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HomeMy WebLinkAbout1B, Administrative FinesEN HILLS MEMORANDUM DATE: October 19, 2009 Item 1.B TO: Honorable Mayor & City Council FROM: James Lehnhoff, Community Development Director Meagan Beekman, City Planner SUBJECT: Administrative Fines Requested Action Clarify the City Council's goals and priorities for an administrative fine program, review the current State Statutes regarding this issue, discuss strengths and weaknesses, ask questions, and provide direction and priority on a course of action. Intrnrl»etinn In October 2008, the City Council directed staff to begin researching rental regulation and administrative fining programs for the 2009 work plan. This project was primarily initiated due to increasing concern over property maintenance issues, code enforcement issues, the conversion of owner occupied housing to rental housing, and college student occupied rental housing. At the time the City Council created a priority list of action items associated with what would become known as the Community Enhancement Program. Throughout 2009, Staff updated the abatement code, worked on updating the code enforcement policy for the City, amending the City Code to clarify enforcement, and focusing on implementing a rental registration program. In June of 2009, the City Council adopted a rental registration program that is currently underway. The purpose of this memo is to review a possible administrative fine program. At the end of their 2009 session the State Legislature passed new statutes regarding the use of administrative fines for traffic related offenses within a municipality. Those changes to State law have created a renewed interest among many communities to examine their own administrative fine programs. The City of Arden Hills is currently working with the other communities that contract for police services with Ramsey County to review options for a traffic offense administrative fine program. At this time Staff is asking the City Council to discuss and provide feedback on an administrative fine program for violations of the Code other than those related to traffic offenses. City of Arden Hills City Council Work Session for October 19, 2009 I Wetro-inet lardenhills lAdmin I Council Ugendas & Packet Information 12009110-19-09 Worksession l Packet Information 110-19-09 -Work Session - Admin Fines. doc Page 1 of 5 Setting Goals and Priorities Before continuing, it is important to determine what the City Council would like to get out of an administrative fine program. The goals of the program will help dictate the type of program that might be implemented by the City. The processes for implementing administrative fines described in this memo have different strengths, weaknesses, benefits, and costs. Determining which tools will work best will depend on the goals and priorities of the City. What are the City's goals for an administrative fine program? What results are desired? Code Violation Trends To help put the administrative fine program into context, a review of code violation trends is provided. At the end of the first half of 2009, there were a total of 196 registered complaints. The majority of the complaints had to do with improper parking of vehicles. Other complaints had to do with objectionable weed and grass growth and property maintenance issues. Staff is in the process of preparing the full third quarter code enforcement report. By comparison there were a total of 167 registered complaints by this same time last year. In 2008 there were a total of 491 code enforcement cases involving 509 issues. The majority of those pending cases were unresolved parking of vehicles, recreational vehicle (RV) storage issues, and situations that require continued monitoring. In 2007 there were a total of 191 code enforcement cases involving 255 issues. In 2006, there were a total of 325 issues of which some properties had more than one issue. The majority of those code enforcement cases are for parking issues (too many vehicles and/or parking on lawns), garbage container location, drainage/erosion control, animal control, and unmaintained lawns. An estimated 80 percent of complaints are resolved upon first contact with the property. Most of the remaining 20 percent are resolved with a phone call or second notice. For those properties that require a second or third notice, it is not uncommon for some properties to fall back out of compliance. However some properties refuse to comply or stay in compliance, which can result in a civil or criminal citation. Since the City's goal is to obtain compliance, staff works diligently with properties before pursuing the civil or criminal citation process, which can take six to twelve months and legal fees to obtain compliance during which time the property remains out of compliance Existing Code Enforcement Resources The City currently has a quarter time code enforcement officer. The remaining three quarters of that position is dedicated to residential building reviews and inspections. Due to increasing code enforcement demands, the amount of time used for code enforcement in this position has been increasing, which decreases the amount of time available for required inspections. In addition to the Code Enforcement Officer, the Building Official, City Planner, Community Development Director, and other administrative staff contribute to code enforcement efforts as necessary. City of Arden Hills City Council Work Session for October 19, 2009 IlMetro-inetlardenhillslAdminl CouncilUgendas & Packet In00rmation12009110-19-09 WorksessionlPacket Information110-19-09 -Work Session - Admin Fines.doc Page 2 of 5 As part of the City's contract, the Ramsey County Sheriff is also responsible for enforcing the City's regulations. Their services are particularly needed after regular business hours and on weekends. Additional conversations with the Sheriffs office may be needed to ensure that the City's regulations are being enforced, and residents need to be educated to know that they are able to call Ramsey County during non -business hours. Staff is in the process of contacting other cities of similar size to assess their code enforcement staff resources. Each of the cities adjacent to Arden Hills has a full-time code enforcement officer. Complaint and Enforcement Policy In May of 2009, the City adopted an updated code compliance policy. Staff had been following a procedure prior to the update; however, a more formal policy provides a better foundation for staff. The purpose of the update was to provide a standard procedure and a clearer process to residents. The policy does allow for flexibility so that Staff can work toward the best outcome depending on the unique circumstances of a given situation. The policy is included in Attachment A. Administrative Fines The administrative fining process has grown in both popularity and in controversy in recent years. Page 5 of the City Attorney's July 31, 2008, letter includes the detailed legal background for this tool (Attachment B). Recent action at the State Legislature has permitted cities to levy administrative fines for traffic related offense. While State Statue remains largely silent on administrative fines for other types of City Code violations, it is the opinion of the City Attorney, and the league of Minnesota Cities, the a city is within its rights to enforce its own Code, and the use of administrative fines is a reasonable way of doing that. Although definitive research on the effectiveness of administrative fines is not available, Staff spoke with other cities about their programs. Some cities use administrative fines extensively and issue a fine along with the first notice for a violation, which is the case in Coon Rapids where they have a much larger code enforcement load. Other cities that were contacted use administrative fines more sparingly or not at all, even when the option is available in their Code. According to the cities that were contacted that use administrative fines, few properties received the actual fine because the fine would often be waived if the property was brought into compliance within a set time period. Still other cities have chosen not to use administrative fines at all citing the additional staff time required to implement and operate the program compared with lack of proven effectiveness. It should be noted that the communities that use administrative fines on a regular basis also have their own police force to issue them. City of Arden Hills City Council Work Session for October 19, 2009 IMetro-inetlardenhillsW dminl Council Wgendas & Packet Info rmation12009110-19-09 WorksessionlPacket Information110-19-09 -Work Session - Admin Fines. doc Page 3 of 5 As part of this program, a city must build in due process. After a fine is issued, the person receiving the fine can appeal it to the hearing officer at City Hall. The hearing officer is generally a third party chosen by the City, though in some cases it can be the city council. The hearing officer reviews the violation and determines if the fine was warranted or should be dismissed. There are not any statistics readily available on the number of fines that are appealed. An important aspect to note of any administrative fine program is that it is a voluntary fine. This means that should a property owner refuse to pay the fine, there is no way for the City to require payment. Instead, the administrative fines are seen as an alternative to the lengthy and costly legal citation process and meant to encourage conformance before a citation is issued. Most communities issue administrative fines on the second or third letter that goes out to a property for a violation. If the violation is corrected, the administrative fine is waived. If the violation is not corrected, the city could begin the citation process. In cases where compliance is unattained, a criminal or civil citation is often the only remaining tool. For certain public nuisance violations, a city can abate the property and assess the cost of the abatement and any administrative costs associated with it. A public nuisance includes such violations as excessive grass and weed growth, and garbage piles, removal of snow and ice from sidewalks. Parking and sign violations are not considered public nuisances and cannot be abated. In order to use the administrative fine process, the City would need to adopt the necessary regulations to the City Code and amend the fee schedule to include the fines for various violations. Specific violations could also be listed with differing fines for each depending on the severity of the nuisance. Most cities that we spoke with charged between $50 and $150 for the first violation. Fines for subsequent violations increased from anywhere between 25 and 100 percent. The Code would also need to appoint a hearing officer to hear appeals to the administrative fines. Since the goal of administrative fines is to gain compliance, the program would not be a revenue generator for a city, and would not pay for itself in terms of staff time and resources. This process would require involvement from the City Administrator, Community Development Director, City Planner, City Attorney, Building Official and Code Enforcement Officer. While there is not a standard cost for setting up this type of program, a reasonable estimate is $2,500 to $3,500 for the cost of staff and city attorney time. This process would also require a continual dedication of staff time and resources without a guarantee of cost recovery. Until an administrative fine policy is created, it is difficult to estimate the number of fines that would be issued each year and the impact of ongoing costs; estimates gathered from other communities suggest that the range might be ten to 20 fines issued in a given year, of those even fewer are actually paid. Revenue is unlikely to meet or exceed the cost of the program but could vary depending on the fine (e.g. the City of Roseville charges $100 per fine). Since an administrative fine does not guarantee compliance, some fines would likely be converted to civil or criminal citations. There could be savings if an administrative fine prompts compliance City of Arden Hills City Council Work Session for October 19, 2009 I (Metro-inetWrdenh ills lA dmin l Council Ugendas & Packet Information12009W-19-09 Worksessionftcket InformationW-19-09 -Work Session - Admin Fines. doc Page 4 of 5 before a citation is issued, though that savings is difficult to predict since the cost of a citation can vary and relatively few citations are issued in any given year. Excessive Consumption Excessive consumption is another way to attempt to recover some of the costs taken up by chronic public nuisance offenders. Roseville is currently looking at this as an option and New Brighton currently uses a form of it. With excessive consumption, properties that are repeat offenders, which require additional reinspections, or take up an excessive amount of staff time, are billed for that time. The bill can be in the form of a flat rate for each inspection done, or an actual calculation of the amount of staff time taken up by the property. Initial discussions with the City of Roseville indicate that these bills, if unpaid, might be able to be assessed against a property. Staff is exploring this option more with the City Attorney and the City of Roseville. Recommendation Despite the possible implementation of an administrative fine program some properties will undoubtedly still have code violation issues. The primary goal of an administrative fine program is to obtain compliance, which, despite the City's best efforts, can take time and diligence no matter what tools are available. While having an administrative fine program available as a tool for Staff might be useful in a few situations, it is unlikely that such a program would have a broad or significant impact on the City's code enforcement activities. Adopting such a program has benefits, provided that the limitations of administrative fines are understood. The benefits of the program must also be weighed against the cost of implementing and administering it. Based on Staff s research, it is questionable if administrative fines would be an effective use of resources. Nevertheless, administrative fines are a potential tool to the extent that they facilitate compliance with the certain code violations and may reduce the need for civil or criminal citations. Attachment. A — Code Compliance Policy and Process B — July 31, 2008, Letter from the City Attorney C — Example Administrative Fine Code — City of North Oaks City of Arden Hills City Council Work Session for October 19, 2009 IlMetro-inetlardenhillsWdminl CouncilWgendas & Packet Information12009110-19-09 WorksessionlPacket Information110-19-09 -Work Session - Admin Fines.doc Page 5 of 5 Attachment A Code Complaince Policy October 19, 2009, City Council Work Session City of Arden Hills Code Compliance Policy Policy Purpose: The City of Arden Hills seeks to protect the quality of life, property values, aesthetics, and safety through consistent and timely enforcement of the Arden Hills City Code. This code compliance policy is adopted to guide staff and designed to apply a standard procedure to achieve code compliance while working to educate and provide a reasonable timeframe for property owners and tenants to resolve noncompliance issues. Submitting a Complaint: In order for the City to investigate a complaint, the following information is required to be considered a completed complaint: • Complete address of violation (or adjacent address if in the right-of-way). • Description of violation. • Name, address, and phone number of complainant (kept as confidential information). • During regular business hours, the complaint can be submitted to City Hall by mail or by phone at 651-792-7800. For on -street parking violations and any violation that occurs during non -business hours, please contact the Ramsey County Sheriff non -emergency line at 651-767-0640. • People are strongly encouraged to contact City staff and/or the Ramsey County Sheriff while the violation is occurring so that the violation can be witnessed. City Code Compliance Process*: 1. Complaint. The completed complaint is submitted to the City. 2. Inspection. Staff visits the property to inspect the complaint, follow-up with complainant to inform them of the compliance process, and initiate contact with the property and tenants of the subject property. Staff will strive to complete this step within two working days of receiving the completed complaint. 3. Notification. a. City verified violation: For violations that are verified by a staff or sheriff inspection, the property owner and tenant shall be informed of the violation, how to resolve the violation, the applicable ordinance number(s), when the issue was reported, any applicable educational materials, and instructions to resolve the violation within seven days. Staff shall attempt to contact the property owner and tenant by phone and shall send a letter with the required information. Proceed to step four. b. No City verified violation: For violations that have not been verified or witnessed by City staff or the sheriff, the property owner and tenant may be informed of the complaint, the applicable ordinance(s), and supplied with any applicable educational materials by letter and/or phone. If the violation occurs and is verified within 12 months of the initial report date, staff may proceed to step five provided the property owner and tenant were informed of the initial complaint and supplied with the applicable ordinance and educational materials. \\Metro-inet.us\ardenhills\Planning\Community Development\Community Enhancement Program\Compliance Policy\051109 - AH code compliance policy.doc 5/29/2009 4. Re -inspection. Staff re -inspects the property after seven days. If the violation is resolved, the case will be closed. If the violation is not resolved, proceed to step five. 5. Final Notice. The property owner and tenant shall be informed of the violation, how to resolve the violation, the applicable ordinance number(s), when the issue was reported, and any applicable educational materials. The letter shall direct the violation to be resolved within seven (7) days or 1) a citation may be issued, or 2) the abatement process may be initiated, whichever is most applicable. Staff shall attempt to contact the property owner and tenant by phone and shall send a letter with the required information. 6. City Action. If the violation remains unresolved after the seven (7) day time period, a citation may be issued or the abatement process may be initiated, whichever is most applicable. 7. Reoccurrence. If a substantially similar violation occurs on the same property within 24 months of a verified violation, the City may issue a citation or initiate the abatement process initiated, whichever is most applicable, without the need for additional violation notifications, The City's primary goal is to obtain compliance. City staff shall apply this policy equitably; however, unique situations may warrant flexibility if the result is a better and long lasting solution. *The Ramsey County Sheriff may issue tickets or citations outside of this code compliance process. Adopted: May 11, 2009 2 \\Metro-inet.us\ardenhills\Planning\Community Development\Community Enhancement Program\Compliance Policy\051109 - AH code compliance policy.doc 5/29/2009 Attachment B July 31, 2008, Letter from the City Attorney October 19, 2009, City Council Work Session Warren E. Pelerson Jerome P. Filla Daniel Witt Frain Clem A. Bergman John Michael Miller ,Michael T. oberle Steven H. Bruns eve Paul W. Fahning Sonja R. Ortiz Amy K. L. Schmidt Ben 1, Rust Jonathan R. Cuskey fared M. Goerlitz Noah Simon Assistant City Administrator City of Arden Hills 1245 West Highway 96 Arden Hills, Minnesota 55112 a 01 aq YAW PROFESSIONAL AS S 0 C I A T 1 0 N July 31, 2008 RE: Rental Licensing, Code Enforcement and Administrative Citations Dear Noah: Suite 800 55 East Fifth Street St, Paul. MN 55101-1718 (651) 291-8955 1651) 228-1753 facsimile www.pfb-pa.com (651)290-6907 il U136PPt-pa.com .VIA EMAIL Recently, the City of Arden Hills has been considering whether to establish a licensing ordinance for rental properties within the City. A citizens" task force met on two occasions to discuss the merits of such an ordinance., and other alternatives. The task force has made its recommendation to the Council. As I understand the background of the discussion, there is some concern among the Council and the community about on -going property issues, such as parking, property maintenance, noise, nuisance conditions, and the like. As the task force debated the issues, they also discussed pursuing stepped up enforcement of the City's applicable Code provisions through the Building Official. This was relevant to the question of rental licensing because such activity could provide a viable alternative to a rental licensing ordinance. The task force also discussed the possibility of a rental registration ordinance, and seemed interested in exploring alternatives to rental licensing or rental registration. In addition to the implementation of a rental licensing ordinance,, or a rental registration as a means of addressing on -going property concerns,, the City has a number of options availablel, namely code enforcement, civil actions, abatement authority, hazardous building provisions, and administrative fines. Each of these options is available for both rental and owner -occupied properties. Each option is discussed below. Code Enforcement 'By Notice and Citation. The City's usual Code Enforcement process starts,when a property owner files a complaint regarding the use or the maintenance of a neighbo . r's property. At this stage,, the identity of the reporting property owner is confidential pursuant to the terms of the Minnesota Data Practices Act. Upon the receipt of the complaint, the City usually undertakes the following: 'AL -SC AUNUTTED IN WiSCONSIN July 31, 2008 Page 2 I- The na (Iff; inspects the offending property. 2. Where appropriate, the Bt,,___ I sends the offending property owner a written notice which identifies the facts which support the complaint and the sections of the City Code which are being violated. The Notice also contains a compliance date. 3. A second inspecfionbccurs. If the property is in compliance, the City will send a letter thanking the offending property owner for cooperating. 4. If the property owner is not in compliance within the required time, one or two additional notices and inspections can occur. When it becomes clear that the offending property owner cannot or will not comply with the City's regulations, the Building Official prepares a criminal citatiori and files it and supporting documents with the clerk of the Ramsey County District Court. A copy is sent to our office. We have instructed the Clerk of Court to require court appearances in connection with this type of violation. 6. The Clerk of Court notifies the offending property owner to appear on a date certain. The Building Official to inspect the property before the date of the court appearance- At the first appearance,, the offending party can plead guilty or not guilty. If a guilty plea is entered, the matter is resolved at that time. If a not guilty plea is entered, the matter is scheduled for a pretrial at a later date. 7. At the pretrial, the offending property owner has the same choices as he/she did at the first court appearance. If the offending property owner continues to plead not guilty, the matter is scheduled for a jury trial. All City Code violations are misdemeanors unless specifically indicated otherwise in the City Code. The maximum penalty for a misdemeanor is a fine of $1 1000 or a jail sentence of 90 days or both. Since the offending property owner may serve time in jail if convicted, the law allows the offending property owner to have a jury trial. 8. From start to finish, the above process may take six (6) to nine (9) months 6 to complete, in the meantime, if the property continues to be in violation of the City Code. 9. Criminal cases need to be proved beyond a reasonable doubt and, because the defendant is the offending property owner and does not have to testify against him/herself, discovery options are very limited. The issuance of a July 31, 2008 Page 8 criminal citation results in the imposition of penalties and does not necessarily resolve the underlying property maintenance issue. A person may choose to pay a fine and/or serve some time in jail rather than clean up the property. Code Enforcement by Notice and Civil Action This Code enforcement method starts in the same way as the notice and criminal citation process. However, during the initial notice phase, it may become clear that the violations are of more serious nature and are ongoing. Therefore the city would not only want the problem corrected, but it would like a court order to ensure that the problem doesn't reoccur. In regard to civil enforcement process: t . The city serves and files a Summons and Complaint. 2_ The offending property owner is required to fire an answer. 3. There is ample opportunity for discovery under the Rules of civil Procedure (i.e. interrogatories, depositions, request for admissions, court ordered inspection of the property). 4. In a civil case, it is usual for the court to require that the parties attempt to ,,mediate the issues before the case proceeds to trial. 5. The trial is usually to the court. 6. From start to finish, a civil case in the Ramsey county District Court can take six (f) to twelve U2) months. 7. If the court finds in favor of the City, it could award the city its costs. The court order could restrict future conduct. if there is a future violation of the court order,, the city would simply petition the court to enforce its order. Code Enforcement for Nuisance Abatements. The City is authorized to define nuisances, abate nuisances, and to specially assess the cost of abatement against the property on which the nuisance was located (Minn. Stat. 412.221, subd. 23; 429.221, subd. 8 and city code chapter 6). The process for abating a nuisance is as follows: 1. The Building Official notifies the property owner that a nuisance exists, identifies the steps that must be taken to abate the nuisance, and indicates the time for bringing the property into compliance. July 31, 2008 Page 4 2. The notice is personally served or sent by certified mail to the property owner. if the property is not occupied, the notice can be posted on the property. 3. If the nuisance is not abated by the property owner within the required time, the City Administrator notifies the property owner that the matter will be reviewed by the City Council at a specific meeting. Council will then consider the report of the City staff and the comments of the property owner. 4. At the conclusion of the Council hearing, a decision is made by the City. If the City Council determines that a nuisance exists, it approves the appropriate order requiring that the nuisance be abated. 5. The City Council Abatement order can be appealed to the District Court, in which case, the matter will be tried as other civil cases. �. If a delay in the abatement of a nuisance will unreasonably endanger public health, safety or welfare, the City can also order that the nuisance be summarily abated. 7. The property owner is personally liable for the cost of the abatement and the cost can be assessed against the property. Code Enforcement or hazardous Building Removal. The procedure for removing a hazardous building is as follows: I. The Building Official makes a hazardous building determination. 2. The property owner is notified. if the property owner consents to the removal of the building, the City abates the hazard and assesses the cost against the property. if the property owner does not consent to a removal of the hazardous building, the matter is presented the City Council with the staff's recommendation. The property owner can appear and comment at the Council meeting. The Council could then .adopt the appropriate order requiring the removal of the hazardous building. 3. The City Council's order to remove the hazard is served on the property owner. 4. The property owner has twenty (20) days to file an answer with the Ramsey County District Court. if an answer is not filed, the City proceeds to obtain a summary judgment. If an answer is filed, the matter proceeds as other cases. July 31., 2008 Page 5 Administrative Fines as an Alternative. The issue of cities' authority to establish administrative fines for certain violations has been the center of debate and controversy in Minnesota over the past several years. Some, including the State Auditor, have concluded that cities do not have the authority to take such action in certain areas of enforcement. At the same time, there has been great legislative effort over the past several sessions for at least some clarity on the issue. Again in 2008, the Legislature did not take any steps to clarify city authority to implement a scheme for administrative fines. Accordingly, a city should proceed cautiously before passing such an ordinance, and consider the following: 1. Authority. As a general rule, cities have only the authority expressly granted to them in statute or in a city charter, or necessarily implied by the express authority given to them. Mangold Midwest Co. v. Village of Richfield, 143 N.w.2d 813, 819-20 (Minn. 1955). Except in two specific circumstances, there is no express authority for a statutory city to impose administrative penalties. The two specific circumstances are set out in (1) Minnesota Statutes § 461.12, subd. 3, which allows cities (or a licensing authority) to impose administrative penalties for sale of tobacco to a minor; and in (2) 340A.415, which establishes an administrative penalty for certain violations involving the sale of alcohol. Otherwise, statutory cities generally rely on more general powers granted by the legislature: The council shall have the power to declare that the violation of any ordinance shall be a penal offense and to prescribe penalties therefor. No such penalty shall exceed a fine of $1,000 or imprisonment in a city or county jail for a period of 90 days, or both, but in either case the costs of prosecution may be added. Minn.Stat. § 412.231 (emphasis added). Most cities interpret this section as either an express grant of authority to establish administrative penalties, or at the very least, to be authority "necessarily implied" in their general powers to do so. See also, State v. Robitshek 60 Minn. 123, 125, 01 N.W. 1023, 1024 (1895) (enforcement of ordinances is as much within the authority and power of city council as is enactment). Based on this general authority, many Minnesota cities, bath statutory and charter, have established administrative penalties for a Variety of ordinance violations. However, this has not been without controversy, specifically as it relates to cities enforcing their own traffic regulations rather than state traff is laws. In 2003, the former Stage Auditor took the position, _ July 31, 2008 Page 6 and the former Attorney General issued an opinion, that cities are preempted from enforcing local traffic regulations. The current State Auditor has issued a Position Statement that her office will follow the opinion of the AG as it relates to traffic code enforcement. Her office issued letters/surveys to cities, asking whether they have an administrative process for traffic offenses, how much revenue has been collected, and demanding repayment to the State for any amount collected for traffic fines that should have been prosecuted in district court. Her office issued a "Special Study" in February 2008 discussing the findings. It is important to note that the former and current State Auditors and the AG do not specifically deny a city's authority to enforce other code provisions, such as building code, zoning code, housing code or public nuisance violations, through an administrative process, despite statutory provisions that might apply (e.g., nuisance abatement of dangerous buildings). certainly, as noted above, a city may enforce these other code provisions by citation in district court if the city's code provides that such violations are misdemeanors. Arguably, the focus of the State Auditor and of the Attorney General on preemption in the field of traffic violations without an explicit statement denyingthe existence of city authority for local enforcement of all types, could be read as recognition that. code enforcement in these other areas is something inherently local, dealing directly with livability issues and community values, and should be enforced locally. The League of Minnesota cities has been working each legislative session over the past several years for a clarification of cities` authority in this area. No bills have beers passed thus far, but more are expected for the 2009 session beginning in February. In the mean time, the League has taken the following position: The League supports the use of city administrative fines for local regulatory ordinances, such as building codes, zoning codes, health codes, and public nuisance ordinances. The League supports the use of city administrative fines, at a minimum, for regulatory matters that are not duplicative of misdemeanor or higher state traffic and criminal offenses. Further, the League endorses the concept that administrative penalty bearings should be held before disinterested third parties, which may include city councils, to ensure fairness in the proceedings. If state leaders enact legislation that prohibits cities from using administrative fines for minor traffic offenses, they should also change the distribution of statutory violations fine revenues so that cities are adequately compensated for enforcement and prosecution costs. Finally, the state should require that if a court reduces the amount paid by a violator, any reduction should be made from the surcharge and not the fine. July 31, 2008 Page 7 As the Legislature continues to debate the issue, it is likely safe for cities to proceed with administrative penalties for non -traffic -related violations. 2. Enforcement issues. Assuming a city has full authority to establish an administrative process for code enforcement in given situations, the question remains whether such a process will be effective. This is an open question, with little, if any, guidance in the law. Obviously, criminal enforcement in district court is an option,, but, as noted above, is not perfect. However, it is far from clear whether an administrative process is more effective. Except for the two statutes cited above, where administrative penalties are specifically proscribed, cities are generally free to establish their own process. For example, there could be progressive fines (first offense, $3 00; second offense,, $500; third offense $1000, and so on); or there could be progressive fines to a certain point, eventually leading to a criminal citation. Some cities provide that an unpaid administrative penalty results in a misdemeanor citation. There is no conclusive evidence that thes'e procedures are more effective in accomplishing code compliance. There is also the issue of collection of an administrative penalty. Cities approach this differently. Some do take the approach that an unpaid administrative fine becomes a lien against the property and may be assessed against the property and collected In the same manner as taxes. A statutory city does not have clear authority to follow this procedure. While it is true that a city has authority to intervene to abate a public nuisance pursuant to Minnesota Statutes § 429.021, subd. 10, and specialty assess the cost,, the assessment authority is for the cost of abatement, not for an administrative penalty for a code violation. Accordingly, authority to assess an unpaid administrative penalty is not express in every situation. For example, a city does have the authority to certify "unpaid [water and sewer] charges to the county auditor with taxes against the property served for collection as other taxes are collected.vt Minn.Stat- § 444.075, subd. 3e. This authority does not extend to unpaid municipal gas or electric charges. See A.G. Op. 624-D-5 (July 6, 1953). Likewise, there is no explicit authority granted to statutory cities to certify any amount they choose for collection with property taxes. July 31, 2008 Page 8 There is no concrete evidence that statutory cities who do employ this procedure have ever been challenged on it in court. Until there is a challenge or a legislative clarification, it is advisable to consider another alternative for collection of unpaid administrative penalties. Very ul urs, 1%. come F ome my K.. midt JPF.-jrnt M. Ron Moorse Attachment C Example Administrative Fine Code — City of North Oaks October 19, 2009, City Council Work Session North Oaks City Code § 10.98 SUPPLEMENTAL ADMINISTRATIVE PENALTIES. (A) In addition to those administrative penalties established in this code and the enforcement powers granted in § 10.20, the City Council is authorized to create by resolution, adopted by a majority of the members of the Council, supplemental administrative penalties. (B) These administrative penalty procedures in this section are intended to provide the public and the city with an informal, cost-effective, and expeditious alternative to traditional criminal charges for violations of certain provisions of this code. The procedures are intended to be voluntary on the part of those who have been charged with those offenses. (C) Administrative penalties for violations of various provisions of the code, other than those penalties established in the code or in statutes that are adopted by reference, may be established from time to time by resolution of a majority of the members of the City Council. In order to be effective, an administrative penalty for a particular violation must be established before the violation occurred. (D) In the discretion of the peace officer, City Clerk, or other person giving notice of an alleged violation of a provision of this code, in a written notice of an alleged violation, sent by first-class mail to the person who is alleged to have violated the code, the person giving notice may request the payment of a voluntary administrative penalty for the violation directly to the City Treasurer within 14 days of the notice of the violation. In the sole discretion of the person giving the notice of the alleged violation, the time for payment may be extended an additional 14 days, whether or not requested by the person to whom the notice has been given. In addition to the administrative penalty, the person giving notice may request in the notice to the alleged violator to adopt a compliance plan to correct the situation resulting in the alleged violation and may provide that if the alleged violator corrects the situation resulting in the alleged violation within the time specified in the notice, that the payment of the administrative penalty will be waived. (E) At any time before the payment of the administrative penalty is due, the person who has been given notice of an alleged violation may request to appear before the City Council to contest the request for payment of the penalty. After a hearing before the Council, the Council may determine to withdraw the request for payment or to renew the request for payment. Because the payment of the administrative penalty is voluntary, there shall be no appeal from the decision of the Council. (F) At any time after the date the payment of the administrative penalty is due, if the administrative penalty remains unpaid or the situation creating the alleged violation remains uncorrected, the city, through the City Attorney, may bring criminal charges in accordance with state law and this code. Likewise, the city, in its discretion, may bring criminal charges in the first instance, rather than requesting the payment of an administrative penalty, even if a penalty for the particular violation has been established by Council resolution. If the administrative penalty is paid, or if any requested correction of the situation resulting in the violation is completed, no criminal charges shall be initiated by the city for the alleged violation.