Staff ReportsCITY OF SHOREWOOD
RESOLUTION NO.09-045
A RESOLUTION APPOINTING AN ADMINISTRATIVE ENFORCEMENT
HEARING OFFICER
WHEREAS, the City of Shorewood has adopted an ordinance establishing
Administrative Enforcement of Code Regulations (Ordinance No. 458), which includes a
procedure for appealing citations written pursuant to the Code; and
WHEREAS, Ordinance No. 458 provides for the appointment of an
Administrative Hearing Officer to conduct hearings pursuant to the Code; and
WHEREAS, the duties of the Administrative Hearing Officer include the
following:
1. Conduct hearings relative to violations of the Shorewood City Code.
2. Uphold or dismiss citations or reduce, stay, or waive the civil penalty imposed
with the citation.
3. Render written decisions relative to cases heard to the City Council.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of
Shorewood hereby appoints Richard F. Rosow as an Administrative Hearing Officer for
the City of Shorewood.
BE IT FURTHER RESOLVED that the Mayor is hereby authorized to enter
into a letter of understanding with Richard F. Rosow, setting forth the terms under which
he will operate as an Administrative Hearing Officer.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD
this 24th day of August, 2009.
ATTEST:
CHRISTINE LIZEE, MAYOR
VCLERK
COUNCIL ACTION FORM
Department: Planning Council Meeting: B
/ 8/24/09 Item Number: 3
From: Brad Nielsen, Planning Director .L+�/
Item Description: Resolution Appointing Administrative Hearing Officer
Background / Previous Action
At its 10 August meeting, the City Council directed staff to prepare a resolution appointing Ric
Rosow as an Administrative Hearing Officer for the City of Shorewood. A draft resolution is
included in your packet.
Options
Adopt, deny, or modify the resolution.
Staff Recommendation
Adopt the resolution
Council Action:
COUNCIL ACTION FORM
Department: Planning Council Meeting: 8/10/09 Item Number 2A
From: Brad Nielsen, Planning Director
Item Description: Administrative Hearing Officer(s)
Background / Previous Action
Staff had lined up two very qualified individuals to serve as administrative hearing officers for
Shorewood — Mr. Ric Rosow and Mr. Malcolm Reid. Interviews were scheduled for 10 August in a
special council workshop session. Unfortunately, Mr. Reid withdrew his letter of interest on Wednesday
of this week. Consequently, the interviews on Monday night will be limited to Mr. Rosow. His
background material is attached for your review.
Options Appoint Mr. Rosow as a public hearing officer, or search for additional applicants for the
position.
Staff Recommendation Staff was prepared to recommend both Mr. Reid and Mr. Rosow for the
position. This may have resulted in Mr. Reid's decision to withdraw. Mr. Rosow comes highly
recommended, and in fact I had personal experience several years ago. In some rather contentious
neighborhood meetings related to Old Market Road, Mr. Rosow was invariably the neighborhood voice
of reason. I strongly recommend his appointment. It is also suggested that we wait on finding other
candidates for now until we see what kind of activity is generated though the administrative code
enforcement process.
Council Action:
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.ci.shorewood.mmus • cityhall ®ci.shorewood.mn.us
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen
DATE: 23 April 2009
RE: Administrative Enforcement — Draft Ordinance
FILE NO. City Code (Chapter 104)
Attached is the draft amendment establishing the Administrative Enforcement
process. Pursuant to the discussion at the last meeting, staff reviewed the definition
of "owner" in the context of the amendment and we find no issue with it.
We are currently in the process of sending out RFQs for the Administrative Hearing
Officer. Since those will not have been received until the middle of May, staff will
not publish the amendment until then.
We continue to work on the administrative manual, which should be available for
your review prior to publishing the amendment.
Cc: Brian Heck
Mary Tietjen
Joe Pazandak
Patti Helgesen
Pamela Helling
� � I
0 PRINTED ON RECYCLED PAPER
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.ci.shorewood.mn.us • cityhaII@ci.shorewood.mn.us
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen
DATE: 9 April 2009
RE: Administrative Enforcement — Draft Ordinance
FILE NO. City Code (Chapter 104)
Late last year the Planning Commission held a public hearing to consider an
amendment to the City Code providing for administrative enforcement. The
Commission recommended adoption of the amendment subject to review and
comment by the current City Attorney.
The attached draft includes both Planning Commission and City Attorney
recommendations. The Commission reviewed the Attorney's comments at its meeting
last Tuesday.
You will note that the draft is not in amendment format. The formatted amendment
will be presented at the 27 April meeting with any revisions the Council may direct at
next Monday's meeting.
As always, if you have any questions relative to the proposed draft, feel free to call or
e-mail me prior to the meeting.
Cc: Brian Heck
Mary Tietjen
co?
PRINTED ON RECYCLED PAPER
-D-R-A-F-T-
4/09/09
Administrative Enforcement of Code Regulations
Amend 103.02 (Definitions) to include:
CODE COMPLIANCE OFFICER. Any officer of the South Lake Minnetonka Police
Department, any employee of the City of Shorewood, or any person or company contracted to
provide code -enforcement services who has authority to enforce the Shorewood City Code.
There may be more than one person designated as Code Compliance Officer at any given time.
CODE OFFENSE. A violation of any section, subdivision, paragraph or provision of the
Shorewood City Code that is subject to a civil penalty. Each day the violation exists constitutes
a separate Code Offense.
OWNER An individual, association, syndicate, partnership, corporation, limited liability
company, trust or any other legal entity holding an equitable or legal ownership interest in land,
buildings, structures, dwelling unit(s) or other property.
Amend Chapter 104 (General Penalty and Enforcement) to include:
104.03 ADMINISTRATIVE ENFORCEMENT OF CODE REGULATIONS.
Subd. 1. Purpose. The administrative enforcement procedures established within this
Section are intended to provide the City of Shorewood with an informal, cost-
effective and more efficient alternative to criminal prosecution or civil litigation
for certain violations of the City Code. The City of Shorewood retains the right,
at its sole discretion, to enforce provisions of this Code by bringing criminal
charges or commencing civil litigation in any case where the City determines it is
appropriate or necessary, but finds that an administrative process is beneficial to
the residents of the City and further finds that that such a process is a legitimate
and necessary alternative method of enforcing Code violations.
Subd.2. Procedure.
a. Administrative Notice. A Code Compliance Officer may issue, either in
person or by United States first class mail, an Administrative Notice to a
person suspected or known to have committed a Code Offense or to be the
owner of property upon which a Code Offense is being committed. The
Administrative Notice shall identify the Code Offense, the location upon
which the Code Offense occurred or is occurring, and the recommended
corrective action for the Code Offense. The Administrative Notice may
4/07/09
also state that the alleged violator has, at the discretion of the Code
Compliance Officer, up to ten (10) days after the issuance of the
Administrative Notice to correct or abate the Code Offense. If the alleged
violator or owner of property upon which a Code Offense is being
committed is unable to correct or abate the Code Offense within the
prescribed time, that person may request in writing an extension of no
more than thirty (30) additional days from the City Council. Any
extension granted by the City Council shall be in writing and shall
specifically state the date of expiration. If the Code Offense is not
corrected or abated within the prescribed time or any extension thereto, the
Code Compliance Officer may issue a citation, as provided below.
b. Citation. A Code Compliance Officer is authorized to issue a citation
upon the belief that a Code Offense has occurred, whether or not an
Administrative Notice has first been issued in regard to said Code Offense.
The citation shall be given to the person responsible for the violation or to
the owner of the property upon which the violation has occurred, either in
person or by United States first class mail. The citation shall state: i) the
nature of the Code Offense; ii) the time and date said Code Offense
occurred; iii) the civil penalty applicable to that Code Offense; and, iv)
the manner for paying the civil penalty or requesting a hearing before a
Hearing Officer to contest the citation.
C. Responding to a Citation / Payment. The alleged violator or the owner of
the property upon which the violation has occurred shall, within ten(10)
days of the issuance of the citation either request a hearing in writing
according to the procedure set forth in this Section or, within fifteen (15)
days of the issuance of the citation, pay the civil penalty set forth in the
citation. The civil penalty may be paid either in person at City Hall, or by
United States first class mail, postage prepaid and postmarked within the
prescribed fifteen (15) days. Payment of the civil penalty shall be deemed
to be an admission of the Code Offense.
Subd. 3. Appeal to Hearing Officer.
a. Requesting a Hearing. Any person contesting a citation issued pursuant to
this Section may, within ten (10) days of the issuance of the citation,
request a hearing before a Hearing Officer. Any request for a hearing
shall be made in writing on a form provided by the City and either
delivered personally to the City at City Hall or mailed to the City by
United States first class mail, postage prepaid and postmarked within the
prescribed ten (10) days. The hearing shall be held at City Hall within
thirty (30) days of the date the City receives a timely hearing request.
Failure to attend the hearing constitutes a waiver of the violator's rights to
an administrative hearing and an admission of the violation. A hearing
officer may waive this result upon good cause shown. The Hearing
4/09/09
6M
Officer shall determine good cause, which shall not include forgetfulness
or intentional delay.
b. Hearing Officer. The City Council shall by Resolution from time to time
appoint a list of persons authorized to act as a Hearing Officer. The
Hearing Officer is authorized to conduct an informal hearing to determine
if a Code Offense has occurred. The Hearing Officer shall have the
authority to uphold or dismiss the citation or reduce, stay or waive the
civil penalty imposed upon such terms and conditions as the Hearing
Officer shall determine. The Hearing Officer's decision shall be made in
writing on a form provided by the City for such purpose. A copy of the
Hearing Officer's decision shall be served either in person or by United
States first class mail upon the person requesting the hearing. The
Hearing Officer's decision is final, except for appeal in limited cases to
the City Council, as set forth below, or as allowed under state law.
C. Conduct of Hearing. At the hearing, the parties will have the opportunity
to present testimony, documents and exhibits and question witnesses. The
Hearing Officer shall tape record the proceedings and receive testimony
and exhibits. Strict rules of evidence will not apply. The Hearing Officer
must receive and give weight to evidence, including hearsay evidence that
possesses probative value commonly accepted by reasonable and prudent
persons in the conduct of their affairs.
Subd. 4. Appeal of Hearing Officer's Decision.
a. The Hearing Officer's decision shall be appealable to the City Council
only for the following matters:
(1) an alleged failure to obtain a required permit, license, or other
approval from the City Council as required by the City Code;
(2) an alleged violation of a permit, license, or other approval, or the
conditions attached to the permit, license or approval, that was
issued by the City Council; or
(3) an alleged violation of regulations governing a person or entity
who has received a license issued by the City Council.
b. An appeal to the City Council of the Hearing Officer's decision must be
made in writing on a form provided by the city and must be served on the
City Clerk either in person or by United States first class mail, postage
prepaid, within ten (10) days of the Hearing Officer's decision.
C. The City Council will hear all timely appeals. The City will serve a notice
of hearing upon the appellant in person or by United States first class
4/09/09 -3-
eerti€ed mail at least ten (10) days in advance of the date of the hearing.
The parties to the hearing will have an opportunity to present oral or
written arguments regarding the Hearing Officer's decision.
The City Council shall consider the record, the Hearing Officer's decision,
and any additional arguments before making a determination. The City
Council is not bound by the Hearing Officer's decision, but may adopt all
or part of the Hearing Officer's decision. The City Council's decision
may be voted upon and given at the hearing or may be given in writing
within thirty (30) days of the hearing.
e. The failure of the appellant to appear in front of the City Council or
participate in the appeal constitutes a waiver of the violator's right of
appeal and an admission of the violation. The Council may waive the
result upon good cause shown. The determination of a showing of good
cause shown shall be made solely at the discretion of the City Council but
does not include forgetfulness and intentional delay.
Subd. 5. Failure to Pay.
a. In the event a person charged with a Code Offense fails to pay the civil
penalty and correct or abate the Code Offense for which a citation was
issued within the prescribed time, a late charge of fifteen percent (15%)
shall be imposed thereon for each seven (7) days the civil penalty remains
unpaid and the Code Offense remains uncorrected or unabated beyond the
due date.
b. An unpaid civil penalty and accrued late charges will constitute a personal
obligation of the person(s) to whom the citation was issued and the City
shall have the right to collect such unpaid civil penalty and accrued late
charges, together with the City's costs and reasonable attorney's fees, in
criminal or civil proceedings.
C. Pursuant to Minn. Stat. section 429.101., Minn. Stat. section 514.67 and
other applicable law, a lien in the amount of the civil penalty and any
accrued late charges may be assessed against the property where the Code
Offense occurred and collected in the same manner as taxes. Any such
assessment shall not preclude the City from issuing additional citations for
a continuing Code Offense, nor shall it preclude the City from making
additional assessments against the same property resulting from a
continuing or new Code Offense.
d. The City may suspend or revoke a license or permit or other approval
associated with the Code Offense if the civil penalty and accrued late
charges are not timely paid.
4/09/09 -4-
� r 1 0
Subd. 6. Subsequent Violations. If a second citation for a Code Offense is issued by the
City to the alleged violator or owner of the property upon which the violation has
occurred within twenty four (24) months of the issuance of a previous citation for
the same Code Offense, the civil penalty shall increase by twenty-five percent
(25%) over the scheduled civil penalty amount. If a third citation for a Code
Offense is issued by the City to the alleged violator or the owner of the property
upon which the violation has occurred within twenty four (24) months of the
issuance of a previous citation for the same Code Offense, the civil penalty shall
increase by 50% over the scheduled civil penalty amount. If a fourth citation for a
Code Offense is issued by the City to the alleged violator or the owner of the
property upon which the violation has occurred within twenty-four (24) months of
the issuance of a previous citation for the same Code Offense, the civil penalty
shall increase by one hundred percent (100%) over the scheduled civil penalty
amount.
4/09/09
51!
CITY OF SHOREWOOD
PLANNING COMMISSION MEETING
TUESDAY, 7 APRIL 2009
MINUTES
CALL TO ORDER
Chair Schmitt called the meeting to order at 7:17 P.M.
ROLL CALL
COUNCIL CHAMBERS
5755 COUNTRY CLUB ROAD
7:00 P.M.
Present: Chair Schmitt; Commissioners Arnst, Gagne, Geng, Hutchins, Ruoff and Vilett; Planning
Director Nielsen; and Council Liaison Zerby
Absent: None
APPROVAL OF MINUTES
3 March 2009
Gagne moved, Hutchins seconded, Approving the Planning Commission Meeting Minutes of 3
March 2009 as presented. Motion passed 510/2 with Gagne and Geng abstaining due to their
absence at the meeting.
Commissioner Gagne stated he read in the minutes that he was appointed to the position of Vice -Chair of
the Planning Commission at the last meeting. He is okay with that appointment as long as there is not
expectation that he would ever assume the Chair position should the Chair position become vacant.
Chair Schmitt stated he would have to step down from the Planning Commission because he has relocated
to another City. Director Nielsen stated Schmitt has to give a written notice to the City. He asked Schmitt
if he could attend the April 21" meeting, noting he planned on fixing brats for the Commissioners.
Chair Schmitt asked Director Nielsen what the timetable is for completing the Comprehensive Plan; he
wasn't sure if he should attend any of those discussions. Director Nielsen explained the Planning
Commission has completed its review of more than half of the twelve Planning District Area Plans. The
public hearing for the updated Comp Plan is scheduled for May. Four neighborhood meetings will be held
once the review and update of the Area Plans is complete; the Comp Plan and three Area Plans will be
discussed at each meeting. Any changes resulting from this process would be incorporated by the end of
2009.
STUDY SESSION
1. ADMINISTRATIVE ENFORCEMENT
Director Nielsen distributed a copy of a draft text amendment to the City Code Chapter 103.02 and
Chapter 104.03 regarding administrative enforcement for certain City Code violations. He explained that
during its 18 November 2008 meeting the Planning Commission held a public hearing to consider an
ordinance for certain City Code violations. A number of cities have implemented such a policy. The
CITY OF SHOREWOOD PLANNING COMMISSION MEETING
7 April 2009
Page 2 of 6
Commission recommended approval of the draft ordinance subject to its review
City Attorney. Attorney Tiegen has reviewed the proposed code amendment
included in the draft ordinance distributed this evening, noting all of the A
changes were technical and not substantive. He stated the code amendment will
Council at its 13 April meeting.
Nielsen cited a situation during 2008 where a property owner was cited for a zon
a very large shipping container on to his property. When the violator ignor
complaint was signed and executed at Hennepin County District Court. The City
but only after it spent over $8,000 on attorney fees. It took over nine months to rt
Nielsen explained the initial steps of the administrative code enforcement pro
those of the current process used to handle smaller violations. That is, the City
complaint is verified, and the City issues a citation to the violator. In a situation
the City's only recourse was to take the violator to court. Under an adminisl
process the City would write a citation for certain levels of offenses and impos
could appeal the citation in what would be the equivalent of a city court where
officer would preside. This process greatly minimizes the need for lawyers by
City, especially for minor violations. If the violator does not like the ruling o
violator could appeal the citation to the Council. If the violator did not like
violator could appeal it in District Court. This process would not prohibit
violations through District Court.
approval by the new
d her comments are
mey's recommended
reviewed by the City
violation for bringing
the violation letter a
mtually won the case,
ve the case.
ss will be the same as
ceives a complaint, the
;uch as the one in 2008
hive code enforcement
a local fine. A violator
city -appointed hearing
.ther the violator or the
the hearing officer, the
e Council's ruling, the
re City from pursuing
Nielsen stated it is his hope that this process of citations and fines will reduce tie occurrence of chronic
violations such as sign violations. The fine should be enough of a deterreit to keep people from
displaying the small signs. He did not think the process of appealing to a hearing fficer would occur very
often.
In response to a comment from Chair Schmitt, Director Nielsen explained only one hearing officer will
hear an appeal. Nielsen stated the decision has not been made on how many he g officers the City will
have.
Commissioner Artist questioned what "each day" in the statement "Each ay the violation exists
constitutes a Separate Code Offense." meant. Director Nielsen explained each ti tie the City conducts an
inspection and the same violation is in existence the City can issue a subsequt nt citation for the same
Code Offense. He stated chances are the inspections will be done every few days, unless a violator
completely ignores the City and then an inspection could be done daily. The C' 's intent is to have the
violator correct the situation. Artist suggested the statement be clarified; for exo nple, each day after the
original citation was issued.
In response to a comment from Commissioner Vilett, Director Nielsen explainel the fines for subsequent
citations for the same violation will increase for each subsequent citation issued Per the rates specified in
the City Code. He commented that the proposed fines are not as high as in they at, for some other cities.
In response to a question from Chair Schmitt, Director Nielsen explained if a iolator does not pay the
fine then the fine may be assessed against their property, if the violator is a property owner, and
collected in the same manor as property taxes. For unpaid fines that cannot be sessed to a property the
City can use any means at law to collect the fine with the hope that the City A rney would not have to
become involved.
CITY OF SHOREWOOD PLANNING COMMISSION MEETING
7 April 2009
Page 3 of 6
In response to a question from Commissioner Amst, Director Nielsen stated when the policy is first
implemented the Planning Director, the Building Inspector, the City Engineer, the Director of Public
Works and the police will be authorized to write citations. Nielsen explained this process is primarily set
up to address zoning and nuisance violations. He stated he has asked other City Staff to consider if there
are areas under their jurisdiction in the City Code where this process be used. For example, it may be
possible to use this process for illicit discharge violations, noting they would have to have higher fines
than currently proposed. He explained it's illegal for someone to rent out a dwelling if they do not have a
rental permit. The current remedy for that violation is either a rental permit is obtained or the tenant
moves out. If a tenant files some type of complaint, the property owner either fixes the problem or the
tenant has to move out. Under the administrative enforcement process the property owner either corrects
the problem or they receive a citation.
In response to another question from Commissioner Artist, Director Nielsen explained that for example
this could possibly be used for issues with dogs.
Director Nielsen explained the fines which range from $50 to $150 for the first offense are well under the
fine for a misdemeanor; that was by design. Adjustments can be made to the fee/fine schedule as the City
gains experience with this process. The City's primary expense will be for the hearing officer.
Council Liaison Zerby asked if there are any statistics available on the number of citations that could have
been issued in 2008 under this process, to which Director Nielsen responded there aren't. Nielsen stated
there were 2 — 3 rental situations in 2008 where this process could have been beneficial to the tenant. This
process should help address the issue of signage. Some larger cities which use a similar process issued a
fair number of citations when they first implemented the administrative enforcement process, and after a
while the number issued was reduced substantially. He noted those cities that use this process are pleased
with the results.
Council Liaison Zerby asked if the City would still have the ability to clean up a property (e.g., when the
City removed a junk car from a property) if it implements this process. Director Nielsen explained the
City used to have an ordinance that permitted it to resolve a violation by doing the work and billing the
violator, until it was told the City couldn't go on private property to do that anymore. Over they last few
years the City has found out there are cities that will do the work and charge the cost back. It was unlikely
the City would remove a junk car from a property again; but it could clean up a yard and charge the cost
back. There are differing opinions about whether or not cities have that authority. Commissioner Vilett
commented the City of Chanhassen will cut the grass on properties if the violator will not do so and
charge the cost back. Nielsen stated the most effective way to get rid of violations like that is to say if the
violator doesn't correct the violation then the City will do so at a much higher cost than the violator
would have paid to do it.
In response to a question from Commissioner Hutchins, Director Nielsen explained the City does not
have a grass length ordinance but that situation can be gotten around through the City's weed ordinance;
there is likely to be some weeds in a long lawn.
In response to a question from Commissioner Ruoff, Director Nielsen explained this process could be
used to address motor boat violations at the Upper Minnetonka Yacht Club
Director Nielsen asked the Planning Commissioners for their input on the proposed fee/fine schedule,
noting he thought they were on the low end. He stated this process will help with building code
violations; the biggest violation being not obtaining a construction permit. The penalty today is the cost of
the permit is doubled. The administrative enforcement fine would be in addition to the penalty already in
CITY OF SHOREWOOD PLANNING COMMISSION MEETING
7 April 2009
Page 4 of 6
existence. Chair Schmitt stated from a builders perspective sometimes it's word it to them to start work
before they can obtain a permit because of their construction timeline and t eir cost not to stay on
schedule.
Director Nielsen stated Council will be provided with copies of the following fol its consideration during
its April 13 meeting: the ordinance that includes the City Attorney's revisions; t#e fee/fine schedule; and
the request for qualifications for hearing officers. He hoped, but was not pr ising, to have a small
manual for the process for them also.
In response to a comment from Chair Schmitt, Director Nielsen explained th $50 fine for first-time
public health violations is basically for a violation of the nuisance ordinance.
In response to a question from Commissioner Ruoff, Director Nielsen stated the City reviews its
feestfines annually. I
Commissioner Geng stated he thought the fines were low and could be raised without encouraging the
violator to consider hiring an attorney to help them fight the citation. I
Chair Schmitt stated he thought the $150 fine for first-time wetland violatio and tree preservations
violations was too low. A developer would easily pay that fine if they could clew off more of a property.
Director Nielsen stated $150 probably wasn't much of a deterrent. Schmitt suggested the fine for
removing trees could potentially be based the size of the tree(s) removed. Niel n stated he will review
the City's tree preservation ordinance in conjunction with the administrative fine and determine how that
should end up. He then stated depending on the scope of a violation another process may be used to
penalize the offender.
Director Nielsen stated he was hesitant to charge to high of fines when this process if first implemented.
Chair Schmitt stated he thought the intent should be to stop violations before ey happen and for sure
after the first violation.
In response to a question from Commissioner Hutchins, Director Nielsen stated I rental permit is $60 per
dwelling unit. In response to another question, Nielsen stated the $100 assessmel fine would be the same
for single or multi -family dwelling units. Hutchins questioned why it would not per unit.
Council Liaison Zerby stated he also thought the proposed fines were too low.in'
ill cost the City more
than the lowest fine of $50 to issue and process a citation. He thought the $50e for Class A Offences
should be doubled. Director Nielsen agreed that the business owner known fofrequently violating the
sign ordinance had to pay a $100 fine that could be an incentive for them to cbana their behavior.
In response to a question from Commissioner Vilett, Director Nielsen explained loday if the City receives
a complaint from a tenant the property owner either has to fix the situation or th Irental permit is revoked
and the tenant is out. He stated often times the complaints received from the t ant are attempts by the
tenant to use it as an excuse to break their lease arrangement.
Director Nielsen stated Staff is unsure if it there has to be a public hearing held r the fees/fines schedule
because the fine schedule relates to land use ordinances and the fee schedule rel es to zoning ordinances.
He commented the City is considering an increase to its text amendment fee fie
a public hearing would
have to be held for that. The public hearing for administrative enforcement /fine schedule could be
held during that same meeting.
CITY OF SHOREWOOD PLANNING COMMISSION MEETING
7 April 2009
Page 5 of 6
2. COMPREHENSIVE PLAN
• Discuss Planning District 3
Director Nielsen stated the Planning Commission had preliminary discussions about the Planning District
3 Area Plan during its 17 February meeting. He distributed an updated copy of the Area Plan based on the
Commissions discussion. He commented four of the Commissioners reside in that district, and that
District 3 is relatively stable.
Nielsen reviewed the more significant changes to the Area Plan.
Nielsen stated a reference to there being "paper streets" in District 3 was added; "paper streets" are
platted rights -of -way that have never been improved as City streets. Also added was a statement that all
"paper streets" will be addressed in an overall study of undeveloped rights -of -way throughout the City.
He explained the Planning Commission will review all the City's paper streets in 2009 and make a
recommendation on what should happen with them; should they be vacated or should they be held on to
because they could eventually be further developed.
Nielsen stated the Plan was updated to indicate the Gideon Glen project is complete, although there is
some cleanup work that will likely be done this spring. The discussion in the Area Plan about
redevelopment of the northwest quadrant of the Smithtown Crossing (i.e., the intersection of County Road
19 and Smithtown Road) was revised significantly. A statement was added saying this quadrant,
including all of the land currently zoned for commercial use, is prime for redevelopment. Outdated
language about the redevelopment of the quadrant was deleted. The City expressed interests regarding the
potential redevelopment of that quadrant were added: 1) it would like it to be a unified and coordinated
development; 2) it could be redeveloped as a planned unit development (PUD) which is more flexible; 3)
it could possibly be redeveloped as mixed use (i.e., a mix of commercial and residential uses) as part of
the PUD process with the mixed use being either horizontal or vertical; 4) it could possibly be
redeveloped with an opportunity for senior housing: 5) it prefers it be predominately retail and office uses
rather than service commercial; and 6) there is a possibility the City would be willing to consider some
type of public financial assistance for the redevelopment such as tax increment financing (this needs to be
added to the Plan).
Chair Schmitt stated caution should be exercised about any reference to tax increment financing; he
suggested any type of assistance be made more general.
Director Nielsen stated reference to the County Road 19/Smithtown Road/Country Club Road
intersection redevelopment in the Plan was updated to reflect the project was completed. A statement was
added about the Corridor Study completed in 2004. It explains the study addressed commercial
development, vehicular traffic, pedestrian circulation and the preservation and reforestation of the Gideon
Glen site. It also states the study also sets forth a concept plan that provides the guidelines for commercial
landscaping along the corridor.
3. MATTERS FROM THE FLOOR
There were no matters from the floor presented this evening
CITY OF SHOREWOOD PLANNING COMMISSION MEETING
7 April 2009
Page 6 of 6
4. DRAFT NEXT MEETING AGENDA
Director Nielsen stated that the 21 April 2009 Planning Commission meeting will be a study session and
it would be devoted to continued discussion of the Planning District 3 ArealPlan with the hope of
finalizing it, review of the follow-up drafts of the Area Plans for Districts 1 — 4 and 10 — 12, and initial
discussions about parking regulations.
Nielsen stated he would grill brats for the Planning Commissioners at its neat
people come a little early.
There was discussion about the $1 charge that residents will see on their Xcel
5. REPORTS
Liaison to Council
Commissioner Hutchins reported on matters considered and actions taken at the
March 2009 Regular City Council meetings (as detailed in the minutes of tl
asked Council Liaison Zerby to elaborate on discussions about the Southshore
Director Nielsen had a short discussion about the South Tonka Little League
request to allow signage on the ball field fences on the two ball fields it uses n
11 Council meeting.
SLUC
Commissioner Vilett reported on the Sensible Land Use Coalition program 1
attended on March 25, 2009 (this was done after the meeting was adjourned).
None.
Other
1 5- Uul_►l
Gagne moved, Hutchins seconded, Adjourning the Planning Commission
8:22 P.M. Motion passed 5/0
Christine Freeman, Recorder
and he suggested
bill.
March 2009 and the 23
se meetings). Hutchins
-nter, which Zerby did.
request to continue its
,reeman Park to a May
Foreclosures Part 1 she
of 7 April 2009 at
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.ci.shorewood.mn.us • cityhallOci.shorewcod.mn.us
MEMORANDUM
TO: Planning Commission
FROM: Brad Nielsen
DATE: 7 April 2009
RE: Administrative Enforcement — Attorney Comments
FILE NO. City Code (Chapter 104)
Attached is a revised draft of the Administrative Enforcement Code amendment
showing changes proposed by the City Attorney. Deletions are shown in suikeexts
and additions are shown underlined.
Cc: Brian Heck
0 • PRINTED ON RECYCLED PAPER
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.d.shorewood.mmus • cityhali fti.shorewood.mmus
MEMORANDUM
TO: Planning Commission, Mayor and City Council
FROM: Brad Nielsen
DATE: 5 April 2009
RE: Administrative Enforcement — Administration
FILE NO. City Code (Chapter 104)
At the end of last year, the Planning Commission held a public hearing to consider an
ordinance providing for administrative enforcement for certain violations of the City
Code. The Commission recommended approval of a draft ordinance (see 13
November 2009 staff report), subject to review and approval of the ordinance by the
new City Attorney. Mary Tietjen has reviewed the proposed code amendment and her
comments are provided under separate cover. The code amendment will be reviewed
by the City Council at its 13 April meeting.
There are certain items that must be completed prior to implementation of the
administrative enforcement provisions: 1)adoption of a fine schedule; 2)adoption of
administrative enforcement procedures; and 3)advertising for and selection of hearing
officer(s).
Fines. Staff reviewed the fine schedules of several cities that have adopted
administrative code enforcement measures. Some of the cities have been at this for
quite some time and have rather complex fine schedules listing out different financial
penalties for various types of code offenses. Staff suggests that Shorewood adopt a
fairly simple schedule of fines. In determining the level of fine, it should be high
enough to discourage a particular code violation, but not so much as to make it
worthwhile for a violator to retain an attorney (note — some people will automatically
hire a lawyer). It should also be adequate to sustain the administrative enforcement
expenses (i.e. the "City Court"). Some good examples are sign violations and
building code violations. Currently, a temporary sign permit costs $20. Simply
rI PRINTED ON RECYCLED PAPER
doubling the permit fee for a violation is not recommended, since many violators will
simply consider this a "cost of doing business". Similarly, someone who tries to
avoid applying for a required building permit (e.g. deck or fence permits) may take
their chances if the fee is simply doubled as is the current practice. The fine schedule
shown on Exhibit A is recommended as a starting point for Shorewood's program.
As we gain some experience with the process, adjustments can be made as we
examine our fees/fines on an annual basis. Note that fines increase for multiple
offenses (see Subd. 6. of the proposed amendment). This is significant since each day
of violation constitutes a separate offense.
Planning staff will route the proposed fine schedule to other departments (e.g.
Engineering and Public Works) to see if there is interest in using administrative
enforcement in conjunction with their activities.
Procedural Manual. Staff has begun work on a short manual that sets forth the
administrative enforcement process for use by staff as well as by those subjected to
the process. At the latest, this will be distributed to the Planning Commission in time
for its April study session.
Hearing Officers. Staff will present a draft Request for Qualifications for public
hearing officers. It is anticipated that Shorewood will alternate between two or three
people who are attorneys licensed to practice law in the State of Minnesota. In some
cases, cities have used retired judges, which would be ideal.
Cc: Brian Heck
Mary Tietjen
James Landini
Larry Brown
Bonnie Burton
ADMINISTRATIVE ENFORCEMENT
CIVIL PENALTY SCHEDULE
CLASS A OFFENSES $50 $ /M
Violations of Public Health Regulations (Chapters 501-503 of the City Code) except
those violations which are also Zoning Code violations.
CLASS B OFFENSES $100 2450
Violations of Rental Housing Regulations (Chapter 1004 of the City Code).
CLASS C OFFENSES $150-A1-2zo
Violations of Building Regulations (Chapters 1001-1003 and 1005 of the City Code).
Violations of Wetland Regulations (Chapter 1102 of the City Code).
Violations of Tree Preservation Regulations (Chapter 1103 of the City Code).
Violations of Zoning Regulations (Chapter 1201 of the City Code).
SUBSEQUENT VIOLATIONS
If a second citation for a Code Offense is issued by the City to the alleged violator or
owner of the property upon which the violation has occurred within twenty four (24)
months of the issuance of a previous citation for the same Code Offense, the civil penalty
shall increase by twenty-five percent (25%) over the scheduled civil penalty amount. If a
third citation for a Code Offense is issued by the City to the alleged violator or the owner
of the property upon which the violation has occurred within twenty four (24) months of
the issuance of a previous citation for the same Code Offense, the civil penalty shall
increase by 50% over the scheduled civil penalty amount. If a fourth citation for a Code
Offense is issued by the City to the alleged violator or the owner of the property upon
which the violation has occurred within twenty-four (24) months of the issuance of a
previous citation for the same Code Offense, the civil penalty shall increase by one
hundred percent (100%) over the scheduled civil penalty amount.
Exhibit A
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.ci.shorewood.mmus • cityhaI1@ci.shorewood.mn.us
MEMORANDUM
TO: Planning Commission, Mayor and City Council
FROM: Brad Nielsen
DATE: 13 November 2008
RE: Administrative Code Enforcement — Proposed Ordinance
FILE NO. City Code (Chapter 104)
Earlier this year, staff suggested that the City consider an alternative system for
handling certain City Code violations. The basis for "Administrative Code
Enforcement" is set out in two memoranda from staff to the City Council, dated IS
June 2008 (Exhibit A) and 23 July 2008 (Exhibit B). The Council directed staff to
proceed with preparing an amendment to the City Code establishing the system.
Exhibit C is a draft amendment to Chapter 104 of the City Code (General Penalty and
Enforcement). After reviewing the codes of several other cities, staff drew
substantially from the City of Otsego's code. It was considered to be concise and very
much focuses on due process. Although the proposed amendment does not require a
public hearing, staff chose to schedule a hearing for the Planning Commission
meeting on 18 November. Since the amendment affects numerous sections of the
City Code, staff considers it to be good form to hold a hearing.
The proposed ordinance is only the first step in the Administrative Code Enforcement
process. As you will note, the amendment prescribes several forms that need to be
drafted by the City:
• Administrative Notice
• Citation
• Hearing Request
• Hearing Officer's Decision
• Appeal of Hearing Officer's Decision
!n
`►• PRINTED ON RECYCLED PAPER
Memorandum
Re: Administrative Code Enforcement — Proposed Ordinance
13 November 2008
Staff also suggests that a manual be prepared for the use of Hearing Officers. It
would explain the duties of the Hearing Officer, procedures for local court, and rules
of evidence and conduct. It is worth noting that the City Administrator has been
discussing this approach to code enforcement with nearby cities. There appears to be
some interest in sharing the services of a Hearing Officer.
Finally, a schedule of fines must be agreed upon. These fines are intended to deter
future violations and to defray the cost of the local court.
Cc: Brian Heck
Tim Keane
-2-
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.d.shorewood.mn.us • cityhaII@cLshorewood.mn.us
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen/Tim Keane
DATE: 19 June 2008
RE: Administrative Enforcement — Code Violations
FILE NO. 405 (Admire)
Staff has advised the City Council on several occasions that the present system of
code enforcement is extremely costly and time-consuming. Nothing illustrated this
better than the Phillippi zoning violation that has dragged on for nearly a year and
cost thousands of dollars in staff time and legal fees. Staff suggests there is a better
way.
Several cities in Minnesota have initiated systems of administrative citations and
penalties. In brief, they write tickets for certain levels offense and impose local fines
for code violations. Rather than pursuing a violator through the district court system,
the City appoints a hearing officer to conduct, essentially, a city court. This process
avoids to a large degree, the need for lawyers by either the City or the violator.
The issue of administrative enforcement is discussed in a paper, dated 14 November
1996 (this has been around a while), by the League of Minnesota Cities (see Exhibit
A). One city that has implemented this type of process with some success is
Minnetonka. Its program is set forth in its City Code, an excerpt of which is attached
as Exhibit B.
This topic has been scheduled for Monday night's work session. Staff will be
prepared to answer questions and elaborate on how such a program might work in
Shorewood. We do not suggest this is some sort of panacea, but we have to do
something different than we are doing now.
Cc: Larry Brown
.,
I.`, PRINTED ON RECYCLED PAPER
Exhibit A
Administrative Penalties in Minnesota
ACBA, Government Section
Administrative Penalties in Minnesota
by
Kent Sulem, LMC Codification Attorney
November 14,1996 S
I. Definition: For the purpose of this paper, "Administrative Penalties" shall mean a
system of citations and fines imposed and administered by a city for the
violation of local ordinances. An opportunity for a hearing before a
designated city hearing officer shall be given before any such penalty is
imposed.
II. Purpose: The general purpose of administrative penalties is to offer a more effective
and efficient alternative to formal court proceedings (i.e. misdemeanor
prosecutions) for certain types of offenses. On an increasing basis, city
prosecutors are finding judges unwilling to hear a trial over what are
perceived to be minor problems, or if a trial is conducted, only nominal
penalties are imposed, often not enough to justify the expense of the
prosecution. Further, court proceedings are intimidating to the accused,
and in some circumstances, even just the threat of jail time may be to
severe a penalty for certain types of offenses, even if the prosecutor ]mows
it will never be imposed, thus discouraging enforcement of the ordinance.
III. Advantages: - Less Costly
- Less intimidating
- Fosters better relations
- Better compliance rates
- City maintains control
IV,
Authority: There is no express authority for administrative penalties. It is generally
accepted, however, that the power to adopt ordinances inherently implies
the power to enforce them. (For a general discussion on the scope of
authority for imposing penalties for ordinance violations, see 5 McQuillin,
Municipal Corporations § 17 and 56 Am. Jur. 2d Municipal Corporations
§ 343-427.)
Statutory cities are authorized to impose up to a misdemeanor violation for
ordinance offenses (Minn. Stat. § 412.231). A general legal principal is
loft
Exhibit A
rI
• Administrative Penalties in Minnesota
ACBA, Government Section
November 14,1996
that the authority to do the greater implies the authority to do the lesser.
Under Minnesota law, a misdemeanor carries a maximum penalty of up to
$700 and/or 90 days in jail, plus the cost of prosecution. Thus, as long as
the administrative penalty sought is less, there is implied authority to
impose it.
The real question becomes, what level of penalty can be imposed and still
be less than a misdemeanor. A straight fine of no more than $700 would
satisfy the test, but the answer is less clear when fines exceed $700.
Because jail time is possible, misdemeanor prosecutions are considered
criminal in nature. Thus arguably as jail time is not involved and the
offense would not be viewed as criminal in nature, any administrative fine
could be considered less than a misdemeanor. In any case, however, the
fine would have to be reasonable and proportionate to the nature of the
offense. Excessive penalties can invalidate an ordinance.
Home rule charter cities are not bound to the statutory cap of Minn. Stat. §
412.231 and thus appear to have even stronger arguments in favor of
® authorizing administrative penalties. Such authorization, however, would
have to be contained in the city's charter, and thus a charter amendment
may be required.
V. Common
Concerns: Because there is no express authority for administrative penalties, and
because there have not yet been any test cases on this matter some city
attorneys are reluctant to advise their cities to adopt such penalties. While
the League of Minnesota Cities encourages caution, the consensus of
League attorneys who have looked at this issue, as well that of a random
survey of city attorneys who have dealt with it, is that there are strong
enough arguments in favor of the authority to impose such penalties.
Further, the risk of damages being awarded against a city from the use of
such penalties appears to be nominal. The Minnesota Attorney General
has also indicated his support for the use of administrative penalties.
Nonetheless, these concerns need to be considered so that each city
attorney can determine his or her comfort level in advising their individual
city councils. The following are some of the most common concerns and
the best argument a city could make in defense of administrative penalties:
0 2of2
Administrative Penalties in Minnesota
ACBA, Government Section
November 14,1996
Concern
City Argument
Lack of Authority
See section IV above
Infringes on Courts exclusive realm of
Cities act in quasi-judicial roles in many
adjudication in violation of the Separation of
situations such as zoning, license revocation,
Powers of both the State and Federal
etc. In addition, administrative fines have
Constitutions.
been issued by other entities such as OSHA
and DOER for many years without successful
challenge. Specific authority exists for fines
for liquor violations and limited other local
offenses. (Minn. Stat. 340A.304)
Equal Protection Challenge by indigent
This is more an issue of implementation than
unable to pay fine (particularly if violator has
a per se constitutionality risk. Cities
option to demand court process).
imposing administrative penalties would need
to make reasonable accommodations for those
unable to afford the fine. Such
accommodations could include allowing
monthly installment payments. As long as
the city is reasonable, there should be no
problem of equal protection. (see Smith v.
State 301 Minn 455, 223 N.W.2d 775 (1974))
VI. Key Elements: - Designate a hearing officer or panel
- Provide for notice requirement in the citation issued
- Make hearing process clear
- Avoid excessive fines (consider fine schedule)
- Provide for right of appeal
- Specify Exceptions
- (Opt -out provision)
- Provide hearing officers with clear guidelines and instruct on the
importance of good findings of facts
VIL Enforcement: - Conciliation Court
- Debt Collection Service
- Penalty for late payment
- Separate offense for failure to pay fine
3 of 1
• Administrative Penalties in Minnesota November 14, 1996
ACBA, Government Section
- Misdemeanor prosecution of original offense
- Suspension or no renewal of related business license
- (Assessment)
VIII. Legislative Action: - 1995 Legislative consideration
- 1997 NEAC proposal
11
0 4 of 4
Pagel of 5
1310.010. Penalties.
1. A person who violates section 1310.005 is guilty of a misdemeanor and upon conviction will be
punished in accordance with state law; provided, that if a different punishment is stated in this code, that
provision governs the punishment for the violation.
2. Designation as a petty misdemeanor means that upon conviction the sentence will be in accordance
with state law. If not designated as "petty misdemeanor," a violation is a misdemeanor as set forth
above in paragraph 1.
Each calendar day that section 1310.005 is violated constitutes a separate offense.
4. A person who violates section 1310.005 must pay twice the applicable fee related to the violation.
5. A violation of section 1310.005 constitutes sufficient grounds for denial of an application required
by this code that is related to the violation.
6. Action prohibited by section 1310.005 may, at the option of the city, void a city approval that is
related to the violation.
7. The city attorney may institute a legal proceeding in the name of the city of Minnetonka to prevent,
restrain, remedy, or abate a violation of section 1310.005.
8. Nothing in this section prevents the city from taking other action permitted by law, and the
penalties and remedies provided here and under other law are cumulative.
(Amended by Ord. #2006-09, adopted May 8, 2006)
1310.015. Administrative Citations and Civil Penalties.
Sections 1310.015 through 1310.055 govern administrative citations and civil penalties for violations of
the city code.
1310.020. Purpose.
The city council finds that there is a need for alternative methods of enforcing the city code. While
criminal fines and penalties have been the most frequent enforcement mechanism, there are certain
negative consequences for both the city and the accused. The delay inherent in that system does not
ensure prompt resolution. Citizens resent being labeled as criminals for violations of administrative
regulations. The higher burden of proof and the potential of incarceration do not appear appropriate for
most administrative violations. The criminal process does not always regard city code violations as
being important. Accordingly, the city council fords that the use of administrative citations and the
imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This
method of enforcement is in addition to any other legal remedy that may be pursued for city code
violations.
1310.025. General Provisions.
1. A violation of a provision of the city code or the acts prohibited in section 1310.005 is an
administrative offense, that may be subject to an administrative citation and civil penalties. Each day a
Exhibit B
Page 2 of 5
violation exists constitutes a separate offense.
2. An administrative offense may be subject to a civil penalty not exceeding $2000.00
3. The city council must adopt by resolution a schedule of fines for offenses initiated by
administration citation. The city council is not bound by that schedule when a matter is appealed to it
for administrative review. The city council may adopt a schedule of fees to be paid to administrative
hearing officers.
4. The city manager must adopt procedures for administering the administrative citation program.
1310.030. Administrative Citation.
1. A person authorized to enforce provisions of the city code may issue an administrative citation
upon belief that a code violation has occurred. The citation must be issued in person or by mail to the
person responsible for the violation or attached to the motor vehicle in the case of a vehicular offense.
The citation must state the date, time, and nature of the offense, the name of the issuing officer, the
amount of the scheduled fine, and the manner for paying the fine or appealing the citation.
2. The person responsible for the violation must either pay the scheduled fine or request a hearing
within seven days after issuance. Payment of the fine constitutes admission of the violation. A late
payment fee of 10 percent of the scheduled fine amount may be imposed under section 1310.050.
1310.035. Administrative Hearing.
1. The city council will periodically approve a list of lawyers, from which the city manager will
randomly select a hearing officer to hear and determine a matter for which a hearing is requested. The
accused will have the right to request no later than five days before the date of the hearing that the
assigned hearing officer be removed from the case. One request for each case will be granted
automatically by the city manager. A subsequent request must be directed to the assigned hearing
officer who will decide whether he or she cannot fairly and objectively review the case. The city
enforcement officer may remove a hearing officer only by requesting that the assigned hearing officer
find that he or she cannot fairly and objectively review the case. If such a finding is made, the officer
shall remove himself or herself from the case, and the city manager will assign another hearing officer.
The hearing officer is not a judicial officer but is a public officer as defined by Minn. Stat. § 609.415.
The hearing officer must not be a city employee. The city manager must establish a procedure for
evaluating the competency of the hearing officers, including comments from accused violators and city
staff. These reports must be provided to the city council.
2. Upon the hearing officer's own initiative or upon written request of an interested party
demonstrating the need, the officer may issue a subpoena for the attendance of a witness or the
production of books, papers, records or other documents that are material to the matter being heard. The
party requesting the subpoena is responsible for serving the subpoena in the manner provided for civil
actions and for paying the fees and expenses of a witness. A person served with a subpoena may file an
objection with the hearing officer promptly but no later than the time specified in the subpoena for
compliance. The officer may cancel or modify the subpoena if it is unreasonable or oppressive. A
person who, without just cause, fails or refuses to attend and testify or to produce the required
documents in obedience to a subpoena is guilty of a misdemeanor. Alternatively, the party requesting
the subpoena may seek an order from district court directing compliance.
Page 3 of 5
3. Notice of the hearing must be served in person or by mail on the person responsible for the
violation at least 10 days in advance, unless a shorter time is accepted by all parties. At the hearing, the
parties will have the opportunity to present testimony and question any witnesses, but strict rules of
evidence will not apply. The hearing officer must tape record the hearing and receive testimony and
exhibits. The officer must receive and give weight to evidence, including hearsay evidence, that
possesses probative value commonly accepted by reasonable and prudent people in the conduct of their
affairs.
4. The hearing officer has the authority to determine that a violation occurred, to dismiss a citation, to
impose the scheduled fine, and to reduce, stay, or waive a scheduled fine either unconditionally or upon
compliance with appropriate conditions. When imposing a penalty for a violation, the hearing officer
may consider any or all of the following factors:
a. the duration of the violation;
b. the frequency or reoccurrence of the violation;
c. the seriousness of the violation;
d. the history of the violation;
e. the violator's conduct after issuance of the notice of hearing;
f. the good faith effort by the violator to comply;
g. the economic impact of the penalty on the violator;
h. the impact of the violation upon the community; and
i. any other factors appropriate to a just result.
The hearing officer may exercise discretion to impose a fine for more than one day of a continuing
violation, but only upon a finding that (1) the violation caused a serious threat of harm to the public
health, safety, or welfare or that (2) the accused intentionally and unreasonably refused to comply with
the code requirement. The hearing officer's decision and supporting reasons must be in writing.
5. Except for matters subject to administrative review under section 1310.040, the decision of the
hearing officer is final without any further right of administrative appeal. hi a matter subject to
administrative review under section 1310.040, the hearing officer's decision may be appealed to the city
council by submitting a request in writing to the city clerk within 10 days after the hearing officer's
decision.
6. The failure to attend the hearing constitutes a waiver of the violator's rights to an administrative
hearing and an admission of the violation. A hearing officer may waive this result upon good cause
shown. Examples of "good cause" are: death or incapacitating illness of the accused; a court order
requiring the accused to appear for another hearing at the same time; and lack of proper service of the
citation or notice of the hearing. "Good cause" does not include: forgetfulness and intentional delay.
1310.040. Administrative Review.
Page 4 of 5
1. The hearing officer's decision in any of the following matters may be appealed by a party to the city
council for administrative review:
a. an alleged failure to obtain a permit, license, or other approval from the city council as required
by an ordinance;
b. an alleged violation of a permit, license, other approval, or the conditions attached to the permit,
license, or approval, that was granted by the city council; and
c. an alleged violation of regulations goveming a person or entity who has received a license
granted by the city council.
2. The appeal will be heard by the city council after notice served in person or by registered mail at
least 10 days in advance. The parties to the hearing will have an opportunity to present oral or written
arguments regarding the hearing officer's decision.
3. The city council must consider the record, the hearing officer's decision, and any additional
arguments before making a determination. The council is not bound by the hearing officer's decision,
but may adopt all or part of the officer's decision. The council's decision must be in writing.
4. If the council makes a finding of a violation, it may impose a civil penalty not exceeding $2000.00
per day per violation, and may consider any or all of the factors contained in section 1310.035(4). The .
council may also reduce, stay, or waive a fine unconditionally or based on reasonable and appropriate
conditions.
5. In addition to imposing a civil penalty, the council may suspend or revoke a city -issued license,
permit, or other approval associated with the violation, if the procedure in city code section 700.035 has
been followed. The hearing required in that section will be satisfied by the hearing before the hearing
officer with the right of appeal to the city council.
1310.045. Judicial Review.
An aggrieved party may obtain judicial review of the decision of the hearing officer or the city council
by proceeding under a writ of certiorari in district court.
1310.050. Recovery of Civil Penalties.
1. If a civil penalty is not paid within the time specified, it will constitute:
a. a lien on the real property upon which the violation occurred if the property or improvements on
the property was the subject of the violation and the property owner was found responsible for that
violation; or
b. a personal obligation of the violator in all other situations.
2. A lien may be assessed against the property and collected in the same manner as taxes.
3. A personal obligation may be collected by appropriate legal means.
4. A late payment fee of 10 percent of the fine may be assessed for each 30-day period, or part
Page 5 of 5
thereof, that the fine remains unpaid after the due date.
5. During the time that a civil penalty remains unpaid, the provisions of city code section 210 apply to
a license, permit, or other city approval sought by the violator or for property under the violator's
ownership or control.
6. Failure to pay a fine is grounds for suspending or revoking a license related to the violation.
1310.055. Criminal Penalties
The following are misdemeanors, punishable in accordance with state law:
failure, without good cause, to appear at a hearing that was scheduled under section 1310.035;
2. failure to pay a fine imposed by a hearing officer within 30 days after it was imposed, or such other
time as may be established by the hearing officer, unless the matter is appealed under section 1310.040;
and
3. failure to pay a fine imposed by the city council within 30 days after it was imposed, or such other
time as may be established by the city council.
If the final adjudication in the administrative penalty procedure is a finding of no violation, then the city
may not prosecute a criminal violation in district court based on the same set of facts. This does not
preclude the city from pursuing a criminal conviction for a violation of the same provision based on. a
different set of facts. A different date of violation will constitute a different set of facts.
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 • www.ci.shorewood.mmus - cityhallfci.shorewood.mmus
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen
DATE: 23 July 2008
RE: Administrative Code Enforcement — Response to Council Issues
FILE NO.: 405(Admin Enf)
At the 23 June City Council Work Session, staff initiated a discussion on administrative
code enforcement. The Council had a number of questions and directed staff to research
the topic further. Issues raised by the Council are found in the minutes of the work
session and are summarized as follows:
• How are the attorneys that serve as hearing officers selected?
• What is the cost of conducting a "local court" (e.g. hearing officer, recording
secretary, etc.)?
• To what types of code violations might administrative enforcement apply?
• Are there examples of cases where administrative enforcement did not work?
• Concern of Rights of Violators (Due Process?)
• What is the City's legal exposure?
For insight into these issues, Shorewood Staff interviewed several individuals involved
with administrative code enforcement in three other cities, including the Community
Development Director for Minnetonka, a City Attorney for the City of Bloomington, and
a planning consultant who handles code enforcement for the City of Otsego.
Selection of Hearing Officers. Minnetonka maintains a pool of lawyers from which
hearing officers are randomly drawn. Otsego uses one lawyer. Bloomington maintains
arrangements with two lawyers outside of their office (despite having an in-house legal
department), with most of the work being done by one of them.
,• Exhibit B
P. • PRINTED ON RECYCLED PAPER
Memorandum
Re: Administrative Enforcement
23 July 2008
Cost of Local Court. It is anticipated that the Hearing Officer and any recording
secretary time would be reimbursed through a system of fines imposed for violations. In
Bloomington's case, they pay $75-100 per hour for the Hearing Officer, with an average
case, including prep time, costing approximately $400.
Application to Various Code Sections. Otsego has not gone to District Court over
nuisance or zoning violations in several years, according to their planning consultant.
Minnetonka issued approximately 200 citations last year, many of which had to do with
long grass and property maintenance issues. Bloomington issued only 22 citations last
year, which is interesting considering the broad range of code provisions to which the
enforcement process applies (see Exhibit A). Staff believes that most, if not all,
violations of Chapter 501 (Unhealthy Substances/Nuisances) could start with
administrative enforcement. Many zoning violations could also be subject to
administrative enforcement/citations, not the least of which would be sign violations.
Three very pertinent cases have come up even since our discussion in June — all involving
rental housing. In all three cases, landlords had failed to obtain the required license for
their rental units. The only recourse we have at present for either failure to obtain a
license, or failure to comply with a correction order is to advise the owner that the unit
can not be rented, resulting in eviction of the tenant, or pursuing the violator through the
District Court system. It is expected that an administrative citation would trigger a
quicker, and likely more acceptable response, since it would be more cost effective to
apply for a license and correct deficiencies than to pay a series of fines.
Where Administrative Enforcement Has Not Worked. The city representatives we spoke
with were quite satisfied with the outcome of administrative enforcement. Otsego
mentioned only one instance that has not been successful. Alandowner had allowed his
property to achieve "dump" status and continuously failed to comply, despite fines levied
by the City. Otsego is currently exploring further legal action or possibly initiating its
own cleanup, with costs being assessed to the violator. Out of the 22 cases cited in
Bloomington last year, only two ended up in District Court. One of these was a very
chronic scofflaw, who is being sentenced this week. The Bloomington Attorney noted
that the District Court is much more cooperative with cities that have taken the trouble to
go through an administrative process. She feels that judges have come around to
appreciating this process rather than resenting it as they did in the earlier years.
Rights of the Violator. Staff feels that this was answered at the previous meeting, it is
worth noting that a violator has options within and beyond the administrative
enforcement process. First, he/she has a right to appear before the City Council. The
Hearing Officer, while appointed and hired by the City, is independent, not an employee
of the City. Ultimately, if the violator is not satisfied with the local process, he/she can
still go through the District Court system.
-2-
Memorandum
Re: Administrative Enforcement
23 July 2008
City's Legal Risk. The City Attorney will address this at the work session on Monday
night.
The more staff researches the administrative code enforcement process, the more we are
convinced that this is a reasonable, cost effective and expeditious way to handle City
Code violations. One item that staff continues to explore is a proposed schedule of fines
to be associated with the enforcement. These will be discussed at the work session on
Monday night.
Cc: Tim Keane
Larry Brown
Patti Helgesen
Pamela Helling
Joe Pazandak
-3-
Bloomington City Code Chapter I page I Page 5 of 7
ADMINISTRATIVE OFFENSES.
A violation of the following provisions of the City Code shall be an admini:
offense that may be subject to the administrative mediation and hearing process
Article.
(1) Chapter 6, Article 11, Fire Prevention Code;
(2) Chapter 6, Article III, Fires and False Alarms;
(3) Chapter 6, Article IV, Open Burning Restrictions;
(4) Chapter 8, Article II, Vehicle Regulations, Division A. Storage of Abandon
Inoperative Vehicles as Public Nuisances;
(5) Chapter 8, Article III, Parking, Division A., Parking on Private Property;
(6) Chapter 9, Article I, Public Nuisances Affecting Health;
(7) Chapter 10, Article II, Refuse;
(8) Chapter 10, Article III, Litter;
(9) Chapter 10, Article IV, Noise Code;
(10) Chapter 10, Article VI, Weeds;
(11) Chapter 10, Article VII, Recycling;
(12) Chapter 10, Article Vill, Phosphorus Fertilizer;
(13) Chapter 11, Article II, Wastewater;
(14) Chapter 12, Article II, Prohibited Conduct, Division A. Public Nuisances;
(15) Chapter 12, Article II, Prohibited Conduct, Division B. Trespassing;
(16) Chapter 12, Article 11, Prohibited Conduct, Division C. Conduct or Events
a Public Nuisance;
(17) Chapter 12, Article II, Prohibited Conduct, Division E. Improper Display of
Oriented Materials;
(18) Chapter 12, Article 11, Prohibited Conduct, Division H. Firearms, Weapone
Weapons;
(19) Chapter 12, Article II, Prohibited Conduct, Division N. Graffiti;
(20) Chapter 12, Article II, Prohibited Conduct, Division O. Smoking;
(21) Chapter 14, Article II, Public Entertainment Licenses and Regulations;
(22) Chapter 14, Article III, Animal Licenses and Regulations, Division A. Dog:
(23) Chapter 14, Article III, Animal Licenses and Regulations, Division B. Rabi
(24) Chapter 14, Article III, Animal Licenses and Regulations, Division C. Anin
(25) Chapter 14, Article III, Animal Licenses and Regulations, Division D. Anin
(26) Chapter 14, Article III, Animal Licenses and Regulations, Division E. Anin
Loose;
(27) Chapter 14, Article III, Animal Licenses and Regulations, Division F. Wild
(28) Chapter 14, Article III, Animal Licenses and Regulations, Division H. Anin
Prohibitions;
(29) Chapter 14, Article IV, Business Licenses and Regulations;
(30) Chapter 14, Article V, Food Licenses and Requlations:
Exhibit A
Pi hlnnminntnn mn nc 1PnrIP/('MP1 1 html
Rloomington City Code Chapter 1 page 1
Page 6 of 7
(31) Chapter 14, Article VI, Housing Licenses and Regulations;
(32) Chapter 14, Article VII, Sign Permits and Licenses;
(33) Chapter 15, Article I, Building Code;
(34) Chapter 15, Article VI, Swimming Pools;
(35) Chapter 15, Article VIII, Plumbing, Division C. Individual Sewage Treatmei
(36) Chapter 15, Article VIII, Plumbing, Division D. Wells;
(37) Chapter 17, Article II, Street Use Restrictions;
(38) Chapter 18, Trees;
(39) Chapter 19, Article II, Administration and Procedure;
(40) Chapter 19, Article IV, District Regulations;
(41) Chapter 19, Article V, Performance Standards;
(42) Chapter 19, Article VIII, Anti -Blight Regulations;
(43) Chapter 19, Article IX, Shore Area Regulations;
(44) Chapter 19, Article X, Sign Regulations
(45) Chapter 21, Article II, Districts and Uses;
(46) Chapter 21, Article III, Development Standards.
(Added by Ord. No. 99-32, 10-4-99; Amended by Ord. No. 2006-13, 4-17-2006;
2007-36, 10-22-2007)
Section 1.12. ORDERS TO CORRECT; ADMINISTRATI
CITATIONS.
Upon the reasonable belief that an administrative offense detailed in Sect
this Article has occurred, the City officials listed in Section 1.06 of this Chapter s
on the violator an order to correct the violation. If compliance is not achieved by
order to correct, the official is authorized to issue an administrative citation purse
Article of the City Code. An administrative citation shall be presented in person
the person responsible for the violation, as well as the owner of the property on
violation occurred, if not the same person. The citation shall state the date, time
of the offense, the name of the official issuing the citation, the amount of the sch
fine, and the manner for paying the fine or appealing the citation by requesting a
and hearing.
(Added by Ord. No. 99-32, 10-4-99; Amended by Ord. No. 2007-36, 10-22-2007
Section 1.13. CIVIL FINES.
The administrative offenses detailed in Section 1.11 may be subject to a c
The amount of a civil fine may not exceed the amount of the maximum fine allov
ordinance violation had been prosecuted as a misdemeanor. In the case of civil
imposed for excessive nuisance service calls pursuant to Section 12.15 of this C
the civil fine may not exceed the actual costs of providing excess law enforceme
htfn-Hunvur Pi hlnnminotnn mn ns /rnrleWndel 1 html 7/2412008
-D-R-A-F-T-
Administrative Enforcement of Code Regulations
Amend 103.02 (Definitions) to include:
CODE COMPLIANCE OFFICER. Any officer of the South Lake Minnetonka Police
Department, any employee of the City of Shorewood, or any person or company contracted to
provide code enforcement services who has received official authority by the Shorewood City
Council to enforce the City Code. There may be more than one person designated as Code
Compliance Officer at any given time.
CODE OFFENSE. A violation of any section, subdivision, paragraph or provision of the
Shorewood City Code and subject to a civil penalty determined according to a schedule adopted
by Ordinance of the Shorewood City Council from time to time and payable directly to the City
Treasurer. Each day the violation exists constitutes a separate Code Offense.
OWNER An individual, association, syndicate, partnership, corporation, limited liability
company, trust or any other legal entity holding an equitable or legal ownership interest in land,
buildings, structures, dwelling unit(s) or other property.
Amend Chapter 104 (General Penalty and Enforcement) to include:
104.03 ADMINISTRATIVE ENFORCEMENT OF CODE REGULATIONS.
Subd. 1. Purpose. The administrative enforcement procedures established within this
Section are intended to provide the City of Shorewood with an informal, cost-
effective and more efficient alternative to criminal prosecution or civil litigation
for certain violations of the adopted City Code. The City of Shorewood retains
the right, at its sole discretion, to enforce provisions of this Code by bringing
criminal charges or commencing civil litigation in any case where the City
determines it is appropriate or necessary, but finds that an administrative process
is beneficial to the residents of the City and further finds that that such a process
is a legitimate and necessary alternative method of enforcing Code violations.
Subd.2. Procedure.
a. Administrative Notice. A Code Compliance Officer may issue, either in
person or by United States first class mail, an Administrative Notice to a
person suspected or known to have committed a Code Offense or to be the
owner of property upon which a Code Offense is being committed. The
Administrative Notice shall identify the Code Offense, the location upon
which the Code Offense occurred or is occurring, and the recommended
Exhibit C
corrective action for the Code Offense. The Administrative Notice may
also state that the alleged violator has, at the discretion of the Code
Compliance Officer, up to ten (10) days to correct or abate the Code
Offense. If the alleged violator or owner of property upon which a Code
Offense is being committed is unable to correct or abate the Code Offense
within the prescribed time, that person may request in writing an extension
of no more than thirty (30) additional days from the City Council. Any
extension granted by the City Council shall be in writing and shall
specifically state the date of expiration. If the Code Offense is not
corrected or abated, as outlined in the Administrative Notice, within the
prescribed time or any extension thereto, the Code Compliance Officer
may issue a citation, as provided below.
b. Citation. A Code Compliance Officer is authorized to issue a citation
upon the belief that a Code Offense has occurred, whether or not an
Administrative Notice has first been issued in regard to said Code Offense.
The citation shall be given to the person responsible for the violation or to
the owner of the property upon which the violation has occurred, either by
personal service or by United States first class mail. The citation shall
state the nature of the Code Offense, the time and date said Code Offense
occurred, the civil penalty applicable to that Code Offense as set forth in a
schedule of civil penalties which shall be adopted by Ordinance of the
City Council from time to time, and the manner for paying the civil
penalty or requesting a hearing before a Hearing Officer to contest the
citation.
C. Responding to a Citation / Payment. Once a citation is issued, the alleged
violator or the owner of the property upon which the violation has
occurred shall, within fifteen (15) days of the time of issuance of the
citation , either pay the civil penalty set forth in the citation or request a
hearing in writing according to the procedure set forth in this Section. The
civil penalty may be paid either in person at City Hall, or by United States
first class mail, postage prepaid and postmarked within said prescribed
fifteen (15) days. Payment of the civil penalty shall be deemed to be an
admission of the Code Offense.
Subd. 3. Appeal to Hearing Ogicer.
a. Requesting a Hearing. Any person contesting a citation issued pursuant to
this Section may, within ten (10) days of the time of issuance of the
citation, request a hearing before a Hearing Officer. Any request for a
hearing before a Hearing Officer shall be made in writing on a form
provided by the City for such a request and either delivered personally to
the City at City Hall or mailed to the City by United States first class mail,
postage prepaid and postmarked within said prescribed ten (10) days. The hearing shall be held at City Hall within thirty (30) days of the date the
-2-
City receives a timely written notice that a hearing has been requested.
Failure to attend the hearing constitutes a waiver of the violator's rights to
an administrative hearing and an admission of the violation. A hearing
officer may waive this result upon good cause shown. A determination of
good cause shall be made by the Hearing Officer, but does specifically not
include forgetfulness or intentional delay.
b. Hearing Officer. The City Council shall by Resolution from time to time
appoint a list of persons authorized to act as a Hearing Officer. The
Hearing Officer is authorized to conduct an informal hearing to determine
if a Code Offense has occurred. The Hearing officer may be compensated
by the City for such hearings and related findings. The Hearing Officer
shall have the authority to uphold or dismiss the citation or reduce, stay or
waive the civil penalty imposed upon such terms and conditions as the
Hearing Officer shall determine. The Hearing Officer's decision shall be
made in writing on a form provided by the City for such purpose. A copy
of the Hearing Officer's decision shall be served by United States first
class mail upon the person requesting the hearing. The Hearing Officer's
decision is final, except for appeal of the Hearing Officer's decision in
limited cases to the City Council, as set forth below.
C. Conduct of Hearing. At the hearing, the parties will have the opportunity
to present testimony, documents and exhibits and question witnesses. The
Hearing Officer shall tape record the proceedings and receive testimony
and exhibits. Strict rules of evidence will not apply. The Hearing Officer
must receive and give weight to evidence, including hearsay evidence, that
possesses probative value commonly accepted by reasonable and prudent
persons in the conduct of their affairs.
Subd. 4. Appeal of Hearing Officer's Decision.
a. The Hearing Officer's decision shall be appealable to the City Council
only for the following matters:
(1) an alleged failure to obtain a required permit, license, or other
approval from the City Council as required by the City Code;
(2) an alleged violation of a permit, license, or other approval, or the
conditions attached to the permit, license or approval, that was
issued by the City Council; or
(3) an alleged violation of regulations governing a person or entity
who has received a license issued by the City Council.
b. An appeal to the City Council of the Hearing Officer's decision must be
made in writing on a form provided by the city for such an appeal and
-3-
must be served on the City Clerk by United States first class mail, postage
prepaid, within ten (10) days after the date of the Hearing Officer's
decision.
C. A timely appeal will be heard by the City Council after a notice of hearing
is served by the City upon the appellant in person or by certified mail at
lease ten (10) days in advance of the date of the hearing. The parties to
the hearing will have an opportunity to present oral or written arguments
regarding the Hearing Officer's decision.
d. The City Council shall consider the record, the Hearing Officer's decision,
and any additional arguments before making a determination. The City
Council is not bound by the Hearing Officer's decision, but may adopt all
or part of the Hearing Officer's decision. The City Council's decision
may be voted upon and given at the hearing or may be given in writing
within fifteen (15) days of the hearing.
e. The failure of the appellant to appear in front of the City Council or
participate in the appeal constitutes a waiver of the violator's right of
appeal and an admission of the violation. The Council may waive the
result upon good cause shown. The determination of a showing of good
cause shown shall be made solely at the discretion of the City Council but
does not include forgetfulness and intentional delay.
Subd. 5. Failure to Pay.
a. In the event a person charged with a Code Offense fails to pay the civil
penalty and correct or abate the Code Offense for which a citation was
issued within the prescribed time, a late charge of fifteen percent (15%)
shall be imposed thereon for each seven (7) days the civil penalty remains
unpaid and the Code Offense remains uncorrected or unabated beyond the
due date.
b. An unpaid civil penalty and accrued late charges will constitute a personal
obligation of the person(s) to whom the citation was issued and the City
shall have the right to collect such unpaid civil penalty and accrued late
charges, together with the City's costs and reasonable attorney's fees, in
criminal or civil proceedings.
C. Pursuant to Minn. Stat. Chapter 429.101., Minn. Stat. Chapter 514.67 and
other applicable law, alien in the amount of the civil penalty and any
accrued late charges may be assessed against the property where the Code
Offense occurred and collected in the same manner as taxes. Any such
assessment shall not preclude the City from issuing additional citations for
a continuing Code Offense, nor shall it preclude the City from making
ME
additional assessments against the same property resulting from a
continuing or new Code Offense.
d. The City may suspend or revoke a license or permit or other approval
associated with the Code Offense if the civil penalty and accrued late
charges are not timely paid.
Subd. 6. Subsequent Violations. If a second citation for a Code Offense is issued by the
City to the alleged violator or owner of the property upon which the violation has
occurred within twenty four (24) months of the issuance of a previous citation for
the same Code Offense, the civil penalty shall increase by twenty-five percent
(25%) over the scheduled civil penalty amount. If a third citation for a Code
Offense is issued by the City to the alleged violator or the owner of the property
upon which the violation has occurred within twenty four (24) months of the
issuance of a previous citation for the same Code Offense, the civil penalty shall
increase by 50% over the scheduled civil penalty amount. If a fourth citation for a
Code Offense is issued by the City to the alleged violator or the owner of the
property upon which the violation has occurred within twenty-four (24) months of
the issuance of a previous citation for the same Code Offense, the civil penalty
shall increase by one hundred percent (100%) over the scheduled civil penalty
amount.
-5-
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD. MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474-0128 . www.d.shorewood.mmus • cityhall@ci.shorewood.mn.us
MEMORANDUM
TO:
Mayor and City Council
FROM:
Brad Nielsen
DATE:
23 July 2008
RE:
Administrative Code Enforcement — Response to Council Issues
FILE NO.:
405(Admin Enf)
At the 23 June City Council Work Session, staff initiated a discussion on administrative
code enforcement. The Council had a number of questions and directed staff to research
the topic further. Issues raised by the Council are found in the minutes of the work
session and are summarized as follows:
• How are the attorneys that serve as hearing officers selected?
• What is the cost of conducting a "local court" (e.g. hearing officer, recording
secretary, etc.)?
• To what types of code violations might administrative enforcement apply?
• Are there examples of cases where administrative enforcement did not work?
• Concern of Rights of Violators (Due Process?)
• What is the City's legal exposure?
For insight into these issues, Shorewood Staff interviewed several individuals involved
with administrative code enforcement in three other cities, including the Community
Development Director for Minnetonka, a City Attorney for the City of Bloomington, and
a planning consultant who handles code enforcement for the City of Otsego.
Selection of Hearing Officers. Minnetonka maintains a pool of lawyers from which
hearing officers are randomly drawn. Otsego uses one lawyer. Bloomington maintains
arrangements with two lawyers outside of their office (despite having an in-house legal
department), with most of the work being done by one of them.
0 PRINTED ON RECYCLED PAPER
Memorandum
Re: Administrative Enforcement
23 July 2008
Cost of Local Court. It is anticipated that the Hearing Officer and any recording
secretary time would be reimbursed through a system of fines imposed for violations. In
Bloomington's case, they pay $75-100 per hour for the Hearing Officer, with an average
case, including prep time, costing approximately $400.
Aonlication to Various Code Sections. Otsego has not gone to District Court over
nuisance or zoning violations in several years, according to their planning consultant.
Minnetonka issued approximately 200 citations last year, many of which had to do with
long grass and property maintenance issues. Bloomington issued only 22 citations last
year, which is interesting considering the broad range of code provisions to which the
enforcement process applies (see Exhibit A). Staff believes that most, if not all,
violations of Chapter 501 (Unhealthy Substances/Nuisances) could start with
administrative enforcement. Many zoning violations could also be subject to
administrative enforcement/citations, not the least of which would be sign violations.
Three very pertinent cases have come up even since our discussion in June — all involving
rental housing. In all three cases, landlords had failed to obtain the required license for
their rental units. The only recourse we have at present for either failure to obtain a
license, or failure to comply with a correction order is to advise the owner that the unit
can not be rented, resulting in eviction of the tenant, or pursuing the violator through the
District Court system. It is expected that an administrative citation would trigger a
quicker, and likely more acceptable response, since it would be more cost effective to
apply for a license and correct deficiencies than to pay a series of fines.
Where Administrative Enforcement Has Not Worked. The city representatives we spoke
with were quite satisfied with the outcome of administrative enforcement. Otsego
mentioned only one instance that has not been successful. A landowner had allowed his
property to achieve "dump" status and continuously failed to comply, despite fines levied
by the City. Otsego is currently exploring further legal action or possibly initiating its
own cleanup, with costs being assessed to the violator. Out of the 22 cases cited in
Bloomington last year, only two ended up in District Court. One of these was a very
chronic scofflaw, who is being sentenced this week. The Bloomington Attorney noted
that the District Court is much more cooperative with cities that have taken the trouble to
go through an administrative process. She feels that judges have come around to
appreciating this process rather than resenting it as they did in the earlier years.
Rights of the Violator. Staff feels that this was answered at the previous meeting, it is
worth noting that a violator has options within and beyond the administrative
enforcement process. First, he/she has a right to appear before the City Council. The
Hearing Officer, while appointed and hired by the City, is independent, not an employee
of the City. Ultimately, if the violator is not satisfied with the local process, he/she can
still go through the District Court system.
-2-
Memorandum
Re: Administrative Enforcement
23 July 2008
City's Legal Risk. The City Attorney will address this at the work session on Monday
night.
The more staff researches the administrative code enforcement process, the more we are
convinced that this is a reasonable, cost effective and expeditious way to handle City
Code violations. One item that staff continues to explore is a proposed schedule of fines
to be associated with the enforcement. These will be discussed at the work session on
Monday night.
Cc: Tim Keane
Larry Brown
Patti Helgesen
Pamela Helling
Joe Pazandak
-3-
$loomington City Code Chapter 1 page 1 Page 5 of 7
ADMINISTRATIVE OFFENSES.
A violation of the following provisions of the City Code shall be an admini;
offense that may be subject to the administrative mediation and hearing process
Article.
(1) Chapter 6, Article II, Fire Prevention Code;
(2) Chapter 6, Article III, Fires and False Alarms;
(3) Chapter 6, Article IV, Open Burning Restrictions;
(4) Chapter 8, Article Il, Vehicle Regulations, Division A. Storage of Abandon
Inoperative Vehicles as Public Nuisances;
(5) Chapter 8, Article III, Parking, Division A., Parking on Private Property;
(6) Chapter 9, Article I, Public Nuisances Affecting Health;
(7) Chapter 10, Article ll, Refuse;
(8) Chapter 10, Article III, Litter;
(9) Chapter 10, Article IV, Noise Code;
(10) Chapter 10, Article VI, Weeds;
(11) Chapter 10, Article VII, Recycling;
(12) Chapter 10, Article VIII, Phosphorus Fertilizer;
(13) Chapter 11, Article II, Wastewater;
(14) Chapter 12, Article ll, Prohibited Conduct, Division A. Public Nuisances;
(15) Chapter 12, Article II, Prohibited Conduct, Division B. Trespassing;
(16) Chapter 12, Article II, Prohibited Conduct, Division C. Conduct or Events
a Public Nuisance;
(17) Chapter 12, Article II, Prohibited Conduct, Division E. Improper Display of
Oriented Materials;
(18) Chapter 12, Article II, Prohibited Conduct, Division H. Firearms, Weapons
Weapons;
(19) Chapter 12, Article II, Prohibited Conduct, Division N. Graffiti;
(20) Chapter 12, Article ll, Prohibited Conduct, Division O. Smoking;
(21) Chapter 14, Article II, Public Entertainment Licenses and Regulations;
(22) Chapter 14, Article III, Animal Licenses and Regulations, Division A. Dog:
(23) Chapter 14, Article III, Animal Licenses and Regulations, Division B. Rabi
(24) Chapter 14, Article III, Animal Licenses and Regulations, Division C. Anin
(25) Chapter 14, Article III, Animal Licenses and Regulations, Division D. Anin
(26) Chapter 14, Article III, Animal Licenses and Regulations, Division E. Anirr
Loose;
(27) Chapter 14, Article III, Animal Licenses and Regulations, Division F. Wild
(28) Chapter 14, Article III, Animal Licenses and Regulations, Division H. Anin
Prohibitions;
(29) Chapter 14, Article IV, Business Licenses and Regulations;
(30) Chapter 14, Article V, Food Licenses and Requlations:
Exhibit A
http://www.ci.bloomington.nin.us./code/Codel—l.html
Bloomington City Code Chapter 1 page 1 Page 6 of 7
(31) Chapter 14, Article VI, Housing Licenses and Regulations;
(32) Chapter 14, Article VII, Sign Permits and Licenses;
(33) Chapter 15, Article I, Building Code;
(34) Chapter 15, Article VI, Swimming Pools;
(35) Chapter 15, Article VIII, Plumbing, Division C. Individual Sewage Treatmei
(36) Chapter 15, Article VIII, Plumbing, Division D. Wells;
(37) Chapter 17, Article II, Street Use Restrictions;
(38) Chapter 18, Trees;
(39) Chapter 19, Article II, Administration and Procedure;
(40) Chapter 19, Article IV, District Regulations;
(41) Chapter 19, Article V, Performance Standards;
(42) Chapter 19, Article VIII, Anti -Blight Regulations;
(43) Chapter 19, Article IX, Shore Area Regulations;
(44) Chapter 19, Article X, Sign Regulations
(45) Chapter 21, Article II, Districts and Uses;
(46) Chapter 21, Article III, Development Standards.
(Added by Ord. No. 99-32, 10-4-99; Amended by Ord. No. 2006-13, 4-17-2006;
2007-36, 10-22-2007)
Section 1.12. ORDERS TO CORRECT; ADMINISTRATI
CITATIONS.
Upon the reasonable belief that an administrative offense detailed in Sect
this Article has occurred, the City officials listed in Section 1.06 of this Chapters
on the violator an order to correct the violation. If compliance is not achieved by
order to correct, the official is authorized to issue an administrative citation purse
Article of the City Code. An administrative citation shall be presented in person
the person responsible for the violation, as well as the owner of the property on
violation occurred, if not the same person. The citation shall state the date, time
of the offense, the name of the official issuing the citation, the amount of the sch
fine, and the manner for paying the fine or appealing the citation by requesting a
and hearing.
(Added by Ord. No. 99-32, 10-4-99; Amended by Ord. No. 2007-36, 10-22-2007
Section 1.13. CIVIL FINES.
The administrative offenses detailed in Section 1.11 may be subject to a c
The amount of a civil fine may not exceed the amount of the maximum fine alloy
ordinance violation had been prosecuted as a misdemeanor. In the case of civil
imposed for excessive nuisance service calls pursuant to Section 12.15 of this C
the civil fine may not exceed the actual costs of providing excess law enforceme
http://www.ci.bloomington.mn.us./code/Codel_l.html 7/24/2008
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 474-3236
FAX (952) 474.0128 • www.ci.shorewood.mmus • cityhall®ci.shorewood.mn.us
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen/Tim Keane
DATE: 19 June 2008
RE: Administrative Enforcement — Code Violations
FILE NO. 405 (Admin)
Staff has advised the City Council on several occasions that the present system of
code enforcement is extremely costly and time-consuming. Nothing illustrated this
better than the Phillippi zoning violation that has dragged on for nearly a year and
cost thousands of dollars in staff time and legal fees. Staff suggests there is a better
way.
Several cities in Minnesota have initiated systems of administrative citations and
penalties. In brief, they write tickets for certain levels offense and impose local fines
for code violations. Rather than pursuing a violator through the district court system,
the City appoints a hearing officer to conduct, essentially, a city court. This process
avoids to a large degree, the need for lawyers by either the City or the violator.
The issue of administrative enforcement is discussed in a paper, dated 14 November
1996 (this has been around a while), by the League of Minnesota Cities (see Exhibit
A). One city that has implemented this type of process with some success is
Minnetonka. Its program is set forth in its City Code, an excerpt of which is attached
as Exhibit B.
This topic has been scheduled for Monday night's work session. Staff will be
prepared to answer questions and elaborate on how such a program might work in
Shorewood. We do not suggest this is some sort of panacea, but we have to do
something different than we are doing now.
Cc: Larry Brown
0 PRINTED ON RECYCLED PAPER
Administrative Penalties in Minnesota
ACBA, Government Section
Administrative Penalties in Minnesota
by
Kent Sulem, LMC Codification Attorney
November 14,1996 •
I. Definition: For the purpose of this paper, "Administrative Penalties" shall mean a
system of citations and fines imposed and administered by a city for the
violation of local ordinances. An opportunity for a hearing before a
designated city hearing officer shall be given before any such penalty is
imposed.
II. Purpose: The general purpose of administrative penalties is to offer a more effective
and efficient alternative to formal court proceedings (i.e. misdemeanor
prosecutions) for certain types of offenses. On an increasing basis, city
prosecutors are finding judges unwilling to hear a trial over what are
perceived to be minor problems, or if a trial is conducted, only nominal
penalties are imposed, often not enough to justify the expense of the
prosecution. Further, court proceedings are intimidating to the accused,
and in some circumstances, even just the threat of jail time may be to
severe a penalty for certain types of offenses, even if the prosecutor knows
it will never be imposed, thus discouraging enforcement of the ordinance.
III. Advantages: - Less Costly
- Less intimidating
- Fosters better relations
- Better compliance rates
- City maintains control
IV. Authority: There is no express authority for administrative penalties. It is generally
accepted, however, that the power to adopt ordinances inherently implies
the power to enforce them. (For a general discussion on the scope of
authority for imposing penalties for ordinance violations, see 5 McQuillin,
Municipal Corporations § 17 and 56 Am. Jur. 2d Municipal Corporations
§ 343-427.)
Statutory cities are authorized to impose up to a misdemeanor violation for
ordinance offenses (Minn. Stat. § 412.231). A general legal principal is
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•
Exhibit A
• Administrative Penalties in Minnesota
ACBA, Government Section
November 14,1996
that the authority to do the greater implies the authority to do the lesser.
Under Minnesota law, a misdemeanor carries a maximum penalty of up to
$700 and/or 90 days in jail, plus the cost of prosecution. Thus, as long as
the administrative penalty sought is less, there is implied authority to
impose it.
The real question becomes, what level of penalty can be imposed and still
be less than a misdemeanor. A straight fine of no more than $700 would
satisfy the test, but the answer is less clear when fines exceed $700.
Because jail time is possible, misdemeanor prosecutions are considered
criminal in nature. Thus arguably as jail time is not involved and the
offense would not be viewed as criminal in nature, any administrative fine
could be considered less than a misdemeanor. In any case, however, the
fine would have to be reasonable and proportionate to the nature of the
offense. Excessive penalties can invalidate an ordinance.
Home rule charter cities are not bound to the statutory cap of Minn. Stat. §
412.231 and thus appear to have even stronger arguments in favor of
• authorizing administrative penalties. Such authorization, however, would
have to be contained in the city's charter, and thus a charter amendment
may be required.
V. Common
Concerns: Because there is no express authority for administrative penalties, and
because there have not yet been any test cases on this matter some city
attorneys are reluctant to advise their cities to adopt such penalties. While
the League of Minnesota Cities encourages caution, the consensus of
League attorneys who have looked at this issue, as well that of a random
survey of city attorneys who have dealt with it, is that there are strong
enough arguments in favor of the authority to impose such penalties.
Further, the risk of damages being awarded against a city from the use of
such penalties appears to be nominal. The Minnesota Attorney General
has also indicated his support for the use of administrative penalties.
Nonetheless, these concerns need to be considered so that each city
attorney can determine his or her comfort level in advising their individual
city councils. The following are some of the most common concerns and
the best argument a city could make in defense of administrative penalties:
0 2 of 2
Administrative Penalties in Minnesota
ACBA, Government Section
Concern
Lack of Authority
infringes on Courts exclusive realm of
adjudication in violation of the Separation of
Powers of both the State and Federal
Constitutions.
Equal Protection Challenge by indigent
unable to pay fine (particularly if violator has
option to demand court process).
November 14,1996 •
City Argument
See section 1V above
Cities act in quasi judicial roles in many
situations such as zoning, license revocation,
etc. In addition, administrative fines have
been issued by other entities such as OSHA
and DOER for many years without successful
challenge. Specific authority exists for fines
for liquor violations and limited other local
offenses. (Minn. Stat. 340A.304)
This is more an issue of implementation than
a per se constitutionality risk. Cities
imposing administrative penalties would need
to make reasonable accommodations for those
unable to afford the fine. Such
accommodations could include allowing
monthly installment payments. As long as
the city is reasonable, there should be no
problem of equal protection. (see Smith v.
State 301 Minn 455, 223 N.W.2d 775 (1974))
V1. Key Elements: - Designate a hearing officer or panel
- Provide for notice requirement in the citation issued
- Make hearing process clear
- Avoid excessive fines (consider fine schedule)
- Provide for right of appeal
- Specify Exceptions
. (Opt -out provision)
- Provide hearing officers with clear guidelines and instruct on the
importance of good findings of facts
VII. Enforcement: - Conciliation Court
- Debt Collection Service
- Penalty for late payment
- Separate offense for failure to pay fine
•
3of3 •
•Administrative Penalties in Minnesota November 14,1996
ACBA, Government Section
- Misdemeanor prosecution of original offense
- Suspension or no renewal of related business license
- (Assessment)
VUL Legislative Action: - 1995 Legislative consideration
- 1997 NEAC proposal
•
0 4 of 4
Page 1 of 5
1310.010. Penalties.
1. A person who violates section 1310.005 is guilty of a misdemeanor and upon conviction will be
punished in accordance with state law; provided, that if a different punishment is stated in this code, that
provision governs the punishment for the violation.
2. Designation as a petty misdemeanor means that upon conviction the sentence will be in accordance
with state law. If not designated as "petty misdemeanor," a violation is a misdemeanor as set forth
above in paragraph 1.
3. Each calendar day that section 1310.005 is violated constitutes a separate offense.
4. A person who violates section 1310.005 must pay twice the applicable fee related to the violation.
5. A violation of section 1310.005 constitutes sufficient grounds for denial of an application required
by this code that is related to the violation.
6. Action prohibited by section 1310.005 may, at the option of the city, void a city approval that is
related to the violation.
7. The city attorney may institute a legal proceeding in the name of the city of Minnetonka to prevent,
restrain, remedy, or abate a violation of section 1310.005.
8. Nothing in this section prevents the city from taking other action permitted by law, and the
penalties and remedies provided here and under other law are cumulative.
(Amended by Ord. 42006-09, adopted May 8, 2006)
1310.015. Administrative Citations and Civil Penalties.
Sections 1310.015 through 1310.055 govern administrative citations and civil penalties for violations of
the city code.
1310.020. Purpose.
The city council finds that there is a need for alternative methods of enforcing the city code. While
criminal fines and penalties have been the most frequent enforcement mechanism, there are certain
negative consequences for both the city and the accused. The delay inherent in that system does not
ensure prompt resolution. Citizens resent being labeled as criminals for violations of administrative
regulations. The higher burden of proof and the potential of incarceration do not appear appropriate for
most administrative violations. The criminal process does not always regard city code violations as
being important. Accordingly, the city council finds that the use of administrative citations and the
imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This
method of enforcement is in addition to any other legal remedy that may be pursued for city code
violations.
1310.025. General Provisions.
1. A violation of a provision of the city code or the acts prohibited in section 1310.005 is an
administrative offense, that may be subject to an administrative citation and civil penalties. Each day a
Exhibit B
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Page 2 of 5
violation exists constitutes a separate offense.
2. An administrative offense may be subject to a civil penalty not exceeding $2000,00.
3. The city council must adopt by resolution a schedule of fines for offenses initiated by
administration citation. The city council is not bound by that schedule when a matter is appealed to it
for administrative review. The city council may adopt a schedule of fees to be paid to administrative
hearing officers.
4. The city manager must adopt procedures for administering the administrative citation program.
1310.030. Administrative Citation.
1. A person authorized to enforce provisions of the city code may issue an administrative citation
upon belief that a code violation has occurred. The citation must be issued in person or by mail to the
person responsible for the violation or attached to the motor vehicle in the case of a vehicular offense.
The citation must state the date, time, and nature of the offense, the name of the issuing officer, the
amount of the scheduled fine, and the manner for paying the fine or appealing the citation.
2. The person responsible for the violation must either pay the scheduled fine or request a hearing
within seven days after issuance. Payment of the fine constitutes admission of the violation. A late
payment fee of 10 percent of the scheduled fine amount may be imposed under section 1310.050.
1310.035. Administrative Hearing.
1. The city council will periodically approve a list of lawyers, from which the city manager will
randomly select a hearing officer to hear and determine a matter for which a hearing is requested. The
accused will have the right to request no later than five days before the date of the hearing that the
assigned hearing officer be removed from the case. One request for each case will be granted
automatically by the city manager. A subsequent request must be directed to the assigned hearing
officer who will decide whether he or she cannot fairly and objectively review the case. The city
enforcement officer may remove a hearing officer only by requesting that the assigned hearing officer
find that he or she cannot fairly and objectively review the case. If such a finding is made, the officer
shall remove himself or herself from the case, and the city manager will assign another hearing officer.
The hearing officer is not a judicial officer but is a public officer as defined by Minn. Stat. § 609.415.
The hearing officer must not be a city employee. The city manager must establish a procedure for
evaluating the competency of the hearing officers, including comments from accused violators and city
staff. These reports must be provided to the city council.
2. Upon the hearing officer's own initiative or upon written request of an interested party
demonstrating the need, the officer may issue a subpoena for the attendance of a witness or the
production of books, papers, records or other documents that are material to the matter being heard. The
party requesting the subpoena is responsible for serving the subpoena in the manner provided for civil
actions and for paying the fees and expenses of a witness. A person served with a subpoena may file an
objection with the hearing officer promptly but no later than the time specified in the subpoena for
compliance. The officer may cancel or modify the subpoena if it is unreasonable or oppressive. A
person who, without just cause, fails or refuses to attend and testify or to produce the required
documents in obedience to a subpoena is guilty of a misdemeanor. Alternatively, the party requesting
the subpoena may seek an order from district court directing compliance.
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Page 3 of 5
3. Notice of the hearing must be served in person or by mail on the person responsible for the
violation at least 10 days in advance, unless a shorter time is accepted by all parties. At the hearing, the
parties will have the opportunity to present testimony and question any witnesses, but strict rules of
evidence will not apply. The hearing officer must tape record the hearing and receive testimony and
exhibits. The officer must receive and give weight to evidence, including hearsay evidence, that
possesses probative value commonly accepted by reasonable and prudent people in the conduct of their
affairs.
4. The hearing officer has the authority to determine that a violation occurred, to dismiss a citation, to
impose the scheduled fine, and to reduce, stay, or waive a scheduled fine either unconditionally or upon
compliance with appropriate conditions. When imposing a penalty for a violation, the hearing officer
may consider any or all of the following factors:
a. the duration of the violation;
b. the frequency or reoccurrence of the violation;
c. the seriousness of the violation;
d. the history of the violation;
e. the violator's conduct after issuance of the notice of hearing;
f. the good faith effort by the violator to comply;
g. the economic impact of the penalty on the violator;
h. the impact of the violation upon the community; and
any other factors appropriate to a just result.
The hearing officer may exercise discretion to impose a fine for more than one day of a continuing
violation, but only upon a finding that (1) the violation caused a serious threat of harm to the public
health, safety, or welfare or that (2) the accused intentionally and unreasonably refused to comply with
the code requirement. The hearing officer's decision and supporting reasons must be in writing.
5. Except for matters subject to administrative review under section 1310.040, the decision of the
hearing officer is final without any further right of administrative appeal. In a matter subject to
administrative review under section 1310.040, the hearing officer's decision may be appealed to the city
council by submitting a request in writing to the city clerk within 10 days after the hearing officer's
decision.
6. The failure to attend the hearing constitutes a waiver of the violator's rights to an administrative
hearing and an admission of the violation. A hearing officer may waive this result upon good cause
shown. Examples of "good cause" are: death or incapacitating illness of the accused; a court order
requiring the accused to appear for another hearing at the same time; and lack of proper service of the
citation or notice of the hearing. "Good cause" does not include: forgetfulness and intentional delay.
1310.040. Administrative Review.
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Page 4 of 5
1. The hearing officer's decision in any of the following matters may be appealed by a party to the city
council for administrative review:
a. an alleged failure to obtain a permit, license, or other approval from the city council as required
by an ordinance;
b. an alleged violation of a permit, license, other approval, or the conditions attached to the permit,
license, or approval, that was granted by the city council; and
c. an alleged violation of regulations governing a person or entity who has received a license
granted by the city council.
2. The appeal will be heard by the city council after notice served in person or by registered mail at
least 10 days in advance. The parties to the hearing will have an opportunity to present oral or written
arguments regarding the hearing officer's decision.
3. The city council must consider the record, the hearing officer's decision, and any additional
arguments before making a determination. The council is not bound by the hearing officer's decision,
but may adopt all or part of the officer's decision. The council's decision must be in writing.
4. If the council makes a finding of a violation, it may impose a civil penalty not exceeding $2000.00
per day per violation, and may consider any or all of the factors contained in section 1310.035(4). The
council may also reduce, stay, or waive a fine unconditionally or based on reasonable and appropriate
conditions.
5. In addition to imposing a civil penalty, the council may suspend or revoke a city -issued license,
permit, or other approval associated with the violation, if the procedure in city code section 700.035 has
been followed. The hearing required in that section will be satisfied by the hearing before the hearing
officer with the right of appeal to the city council.
1310.045. Judicial Review.
An aggrieved party may obtain judicial review of the decision of the hearing officer or the city council
by proceeding under a writ of certiorari in district court.
1310.050. Recovery of Civil Penalties.
1. If a civil penalty is not paid within the time specified, it will constitute:
a. a lien on the real property upon which the violation occurred if the property or improvements on
the property was the subject of the violation and the property owner was found responsible for that
violation; or
b. a personal obligation of the violator in all other situations.
2. A lien may be assessed against the property and collected in the same manner as taxes.
3. A personal obligation may be collected by appropriate legal means.
4. A late payment fee of 10 percent of the fine may be assessed for each 30-day period, or part
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Page 5 of 5
thereof, that the fine remains unpaid after the due date.
5. During the time that a civil penalty remains unpaid, the provisions of city code section 210 apply to
a license, permit, or other city approval sought by the violator or for property under the violator's
ownership or control.
6. Failure to pay a fine is grounds for suspending or revoking a license related to the violation.
1310.055. Criminal Penalties
The following are misdemeanors, punishable in accordance with state law:
1. failure, without good cause, to appear at a hearing that was scheduled under section 1310.035;
2. failure to pay a fine imposed by a hearing officer within 30 days after it was imposed, or such other
time as may be established by the hearing officer, unless the matter is appealed under section 1310.040;
and
3. failure to pay a fine imposed by the city council within 30 days after it was imposed, or such other
time as may be established by the city council.
If the final adjudication in the administrative penalty procedure is a finding of no violation, then the city
may not prosecute a criminal violation in district court based on the same set of facts. This does not
preclude the city from pursuing a criminal conviction for a violation of the same provision based on a
different set of facts. A different date of violation will constitute a different set of facts.
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