Authored Articles & Publications Jun 18, 2020

Enforcing Local Health and Safety Laws

BB&K's Denise Grimes and Brandon Sanchez Discuss Code Enforcement Remedies in PublicCEO

Municipal codes and ordinances are centered on improving a community’s quality of life. 

Enforcing these laws doesn’t come down to simply generating fines or securing jail time for offenders, but rather ensuring the health and safety of the community. While California cities have administrative, civil and criminal remedies at hand to enforce municipal codes and state laws, dedicating the resources to enforcing the very laws that safeguard communities presents challenges.  

Cities are confronted with many issues surrounding quality of life issues. They are presented with the questions: When are criminal prosecutions warranted? Is civil litigation the route to take? What are the advantages to taking an administrative approach? 

The Code Enforcement Toolbox
Think of code enforcement as a “toolbox” with remedies to obtain substantial compliance. With code enforcement, each set of circumstances is different. Effective code enforcement requires selecting the right tool at the right time. Sometimes, more than one tool is needed to achieve compliance.

Cities have three ways of seeking compliance:

  1. Administrative: An internal city process
  2. Criminal: When the city attorney steps into the role of prosecutor 
  3. Civil: When a city sues to stop or require conduct

Many factors, such as the type and seriousness of the violation, the violator’s mental and physical capacity, financial resources and prospect of voluntary compliance, the need to remediate the violation quickly, and cost recovery goals weigh in on the decision as to which code enforcement approach is taken. 

Collecting Evidence 
Regardless of the remedy chosen, cities will need evidence to pursue any code enforcement case. 

There are three primary sources of evidence: complaints, city staff observations and public records. 

Complaints are often initiated by neighbors who observe behaviors and conditions at a property. City staff may observe conditions while inspecting a property. In addition, public records, such as building or utility records, licenses, permits, deeds, etc. can be essential in pursuing an enforcement case.

With any code enforcement case, it’s vital to start out on the right foot by accurately identifying violations and the responsible party. 

There are steps cities can take to ensure accuracy when inspecting and documenting violations:

  • Code enforcement officers must document the specific violations they’ve observed on a given date and time/date stamp all photographs. 
  • Entries, in addition to being accurate, should only include factual observations and not indicate bias. 

A violation of the Fourth Amendment, which protects privacy and against unreasonable searches and seizures, could lead to a civil lawsuit against a city. There are exceptions, however, including locations where there is no reasonable expectation to privacy, when consent is received from someone who has the authority to give it or when the alleged violation is in plain view.

The Administrative Approach
The initial enforcement tool a city has on hand is administrative. One advantage of this remedy is that it’s more informal than criminal or civil alternatives and generally has fewer formal rules regarding evidence. This approach can also be handled entirely by city staff. 

The various stages of an administrative code enforcement remedy include: 

  1. Warnings & Notices: This first step in an enforcement process puts a party on notice for a violation. These are generally not appealable unless issued under a municipal code that says otherwise. 
  2. Office Conferences: Think of this like a mediation or an informal discussion between city staff, legal counsel and a property/business owner with the goal of establishing an agreement to achieve compliance and set compliance dates. 
  3. Administrative Citations: These are non-criminal citations and fines used to force an individual or business to cure city violations. For building, plumbing, electrical or similar structural or zoning issues, the citation must lay out a reasonable time to cure violations before an administrative fine is imposed. These are appealable under the process in the municipal code, then appealable to the Superior Court. 
  4. Abatements: Abatements are generally not a tool used initially, or lightly, as agencies have to front the costs for abatement. They are, however, a beneficial tool as the city controls curing the violation (i.e. the removal of junk, trash, debris or the demolition of a structure). There are three avenues that can be taken here: nuisance abatement under warrant, summary abatement (for emergencies) and consent abatement. 
  5. Permit & License Revocations: Cities can revoke a business license, conditional use permit (or other zoning approval) and local regulatory permits (for cannabis, massage parlors and other businesses). Before revoking, the licensee must be provided with due process in the form of a notice and hearing. This doesn’t mean the business will close. A city may need to follow up with continued enforcement actions. 
  6. Administrative Hearings: This is a city’s in-house court system that provides a fair hearing and due process to property/business owners before an impartial decision maker.

Filing a Criminal Complaint
Criminal cases are a powerful alternative to the administrative approach. 

Having a deterrent effect, this is a route cities may take when dealing with a serious violation or repeat municipal code violators, as it carries the possibility of a misdemeanor conviction, jail time, probation and a negative impact on state business licenses. 

A criminal case, which has a one-year statute of limitations for filing, can be issued in two ways: 

  1. Criminal Complaint: A long-form complaint is generally preferred for property violations. For property maintenance violations, depending on who is being charged, you may need to provide a letter giving notice of the violations. This can be in the form of a cease and desist letter. If you have a corporate defendant, a summons will have to be issued by a judge.
  2. Misdemeanor Citation: Generally issued by a peace officer for quality-of-life violations (i.e. drinking in public, trespassing, park violations, etc.) and signed by the defendant indicating an agreement to appear in court on a specific date.

While the criminal approach may be faster and less costly to obtain compliance compared to civil litigation, it isn’t a direct remedy to abate violations. Even if someone is convicted, the court can impose fines and jail time, but cannot force the defendant to abate the violation other than imposing additional punishment for failure to abate.

Taking Civil Action Against Violators 
Taking civil action tends to be most appropriate in cases where violations are substantial and other administrative and criminal remedies have proved ineffective. 

Cities may also choose this approach over criminal enforcement since it bears a lower burden of proof, there is no right to a jury trial in most nuisance abatement cases, injunction orders can be obtained before trial and there is strong legal authority to recover attorneys’ fees and costs. 

Civil actions, however, tend to move slower and are often more costly than criminal complaints.

This article first appeared in on June 18, 2020. Republished with permission.

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