Dealing With Dangerous Dwellings in Your City: Criminal Prosecution

Dealing With Dangerous Dwellings in Your City: Criminal Prosecution Thursday, January 26, 2017 12:00 p.m. PRESENTED BY Mark A. Easter Christy Marie Lopez Charlene J. Wynder

Code Enforcement Remedies Last week, we discussed viewing code enforcement as a tool box with different tools to achieve compliance Administrative Criminal Civil

Overview Considering Criminal Prosecution Advantages of Criminal Prosecution Disadvantages of Criminal Prosecution Comparing Criminal and Civil Code Enforcement Actions Criminal Case Overview Best Practices Questions

Considering Criminal Prosecution Oftentimes the criminal (or civil) remedy is considered when administrative remedies have been unsuccessful Criminal prosecution (or a civil action) should also be considered in lieu of administrative remedies where there will likely be no voluntary compliance by the offender; immediately filing a court action may save time Consider criminal prosecution (in lieu of administrative remedies) when there are serious violations that require more immediate action

Advantages of Criminal Prosecution The deterrent effect of criminal prosecution, including the possibilities of misdemeanor conviction, jail time, and probation (up to three years) Stigma may be appropriate for repeat offenders Strict liability in code cases Generally, shorter time period to obtain court orders for compliance and less costly than civil litigation

Disadvantages of Criminal Cases Potentially costly if misdemeanor is alleged, which allows defendant the right to a public defender and a jury trial Perception of City prosecuting its citizens Possible negative judicial attitudes towards criminal code cases Higher burden of proof in criminal cases Criminal cases: beyond a reasonable doubt Civil cases: preponderance of the evidence

Comparing Criminal and Civil Code Enforcement Actions cont. Typically, civil nuisance abatement actions involve no jury (judicial officer acts as the trier of fact) There is generally strong legal authority to recover attorney s fees in civil cases When immediate public health and safety concerns are involved, obtaining a TRO/Preliminary Injunction in a civil action may be more expedient and appropriate than a criminal action In cases when Defendant refuses to or is unable to abate violations (e.g., limited financial resources), a receivership action may be more appropriate than a criminal case

Overview of the Criminal Case Investigation and Evidence: Plain view Inspection Warrant to Enter Private Property Consent and Right of Entry CEO logs City Documentation of Violation Photos Prosecutor has an open file

Overview of the Criminal Case Criminal Complaint or Citation Infraction The maximum penalty of $250 [no jury trial, no public defender, no imprisonment] Misdemeanor The maximum penalty for a misdemeanor is six (6) months in the county jail and $1,000 Arraignment Pretrial Hearing and/or Trial Readiness: Usually court imposed for misdemeanor cases to ensure all discovery is provided and to try to resolve case before proceeding with potentially costly jury trial Opportunity to fashion creative remedies (examples: civil compromise or informal probation/diversion)

Overview of the Criminal Case cont. Jury selection (for misdemeanors only, unless waived) Trial: Code enforcement prosecutions are unique Exhibits can include photographs, zoning maps, plans, permits, and other public records Witnesses can include Code Enforcement Officers, Building Inspectors, Planners, Permit Technicians, Business License Technicians Sentencing and Probation Up to 6 months in jail and/or fine of $1,000 per violation (plus penalties and assessments) for misdemeanors In lieu of sentence, Defendant can be placed on summary probation for up to three (3) years, which can include fines, orders to abate outstanding violations, stay away orders, orders not to violate any other law, and other orders that result in punishment or deterrence

Best practices Review your municipal code Ensure updated legal authority for criminal prosecution of municipal code violations Ensure charging violations are clear Manual Develop policies on what violations are appropriate to prosecute as infractionsor misdemeanors Train enforcement staff to adequately document investigation and compile evidence Ensure all evidence is compiled before initiating action (this includes relevant files from all participating City Departments)

Questions?

Thank you for attending. Mark A. Easter Partner RIVERSIDE OFFICE Phone: (951) 826-8237 Email: mark.easter@bbklaw.com Christy Marie Lopez Of Counsel IRVINE OFFICE Phone: (949) 263-2602 Email: christy.lopez@bbklaw.com Charlene J. Wynder Prosecution Counsel ONTARIO OFFICE Phone: (909) 466-4911 Email: charlene.wynder@bbklaw.com www.bbklaw.com