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04-25-00 Charter Commission Regular MeetingCITY OF HOPKINS CHARTER COMMISSION AGENDA April 25, 2000 7:00 p.m. ROOM 227 1. Call to Order 2. Roll Call 3. Election of Chair and Vice -Chair 4. Approval of the Minutes of the Previous Meeting 5. Reports 6. Consideration of Communications 7. Unfinished Business 8. New Business • Administrative 'Citations ("City Court") • City Council Vacancies 9. Adjournment ATTACHMENTS: • Minutes of the June 8, 1999 Charter Commission meeting. • April 10 Memorandum from Jim Genellie regarding Administrative Citations • March 24 Memorandum from Wynn Curtiss • February 18 Memorandum from Wynn Curtiss • April 10 Memorandum from Jim Genellie regarding Council Vacancies Minutes of the Hopkins Charter Commission June 8, 1999 The Hopkins Charter Commission met on June 8. Present were Commission members: Robert Anderson, Richard Brubacher, Marjorie Hance, Henry Pokorny, James Shirley, and Harry Smith. Finance Director Lori Yager and Assistant City Manager Jim Genellie were also present. The meeting was brought to order at 7:25 p.m. Approval of the Minutes of the Previous Meeting. The Commission approved the minutes of April 27, 1999. Reports. Lori Yager explained the purpose of amending Sections 7.14 and 7.15. These sections concern City debt. Ms. Yager said that the current language was confusing and proposed that the Charter language be brought into conformance with state law. The Commission had questions regarding issuing debt for longer than 20 years. Ms. Yager said that the City preferred shorter -term debt because the interest cost was less. She said that longer - term debt would only be used to lower assessments for such projects as the housing improvement areas or to fund expensive City projects such as a new water treatment facility. Commissioner Hance moved and Commissioner Shirley seconded the motion to amend Section 7.14, subdivision 4. A poll of the vote was as follows: Commissioner Anderson, Aye; Commissioner Brubacher, Aye; Commissioner Hance, Aye; Commissioner Pokorny, Aye; Commissioner Shirley, Aye; and Commissioner Smith, Aye. The motion carried. Commissioner Shirley moved and Conunissioner Hance seconded -the motion to amend Section 7.15. A poll of the vote was as follows: Commissioner Anderson, Aye; Commissioner Brubacher, Nay; Commissioner Hance, Aye; Commissioner Pokorny, Aye; Commissioner Shirley, Aye; and Commissioner Smith, Aye. The motion carried. Adjournment. Commissioner Shirley moved and Commissioner Anderson seconded the motion to adjourn. The meeting adjourned by unanimous consent. - 1 - Memorandum Department of Administration To: Charter Commission From: Jim Genellie Date: April 10, 2000 Subject: Administrative Citations In the last two 'years 'the Inspection department has dealt with over 600 nuisances. Over 60% are unlicensed or junk vehicles. 1998 1999 385`total written complaints 254 total written complaints -229 unlic. or junk vehicles -177 unlic. or junk 156 general nuisances 77 general nuisances While over 90% of the nuisances are cleaned up after the owners are notified, there are a few that take a long time to address. Failure of a property owner to remove junk cars or clean up debris means that the complaint will eventually end up in District Court. This process is slow and expensive. The City spent at least $1,000 on legal fees in 1999. When property owners refuse to voluntarily abate a nuisance the City of Hopkins uses either a criminal citation procedure or a nuisance abatement process to compel property owners to resolve nuisances. Either of these methods tends to be cumbersome and expensive. The City of Minnetonka has successfully used a system they call "City Court". Minnetonka describes "City Court" as "an alternative means of enforcing city ordinances. City Court citations are issued instead of District Court citations. The alleged violators may either pay the fine established by the City Council or may request a hearing. Hearings are held before neutral hearing officers, who are lawyers that neither live nor work in Minnetonka. In limited situations, a dissatisfied offender may appeal a hearing officer's decision to the City Council." Minnetonka has used this system since 1995. It has not only helped expedite the nuisance abatement process but has generated over $6,000 to help pay the cost of nuisance abatement. Other cities that are currently using some form of administrative penalties include: Mounds View, Roseville, White Bear Lake, Spring Lake Park, and Bloomington. In order to implement a "City Court" procedure, the Charter has to be amended to grant the Council the ability to impose civil penalties and to assess these penalties should they not be paid. The following are the proposed amendments: Fines and Penalties. The Council may establish by ordinance that a violation of a city ordinance is either a misdemeanor or a petty misdemeanor, punishable in accordance with state law. In addition, the Council may establish by ordinance a procedure for imposing a civil penalty not to exceed $2000 for each violation of a city ordinance. This procedure must provide an opportunity for the accused to be heard by a neutral party, which may be the City Council. Assessment of Fees and Civil Penalties. The Council may provide by ordinance that fees and civil penalties imposed by the city, including late payment penalties, may be assessed against property which was the subject matter, or related to the subject matter, of the fees and penalties, or property which was the location of an activity, proposed use, delivery of city service, or other circumstances which resulted in the fees and penalties. The ordinance shall provide that the city must first attempt to obtain voluntary payment of the fees and penalties. The ordinance shall further require the city to give notice and an opportunity to be heard to the property owner listed on the official tax records before the assessments are imposed. The assessments shall be collected like special assessments. 2 MILLER, STEINER & CURTISS, P.A. PROFESSIONAL ASSOCIATION ATTORNEYS AT LAW JERRE A. MILLER 400 NORWEST BANK BUILDING JEREMY S. STEINER* 1011 FIRST STREET SOUTH WYNN CURTISS HOPKINS, MINNESOTA 55343 * Real Property, Law Specialist, certified " 952-938-7635 by the Minnesota State Bar Association FAX 952-938-7670 MEMORANDUM DATE: March 24, 2000 TO: James Genellie FROM: Wynn Curtiss RE: City Court Charter Amendments This Memo is a followup to my February 18, 2000, Memo regarding the establishment of a "City Court" in Hopkins to enforce citations issued for violation of certain Hopkins City Ordinances (the "Ordinances"). The purpose of this Memo is to suggest language by which the Hopkins City Charter (the "Charter") could be amended to facilitate the City Court program. I have reviewed the Charter and the Ordinances and would propose the following two Charter amendments: 1. Chapter 12 ("Miscellaneous and Transitory Provisions —Ordinances") would be amended as follows: Section 12.14, Subd. 2, would be renumbered to Section 12.14, Subd. 4. Two new subdivisions would be created using the following language: Subd. 2. Fines and Penalties. The Council may establish by ordinance that a violation of a city ordinance is either a misdemeanor or a petty misdemeanor, punishable in accordance with state law. In addition, the Council may establish by ordinance a procedure for imposing a civil penalty not to exceed $2000 for each violation of a city ordinance. This procedure must provide Ma opportunity for the accused to be heard by a neutral party, which may be the City Council. Subd. 3. Assessment of Fees and Civil Penalties. The Council may provide by ordinance that fees and civil penalties imposed by the city, including late payment penalties, may be assessed against property which was the subject matter, or related to the subject matter, of the fees and penalties, or property which was the location of an activity, proposed use, delivery of city service, or other circumstances which resulted in the fees and penalties. The ordinance shall provide that the city must first attempt to obtain voluntary payment of the fees and penalties. The ordinance shall further require the city to give notice and an opportunity to be heard to the property owner listed on the official tax records before the assessments are imposed. The assessments shall be collected like special assessments. c Afi l e\hop c i v\memo2. gen -a - These proposed amendments follow exactly the language contained in the amendments to the Minnetonka Charter, which were enacted when Minnetonka created a City Court. The language of the Minnetonka Charter amendments is adequate for our purposes, and I do not believe there is anything special about the circumstances in Hopkins that would require the use of different language. I have reviewed Minnetonka's Charter, which is organized slightly differently than Hopkins. However, I do not believe it is necessary to change the organization of the Hopkins Charter in anyway to accommodate these proposed amendments. Both amendments, as proposed above, can and do fit within the existing Charter structure. Currently, the Ordinances establish civil penalties for some Ordinance violations and provide procedures for the enforcement of those violations. The language of the proposed Charter amendments in no way impairs the operation of those existing provisions. Finally, although I believe the Minnetonka Charter provisions are adequate for our purposes, I do not believe the Minnetonka ordinance, as written, is sufficient. Therefore, if the Charter amendments are adopted, it will be necessary to review any proposed ordinance to tailor that language to our needs and concerns. If you have any questions, please contact me. WC WC/drs, c Afi ie\hopciv\memo2.gen CaCity of f ®pkins 1010 First Street South ® 91opkins, 9WN55343-7573 ® Thone: 612-935-8474 o Tad 612-935-1834 MEMORANDUM DATE: February 18, 2000 TO: Jim Genellie FROM: Wynn Curtiss RE: City Court This Memo is in response to your. January 19, 2000, Memo inquiring about the procedures for establishing a "City Court" in Hopkins to enforce citations issued for violations of certain Hopkins City Ordinances (the "Ordinances"). Specifically, your questions were whether Hopkins has the authority to establish such a court, whether it would be necessary to amend Hopkins' Charter to establish such a court and what steps Hopkins would need to follow to create such a program. In addition to those questions, I have reviewed the City Court information from Minnetonka and will address several questions I have regarding that program as well. 1. CHARTER AUTHORITY. Although the Hopkins City Charter ("Charter") provides that Hopkins has `all powers which shall be necessary to preserve, promote, advance and protect the health, safety and general welfare of persons, and to preserve and protect property" (Section 1.02), and the Hopkins City Council (the "Cotmcil") "has authority to enact ordinances to promote health, safety, morals and general welfare" (Section 2.14) and Minn. Stat. Section 429.01 et. seq. authorizes cities to impose special assessments for certain costs, neither the Charter nor the Statute specifically authorizes assessment of civil fines and penalties imposed for ordinance violations of the type anticipated to be included in the City Court program. Therefore, it would be advisable to amend the City Charter to provide for the assessment of any fees and civil penalties imposed by the City for matters falling within the jurisdiction of the City Court. A second Charter amendment probably is needed to empower Hopkins to impose the fees and civil penalties to be dealt with by a City Court. Currently, the Ordinances provide for a civil penalty for violation of the tobacco sale ordinance. However, there are no similar civil penalties contained in the Ordinance for other violations, such as the building code, animal control or other similar types of regulations. One option would be to amend each regulatory ordinance to provide a civil penalty'for violation of that section. Alternatively, the Charter itself could be amended to provide for both criminal and civil penalties for violation of the Ordinances. The Charter amendment could provide a broad scope for the civil penalty, with c:\file\hopciv\Unemo.genetIi the specifics for each type of violation to be provided by the Ordinance authorizing and implementing the City Court program. My suggestion would be to create a Charter amendment that would apply both to the penalties currently provided for in the City Code as well as any new penalties subject to the City Court program. To use the remedies provided by the Charter amendments, it would be necessary to enact an Ordinance establishing the administrative citation itself as well as the "City Court" to process the administrative citations. In addition, it would be necessary to establish which Ordinances would be subj ect to the administrative citation process, and it would be necessary to establish the procedures for conducting the City Court hearings. Although Hopkins is free to make the program as narrow or broad as it chooses, two procedural protections must be included. First, the administrative hearing process must provide a sufficient amount of due process (notice and opportunity to be heard) to withstand a judicial challenge not only to the hearing examiner's decision, but to the hearing process itself. Second, because the penalties imposed will be subject to collection through special assessment, the City is required to follow the statutory restrictions for imposing a special assessment and providing for a challenge to that special assessment. It is not necessary to reinvent the wheel. Minnetonka's Ordinance is comprehensive and addresses both of the primary procedural concerns. As to the scope of the Ordinance, that need not be followed if Hopkins wishes to make its City Court program narrower or broader in scope. Enactment of the City Court program would simply require creation of an Ordinance similar to Minnetonka's which would be proposed and enacted just like any other Ordinance. 3. IMPLEMENTATION QUESTIONS. The following are questions regarding the specifics of the administrative citation and City Court process. These questions are based on my review of Minnetonka's Ordinance, but should be considered when determining the language for any possible Hopkins Ordinance. a. Ordinance Sections Subiect to Administrative Citations. A threshold decision needs to be made to determine which Ordinance sections will be subj ect to the administrative citation. Minnetonka makes its entire City Code subj ect to the administrative citation section. Rather than attempt to designate which Ordinance provisions will be subject to an administrative citation, it may provide more flexibility to make all Ordinance sections subject to an administrative citation but, as a matter of policy, to use the City Court to enforce those Ordinance sections which involve the most frequent or substantial violations. It also may be beneficial to limit the number of Ordinance sections subject to an administrative citation since a fee schedule must be established for each provision to which the administrative citation process applies. cAfile\hopciv\memo. gene IIi - 2 - b. Administrative Hearing Process. Several questions arose in reviewing Minnetonka's administrative hearing process. 1. What city employee is responsible for receiving a request for an administrative hearing? 2. Must the request be in writing? 3. Does the seven day period to request a hearing include the date the citation is issued? 4. If the seventh day falls on a weekend or holiday, must the request be made before that day or by the end of the first business day after the seventh day? 5. Does the city employee receiving requests for a hearing have the right to deny such a request if the request is not timely? 6. Does the identity of a hearing officer get published in some fashion before the hearing? If so, how long before the hearing and in what form is the publication? 7. If an "accused" requests that a hearing officer be removed, must that request be in writing? g. Can the City request the removal of a hearing officer? If yes, on what grounds? 9. Can a person be removed from the hearing officer list by the City and, if so, on what grounds? 10. If a person files an objection to a subpoena, do they have to provide a copy of the objection to all parties? 11. If the subpoena is canceled or modified, does the hearing officer have to provide a written reason for his decision? 12. Does the City serve the notice of hearing? 13. Why not require the notice of hearing to be served 14 days before the hearing and provide that service can be by mail and is complete upon mailing? c:\fiIe\hopciv\memo.gene1Ii - 3 - 14. Who retains custody of the hearing officer's tape recording of the hearing as well as any exhibits offered? 15. Who provides the tape recording equipment? 16. Can a person be represented by an attorney at the hearing? How long does a hearing officer have to decide following the conclusion of a hearing? Can a hearing be continued to provide additional time? How is the hearing officer's decision communicated to the parties? How long after an appeal does the Council have to conduct a hearing? Appeals. In Minnetonka Section 1300.07(1), the Ordinance sets out the type of violations which can be appealed to the City Council. The language refers to things such as "an alleged failure to obtain a permit, license, or other approval from the City Council as required by an Ordinance." 1. What types of permits, licenses or other approvals does the Council itself grant as opposed to staff, and are all of those appropriate for appeal to the Council? 2. As to the Council hearing, why not provide for notice by mail at least 14 days in advance, with notice complete upon mailing? 3. Will a Council hearing allow for new or additional witnesses or evidence not presented at the administrative hearing? 4. How long does the Council have to decide after the conclusion of the hearing? 5. Does the late payment penalty begin from the deadline for payment imposed by the administrative hearing officer and/or Council or does it begin from the time the citation was initially issued? d. Additional Considerations. Currently, Hopkins has a tobacco Ordinance which provides for an administrative penalty and a procedure for appealing that penalty. It will be necessary to either cAfi1e\hopciv\menio.gene11i - 4 - conform the existing Ordinance provisions to the new City Court Ordinance or to exempt -those provisions from the City Court Ordinance. In addition, although it is not provided for in the Ordinances, Hopkins currently takes action against liquor license holders for violations of the liquor license Ordinances and statutes and provides an appeal to the Council for those civil penalties. Again, the City Court Ordinance would need to be conformed to the existing provisions for existing practices regarding alcohol or alcohol could be exempted from the City Court jurisdiction. Consideration should be given to coordinating the City Court program with the current practice in which certain license violations,such as alcohol and tobacco, are subject to hearing before the Council and possible Council sanctions, including financial penalties. If the suspension, revocation or cancellation of a license is a possible sanction, procedures currently provided for notice and a hearing before the Council should be coordinated with any jurisdiction and procedural safeguards provided through the City Court program. Finally, it should be made clear that the assessments imposed pursuant to Hopkins City Code Section 615 for nuisance violations would not be subject to City Court jurisdiction. CONCLUSION It would be necessary to amend the Hopkins City Charter to authorize the City to impose civil penalties for violation of its Ordinances and to provide for collection of those penalties by special assessment. The authority created by those amendments can be broadly established, with the details created by an enabling Ordinance. Such an Ordinance would establish the administrative citation, set forth the City Code sections subject to an administrative citation, establish a "City Court" administrative hearing process to deal with administrative citations and set forth the procedures by which the administrative hearing would be conducted and the civil penalties enforced. If you have any questions regarding the contents of this Memorandum or wish to discuss it further, please contact me. WC WC/drs c:\fiWhopciv\memo.genelIi - 5 - Department of Administration Memorandum To: Charter Commission From: Jim Genellie Date: April 10, 2000 Subject: Filling Council Vacancies The current City Charter has the following language concerning vacancies on the City Council and how a vacancy shall be filled: Section 2.05. VACANCIES. Subdivision 1. A vacancy occurs if an elected official dies, is convicted of a felony, is in violation of the official oath, resigns, ceases to maintain a legal residence in the City, fails to qualify for office, or fails, without good cause, to perform any of the duties of her or his office for a period of three months. In each such case the Council shall by resolution declare such`a vacancy to exist and shall forthwith appoint an eligible person to fill the same. The City Attorney has interpreted this language to mean that whenever a vacancy occurs during a Council Member's term, the City Council will appoint a replacement for the remainder of the term. For example, if a new Council Member was sworn in at the first meeting in January and then died the following day, the City Council would appoint a replacement for the remainder of the four year term. Minnesota state law handles this situation differently. If a vacancy occurs with more than two years remaining in a term, the Council appoints someone to serve until a special election is held which can be at the next scheduled Council election. At that election a Council Member is elected to fill out the remaining two years of the term. If a vacancy occurs with less than two years remaining in a term, the Council appoints someone to serve the remainder of the term. It is perfectly legal to continue with the current Charter language. However, the Commission may want to consider bringing the Charter into conformance with state law. Minriesota Statutes 1999 412.02 City elections; officers, terms, vacancies. Subd. 2. Term. Terms of elective officers shall commence on the first Monday in January following the election at which the officer is chosen. All officers chosen and qualified as such shall hold office until their successors qualify. kr--n�..... i- 1- 1 Department of Administration Subd. 2a. Vacancy. Except as otherwise provided in subdivision 2b, a vacancy in an office shall be filled by council appointment until an election is held as provided in this subdivision. In case of a tie vote in the council, the mayor shall make the appointment. If the vacancy occurs before the first day to file affidavits of candidacy for the next regular city election and more than two years remain in the unexpired term, a special election shall be held at or before the next regular city election and the appointed person shall serve until the qualification of a successor elected at a special election to fill the unexpired portion of the term. If the vacancy occurs on or after the first day to file affidavits of candidacy for the regular city election or when less than two years remain in the unexpired term, there need not be a special election to fill the vacancy and the appointed person shall serve until the qualification of a successor. The council must specify by ordinance under what circumstances it will hold a special election to fill a vacancy other than a special election held at the same time as the regular city election. Subd. 2b. Inability or refusal to serve. A vacancy in the office of mayor or council member may be declared by the council when the officeholder is unable to serve in the office or attend council meetings for a 90-day period because of illness, or because of absence from or refusal to attend council meetings for a 90-day period. If any of the preceding conditions occurs, the council may, after it has by resolution declared a vacancy to exist, fill the vacancy at a regular or special council meeting for the remainder of the unexpired term, or until the person is again able to resume duties and attend council meetings, whichever is earlier. When the person is again able to resume duties and attend council meetings, the council shall by resolution remove the temporary officeholder and restore the original officeholder. \Council vacancies.doc 2