HomeMy WebLinkAbout1A, Community Enhancement ProgramHILLS
MEMORANDUM
DATE: December 21, 2009 Item 1.A
TO: Honorable Mayor & City Council
FROM: James Lehnhoff, Community Development Director
Meagan Beekman, City Planner
SUBJECT: Community Enhancement Program: Administrative Fine Program and
Special Charges for Excessive Use of City Services Program
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.
Review and consider a Special City Service Charges program in place of an administrative fines
program.
In trod» eti nn
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. In 2009, Staff has updated the
abatement code, worked on updating the code enforcement policy for the City, amended the City
Code to clarify enforcement, and implemented the rental registration 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 administrative fine
programs. Unfortunately, those statute amendments did not clarify or strengthen Statutes for
City of Arden Hills
City Council Work Session for December 21, 2009
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administrative fines related to property or zoning violations. While reviewing administrative
fine programs, staff also reviewed programs that address the excessive use of city services
related to property and zoning code violations. These excessive use programs allow cities to
collect special charges to cover the cost of inspections related to violations. Staff is requesting
feedback from the City Council on both programs.
Settin! Goals and Priorities
Before continuing, it is important to examine what the City Council would like to get out of an
administrative fine or excessive use of city services program. The goals of the program will help
dictate the type of program that might be implemented by the City. The programs 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? What is the best and most cost
effective method for achieving those results?
Code Violation Trends
To help put these programs into context, it is helpful to review code violation trends. There were
292 complaints registered in the first three quarters of 2009. The majority of the complaints had
to do with improper parking of vehicles, which includes recreational vehicles and street parking.
Other complaints had to do with objectionable weed and grass growth and property maintenance
issues. By comparison there were a total of 398 registered complaints in the first three quarters
of 2008, though 146 of those complaints were from one person.
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 owner.
Most of the remaining 20 percent are resolved with a second phone call or notice, and it is not
uncommon for a few of those properties to fall back out of compliance over time. A very small
number of properties refuse to comply or stay in compliance, and it is those properties that are
issued citations. Due to the ongoing nature of their violation, they tend to draw attention from
the neighborhood and require an inordinate amount of staff resources. In 2009, 13 properties had
violations that resulted in citations, which compares to six in 2008. The increase in 2009 is
largely attributable to a stronger code enforcement policy.
City of Arden Hills
City Council Work Session for December 21, 2009
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Since the City's primary goal is to obtain compliance, staff works diligently with properties
before pursuing the civil or criminal citation process. The court process can take six to twelve
months along with 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.
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 Sheriff s 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.
Complaint and Enforcement Policy
In May of 2009, the City updated the code compliance policy. 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 describes the legal background for this
tool (Attachment B). Recent action at the State Legislature has permitted cities to levy
administrative fines for traffic related offenses; however, State statutes remain largely silent on
administrative fines for other types of City Code violations. Nevertheless, it is the opinion of the
City Attorney and the League of Minnesota Cities that a city is within its rights to enforce its
own Code, and the use of administrative fines is a reasonable method for advancing that goal.
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
City of Arden Hills
City Council Work Session for December 21, 2009
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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 did not
justify the lack of effectiveness.
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.
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. 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 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.
Special Charles for Excessive Use of City Services Program
A special charge for the excessive use of city services is another method to encourage code
conformance and recover the costs related to chronic public nuisance offenders. Some cities
refer to these programs as "excessive consumption" programs.
The basic idea behind the program is that properties that require an excessive amount of
inspections due to violations of the code can be billed for the cost of those inspections. In the fee
City of Arden Hills
City Council Work Session for December 21, 2009
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schedule, the City would set an hourly rate or fee for inspections. According to the City
Attorney, if those bills aren't paid, they can be specially assessed back to the property owner and
applied to the property taxes (Attachment Q. The benefit of this type of program is that it
directs the cost of providing additional city services directly back to the user of those services.
Typically when a complaint is received, the Code Enforcement Office will inspect the property
and verify that there is a violation. If a violation is confirmed the property owner is contacted
and given seven days to bring the property into compliance. A second inspection then occurs to
verify that the violation has been corrected after the seven day period. If the property has not yet
been brought into compliance after the first notification and re -inspection, a final notice is sent.
The final notice provides an additional seven days, but then a third inspection is needed to see if
the violation has been corrected. At or around this point, the property begins to use an excessive
amount of staff time for the purpose of providing inspections related to violations. The costs for
these additional inspections could then be billed to the property owner. Additionally, the
program could be written to consider a property an excessive user of services if additional
violations are found within a certain period of time, such as a 12 month period. If this program
is adopted, the code compliance policy would be amended to include these costs.
The City of Roseville is currently looking at this type of program. Their code enforcement
officers are working with the Roseville Police Department to draft an ordinance that would
charge users of excessive service calls. Staff has researched several other communities that have
similar programs, such as St. Paul, New Brighton, and Coon Rapids (Attachment E).
In order to adopt this type of program, the City Code would need to be amended to include a
process for how and when the fees would be billed and laying out due process for the property
owner to appeal. Additionally, a definition for "Municipal Housing Code" would need to be
included in the City Code that would include nuisance violations. As the City Attorney notes in
his letter, the "Municipal Housing Code" could be defined as certain chapters of the Zoning
Code. This would allow the process to include such violations as parking, signs, maintenance,
and other property violations.
Some cities have extended the excessive use program to include those people that submit an
excessive number of complaints without any basis for the complaint. For example, a dispute
between neighbors can result in many phone calls to the city and visits from the staff or police
even when there is no actual violation. In order to deter those activities, some cities charge the
person that continues to submit complaints even when there is no violation.
While this process is not a fine per se, it has the result of requiring people that violate the code to
pay for their impact on the City. The implementation cost would be similar to administrative
fines; however, unlike administrative fines, a special service fee is not voluntary and it would
allow the City to recoup costs. However, the inspection fees would still not be a significant
revenue generator for the City since the fees are meant to cover the actual cost of staff time.
City of Arden Hills
City Council Work Session for December 21, 2009
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Recommendation
Despite the possible implementation of an administrative fine and/or excessive use program,
some properties will undoubtedly still have code violation issues. The primary goal of these
programs 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 may help encourage compliance or
reduce citations, but there are significant limitations to administrative fines. A major drawback
to administrative fines is that the program is voluntary, which means that property owners are not
required to pay the fines. An administrative fine cannot be assessed to the property taxes if it
goes unpaid; instead, a citation is issued. Based on Staff s research, it is questionable if
administrative fines would be an effective use of resources.
On the other hand, cities can require that residents pay for services that directly relate to their
property in an excessive use program. If the City provides additional inspection services due to
chronic or ongoing code violation issues at a property, the City can bill the property owner and
specially assess any unpaid amount. The unpaid amounts can be assessed because it is a service
provided to the property. While not technically a fine, the inspection fees have a similar impact.
This type of program allows the City to apply the costs of enforcement to those few properties
that have continuing issues and recover those costs, but it does not penalize the property owners
who may just not know they are violating the Code.
If the City Council wishes to move forward with either program, Staff recommends considering
the excessive consumption of inspection services program over the administrative fine program.
Based on the current workload, staff would tentatively anticipate being able to have it before the
City Council for review in March or April.
Attnehment
A — Code Compliance Process
B — July 31, 2008, Letter from the City Attorney
C — December 15, 2009, Letter from the City Attorney
D — Example Administrative Fine Code — City of North Oaks
E — Example Excessive Consumption Code — City of Coon Rapids
City of Arden Hills
City Council Work Session for December 21, 2009
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Attachment A
Code Comp,,laince Policy
December 21, 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.
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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
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Attachment B
July 31, 2008, Letter from the City
Attorney
December 21, 2009, City Council Work Session
. Warren E. Peterson
jerotne P. Filla
Daniel Witt Frain
Glenn A. Bergman
Jahn Michael Miller
:Michael T. oberle
Steven H. Bruns'
Paul W. Fahning-
-Sonla R. Ortiz
Amy K. L. Schmidt
Ben 1_ Rust
lonathan R. Cuskey
Jared M. Goerlitz
=I -
! -1 milal � 1
PaoFessIaNnL assacIaTrorr
Noah Simon
Assistant City Administrator
City of Arden Hills
1245 west highway 96
Arden Hills, Minnesota 55112
July 31, 2008
RE: Rental Licensing, code Enforcement and Administrative citations
Dear Noah:
Suite 800
55 East Fifth Street
St. Paul, MN 5510E-1718
(651) 291-8955
1651) 228-1753 facsimile
www. pub-pacom
(651)290-6907
fil[a.ppfb-pa.cam
VIA EMAIL
Recently, the city of Arden Rills 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 are 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 panting, property
maintenance, noise, nuisance conditions, and the like. As the task force debated the
issues, they also discussed pursuing stepped up enforcement of the Cit_y'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
available, 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:
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July 31, 2008
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The Bu4di.Ag Qffic4al inspects the offending property.
2. Where appropriate, the atffW"--- 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 inspection 'occurs. 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.
5. 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
citation 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 $ 1,000 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.
S. From start to finish, the above process may take six (6) to nine (9) months
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/herse[f, , discovery options are very limited. The issuance of a
July 31, 2008
Page 3
criminal citation results in the imposition of penalties and does not necessarily
resolve the underlying property mainteparnce 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 file an answer.
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
(6) to twelve (12) 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 def i ne 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:
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
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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 ,natter 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.
6. 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
cast can be assessed against the property.
Code Enforcement or Hazardous Building Removal.
The procedure for removing a hazardous building is as follows:
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 ,natter proceeds as other cases.
July 31, 2008
Page 5
Administrative Fires 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 there in statute or
in a city charter, or necessarily implied by the express authority given to therm. Mangold
Midwest Co. v. Village of Richfield, 143 N.w.2d 813, 819-20 (Minn. 1966). 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. Robltshek
60 Minn. 123, 125, 61 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, both 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 traffic laws. In 2003, the former Stage Auditor took the position,
J u ly 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 erxforce 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 denying the existence of city authority for focal
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 been 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 !natters that are not duplicative of misdemeanor or
higher state traffic and criminal offenses. Further, the League endorses the
concept that administrative penalty hearings 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 cede
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 dear 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, $300: 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 these procedures are more effective inaccomplishing 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 specially 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 seared for collection as other takes are
collected," Minn.Stat. § 444.075, surd. 3e. This authority does not extend to unpaid
municipal gas or electric charges. See A.G. op. 624-D--5 (July 0, 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 ui urs;
rome P. F'
Arny K., . midt
J P P:j rnt
CC: Ron Moorse
Attachment C
December 15, 2009 Letter from the City
Attorney
December 21, 2009, City Council Work Session
Warren E. Peterson
Jerome P. Filla
Daniel Witt Fram
Glenn A. Bergman
John Michael Miller
Michael T. Oberle
Steven H. Bruns*
Paul W. Fahning*
Sonia R. Ortiz
Ben I. Rust
Jonathan R. Cuskey
Tracy 1. Halliday
Jared M. Goerlitz
Dan M. Duffek*
Ms. Meagan Beekman
City Planner I
City of Arden Hills
1245 West Highway 96
.Arden Hills, MN 55112
rf
P R O FESSI O NAL ASS 0 C I A T ION
Re: Special Assessment
Building Inspection Costs
Meagan:
December 15, 2009
Suite 800
55 East Fifth Street
St. Paul, MN 55101-1718
(651 ) 291-895 5
(651) 228-1753 facsimile
www.pfb-pa.com
(651)290-6907
ifilla@.Pfb-pa.com
VIA EMAIL
You have inquired regarding the authority of the City to recover building inspection
fees. In cases where the City is required to repeatedly inspect property due to
ongoing city code violations, the City has the authority to recover unpaid special
charges which could include inspection costs relating to municipal housing code
violations. In order to implement this authority, the City would need to adopt an
appropriate ordinance or ordinances which would:
1. Create a separate City of Arden Hills Maintenance Code; or include in
the definition section of the city code, a definition for the term
"Housing Maintenance Code" (i.e. housing maintenance Code means
Sections 1325-1365 of the Arden Hills City Code); and
2. Define the process which would result in a property owner incurring
special charges as a result of repeated Housing Maintenance Code
Inspections. The process should include a notice of violation, a
reasonable compliance period, a statement which indicates that the
City will invoice for excessive compliance inspections, and a statement
which indicates that unpaid special charges will be assessed against
the property.
Please review and contact me. If you would like for me to draft a possible ordinance,
let me know.
Very truly yours,
1
rgf'ne P illa
JPF/jmt /
CC: James Lehnoff
Ron Moorse
FAusers\Jessica\Jerry\Arden Hills\Correspondence\Beakman Ur 12.15.09.doc
*ALSO ADMITTED IN WISCONSIN
Attachment
Example Administrative Fine Code —
City of North Oaks
December 21, 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.
Attachment E
Example Excessive Consumption Code
— City of Coon Rapids
December 21, 2009, City Council Work Session
City of Coon Rapids
12-317 Excessive Consumption of Services.
(1) Collection Authorized. The City is authorized to collect inspection costs, as
determined from time to time by ordinance, from a property owner who consumes
excessive inspection services, or from a person who makes repeated unfounded requests
for enforcement. Unpaid costs of inspection may be specially assessed against the
property in the manner prescribed by law.
(2) For the purpose of this Section, an excessive consumption of inspection services
occurs on anon -rental property when:
(a) One or more inspections are performed at the same location within a
consecutive 12 month period after any inspection for which a notice of violation
was served, and
(b) During any inspection under Section 12-317(2)(a), the inspector finds
continuing or additional violations.
(3) For the purpose of this Section, an excessive consumption of inspection services
occurs on a rental property when:
(a) Section 12-317(2) is met, or
(b) The second follow-up inspection to an initial or renewal inspection reveals
noncompliance with requirements established in the initial or renewal inspection,
or the first follow-up inspection. For Section 12-317(3)(b) excessive
consumption of inspection services, double the cost maybe imposed.
(4) For the purposes of this Section, a repeated unfounded request for enforcement means
an unfounded request for enforcement by any person within 90 days of a previous
unfounded request for enforcement regarding the same property or subject matter,
provided that person had notice the first request for enforcement has been determined to
be unfounded. For the purposes of this Section, notice means actual notice, or written
notice mailed to the person's last known address, and either not returned, or returned by
the postal authorities as undeliverable. A person violating this clause is also guilty of a
misdemeanor.
(5) This Section applies to violations of this Chapter, license inspections under this
Chapter, violations of Title 8 (Health, Safety, and Sanitation), and violations of Sections
11-1827 through 11-1832 (Vehicle Storage in Residential Districts; Junk Vehicles). This
Section is supplementary to and does not limit the civil or criminal authority of
governmental agents acting under statutes, laws, codes, or ordinances on the same
subject. [Revised 6/20/06, Ordinance 1925]
12-318 Severability. If any section or any portion of any section of this Chapter is
deemed invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality does not affect the other sections or portions of sections of this
Chapter.
[Revised 6/20/06, Ordinance 1925]