Six months after a firestorm of protest induced the Upland City Council to shelve a proposal to amend the city code to give the city manager and the city’s development services director the authority to impose on residents and businesses administrative fines of up to $31,000 per month, Mayor Ray Musser has revived the effort to pass the controversial ordinance.
A crucial issue in the failure of the ordinance to achieve passage last summer was the widespread perception that community development director Jeff Zwack had made misrepresentations about the ordinance’s intent. During his presentation of the ordinance on July 30, Zwack publicly stated the ordinance was not intended as a revenue generating ploy. That evening, the four members of the council present voted unanimously to give the ordinance what is called a first reading, i.e. tentative approval. A second reading of the ordinance was scheduled for two weeks later to give the law final ratification.
The ordinance itself and its language were not made available to the public prior to nor during the July 30 meeting. Only after direct appeals by the public and the press did City Hall relent and release the text of the ordinance six days before the council was scheduled to approve it on August 13.
The ordinance as drafted substantially intensifies City Hall’s bureaucratic power and increases the amounts of the fines that can be levied. Moreover, the ordinance also sets up a policy similar to that utilized in other municipalities that empowers the city to not only issue citations but adjudicate them and set the penalty, precluding, at least in the first three phases of the administrative process, the individual who is cited from having the matter heard and the fine set by an independent arbiter, such as the municipal or superior court. Only upon being adjudged guilty and assessed with the fine, can a resident or business entity that is cited appeal the matter to an actual court, and then only upon posting the amount of the fine as a bond.
The ordinance was drafted by interim city attorney Jimmy Gutierrez and development services director Jeff Zwack. Zwack said the ordinance was based upon similar administrative citation provisions contained in nearby cities’ municipal codes.
On August 13, the council chambers were filled with residents and local business owners who came to weigh in against the ordinance. Also present were Musser and city manager Steve Dunn, both of whom were not present at the July 30 meeting. Several residents and business owners questioned Zwack’s veracity, openly suggesting that the ordinance was intended to generate revenue for the cash-strapped municipality. Zwack and the council also found themselves under attack for withholding the text of the ordinance from the public. Pointedly, no members of the council were willing to stand behind Zwack’s statement that the ordinance, which authorized fines of between $250 per day and $1,000 per day entirely at Zwack’s discretion, was not intended to generate revenue.  At that point, Dunn was wrestling with a $2 million annual budget deficit. The council did not give the ordinance second reading, instead calling for the item to be reconsidered at a later date.
In January, at Musser’s urging, the city council advisory committee took up consideration of the administrative citation ordinance. According to that committee’s chairman, Tom Mitchell, Musser requested that the committee consider the matter and return with a recommendation that the ordinance be approved so that the council can deflect any criticism leveled at the ordinance by the public.
Zwack remains the leading advocate for infusing in city staff the enhanced citation and fining authority. He said that the “intent is to streamline the process and facilitate a resolution and accomplish in 60 days what in our current process could take six months.”
The ordinance establishes fines of between $250 and $1,000, depending on the nature of the citation. Zwack asserted that the city’s current code enforcement process “is not efficient. Our intent is to incentivize compliance with the threat of fines. The ordinance gives us the ability to use a higher fine to get compliance. That is a decision of departmental policy made by the city manager and development services director [i.e., Zwack].”
Zwack was dismissive of the objections raised by those residents and business representatives to the abridgment of what those critics characterized as the due process rights of those cited. Under the terms of the ordinance, a notification of a code violation is to be provided to the allegedly offending resident, property owner or business operator, who will be given a specified period of time to bring the property or business into compliance. If the property is brought into compliance to the satisfaction of the development services director, no fine will be assessed. If compliance is not achieved by the specified date, a second notification is then issued, at which point fines, to be set by the development services director, are to be assessed. Those cited will not be afforded the opportunity to dispute the citation, which is to be issued, processed, determined as applicable and adjudicated upon the “administrative authority” conferred upon the development services director by the ordinance.
Those objecting to the proposed ordinance have said that this is tantamount to the city’s code enforcement division serving as the arresting officer, prosecutor, jury and judge, all without providing the accused with a trial.
Zwack denied the ordinance would grant the city license to conduct a “kangaroo court.” He said the city simply could not afford to observe the legal niceties afforded citizens under the U.S. and California constitutions, asserting taking residents to court “wastes a lot of staff time. No fine is attached until after the second letter [notifying the alleged offender of the ongoing violation]. This doesn’t make us judge and jury,” Zwack said. “We do not presently have adequate tools. If we issue a citation and there is no response after a second citation we have go to the city prosecutor and go into state or county court. That is a 60-day delay just to start the process and it can take up to a year or more before there is any action taken. A hearing can take up to half a day and that becomes very expensive. The administrative citations will save time and general fund money.”
Zwack said that a panel to hear such cases would be appointed by the city manager and him. He said the panel would likely consist of “community residents knowledgeable in building codes and other relevant issues. The outcome is appealable to a county judge.”
Residents and business owners objecting to the proposed ordinance seized upon Zwack’s acknowledgment that “We have a 95 percent compliance rate with our code enforcement citations. What this is aimed at is the five percent who do not comply.” They said the city’s assumption of draconian measures applicable against all of the city’s residents was far too heavy handed.
Jason Frater, a city resident, said he was “offended” by the city’s effort “to criminalize every aspect of our behavior. This country is built on individual freedom, not on mandates.”
Zwack said he had the backing of Dunn, the city manager, in seeking to provide his office with the enhanced code enforcement authority. Though he continued to assert the intent of the ordinance was not to raise revenue, Zwack said the municipal code change, if made, would save the city money by its streamlining of the process and the ability to unilaterally impose the fines.
Dunn previously told the Sentinel, “The thing driving this was the expense of pursuing some code enforcement cases. [The] ordinance creates a mechanism to ensure less costly compliance. Could it be abused? Without a doubt, it could. It isn’t our intent to go after small cases with this. We consider it as something that would be useful against people who give us the finger.  If we had this ordinance before, we would not have needed to go to court and spend hundreds of thousands of dollars. We could have done it administratively. But it can be abused. It needs checks and balances put in there. Right now, it lacks checks and balances.”
Despite Dunn’s statement, the resurrected ordinance now under consideration is not substantially different from the version he said “lacks checks and balances.”
Zwack insisted the ordinance as drafted is based on similar processes used in other cities. That the ordinance’s provisions are being applied elsewhere, however, does not alleviate potential costly legal issues, such as those pertaining to selective prosecution or constitutional rights violations. Zwack has not addressed recent court rulings that have held that municipalities’ use of administrative hearing officers employed by those cities creates a conflict in which the fundamental fairness of the hearing process is compromised and the right to due process and other constitutional protections are violated. In one such case out of Hesperia, that city’s administrative imposition of a total of $129,000 in fines against Esther Duran and  her daughter, Janet, for maintaining three too many animals on their agricultural/residential zoned property  was reversed by U.S. District Court Judge John E. McDermott last year. McDermott ruled that the city’s action against the Durans in seizing their animals and imposing the punitive fines was improper, that their animals would have to be returned to them, and the fines, which were recorded against their property as tax liens would have to be expunged. The city, to avoid an even costlier judgment, paid the Durans $200,000 plus attorney fees. The Durans were represented by Upland-based attorney Louis Fazzi.
A calculation many cities make in using the administrative citation process against their citizens is that most do not have the financial wherewithal to fight City Hall. On those occasions where those citizens do have the means or in such cases where a lawyer like Fazzi is willing to represent them pro bono, the outcome can prove quite costly for those cities.
Upland resident and landowner Bill Huff questioned whether the city was being pennywise and pound foolish in seeking to institute the ordinance. “This could lead to lawsuits,” he said.
Ruth Lopez, a one-time city resident who has since moved to Needles where she was on the city council there, returns to Upland on a weekly basis to assist with the caretaking of a family member who yet resides in the City of Gracious Living. In August, she told the council that if the city went forward with administrative citations, “Eventually you will run into someone who will challenge you or who has a lawyer working for him or her pro bono and you will be dragged into federal court. You will lose and it will be expensive.”
Another facet of the ordinance its opponents cite is what they say is the potentially counterproductive recording of the fines assessed as part of the administrative process as liens against the property. The use of this strategy, some have said, will lead to a circumstance where the original owner who is cited may simply walk away from a problem property, which will then remain as a problem property because those who might otherwise choose to pick it up as a consequence of the foreclosure process might not do so because of the expense of satisfying the liens, which could total in the tens of thousands or even hundreds of thousands of dollars.   “With fines of $1,000 a day and $31,000 a month, that money is going to mount pretty rapidly,” Huff said. “After the property owner walks away, no one is going to want to buy that property, pay to bring it up to code and then pay $50,000 or $100,000 or maybe more in liens against the property. The city is shooting itself in the foot on this one.”
At this point, it is unclear whether the administrative citation ordinance has the requisite support to pass.
Musser had hoped it would garner unanimous support on the city council advisory commission, thus blunting any resistance to the ordinance and giving the city council political cover to approve it. But unanimous support is not in the cards and it might not even get a majority recommendation from the advisory  panel. While the committee chairman, Mitchell, who was appointed by Musser, is favorably inclined toward the ordinance and another member, Anthony Ghosn, appears to be entertaining the notion of supporting it, one of the committee members, Mark Creighton, has indicated he is dead set against it, characterizing it as  an overreaching abuse of municipal authority. Another committee member, Hal Tanner, said he would not support it unless it was altered to provide those cited with the opportunity to contest the accusations against them.
Musser appears to be its strongest backer. Based upon previous statements, councilman Brendan Brandt would appear to be a second vote in the ordinance’s favor. On July 30, both Gino Filippi and Debbie Stone joined with Brandt and then-councilman Ken Willis in approving it on first reading. At that time, however, the text of the ordinance had been withheld from the public and there was no indication of the groundswell of public sentiment against it. Since July 30, no member of the public has come forth to express support for the proposed change in Upland’s municipal code to allow the director of development services absolute autonomy in imposing fines of up to $1,000 per day on Upland residents. Indeed, there has been a growing tide of opposition to the measure. Willis is no longer on the council, having been supplanted by Glenn Bozar, a self-styled political watchdog and taxpayer advocate who for years prior to his election had inveighed against City Hall’s proclivity for tapping the city’s residents for ever more money. Assuming Musser can count upon Brandt’s support, he will yet need Stone, Filippi or Bozar to join him in imposing on all of the city’s residents a code enforcement regime that could prove decidedly unpopular.
Musser this week told the Sentinel that he indeed supports empowering the city’s development services director and the code enforcement division with administrative citation authority, though not in the precise form provided for in the ordinance as drafted by Zwack and Gutierrez last summer.
“I have not had a chance to read up on what he [Zwack] is proposing now or seen really whether staff has made changes to the ordinance we considered last year,” Musser said. “I am in favor of good code enforcement, but it has to be in a manner that is, how should I say, user friendly. I don’t think we should start off with fines that are a thousand dollars a day. I think the fines should be more graduated than that and it should take longer to get to that amount. I think we should start with continual reminders and smaller fines and penalties, which we can increase until they are compliant,” he said.