HomeMy WebLinkAboutItem 11 - Emergency Enforcement Authority Municipal Code Amendments and Clarifications Department Name: City Attorney
Cost Center: 1500
For Agenda of: January 19, 2021
Placement: Public Hearing
Estimated Time: 30 minutes
FROM: Christine Dietrick, City Attorney
SUBJECT: EMERGENCY ENFORCEMENT AUTHORITY MUNICIPAL CODE
AMENDMENTS AND CLARIFICATIONS
RECOMMENDATION
Adopt an emergency ordinance clarifying City emergency enforcement authority and amending
Chapter 2.24 (Emergency Services) and chapter 9.22 (Safety Enhancement Zones) of the
Municipal Code to provide expressly for direct enforcement of local, state and federal emergency
rules, regulations, orders, directives, or other enactments related to the declaration of a local,
state or federal emergency affecting the City of San Luis Obispo and further clarifying the
meaning of the phrase “any lawful rule or regulation issued pursuant to this Chapter” as used in
Chapter 2.24.
DISCUSSION
Background
The City Council took prior action via Council Resolution 11099 and 11106 (2020 Series) to
declare a local emergency and to enact emergency measures for the administrative enforcement
of violations of any COVID-19 related public health and emergency orders against persons and
businesses that failed or refused to comply with public health orders (see specifically Section 6
of Reso. 11106). As the infection rate, hospitalizations and deaths throughout the nation, state,
County and City have continued to rise, the City has issued administrative citations with
enhanced penalties of $1,000 per violation for violations of state Purple Tier business operations
and social gathering restrictions, pursuant to the administrative enforcement authority enacted by
the Council. No citations were issued prior to extensive city publication of information regarding
requirements and intent to enforce public health orders and, in the case of businesses, none were
cited prior to extensive outreach and education efforts.
Since the City began issuing citations, the number of administrative citation appeals has risen
significantly. Most of the appeals are heard by volunteer hearing officers and the outcomes of
appeals have been inconsistent among hearing officers. A review of appeals outcomes suggests
that some of the outcomes clearly resulted from simple variations in underlying facts from case
to case and some resulted from persuasive information presented by appellants at hearing
suggesting that no violation had been sufficiently established. However, following review of
hearing officer outcomes and a recent COVID violation appeal hearing before the City’s
Administrative Review Board, it became clear that the City’s enforcement approach and
regulatory structure could be amended and clarified to ensure direct municipal code enforcement
authority of relevant public health measures.
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Policy Context
The City has consistently tried to educate and support the community in complying with publi c
health measures to mitigate or stop the spread of COVID-19 in order to advance the health and
safety of the community and to mitigate against the adverse economic impacts of long -term
restrictions and closures that were inevitable if the pandemic could not be adequately managed
and contained.
Chapter 2.24 of the City’s municipal code provides the Disaster Council (City Council) is
empowered “…to review and approve the emergency operations plan and mutual-aid plans and
agreements and such ordinances and resolutions and rules and regulations as are necessary to
implement such plans and agreements.” The Emergency Services Director (City Manager) is
authorized to “Request the city council to proclaim the existence or threatened existence of a
“local emergency” if the city council is in session, or to issue such proclamation if the city
council is not in session”, and, thereafter, “To make and issue rules and regulations on matters
reasonably related to the protection of life and property as affected by such emergency;
provided, however, such rules and regulations must be confirmed at the earliest practicable time
by the city council.” In this instance the Emergency Services Director recommended that the
Council act directly, via Resolution 11106, to adopt measures to authorize direct administrative
enforcement authority for violations of public health orders in order to compel compliance with
public health orders designed to mitigate and prevent the spread of COVID-19.
Concerns Raised by Administrative Citation Appeal
At an administrative appeal hearing held on January 7, 2021 on a citation issued to Kennedy
Club Fitness (KCF) in SLO for violation of state indoor gym operations restrictions, the City’s
three-member Administrative Review Board heard arguments raised by the Appellant’s (KCF’s)
legal counsel, continued the hearing to January 20, 2021, and requested further briefing from the
parties on the following:
1. Were the Resolutions adopted by the City Council “rules or regulations” as
contemplated under Chapter 2.24? (Counsel for the City argued that the resolutions
were valid “rules and regulations” pursuant to emergency authority; and legal counsel
for the Appellant argued that such rules and regulations could be enacted by
ordinance but were not validly enacted by resolution).
2. If the Resolutions are valid emergency “rules or regulations” under Chapter 2.24, are
there any rule making requirements, similar to those for federal rulemaking under the
federal Administrative Procedures Act, applicable to emergency rules and regulations
issued pursuant to Chapter 2.24. (Counsel for the appellant did not take a position on
this question from the ARB and the City argued that no such requirements apply to
the Council’s adoption of emergency rules and regulations via resolution or
otherwise. It remains the City’s position that Council action via resolution is an
appropriate exercise of emergency regulatory authority, either under Chapter 2.24 or
its otherwise applicable general police powers for the protection of public health and
safety).
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3. Do the Governor’s Emergency Orders and those of the State Public Health Officer
constitute enforceable emergency measures? (Appellant’s counsel argued that they
do not. The City asserted that the ARB lacks jurisdiction to invalidate the orders and
any such objections or legal challenges are properly directed to the State; the City is
merely enforcing State orders intended to curb the spread of COVID-19, as currently
enacted).
Counsel for Appellant and the City will be providing further briefing to the ARB in advance of
the hearing on January 20, 2021 at which time the ARB will deliberate and provide direction to
ARB legal counsel regarding its findings and conclusions supporting its final decision.
Thereafter, legal counsel for the ARB will prepare a proposed decision, which will have to be
reviewed, revised, and finalized at a yet a third public meeting of the ARB in compliance with
the Brown Act. The supplemental briefing submitted to the ARB will be provided to the Council
prior to its January 19 meeting so that the Council has a more thorough understanding of the
arguments and authority the ARB will be considering.
However, the pending appeal raises issues with the enforceability of the City’s current
emergency regulatory structure that may not be resolved for some time, creating uncertainty
regarding the City’s enforcement authority that may not be resolved for several weeks, in the
height of a continuing COVID-19 surge. Because staff believes that collective compliance with
public health measures is the most efficient, effective, and expedient path to relief from the
current state restrictions, and clear enforcement authority supports collective compliance, staff is
recommending emergency amendments to clarify and enhance the City’s enforcement tools.
Recommendations for Clarification and Enhancement of Code Enforcement Authority
Staff is recommending amendments to two Chapters of the municipal code, Chapter 2.24,
governing emergency powers and authority, and Chapter 9.22 establishing certain pre-
determined safety enhancement zone timeframes and providing the authority for council to enact
additional safety enhancement zones, by resolution, as necessary to address “…unique
conditions and circumstances during a specific period of time that create the potential for a
significant threat to public health and safety and that the threat would be reduced by enhanced
penalties for violations of provisions of the San Luis Obispo Municipal Code.”
In effect, the recommended amendments more clearly state and expressly codify in the municipal
code the authority of the Council and the Emergency Services Director to directly enforce
violations of any orders, directives and measures enacted by the County, State and Federal
governments that are applicable to the City and issued pursuant to a declared emergency. Staff
believes that authority is implicit in the emergency powers and can be made explicit via the
expedited issuance of emergency rules and regulations during an emergency, but staff believes
the express inclusion of that authority in the ordinance itself is beneficial for expedience, clarity,
and ease of communication of enforcement authority, so that no ambiguity remains in
circumstances where time is often of the essence.
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Similarly, the amendments to the safety enhancement zone provisions expressly designate
violations of Chapter 2.24, or validly enacted County, State or Federal emergency or Public
Health emergency measures issued under that Chapter, as subject to $1000 fines im mediately
upon declaration of emergency and for the duration of a declared emergency. The latter
amendment essentially makes the safety enhancement zone related to declared emergencies self -
executing, rather than requiring a Council resolution to activate the enhanced penalties
associated with a safety enhancement zone. The provision is intended to recognize the volatile
and fluid circumstances that are normally in play during declared emergencies, as well as the
reality that violations of emergency and public health orders, by definition, present a unique,
elevated, and immediate risk of harm to public health, safety, and welfare.
Previous Council or Advisory Body Action
The City Council took prior action via Council Resolution 11099 and 11106 (2020 Series) to
declare a local emergency and to enact emergency measures for the administrative enforcement
of violations of any COVID-19 related public health and emergency orders against persons and
businesses that failed or refused to comply with public health orders (see specifically Section 6
of Reso. 11106).
Public Engagement
The January 19, 2021 City Council meeting was duly noticed, and emergency or urgency
ordinances do not require additional pre-adoption notice or publication pursuant to California
Government Code §§ 36933 and 36937.
CONCURRENCE
The Emergency Services Director concurs with the recommended actions in this report.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act does not apply to the recommended action in this
report, because the action does not constitute a “Project” under §21065 of the California Public
Resources Code because the clarifications in the ordinance do not create any direct or indirect
physical change in the environment. The ordinance simply clarifies sections for purposes of
existing enforcement and educational efforts for COVID-19 state and local health orders.
FISCAL IMPACT
The recommended amendments are not anticipated to have any fiscal impact, as the City’s
position remains that the current enforcement mechanisms are valid and, therefore, penalty
amounts assessed would be the same under either approach. The amendments are recommended
for clarity and ease of communication of enforcement authority and for elimination of ambiguity
of enforcement in emergency situations.
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ALTERNATIVES
1. Decline to adopt the emergency ordinance, await ARB decision and maintain current
enforcement approach if upheld. Not recommended as this approach risks continuing
ambiguity and delay in enforcement during the current COVID-19 surge.
2. Decline to adopt the emergency ordinance and direct staff to return with a non-emergency
ordinance. Not recommended because this approach leaves the City’s enforcement approach
in question for approximately two months pursuant to meeting schedules and normal
ordinance introduction and adoption timelines in the midst of a COVID-19 surge.
3. Direct changes to the emergency ordinance and adopt as amended.
Attachments:
a - Draft Emergency Ordinance
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O ______
ORDINANCE NO. _____ (2021 SERIES)
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SAN LUIS OBISPO, CALIFORNIA, AMENDING CHAPTER 2.24
(EMERGENCY SERVICES) AND CHAPTER 9.22 (SAFETY
ENHANCEMENT ZONES) OF THE MUNICIPAL CODE TO PROVIDE
EXPRESSLY FOR DIRECT ENFORCEMENT OF LOCAL, STATE AND
FEDERAL EMERGENCY RULES, REGULATIONS, ORDERS,
DIRECTIVES, OR OTHER ENACTMENTS RELATED TO THE
DECLARATION OF A LOCAL, STATE OR FEDERAL EMERGENCY
AFFECTING THE CITY OF SAN LUIS OBISPO AND FURTHER
CLARIFYING THE MEANING OF THE PHRASE “ANY LAWFUL RULE
OR REGULATION ISSUED PURSUANT TO THIS CHAPTER” AS USED
IN CHAPTER 2.24
WHEREAS, the City of San Luis Obispo is currently subject to local, state and federal
declarations of emergency related to the pandemic COVID-19; and
WHEREAS, the City and County have experienced increasing and significant rates of
infection, hospitalization, and death of residents within the City and County due to COVID-19;
and
WHEREAS, the City and County are currently subject to State Public Health and
Executive orders enacting limitations on certain activities and business operations that increase the
risk of transmission of COVID-19; and
WHEREAS, clear enforcement authority of public health and emergency measures
directly by the City is imperative to mitigating against the spread of COVID-19 and continuing
increases in illness, loss of life and extended economic damage associated with extended
limitations on and closures of businesses.
WHEREAS, there is an immediate and urgent need for clarification and amendment of the
City’s emergency and administrative enforcement provisions to ensure clear and consistent
enforcement of COVID-19 emergency and public health measures necessary to mitigate against
the risk of serious harm to citizens of the City as the result of COVID-19.
WHEREAS, failure to enact the provisions below as emergency measures could result in
the invalidation of City enforcement of urgent emergency rules and regulations intended to
mitigate and prevent the spread of COVID-19 within the City, resulting in the increase of activities
within the City that present a risk of continuing and increasing illness and death of residents in the
City due to COVID-19; and
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Ordinance No. _____ (2021 Series) Page 2
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WHEREAS, failure or refusal of businesses within the city to comply with COVID-19
public health and safety requirements, and uncertainty regarding the City’s ability to enforce such
measures, may unfairly disadvantage businesses acting in good faith to abide by applicable health
and safety measures and result in an unfair advantage to businesses who violate or disregard such
measures,
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. Findings. The Council hereby finds and declares the following:
a. During the existence of a declared local, state, or federal emergency, it is necessary for
the Emergency Services Director, the Disaster Council or the City Council to have clear
authority to act quickly and directly to enact such measures as are deemed necessary to
protect the health, safety and welfare of City operations and the residents of the City.
b. Express and unambiguous authority to enforce emergency and public health measures,
orders or directives issued by County, State and federal authorities will permit the City
to respond effectively to rapidly evolving emergency situations and take direct and
expedient action to implement and enforce emergency and public health and safety
measures necessary to protect the City organization and residents of the City.
c. It is the intent of the City Council that nothing herein is intended to or shall require the
City to undertake the direct enforcement of any emergency or public health measure,
order or directive issued by any County of San Luis Obispo, State of California or
Unites States jurisdictional authority authorized to issue or enact such measures, orders
or directives, but that the Emergency Services Director, the Disaster Council or the City
Council shall be empowered to enforce such measures, orders or directives, either
criminally or administratively, as a violation of the municipal code upon declaration,
order or resolution of the Emergency Services Director, the Disaster Council or the
City Council pursuant to Chapter 2.24 and their local emergency powers.
d. The addition of Section 2.24.060 A.6.f as set forth below is a declaration and
clarification of existing city law and, as such, the declaration of otherwise existing
emergency authority shall be applied in all instances, both prospectively and
retroactively.
e. The addition of Sections 2.24.100 D and E, as set forth in Section 3 below, is a
declaration and clarification of existing city law and, as such, the meaning of the phrase
“rule or regulation issued pursuant to this chapter” as set forth in section D and as used
elsewhere in this Chapter shall be applied in all instances, both prospectively and
retroactively.
f. The addition of Sections 2.24.100 F, as set forth in Section 3 below, is a declaration
and clarification of existing city law and, as such, the declaration and clarification of
existing emergency and legislative authority as set forth in Section F shall be applied
in all instances, both prospectively and retroactively.
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Ordinance No. _____ (2021 Series) Page 3
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SECTION 2. Section 2.24.060 (Officers – Powers and Duties), subsection A.6, shall be
amended to add subsection f to read as follows:
f. Nothing herein shall limit or otherwise preclude the Disaster Council or City Council
from directly enacting measures or directing enforcement of measures in furtherance
of this Chapter or as deemed necessary by the City Council to protect the public health,
safety, and welfare, pursuant to any declared local, state, or federal emergency by any
lawful means otherwise available to them, including but not limited to, declaration,
proclamation, motion, minute order, resolution, or ordinance.
SECTION 3. Section 2.24.100 (Violation – Penalty) of the San Luis Obispo Municipal
Code shall be amended to read as follows:
It shall be a misdemeanor, punishable by a fine not in excess of five hundred dollars or by
imprisonment for a period not to exceed six months, or both, for any person, during an
emergency, to engage in the actions set forth in subsections A-C below:
A. Willfully obstruct, hinder, or delay any member of the emergency organization in the
enforcement of any lawful rule or regulation issued pursuant to this chapter, or in the
performance of any duty imposed upon him or her by virtue of this chapter.
B. Do any act forbidden by any lawful rule or regulation issued pursuant to this chapter,
if such act is of such a nature as to give, or be likely to give, assistance to the enemy or
to imperil the lives or property of inhabitants of this city, or to prevent, hinder or delay
the defense or protection thereof. Any violation of any duly enacted public health
measure to mitigate or prevent the transmission of a communicable disease that
presents a risk of serious illness or death to City residents or of any emergency measure
enacted to prevent the exposure of residents to shall be presumed “to imperil the lives
or property of inhabitants of this city”; and failure to remedy such violation after
direction by any authorized city personnel charged with enforcing such measures shall
be presumed “to prevent, hinder or delay the defense or protection thereof” for purposes
of this Chapter.
C. Wear, carry or display, without authority, any means of identification specified by the
emergency agency of the state. (Prior code § 2430.7)
D. As used in this Chapter 2.24, “rule or regulation issued pursuant to this chapter” means,
in addition to any duly adopted ordinance of the City, any duly adopted resolution,
proclamation, declaration or order of the City Council, the Disaster Council or the
Emergency Services Director in furtherance of their respective emergency powers
pursuant to a declared local (City or County), state or federal emergency affecting the
City of San Luis Obispo.
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Ordinance No. _____ (2021 Series) Page 4
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E. As used in this Chapter 2.24, “rule or regulation issued pursuant to this chapter” shall
also include any emergency or public health measure, order or directive applicable in
the City and issued by any County of San Luis Obispo, State of California or Unites
States jurisdictional authority authorized to issue or enact such emergency or public
health measures, orders or directives, where the City Council, Disaster Council and/or
Emergency Services Director has authorized or directed the enforcement of such
measures pursuant to their powers under this chapter or their otherwise applicable
authority to take actions in furtherance of the health, safety and welfare of the city
organization and residents.
F. In addition to misdemeanor prosecution, nothing herein shall preclude enforcement of
violations of this Chapter by any means otherwise permitted by the San Luis Municipal
Code or other applicable law, including but not limited to administrative or civil
enforcement.
SECTION 4. Section 9.22.020 B (Safety Enhancement Zone Violations) of Chapter 9.22
(Safety enhancement zone penalties and violations) is amended to read as follows:
B. Safety Enhancement Zone Violations. Fines for violations committed in the safety
enhancement zone shall apply to the following provisions: Chapter 9.04 (possession of
open containers or consumption of alcoholic beverages in public places), Chapter 9.05
(hosting a gathering where underage persons consume alcohol), Chapter 9.12 (noise
control), Chapter 9.13 (unruly gatherings), Chapter 9.16 (dangerous and deadly
weapons), and Chapter 9.20 (urination in public). Violations of Chapter 2.24
(Emergency Services), or of any duly enacted rule or regulation pursuant to Chapter
2.24, or of any local (City or County of San Luis Obispo), State of California, or United
States emergency or public health emergency measure, order or directive issued
pursuant to any declared local, state, or federal emergency applicable within the City
shall be subject to enforcement throughout the geographic limits of the City under this
section immediately upon declaration of the emergency, and for the duration of the
declared emergency, and shall be subject to an immediate $1,000 penalty as an
immediate threat to public health or safety. A separate offense shall be deemed to have
been committed whenever a person repeats the act that constitutes the violation.
SECTION 5. All prior ordinances affecting the provisions herein are superseded to the
extent inconsistent herewith but shall otherwise remain in full force and effect.
SECTION 6. Urgent Need. Based on the foregoing recitals and findings, all of which are
deemed true and correct, this ordinance is urgently necessary as an emergency measure for the
immediate preservation of the public peace, health, or safety and, therefore, shall take effect
immediately upon adoption in accordance with the provisions of Article VI, Section 605 of the
City Charter and Section 36937(b) of the Government Code.
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Ordinance No. _____ (2021 Series) Page 5
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SECTION 7. Publication. Within 15 days after its passage, the City Clerk shall cause a
summary of this Ordinance to be published at least once, with the names of those City Council
Members voting for and against the Ordinance, in a newspaper of general circulation published
and circulated in the city.
SECTION 8. Severability. If any provision of this Ordinance is held invalid by a court
of competent jurisdiction, such provision shall be considered a separate, distinct, and independent
provision and such holding shall not affect the validity and enforceability of the other provisions
of this Ordinance.
INTRODUCED and ADOPTED on the ____ day of ___________, 2021, by the Council
of the City of San Luis Obispo, on the following vote:
AYES:
NOES:
ABSENT:
____________________________________
Mayor Heidi Harmon
ATTEST:
____________________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
_____________________________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, on ____________________________.
______________________________
Teresa Purrington
City Clerk
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