Code or ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, and no specific penalty is provided therefore, the violation of any such provision or the failure to perform any such act shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment not to exceed six (6) months or by both such fine and imprisonment at the discretion of the court. SECTION 2. West Covina Municipal Code Chapter 15, Article V, Division 1 "Graffiti" is hereby amended to read as follows: Ordinance No. 2183 Page 2 Sec. 15-104. Fine for Violation. Any person who violates the provisions of sections 15-100, 15-101(a), 15-102, and/or 15- 103(a) of this division is subject to a administrative fine in accordance with article X of this chapter. Such a person shall be deemed a "responsible party" for the purposes of article X of this chapter. Sec. 15-105. Parental civil liability. (a) In the case of an individual under the age of eighteen (18) who violates the provisions of sections 15-100, 15-101(a)(1), and/or 15-102 of this division, the parent or the legal guardian of said minor shall be notified of the violation and shall be jointly and severally liable for any administrative fine assessed to said minor pursuant to section 15- 104. Such parent or legal guardian shall be deemed a "responsible party" for the purposes of article X of this chapter. (b) Notwithstanding subdivision (a), and consistent with Civil Code section 1714.1, in situations where graffiti is willfully caused by individuals under the age of eighteen (18), the parent or legal guardian of said minor shall be responsible for its removal or payment for the cost thereof. The city may recover such costs up to twenty-five thousand dollars ($25,000) (or as otherwise determined by law) in a civil action in addition to any other remedies provided by law. Sec. 15-106. Removal from city property. Whenever the city manager or his designated representative determines that graffiti exists upon property owned by the city, it may be removed by the city at its expense as soon as possible. Sec. 15-107. Reward for information/restitution/community service. (a) The city council may, by resolution, offer and pay a reward for information leading to the apprehension and conviction of any person who places graffiti or other inscribed material as defined herein upon public or privately owned structures within the city. In addition to any fines levied by the city for violation of this division, any person who has damaged property by inscribing graffiti on public or private property shall be liable for the amount of any reward paid pursuant to this division and Section 53069.5 of the California Government Code. (b) As a part of any sentence or other penalty imposed, the court may also order that restitution be paid to the victim by the admitted or convicted perpetrator, and in the case of a perpetrator who is a minor, by the minor's parent or lawfully designated guardian or custodian, pursuant to, inter alia, Civil Code section 1714.1 and Government Code sections 640.5 and 640.6. (c) Upon conviction of any person for violation of this division, or any state law pertaining to vandalism of property with a graffiti implement, the city encourages the sentencing court to impose community service time, pursuant to Section 640.6 of the California Penal Code, as that may be amended from time to time, and to revoke or suspend driving privileges as provided by state law. Sec. 15-108. Division shall work in conjunction with state statutes and local ordinances. This division shall be interpreted so as to work with and in conjunction with (when and where applicable) any and all state and/or local ordinances relating to the control of graffiti and/or related vandalism, including, but not limited to, Sections 594, 594.1, 594.3, 640.5, 640.6, of the California Penal Code; Section 1714.1 of the California Civil Code; and Section 53069.3 of the California Government Code as those may be amended from time to time. SECTION 3. West Covina Municipal Code Chapter 15, Article X "Administrative Fines," is hereby amended to read as follows: Ordinance No. 2183 Page 3 Sec. 15-220. Purpose. It is the purpose and intent of this article to provide an alternative method of enforcement for violations of the West Covina Municipal Code and any other city ordinances (hereafter collectively the "Code"). The city council finds that an administrative fine program is an appropriate method of enforcement. Sec. 15-221. Enforcement authority. For purposes of this article, "Enforcement Official" shall mean any of the following: (a) An individual designated by the city manager to enforce the provisions of this article, or (b) An officer of the City of West Covina charged with the duty of enforcing ordinances of the City of West Covina and the laws of the State of California. Sec. 15-222. Scope. (a) For purposes of article X only, the enforcement official has discretion to treat any violation of the Code as either a misdemeanor or infraction (hereafter "municipal ordinance violation"). (b) The procedures established in this article supplement and are in addition or an alternative to any criminal, civil or other remedy available or established by law or under any other provisions of the Code. Sec. 15-223. Administrative citation. (a) Issuance of administrative citation. Except as set out in section 15-224 for correction conditions, an enforcement official may, upon determining that a person has committed a municipal ordinance violation (hereinafter referred to as "responsible party"), issue an administrative citation to the responsible party using the procedures set out herein. (1) As used herein, "responsible party" shall mean any of the following: (i) an individual causing or committing a code violation; (ii) an individual, by his/her action or failure to act, maintains or allows a code violation to continue; (iii) an individual whose agent, employee or independent contractor causes or commits a code violation by his/her action or failure to act; (iv) an occupant or owner of the property or the person otherwise responsible for complying with Code requirements; and/or (v) a parent or legal guardian pursuant to Section 15-105(a). (2) The administrative citation shall be served by personal service on the responsible party or in accordance with the provisions of section 1-27 of this Code. The responsible party's refusal to accept the administrative citation shall not affect the validity or the administrative citation or any proceeding undertaken under this article. (b) Administration citation contents. To the extent the following information is reasonably available to the enforcement official, the administrative citation shall: (1) State the date the administrative citation is issued; (2) State the responsible party's name; (3) Refer to the Code section(s) violated and describe how the responsible party violated the Code section(s); (4) State the date the violation was discovered by the enforcement official; (5) State the amount of fine imposed for the violation; (6) Explain how the responsible party may pay the fine, including the location and manner, as well as the time period by which the fine must be paid and the consequences of failure to pay the fine (i.e. ten (10) working days to pay the fine); (7) Explain the procedure for obtaining an administrative hearing, specifically, notice that the responsible party must make a written request within ten (10) working days from the date the administrative citation is issued and that the responsible party will be notified by mail of the date of the hearing; (8) Include a warning that a failure to pay the fine and/or request and appear at an administrative hearing may result in the penalties described in section 15-229(b); and (9) If applicable, describe the action necessary to correct the municipal code violation, and explain that failure to do so may result in the issuance of additional administrative citations and the imposition or additional fines. Ordinance No. 2183 Page 4 Sec. 15-224. Correction conditions. (a) Issuance of correction notice. This section 15-224 shall apply when the municipal ordinance violation pertains to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety (hereafter "correction condition"). (b) Correction period. A responsible party shall have a reasonable period of time to correct or otherwise remedy a correction condition prior to the issuance of an administrative citation and the imposition of a fine. (c) Correction notice. Upon discovery of a correction condition, the enforcement official shall issue a written correction notice to the responsible party by personal service or in accordance with the provisions of section 1-27 of this Code. The responsible party's refusal to accept the correction citation(s) shall not affect the validity or any other proceeding set forth in this article. (d) Correction notice contents. To the extent the following information is reasonably available to the enforcement official, the correction notice shall: . (1) Refer to the Code section(s) violated and describe how the responsible party violated the Code section(s); (2) Describe the action necessary to correct the municipal code violation; (3) State the final date by which the correction must be completed; and (4) Include a warning that failure to correct the violation may result in the issuance of an administrative citation and imposition of an administrative fine and shall state the amount of the fine to be imposed for the violation. (e) Procedure upon expiration of correction period.. If the responsible party remedies the municipal code violation within the period set forth in the correction notice, the enforcement official may issue the responsible party a notice of compliance. If the responsible party does not remedy the municipal code violation within the period set forth in the correction notice, the enforcement official may issue the responsible party an administrative citation pursuant to section 15-223. Sec..15-225. Responsible party's obligations. Within ten (10) working days from the date the administrative citation is served on the responsible party, the responsible party shall pay the fine amount designated on the administrative citation and may also make a written request for all administrative hearing ("hearing"). The issuance date shall mean the date the administrative citation is released from the city's possession by any of the methods specified in section 15-223. Sec. 15-226. Administrative fines. (a) Amount. The amount of administrative fines shall be determined by resolution of the city council, which shall include late payment charges and increased fines for repeated violations. The fine amounts for infractions set forth in other sections of this Code shall not apply to this chapter and shall in no way limit the amounts which may be imposed for administrative fines. (b) Continuing violation. Each and every day during any portion of which any municipal ordinance violation is committed, continued, or permitted shall constitute a separate offense. (c) Payment of fine. The responsible party must pay the administrative fine within ten (10) working days from the date the administrative citation is issued or file for a hardship fee mitigation as set out below within the same time period. (d) Obligation to correct violation. Nothing in this article shall be interpreted to mean that because a responsible party has paid the administrative fine that he or she is not required to correct the municipal ordinance violation. Failure to correct the municipal ordinance violation may result in additional fines. (e) Hardship fee mitigation. Any person who is financially unable to pay the administrative fine may file a request for a hardship fee mitigation with the city manager or his/her designee within the time set. The request shall be in writing (whether ornot on a form provided by the city) and shall describe why the fine cannot be paid, any payment schedule, and supporting documents. The request shall be made under penalty of perjury. Once filed, the requirement for payment of an administrative fine shall be stayed while Ordinance No. 2183 Page 5 the city manager or his/her designee determines whether or not to grant the request. His/her determination shall be in writing and served on the responsible party. If the city manager or his/her designee does not waive or establish a payment system, the administrative fine shall be paid within not less than ten (10) working days or later as set out in the notice. Sec. 15-227. Administrative hearing. (a) Ability to contest administrative citation. Any responsible party to whom an administrative citation has been issued may contest that there was a violation of the Code or that he or she is the responsible party by filing a written request with the city manager for a hearing within ten (10) working days from the date of issuance of the administrative citation. Such request shall be accompanied by payment of the administrative fine or notice that a request for a hardship fee mitigation has been filed pursuant to section 15- 226(e). The city manager or his/her designee shall set a date for a hearing within thirty (30) calendar days of the request. (b) Notification of hearing. At least ten (10) working days prior to the date of the hearing, the city shall, by certified mail, return receipt requested, or personal service, give notice to the responsible party of the time, date and location of the hearing. The city also shall provide the responsible party in advance with any materials provided to the hearing officer. (c) Hearing officer. (1) The city manager or his/her designee shall appoint a person or persons who shall preside at the hearing and hear all facts and testimony presented and deemed appropriate (the "hearing officer"). (2) Any person designated to serve as a hearing officer is subject to disqualification for bias, prejudice, interest, or for any other reason for which a judge may be disqualified pursuant to Code of Civil Procedure Section 170.1. The responsible party may challenge the hearing officer's impartiality by filing a statement with the city manager objecting to the hearing before the hearing officer and setting forth the grounds for disqualification. The question of disqualification shall be heard and determined in writing by the city manager or his/her designee within thirty (30) days following the date on which the disqualification statement is filed. (3) Alternatively, either the city manager or his/her designee or the hearing officer may refer the hearing to the planning commission to be heard at its next regular meeting. In such cases, the planning commission shall function as the hearing officer as set out herein. (d) Administrative hearing procedures. (1) The administrative hearing is intended to be informal in nature. Formal rules of the California Evidence Code and discovery shall not apply, except that irrelevant and unduly repetitious evidence may be excluded at the hearing officer's discretion. (2) Each party shall have the opportunity to offer testimony and evidence and cross examine witnesses in support of his or her case. (3) Pursuant to California Penal Code Section 196, a responsible party shall not be entitled to a jury for an infraction charge, nor shall a responsible party be entitled to have the public defender or other counsel appointed at public expense to represent him or her. (4) The hearing officer may continue the hearing or request additional information from either side. (5) Neither the enforcement officer nor any other representative of the city shall be required to attend an administrative hearing. The hearing officer shall not require that the enforcement officer submit any evidence other than a copy of the administrative citation. (e) Administrative order. (1) Within ten (10) working days of the conclusion of the hearing, the hearing officer shall provide the responsible party with its decision in writing ("administrative order"). The hearing officer shall provide the responsible party with the administrative order by personal service, or by certified mail, return receipt requested, to the responsible party's last known address. (2) The administrative order shall contain the hearing officer's reasons for the decision and the procedure described in section 1.20.90 for seeking judicial review. (3) A decision in favor of the responsible party shall constitute a dismissal of the municipal ordinance violation. The city shall promptly return any monies paid by the responsible party. Ordinance No. 2183 Page 6 (4) If the hearing officer renders a decision in favor of the city, the responsible party must comply with the administrative order or seek judicial review of the administrative order pursuant to section 15-228. (f) Failure to attend administrative hearing. (1) Waiver of right of hearing. The responsible party's failure to appear at a hearing shall constitute a waiver of the right to a hearing, a forfeiture of the fine, and a failure to exhaust administrative remedies. Failure to appear by the responsible party shall be noted on the notice of decision by the hearing officer which will be mailed to the responsible party. (2) Good cause. Upon a showing of good cause by the responsible party, the hearing officer may excuse the responsible party's failure to appear at the hearing and reschedule the hearing. Under no circumstances shall the hearing be rescheduled more than one time. Sec. 15-228. Judicial review. If an administrative order is rendered in favor of the city, the responsible party may seek judicial review of the administrative order by doing one of the following: (1) Appeal the administrative order pursuant to California Government Code Section 53069.4 within twenty (20) calendar days after service of the administrative order. Pursuant to Section 53069.4, the appealing party shall serve a copy or the appeal notice in person or by first class mail upon the city. Appeal notices shall be sent to the city clerk. If no appeal notice is filed within the twenty (20) calendar day period, the decision shall be deemed confirmed; or (2) File a petition for a writ of mandate pursuant to California Code of Civil Procedure Section 1094.5, et seq., within ninety (90) calendar days after service of the administrative order. Sec. 15-229. Failure to comply. (a) Default defined. As used in this section, the term "default" shall mean any of the following occurrences: (1) The responsible party fails to either pay the administrative fine within ten (10) working days from the date the administrative citation is issued. (2) The responsible party fails to either comply with the administrative order or to seek judicial review of the administrative order. (b) Penalty fine. The occurrence of a default may result in the city increasing the administrative fine, not to exceed the maximum amounts set forth in section 15-226 ("Penalty Fine"). (c) Account receivable. Upon the occurrence of a default, the city may treat the administrative fine or penalty fine, whichever is applicable, as an account receivable, subject to the city's established policy for delinquent accounts receivable. (d) Misdemeanor. A default shall constitute a misdemeanor punishable by a maximum of a one thousand dollar ($1,000.00) fine or six (6) months in jail, or both. (e) Collection. The city may use all appropriate legal means to collect the fines imposed pursuant to this article. (f) Criminal citation or complaint. The city attorney may issue a criminal citation or complaint against any responsible party not timely paying any fine due to the city. (g) Lien or special assessment. Any delinquent fines, interest and penalties may be recovered as a lien or special assessment against the property of the responsible party. (1) Prior to recording a lien or special assessment, the city manager or his/her shall prepare a cost report itemizing the amount owed by the responsible party. (2) The city manager or his/her designee shall notify each responsible party of the time, date and location that the city council shall consider any cost report imposing a lien or special assessment on the property of the responsible party. (3) At a public hearing, the city council shall consider the cost report with any objections of any responsible party liable to be assessed for the costs stated in the report. The city council may modify the cost report as appropriate. (4) Upon approval by the city council, the city manager or his/her designee may file a certified copy of the cost report with the county auditor. The city manager or his/her designee shall request to the auditor to enter each assessment on the county tax roll and to Ordinance No. 2183 Page 7 collect the amount of the assessment at the time and in the manner of ordinary municipal taxes. SECTION 4. If any part of this ordinance, or its application to any person or circumstance, is held to be invalid, the remainder of the ordinance, including the application or provision to other persons or circumstances, shall be not be affected and shall continue in full force and effect. To this end, the provisions of this ordinance are severable. SECTION 5. The City Clerk shall certify to the passage and adoption of this ordinance, causing it to be posted as required by law and it shall be effective thirty (30) days after its adoption. APPROVED AND ADOPTED on this 16th day of December 2008. 0� 111'e�� - Mayor R er Hem9ndez ATTEST: City Cler aurie Carrico I, LAURIE CARRICO, CITY CLERK of the City of West Covina, California, do hereby certify that the foregoing Ordinance was regularly introduced and placed upon its first reading at a regular meeting of the City Council on the 2"a day of December 2008. That thereafter said Ordinance was duly adopted and passed at a regular meeting of the City Council on the 161h day of December 2008, by the following vote: AYES: Herfert, Lane, Sanderson, Touhey, Hernandez NOES: None ABSENT: None C� ABSTAIN: None.A- City Clel k Laurie Carrico APPROVED AS TO FORM: City Attorney Am d Alvarez-Glasman CERTIFICATION I, Susan Rush, Assistant City Clerk of the City of West Covina, State of California, do hereby certify that a true and accurate copy of Ordinance No. 2183 was duly enacted and passed by the West Covina City Council, and caused to be posted pursuant to law (G.C. 36933), at the following locations: West Covina City Clerk's Office (3`d floor) Los Angeles County Public Library (West Covina Branch) • West Covina Police Department (front lobby) - Posted: December 17, 2008 • Susan Rush, Assist nt City Clerk