Loading...
HomeMy WebLinkAboutOrdinance 4510 ORDINANCE NO.4 s i o AN ORDINANCE AMENDING TITLE IX: CHAPTER 95: HEALTH AND SANITATION, OF THE CODE OF FAYETTEVILLE, REDUCING THE COMPLIANCE PERIOD FROM TWENTY (20) DAYS TO TEN (10) DAYS; ESTABLISHING THE OFFICE OF CODE COMPLIANCE OFFICER; AND GRANTING THEM AUTHORITY TO ISSUE CITATIONS TO VIOLATORS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That §§ 95.01 & 95.02, Code of Fayetteville are hereby repealed and Exhibit "A" attached hereto and made a part hereof is inserted in its stead. Section 2. That §95.99 is hereby amended by inserting the following after subsection (B): (C) There is hereby created the office of Code Compliance Officer. Code Compliance Officers shall be hired by the Mayor or his designated representative and shall perform the duties and exercise the powers set forth in this chapter. (D) Code Compliance Officers are hereby authorized to issue citations to any person violating the provisions of §§95.01-95.04 or § 173.08(A) of the Code of Fayetteville, provided that their authority is expressly limited to removing or causing the removal of unsanitary or unsightly things, or to correcting or causing the correction of unsafe or unsanitary conditions on the property in question. (E) It shall be unlawful for any person to interfere or forcibly attempt to interfere with a Code Compliance Officer in the performance of his or her duties. !may PASSED and APPROVED this 19thday of August, 2003. ilk << �` APPRO D: / Q q By: 41zelz�z DAN COO Y, May sy . SONDRA SMITH, City Clerk • EXHIBIT "A" • § 95.01. Unsightly or unsanitary conditions on real property; order and notice to correct. (A) The mayor, or his duly authorized representative, is hereby authorized to order the owner of any real property within the city to cut weeds and grass growing thereon, remove garbage, rubbish and other unsanitary and unsightly articles and things therefrom and eliminate, fill up or remove any stagnant pool of water or any other unsanitary thing, place or condition on such property which might become a breeding place for mosquitoes, flies and germs harmful to the health of the community. Whenever any such condition is found to exist, the mayor, or his duly authorized representative, shall give the owner of the property written notice to perform such acts within 10 days. In case the owner of the property is unknown or his whereabouts is not known or he is a nonresident of this state, a copy of the written notice shall be posted upon the premises. (B) It shall be unlawful for any person to fail or refuse to comply with any order and notice given pursuant to this section. § 95.02. Abatement by city, costs responsibility of owner. If the conditions described in a notice given pursuant to §95.01 are not removed or corrected within 10 days after such notice is given, the mayor, or his duly authorized representative, is hereby authorized to enter upon the property and do whatever is necessary to correct or remove the conditions described, in the notice. The costs of correcting said conditions shall be charged to the owner or owners of the property and the city shall have a lien against such property for such costs. NAME OF FILE: Ordinance No. 4510 CROSS REFERENCE: Item # Date Document 1 08/07/03 Staff Review Form w/attachments memo to Mayor/City Council draft ordinance Attorney General's Opinion No. 2003-110 draft ordinance 2 08/27/03 memo to Yolanda Fields 3 09/13/03 Affidavit of Publication NOTES: STAFF RE FORM - NON-FINANCIAL OBLIPION Yes AGENDA REQUEST For the Fayetteville City Council Meeting of : August 19, 2003 FROM : Yolanda Fields Com Res & Code Compliance Com Plan & Engr Services Name Division Department ACTION REQUIRED : Approval of an ordinance amending title IX: Chapter 95: Health and Sanitation, of the Code of Fayetteville, establishing the office of Code Compliance officer; and granting them authority to issue citations to violators. SUMMARY EXPLANATION : Jee ariacnea Menlo sTAF RE NDATION : A roval of Ordinance amendment 8 / 7 / 2003 Received in Mayor ' s Office W ead Date Date W01 cr- y-AF 'orney Date Cross Reference : Department D''( ctor Date ( Previous Ord/ Res # : Finance & Internal Services Dir . Date Orig . Contract Date : •0 Orig . Contract Number : C ie inist ive O icer /;Da7teNew Item : Yes No Mayor at FAYETTEVIRLE • THE CITY OF FAYETTEVILLE, ARKANSAS Date: August 7, 2003 To: The Mayor and City Council From: Hugh Earnest X)OCo Chief Administrative Officer Subject: Citation Authority for Code Compliance Division Background Individuals working for the City in this increasingly important area of public concern have never had, under local ordinance, the authority to write citations for violations of local code provisions, as enacted. Current Situation Our City Attorney had some reservation relative to empowering our Code Compliance officers to issue criminal citations. Because of that, an Attorney Generals opinion was requested by Representative Marylyn Edwards. A copy of the reply is attached as reference. The opinion, which is quite lengthy, concludes by saying that "they (code inspectors) have criminal citation authority over local offenses pursuant to that Code section." Recommendation We believe that this authorization will be of benefit to the City' s efforts in enforcement of our codes, ordinances and regulations relative to the health and safety of the community. The ordinance, as presented, accomplishes that and also moves our current 20 day grace period for correction of conditions as cited to10 days. This will allow us to move more quickly if necessary to address problem areas. It is our recommendation that the ordinance be passed. 113 WEST MOUNTAIN 72701 479-521-7700 FAX 479-575-8257 ORDINANCE NO. AN ORDINANCE AMENDING TITLE IX: CHAPTER 95: HEALTH AND SANITATION, OF THE CODE OF FAYETTEVILLE, REDUCING THE COMPLIANCE PERIOD FROM TWENTY (20) DAYS TO TEN (10) DAYS; ESTABLISHING THE OFFICE OF CODE COMPLIANCE OFFICER; AND GRANTING THEM AUTHORITY TO ISSUE CITATIONS TO VIOLATORS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1 . That §§ 95.01 & 95.02, Code of Fayetteville are hereby repealed and Exhibit "A" attached hereto and made a part hereof is inserted in its stead. Section 2. That §95.99 is hereby amended by inserting the following after subsection (B): (C) There is hereby created the office of Code Compliance Officer. Code Compliance Officers shall be hired by the Mayor or his designated representative and shall perform the duties and exercise the powers set forth in this chapter. (D) Code Compliance Officers are hereby authorized to issue citations to any person violating the provisions of §§95.01-95.04 or § 173.08(A) of the Code of Fayetteville, provided that their authority is expressly limited to removing or causing the removal of unsanitary or unsightly things, or't correcting or causing the correction of unsafe or unsanitary conditiot, the property in question. y J (E) It shall be unlawful for any person to int " er or forcibly at e pt to interfere with a Code Compliance Of 'cer in the a orm� ce of his r her duties. fl PASSED and APPROVED this 19th f ugust, 20.• J 7,1111111 i ROVE : e ' DO DAN COODY, Mayor AB ity Clerk EXHIBIT "A" § 95.01. Unsightly or unsanitary conditions on real property, order and notice to correct. (A) The mayor, or his duly authorized representative, is hereby authorized to order the owner of any real property within the city to cut weeds an a s growing thereon, remove garbage, rubbish and other unsanitary and glut y articles and things therefrom and eliminate, fill up or remove-auy a ' a t pool of water or any other unsanitary thing, place or condi uch, p operty which might become a breeding place for mosquitill sand, germs ul to the health of the community. Whenever such condign isfound to e '. ist, the mayor, or his duly authorized represe� t tive, shall vet e owner of the property written notice to perform such d4ts ithin 10 d I case the o mer of the property is unknown phi whereal7 is i not kno or he is a nb ident of this state, a cop of t e writt . noti�J/ cl 1 b osted a on the premises. (B) rand ball 6e unla ful r any pe on to �a' - use to comply with any grl"de notice ven urs ant tot ' sectio 95q . bat a nt b c\ co's / esponsibility of owner. If the conditions desctibed in a otice 'ven pursuant to §95.01 are not removed or corrected within 10 da " t s ch notice is given, the mayor, or his duly authorized repr senta ' , is hereby authorized to enter upon the property and do whatever n f y to correct or remove the conditions described, in the notice. The cqs of correcting said conditions shall be charged to the owner or owners of the property and the city shall have a lien against such property for such costs. Opinion No. 2003- 110 May 29, 2003 The Honorable Marilyn Edwards State Representative 2330 North Juneway Terrace Fayetteville, AR 72703-2915 Dear Representative Edwards: I am writing in response to your request for an opinion on the following question: Is the City of Fayetteville legally authorized to empower its Code Compliance Officers with the right to issue criminal citations for violation of garbage and rubbish laws and ordinances for criminal prosecutions in the District Court of Fayetteville?Il) RESPONSE It is my opinion that the answer to this question is "no" with regard to citations for violations of state law. A conclusive answer regarding violations of municipal garbage and rubbish ordinances may require a review of the particular ordinance. As a general matter, however, it is my opinion that city code compliance officers do have authority to issue citations for violations of municipal codes, ordinances or regulations, pursuant to A.C.A. § 12-9- 108 (Repl. 1999). t There is no general definition of the term "criminal citation" in Arkansas statutory law. See A.R.Cr.P. Commentary to Article III following A.R.Cr.P. Rule 5. I assume, however, that by this term you mean a charging instrument that is required in initiating a prosecution. See generally A.C.A. § 5-1-109 (f) (Supp. 2001) (establishing periods of limitation for commencing prosecutions) and Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 ( 1978). See also Ar.R.Cr.P. Rule 5. 1(a) (defining "citation" as "a written order, issued by a law enforcement officer who is authorized to make an arrest, requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.") The Honorable Marilyn • State Representative Opinion No. 2003 - 110 Page 2 These conclusions are compelled by general principles governing municipal authority. We know from Arkansas Supreme Court rulings that cities have no inherent powers but only have the power bestowed upon them by statute or by the Arkansas Constitution. Burke v. Elmore, Ark. 341 Ark. 129, 14 S.W.3d 872 (2000): Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 ( 1987). As stated by the court: Cities have no inherent powers and can exercise only ( 1 ) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes. Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S .W.2d 827, 828 ( 1997). The validity of a city ordinance thus depends upon the authority granted by the constitution or the General Assembly. Additionally, despite the adoption of the so-called "Home Rule" act in 1971 (see Act 266 of 1971 , codified as A.C.A. § § 14-43-601 through -611 (Repl. 1998)), cities are prohibited from enacting any ordinances 'contrary to the general laws of the state." Ark. Const. art. 12, § 4. See also Fort Smith v. Housing Authority, 256 Ark. 254, 506 S.W.2d 534 ( 1974) and Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 ( 1974). It has also been held that any substantial doubt concerning the existence of a power in a municipal corporation must be resolved against the city. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 ( 1982) . Applying these precepts, I believe it is clear that a city cannot empower its "Code Compliance Officers" to issue criminal citations for violations of state garbage and rubbish laws.2 Although, as discussed below, the General Assembly has 2 The position of "Code Compliance Officer" is presumably established by municipal ordinance, as this is not a statutory term. The Arkansas statutes recognize the existence of city "inspectors" and "code enforcement officers." See, e.g., A.C.A. §§ 12-9-108 (discussed further herein regarding citations), 17-25- 301 ("building inspector"), 17-38-104 (reference to "city code enforcement officer" in the state plumbing code). But these positions are not established by statute. The Honorable Marilyn•wards • State Representative Opinion No. 2003- 110 Page 3 recognized the authority of municipal inspectors to issue citations for the violation of "municipal codes, ordinances, or regulations" (A.C.A. § 12-9- 108 (Repl. 1999)), the authority that is recognized by this statute does not extend beyond enforcing local measures. Additionally, while several statutes pertaining specifically to the handling of garbage and rubbish authorize the issuance of citations as an enforcement mechanism, city code compliance officers are not included within these provisions. Specifically, "Arkansas-certified law enforcement officers" enforce the Litter Control Act (A.C.A. § 8-6-412(a) (Repl. 2000)); and they are authorized to "issue citations to or arrest persons violating [the act] ." A.C.A. § 8-6-412(b). "Illegal dumps control officers" are vested with the power to "ensure compliance with the provisions of the [Illegal Dump Eradication and Corrective Action Program Act]" and they have "the right and duty to . . . [i]ssue and serve citations for violations of provisions of the Arkansas Solid Waste Management Act, § 8-6-201 et seq. , [and] prohibit illegal dumping. . . ." A.C.A. § 8-6-508(a)( 1 )(C) (Supp. 2001 ). A county "environmental officer" is required to "issue citations for violation of any county ordinance prohibiting dumping of waste, garbage, litter, or any hazardous materials throughout the county." A.C.A. § 14- 15- 102 (Repl. 1998). See also generally Op. Att'y Gen. 97-092 (concluding that the enforcement authority granted in § 14- 15- 102 is limited to the power to enforce county ordinances only). My research has disclosed no similar statutes pertaining to state garbage and rubbish laws suggesting that local code inspectors or code compliance officials (see n. 2, supra, regarding these positions) may be vested with citation authority. And I believe such legislation would be necessary in light of the above provisions. Matters coming within the police power of the state are specifically designated as "state affairs," as distinguished from "municipal affairs." A.C.A. § 14-43- 601 (a)( 1 )(J) (Repl. 1998). Although a municipality may exercise "any function or legislative power upon . . . state affairs if not in conflict with state law " (A.C.A. § 14-43-601 (a)(2) (emphasis added)), it is my opinion that a city would in all likelihood be acting contrary to the above statutes if it attempted to vest its code compliance officers with citation power over state offenses. The citation authority conferred by the Arkansas Rules of Criminal Procedure should also be noted. Ar.R.Cr.P. Rule 5 sets forth the general state law requirements concerning the issuance of criminal citations. See Whitaker v. State, 37 Ark. App. 112, 116, 825 S.W.2d 827 ( 1992) (staring that Rule 5 "sets forth the The Honorable Marilyn1dwards • State Representative Opinion No. 2003- 110 Page 4 law regarding citations.") Rule 5 gives citation authority to "a law enforcement officer who is authorized to make an arrest[.]" A.R.Cr.P. Rule 5. 1 (a), supra at n. 1 (defining "citation"). See also A.R.Cr.P. Rules 5 .2 and, generally, McDaniel v. State. 309 Ark. 20, 826 S.W.2d 286 ( 1992). This would presumably not include a city code compliance officer who is not a "certified law enforcement officer" and has no authority to make arrests. See A.C.A. § 16-81 - 105 (Supp. 2001 ) (giving arrest authority to a "certified law enforcement officer") and A.C.A. § 12-9- 101 et seq. (Repl. 1999) (requiring certification of "law enforcement officers.")3 Thus, absent some evidence that the city code compliance officers are properly classified as "law enforcement officers" and certified by the Commission (see n. 3, supra), the Arkansas Rules of Criminal Procedure will not recognize the authority of these officers to issue citations for violations of state garbage and rubbish laws. It is therefore my conclusion that a city may not vest its code compliance officers with the authority to issue citations for the violation of state garbage and rubbish laws. With regard, however, to violations of city garbage and rubbish ordinances, A.C.A. § 12-9- 108 implicitly acknowledges the citation authority of "inspectors" and "code enforcement officers." This Code section states in relevant part: Nothing in this subchapter or any other law shall prohibit inspectors and code enforcement officers of cities and towns from issuing citations for the violation of municipal codes, ordinances, or regulations that they are charged by their city or town with the duty of enforcing. A.C.A. § 12-9- 108(b)(3) (Repl. 1999). ' A.C.A. § 12-9- 106 (a)(1) states in relevant part that "[t]he Arkansas Commission on Law Enforcement Standards and Training [`Commission] shall provide, by regulation, that no person shall be appointed as a law enforcement officer . . . unless the person has satisfactorily completed a preparatory program of police training. . . .") Although I have no information regarding the job descriptions and actual duties of the code compliance officers, I assume that these persons are not classified as "law enforcement officers" and certified by the Commission. See generally Op. Att'y Gen. 92-093 (regarding the types of positions that fall within the definition of "law enforcement officer" and the Commission's administration of the law enforcement certification statutes). The Honorable Marilyn4ldwards • State Representative Opinion No. 2003 - 110 Page 5 The referenced "subchapter" is A.C.A. § 12-9- 101 et seq., the Law Enforcement Standards Act. Read in light of this subchapter, which requires police training for law enforcement officers (see n.3 , supra), A.C.A. § 12-9- 108(b)(3) establishes the principle that notwithstanding the fact that municipal code inspectors have not met the qualifications and training required under the Law Enforcement Standards Act, they may issue citations for violations of the codes they are charged to enforce. Accord Op. Att'y Gen. 85- 16 (opining that an animal control officer can issue a citation for violation of a municipal dog control ordinance). Section 12-9- 108(b)(3) is the codification of Section 1 of Act 763 of 1983, which is entitled "An Act to . . . Permit Municipal Inspectors to Issue Citations for Violations of City or Town Codes and Regulations . . . ." Although the term "inspector" is not defined, in my opinion this reasonably refers to those who have inspection and enforcement authority in connection with local measures that have been enacted for the health and safety of the municipality. See, e.g., A.C.A. § § 14-54- 103, 14-54- 104, 14-54- 6015 15-54-604, 14-54-901 , 14-56-201 , 14-56-2021 14-56-301 (express authority for cities to enact environmental, safety, fire, building, electrical, zoning, and other codes); see also generally A.C.A. § 14-54- 1502 (Supp. 2001 ) (providing civil remedies for municipal "health and safety code violations.") With regard, therefore, to your particular question concerning the citation authority of the City' s "Code Compliance Officers" in connection with garbage and rubbish ordinances, assuming that these officers are code inspectors or enforcement officers as contemplated by A.C.A. § 12-9- 108(b)(3), it is my opinion that they have criminal citation authority over local offenses pursuant to that Code section. This also assumes, of course, that the particular ordinances are properly enacted pursuant to the City' s authority to regulate the removal of garbage and rubbish. I have not been provided with the ordinances and thus cannot opine in this regard. As a general matter, the City has wide discretion to enact such ordinances. See, e.g. , Smith v. City of Arkadelphia, 336 Ark. 42, 46, 984 S.W.2d 392 ( 1999) and Geurin 'v. City of Little Rock, 203 Ark. 103 , 155 S.W.2d 719 ( 1941 ). The ordinances must, however, come within the scope of statutory powers (see generally Wilkins v. City of Harrison, 218 Ark. 316, 236 S.W.2d 82 ( 1951 )); and they must not be contrary to state law (Ark. Const. art. 12, § 4).