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 That §§ 95.01 & 95.02, Code of Fayetteville are hereby repealed and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.
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DAN COO Y, May
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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).
