HomeMy WebLinkAboutAdopt Resolution No. 2018-47 approving the Certification of fl.
City of Huntington Beach
File #: 18-167 MEETING DATE: 7/16/2018
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Gilbert Garcia, Chief Financial Officer
Subject:
Adopt Resolution No. 2018-47 approving the Certification of Special Assessments for
collecting Delinquent Civil Fines for Municipal Code Violations
Statement of Issue:
Each year the City records notices of special assessment against private property for the value of
unpaid civil fines plus interest and penalties pursuant to Ordinance No.3397 adopted by the City
Council on June 15, 1998. City Council approval is required in order to meet the filing deadline with
the County of Orange.
Financial Impact:
The total amount of assessments included in this action equals $650,152.32. Fiscal Year 2018/19
property tax roll will be deposited into the General Fund when collected.
Recommended Action:
Adopt Resolution No. 2018-47, "A Resolution of the City Council of the City of Huntington Beach
Certifying Special Assessments for Collecting Delinquent Civil Fines for Municipal Code Violations."
Alternative Action(s):
Do not approve the recommended action and direct staff accordingly.
Analysis:
In June 1998, the City Council adopted Huntington Beach Municipal Code Chapter 1.18 authorizing
the issuance of administrative citations that impose civil fines for violation of the Municipal Code of
the City of Huntington Beach. Pursuant to Section 1.18.150 of the Municipal Code, the City may
certify certain fines, interest, and penalties as delinquent and have them collected as special
assessments against the real property involved. These assessments are limited to property related
violations, wherein the fines exceed $250.00 cumulatively, and are 60 days past due. In addition, all
hearing or appeal rights of the cited persons have been exhausted.
For each of the properties being considered for placement of a lien, staff verified that the owners
received proper notification of the violations, citations, notification of the outstanding fines and fees
City of Huntington Beach Page 1 of 2 Printed on 7/11/2018
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File #: 18-167 MEETING DATE: 7/16/2018
due, and of the potential for placement of a lien on their property for non-payment of the outstanding
fines and fees. Property owners also received invoices for the outstanding fines and fees and were
provided the opportunity to make payment arrangements.
Civil fines identified on Exhibit A to this Resolution have not been paid. The fine amounts will be
levied against the properties, non-payment of which will incur penalties and will appear as an
exception to the title on a title report at the time of transfer of the property. In addition, the fines will
be reported to the County Tax Assessor for inclusion on the property tax bills.
All assessments identified on "Exhibit A" represent fines, penalties, and interest related to code
enforcement action against medical marijuana establishments operating illegally within the City.
Environmental Status:
Not Applicable.
Strategic Plan Goal:
Strengthen economic and financial sustainability
Attachment(s):
1. Resolution No. 2018-47, "A Resolution of the City Council of the City of Huntington Beach
Certifying Special Assessments For Collecting Delinquent Civil Fines For Nuisance Violations Of
The Municipal Code," including "Exhibit A"
City of Huntington Beach Page 2 of 2 Printed on 7/11/2018
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RESOLUTION NO. 2018-47
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH CERTIFYING SPECIAL
ASSESSMENTS FOR COLLECTING DELINQUENT CIVIL FINES
FOR NUISANCE VIOLATIONS OF THE MUNICIPAL CODE
WHEREAS, the City Council has adopted Huntington Beach Municipal Code
1.18, which provides that any violation of its Municipal Code shall constitute a nuisance;
and
Authorizes the issuance of administrative citations that impose civil fines upon
persons who commit property-related nuisance violations of the Municipal Code; and
Certain administrative citations have been issued for such property—related
nuisance violations and civil fines imposed thereby have not been paid by the responsible
persons who committed the Municipal Code violations; and
Section 1.18.150 of the Municipal Code provides that any unpaid delinquent civil
fines, interest and penalties may be recovered as such a nuisance abatement lien or
special assessment against the property of the responsible person who is the owner of the
property where the violations occurred; and
To compel code compliance, the City may seek to abate the nuisance and collect
the costs incurred by means of a nuisance abatement lien and/or special assessment
against the property where a property-related violation occurred as part of the nuisance
abatement procedures authorized by Government Code Section 38773.5; and
The City Council wishes to certify certain property-related nuisance abatement
fines, interest and penalties as delinquent and have them collect as special assessments
against the real property involved.
NOW, THEREFORE, the City Council of the City of Huntington Beach does
hereby resolve as follows:
1. The special assessments designated on Exhibit A, which is attached and
incorporated herein by this reference, are hereby certified as being delinquent civil fines,
interest and penalties owing to the City of Huntington Beach and qualified for collection
as special assessments under Section 1.18.150 C.
2. The City Council as part of the City's nuisance abatement program orders
that these delinquent fines, interest and penalties are to be collected as special
assessments against the respective properties shown on Exhibit A pursuant to the
provisions of Municipal Code Section 1.18.150 C and Government Code Section
38773.5.
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RESOLUTION NO. 2018-47
3. Pursuant to such authority, the Chief Financial Officer is directed to take
the requisite steps for recording notice of such assessments against the respective
properties in the property records of the County of Orange and for obtaining the
collection of such assessments by the Tax Collector of the County of Orange.
4. The Chief Financial Officer is also authorized to take the necessary steps
to have releases filed with the County Recorder when any such special assessments have
been paid.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach
at a regular meeting thereof held on the 16th day of July , 2018.
Mayor
REVIEW APPROVED: APPROVED AS T
y Manager City Attorney n,w
INIT TED AND APPROVED:
Met Financial Officer
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Resolution 2018-47
Resolution 2018-47
Dates/Fine
Amount(s)/Total
(w/late fees&
Property Address Owner charges) Violation(s) APN Number
K3 Investments LLC 05/01/17$8,000 5,08.010 17.04.020 988-481-09
05/01/07$2,000 17.10.050(a)(c)(d)(e)(x);
05/02/17$8,000 17.04.036;250 204.18;
05/02/17$2,000 250 215.04
05/16/17$8,000
05/16/17$2,000
05/17/17$8,000
05/17/17$2,000
05/18/17$8,000
05/18/17$2,000
05/22/17$8,000
05/22/17$2,000
05/24/17$8,000
05/24/17$2,000
05/25/17$8,000
05/25/17$2,000 €E€
05/26/17$8,000 4'
05/26/17$2,000
05/30/17$8,000
05/30/17$2,00'0
05/31/17$8,000
05/31/17$2,000
06/01/17$8,000
06/01/17$2,000
O6/07/17$8,000
06/07/17$2,000
O6/09/17$8,000
06/09/17$2,000
O6/12/17$8,000
O6/12/17$2,000
06/13/17$8,000
8162 Talbert Ave Huntington 06/13/17$2,000
Beach,CA 92648 06/16/17$8,000 99€
O6/16/17$2,000 1
O6/20/17$8,000
O6/20/17$2,000
O6/21/17$8,000
O6/21/17$2,000
06/22/17$8,000
06/22/17$2,000
06/23/17$8,000
06/23/17$2,000
06/26/17$8,000
06/26/17$2,000
O6/27/17$8,000
06/27/17$2,000
06/28/17$8,000
O6/28/17$2,000
06/29/17$8,000 e
06/29/17$2,000
07/05/17$8,000 e
07/05/17$2,000 -
07/06/17$8,000
07/06/17$2,000
07/07/17$8,000
07/07/17$2,000
07/10/17$8,000 i
07/10/17$2,000
07/11/17$8,000 a
07/11/17$2,000 ?
9
07/12/17$8,000 a
07/12/17$2,000 �t
07/13/17$8,000
07/13/17$2,000
r
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2018-2019 Special Assessment List detail Council 6-30-18.xis
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Resolution 2018-47
Dates/Fine
Amount(s)lTotal
(w/late fees&
Property Address Owner charges) Violation(s) APN Number
K3 Investments LLC 07/17/17$8,000 5.08.010 17.04.020 988-481-09
07/17/17$2,OD0 IT10.050(a)(c)(d)(e)(x);
07/18/17$8,000 17.04.036;250 204.18;
07/18/17$2,000 250 215.04
07/19/17$8,000
07/19/17$2,000
07/20/17$8,000
07/20/17$2,000
07/21/17$8,000
07/21/17$2,000
07/24/17$8,000
07/24/17$2,000
07/25/17$8,000
07/25/17$2,000
07/26/17$8,000
07/26/17$2,000
07/27/17$8,000
07/27/17$2,000
07/31/17$8,000
07/31/17$2,000
08/01/17$8,000
08/01/17$2,000
08/02/17$8,000
08/02/17$2,000
08/03/17$8,000
08/03/17$2,000
08/04/17$8,000
08/D4/17$2,000
08/07/17$8,000
8162 Talbert Ave Huntington 08/07/17$2,000
Beach,CA 92648 08/08/17$8,000 '
08/08/17$2,000 I
08/09/17$8,000
08/09/17$2,000
08/10/17$8,000
08/10/17$2,000
08/14/17$8,000
08/14/17$2,000 j
08/15/17$8,000 i
08/15/17$2,000
08/16/17$8,000
08/16/17$2,ODO
08/17/17$8,000 i
08/17/17$2,000 `
08/18/17$8,000
08/18/17$2,000
08/21/17$8,000
08/21/17$2,OD0 !
08/22/17$8,000 !
t
08/22/17$2,000 !
08/23/17$8,000
08/23/17$2,000
08/24/17$8,000
08/24/17$2,000
08/28/17$8,000 f
08/28/17$2,000
08/29/17$8,000
08/29/17$2,000
°s
Total$650,152.32
I
6
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2018-2019 Special Assessment List detail Council 6-30-18.xls
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Res. No. 2018-47
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, ROBIN ESTANISLAU, the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a Regular meeting thereof held on July 16, 2018 by the following vote:
AYES: O'Connell, Semeta, Peterson, Posey, Delgleize, Hardy, Brenden
NOES: None
ABSENT: None
RECUSE: None
City Clerk and ex-officio Clerk of the
City Council of the City of
Huntington Beach, California
0� ("/J'- 14 7)
Estanislau, Robin 7114�1,oli
From: Julie Hamill <julie@harrisbricken.com>
Sent: Monday, July 16, 2018 11:48 AM
To: Gates, Michael
Cc: Cutchen, Alisa; Estanislau, Robin; Wilson, Fred; Fikes, Cathy
Subject: Settlement Proposal and Request to Continue Item 26: Excessive Fines Assessed Against
James Ishihara
Attachments: 7.16.2018.Ishihara Letter to Huntington Beach.pdf; Mechammil v City of San Jacinto 9th
Cir..pdf
Mr. Gates, Ms. Cutchen, Ms. Estanislau, Mr. Wilson, and Ms. Fikes:
As you know, I represent several commercial landlords in the City of Huntington Beach, including James
Ishihara. I respectfully request the City continue the above-referenced item until after the City has had a
meaningful opportunity to consider Mr. Ishihara's settlement offer.
As Mr. Gates requested, I have expanded upon the constitutional violations that my client has suffered, and
have included a monetary proposal of settlement in the attached letter.
Mr. Ishihara is the ground lessee at the property located at 8162 Talbert Avenue ("Property"). The City has
imposed over $740,000 in fines against Mr. Ishihara due to the operation of a cannabis dispensary by a tenant at
the Property, which is closed and has been closed for over six months. Mr. Ishihara has already paid the City
$88,365.
Mr. Ishihara does not contend the City lacks authority to prohibit commercial cannabis activity, or that the City
lacks authority to impose civil fines for violations of its municipal ordinances. Taken together, however, the
City's administrative penalty scheme impermissibly exceeds constitutional limits by, among other things:
1. imposing strict liability against individuals for the wrongful acts of third parties over which the citee has
no control,
2. imposing fines so excessive they shock the conscience, unlimited in amount and duration, even after the
citee diligently pursues every available legal remedy to eliminate the offending conduct,
3. delaying and refusing to take action within its control to eliminate the alleged violations in order to
maximize fees and fines, and
4. recording excessive fines and penalties as assessments against real property.
The City's administrative penalty scheme is not only unconstitutional, it is ineffective against eliminating
unlawful dispensary activity. The City's enforcement strategy does not punish criminals; it punishes their
landlords. Dispensaries get away without penalty, and move on to set up shop in their next location. Meanwhile,
tax-paying property owners suffer, and the game of whack-a-mole continues.
If the City proceeds with recordation of this assessment tonight, Mr. Ishihara will be forced to file a cross-
complaint against the City in the pending lawsuit. A summary of Mr. Ishihara's claims follows and is explained
in more detail in the attached letter. In order to avoid further legal action regarding the Property, however,
Mr. Ishihara is offering to pay the City an additional $75,000 to fully and finally resolve all outstanding issues.
Claims to be advanced in the cross-complaint include but are not limited to:
1. The City has engaged in a pattern and practice of conduct depriving Mr. Ishihara of federally protected
rights in violation of 42 U.S.C. section 1983.
i
2. The excessive fines imposed by the City violate the United States Constitution's Eighth Amendment
prohibition against cruel and unusual punishment and the California Constitution's Article I, Section
17 prohibition against excessive fines.
o The amount and duration of fines are unlimited under the City's administrative penalty scheme,
which converts a single wrongful act by a landlord into a veritable financial bonanza while
allowing wrongdoers to walk away unpunished.
o The fines imposed by the City of Huntington Beach are grossly disproportionate to the gravity of
Ishihara's offense, especially in light of the application of strict liability against Ishihara.
3. Imposing strict liability against Ishihara for the illegal conduct of a third party violates the Due Process
Clause of the Fourteenth Amendment of the United States Constitution and Article I, Sections 7 and 15
of the California Constitution.
4. Government Code section 38773.5 allows cities to use assessments to recover costs of abatement, but an
assessment cannot be used to collect fines and penalties.
5. The City has not established procedures for nuisance abatement as required under government code
section 38773.5.
6. The City's fines are unenforceable absent a resolution setting the schedule of fines, interest, late
payment penalties, and processing fees.
7. The City failed to provide a reasonable period of time to correct or otherwise remedy the violation prior
to the imposition of administrative fines.
8. The City's assessments constitute slander of title.
9. The excessive fees guarantee a forced sale of the property, resulting in inverse condemnation without
compensation.
10. City officers threaten Mr. Ishihara under color of state law in violation of 42 U.S.C. section 1983.
Please note that this law firm also represents Randy Wooten, property owner at 17731 Beach Boulevard. The
City has similarly imposed excessive fines against Mr. Wooten for cannabis dispensary activity by a tenant,
despite Mr. Wooten's filing an unlawful detainer action within one month after receiving a notice of violation,
and physically standing in front of his property to prohibit customers from entering the premises. The City
continued to assess fines and penalties against Mr. Wooten despite his attempts to intervene, even after the City
obtained a lockout order that the City had the power to enforce yet refused to use to stop the dispensary activity.
Mr. Wooten's assessment, subject to recurring penalties and fees, is currently in excess of$212,880.19.
I welcome the opportunity to discuss these issues with you at your convenience.
Sincerely,
Julie Hamill - Attorney
1925 Century Park East
Suite 810
Los Angeles,CA 90067
tel:424.265.0529
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