LA’s ACE Program Cuts Both Ways

CityWatch, Sept 30, 2011
Vol 9 Issue 78

RETHINKING LA - “Don't worry,” said the trees when they saw the axe coming, “The handle is one of us.”

LA’s proposed Administrative Citation Enforcement (ACE) Program is positioned as a panacea capable of curing all that ails the broken City of Los Angeles, including the ongoing budget crisis, collapsing infrastructure, threats to public safety, quality of life issues, courthouse backlogs, overworked and understaffed municipal departments, and a full generation of inefficient code enforcement that has left the landscape of LA littered with billboards, pot shops, and busted sidewalks.

High horse advocates of the ACE program have become so enthralled with the idea of efficient code enforcement that they have missed the parallel journey of Council File No. 05-1853, a City Attorney initiated draft ordinance which would make residents responsible for sidewalk repair.

In other words, as the residents of LA are distracted by the promise of the proposed ACE program, the City Attorney is working to return responsibility for the city’s broken sidewalks to the property owners who will then find themselves on the enforcement end of the newly armed ACE program.

The City Attorney has a strong motivation for getting the ACE program underway and then for shifting responsibility for sidewalk repair to property owners due to the pending settlement of a class action Americans with Disabilities Act (ADA) lawsuit which is scheduled for court approval on October 20, 2011.

The current proposed settlement would commit the City of LA to the implementation of a 25 year plan for bringing the City of LA’s sidewalks into ADA compliance. Under current budget conditions, this is hardly a promise the City of LA can make but by shifting the responsibility of sidewalk repair to residents and then arming the City Attorney with ACE enforcement efficiency, the people of LA will soon discover that ACE is the sword that cuts both ways.

The ACE program was initially presented with strong claims of revenue enhancement potential. City Attorney presentations to community groups pointed out that currently, fines go to Sacramento but under ACE, the City of LA gets to keep the money.

Charges that the City of LA was only interested in balancing the budget on the backs of those who can afford it the least have prompted a CLA directive which clarifies that the purpose of the ACE program is to improve code enforcement, not to generate revenue. Of course, saying so doesn’t make it so, but it’s a nice gesture that is only contradicted by reality and the words of Councilmembers and Department managers.

The ACE program is billed by the City Attorney’s office as an alternative to the current system that treats municipal code violations as misdemeanors, resulting in a clogged system that currently has a backlog of 10,000 cases.

ACE is positioned as a simple administrative process of municipal code violation enforcement that will foster “timely compliance with the law in order to protect public health and safety and provide a fair and effective administration of justice.”

The proposed ACE program includes provisions for City Attorney inspectors with the authority to issue Administrative Citations for code violations that they witness. This power is buried in a draft ordinance that lacks clearly defined roles, authorities, and oversight for the proposed Enforcement Officers and is a significant weakness in a proposal that grants unprecedented power to the City Attorney’s office.

Proponents of the program have seized on ACE as a remedy to the quality of life issues that include barking dogs, loud parties, loitering, dirty sidewalks, gambling, filming without a permit, dogs on the beach, fireworks, dog defecations, and curb numbers getting painted without a permit.

Opponents of the program counter that the ACE program is complaint driven, that it results in more uneven application of the municipal code, that it results in selective enforcement of the law, and that it sacrifices due process in return for revenue generation, all at the expense of those who can afford it the least.

The judicial element of the ACE program is made up of Administrative Hearing Officers who are either under the oversight of the City Attorney’s office or completely independent of the City Attorney’s office, depending on whether you are listening to City Attorney representatives on Council Phone or on the Larry Mantle Show on KPCC. When you consider that the proposed ordinance gives the Administrative Hearing Officers subpoena authority, it seems reasonable to delay the ACE proposal until this issue is resolved.

When the Committee expressed concerns about the proposed subpoena authority, Chief Deputy City Attorney William Carter jumped quickly, too quickly in fact, to defend it by saying “this allows those charged with a citation to call witnesses.” To hear him speak, it sounds like the cited party will end up with subpoena authority. Regardless, he was unclear on whether this was at the discretion of the Hearing Officer or if it was a right of the cited party. Again, it seems reasonable to delay the ACE proposal until this issue is resolved.

At every turn, the proponents of the proposed ACE program extol the virtues of a system that “decriminalizes” Municipal Code violations, allowing residents to simply pay a fine and go on their way. Missing is a discussion of the due process that also disappears and the resulting system that limits the rights of the charged yet expands the powers of the City Attorney.

Administrative Hearings are final for the residents of Los Angeles and if the ruling is against them, “no further appeal may be filed pursuant to the provisions of this Code.” Yet if the ruling is in favor of the resident, the City Attorney can still pursue “any and all remedies provided by law.”

While the decriminalization of the actual code violation is touted as a benefit, the result is a swift journey to judgment where the failure to abide by the Administrative Order or pay the Administrative Fine is subject to “criminal remedies, civil action, injunctive relief, specific performance, and the recordation of a lien or a notice of the Administrative Violation against real property.” The penalties, coupled with the threat of enforcement, are hardly in scale with decriminalized violations. Again, it seems reasonable to delay the ACE proposal until this issue is resolved.

Charges that the proposed ACE program, as drafted by the City Attorney, is nothing more than an employment strategy with a funding stream are hard to ignore when the draft ordinance provides for the recovery of “reasonable attorney’s fees and all costs.” If the ACE proposal is truly an efficient program, the City Attorney’s office should be experiencing savings, not elbowing its way to the feeding trough in an embarrassing display of bureaucratic gluttony.

This past Monday, the proposed ACE program made another appearance at the City Council’s Budget and Finance Committee, drawing a standing room only crowd that spoke passionately about the ACE program, with 16 members of the public in favor of ACE and 14 members opposed.

The City Hall spin team watched the Committee send the ACE motion back to the City Attorney for a systemic overhaul, a “continuance” that was erroneously referred to as “unanimous endorsement.” The split audience was also referred to as supportive, completely dismissing the positions of those who showed up to protest.

The proposed ACE program, as presented by the City Attorney’s office, fell far short of the City’s Chief Legislative Analyst standards, enduring 14 recommendations for adjustment from the CLA and a fairly significant round of detailed concerns from the Committee, resulting in a continuance to Monday, October 3, when the City Attorney will return with another version of the proposed ACE program.

The original motion that put the proposed ACE program in motion was made in January of 2010 by Councilman Koretz, seconded by Councilman Parks, and positioned as an opportunity to create “a more efficient and effective code enforcement program through the use of administrative citations, as an alternative to legal action.”

The long journey to this week’s continuance has been one of Budget and Finance Committee instructions and City Attorney responses, a see-saw battle that pits the original intentions of Councilman Koretz against the desires of the City Attorney’s office.

The City Attorney’s draft ordinance does not restrict, limit, or specify which Municipal Code Sections would be covered or enforceable under the ACE program, in spite of prior instructions from the Committee to specify participating departments and relevant code sections.

Councilman Englander asked Chief Deputy City Attorney Carter if the proposed ACE program applied to LA’s entire Municipal Code and he received a very quiet affirmative answer, prompting another directive to the City Attorney to prepare a list that limits and clarifies the appropriate codes.

Councilman Koretz acknowledged the concerns of the public about due process, uneven application of the law, the vulnerability of a complaint driven system, and the risk of selective prosecution, all of which prompted him to insist that the ACE program be unfolded slowly as a pilot program, an instruction that has met resistance from the City Attorney. Koretz’s final position was that the LAPD was the only department to be involved in the initial “pilot” phase and that the Housing Department and Animal Services would be the next two in line.

Committee Chair Parks acquiesced to Koretz’s suggestion that the program start slowly with the LAPD, expressing disappointment that the pilot didn’t include Housing and Animal Services, and pointing out that the current budget already included anticipated revenue from Animal Services code enforcement actions. Parks was firm in his contention that the Department of Building and Safety was an unsuitable participant in the ACE program because the department was “in a quagmire.”

Councilman Englander noted that if the City of LA is about to get busy enforcing municipal code such as the prohibition of gas powered leaf blowers, it should first start by putting an end to its own code violations, referring to the City’s use of illegal leaf blowers.

The irony to having the LAPD serve as the test pilot for the proposed ACE program is that the LAPD’s new division facilities are all built in violation of LAMC 12.21, the same section that is used to cite residents for land use violations. In fact, a significant number of people that spoke in opposition were there with complaint driven 12.21 violations that had resulted in threats of “liens, garnishment, and other legal actions” all because of over-in-height fences.

There is no doubt that the City of LA is mired in a tremendously inefficient system of code enforcement but to embrace the current ACE program is to jump out of the frying pan and into the fire.

To those who stand ready to call in their neighbor for that barking dog, pause for a moment and look out the window at your sidewalk. If it is broken, remember that the sword cuts both ways and while your neighbor is muzzling his dog, you will be repaving your sidewalks.

(Stephen Box is a grassroots advocate and writes for CityWatch. He can be reached at: Stephen@thirdeyecreative.net .)

City Hall’s Parasitic Cost-Recovery Scheme

CityWatch, Aug 9, 2011
Vol 9 Issue 63

RETHINKING LA - LA’s recent Red-Light Camera debacle had nothing to do with traffic control and everything to do with a municipal government that has a track record for exceeding its authority and for levying fees, fines, and judgments on its residents that exceed the law.

The City of LA’s Police Commission and City Attorney have both acknowledged that Red-Light Camera enforcement of traffic violations fails to meet the legal standard for prosecution, but in a clear demonstration of the simple fact that they don’t get it, the City Council debated the issue based on the profitability of the program.

LA’s Red-Light Camera scheme was responsible for generating 180,000 tickets over the last seven years but, as CM Englander bemoaned, 65,000 of those tickets went unpaid. CM Rosendahl continued down the wrong path when he pointed out that the program cost the City of LA $1.5 million per year.

Missing from the debate was a simple discussion of LA’s right to cite and penalize in excess of law.

While opponents of the Red-Light Camera program are celebrating its demise, it should be noted that this cost-recovery scheme is not an exception but is the rule, part of a larger pattern that sees the City of LA prey on its residents as sources of income.

A couple of years ago, the City of LA’s right to collect a 10% communications tax on cell phones was challenged and with good merit. Laws written during the age of telegrams and rotary phones were being used to justify a tax on Angelenos that resulted in $270 million per year, quite a heavy return for such light legal authority.

Realizing that the pending legal challenge to the 10% tax could spell financial doom for the City, its leaders embarked on a PR campaign and offered the people of LA Prop S which would “reduce” the tax to 9%, also rewriting the code so that it included any device or technology used to place calls, thus anticipating any technological advances in the future.

The City’s PR campaign worked and the voters approved a 9% tax on communications, selecting a “reduced tax” over an “illegal tax” and demonstrating that City Hall can still spin ‘em! Whew! Financial crisis averted!

During the controversy over the Red-Light Camera program, City Hall did what was best for their pocket book, preening and posturing as if they were doing what was right when the decision was simply based on what was most cost-effective.

With the Communications Tax, City Hall again did what was best for their pocket book, positioning a 9% legal tax over a 10% illegal tax as a benefit to the people when they were actually legitimizing an illegal tax.

LA’s liability for any tickets written under the illegal Red-Light Camera program hasn’t been challenged yet but there’s a court battle being fought over the Cell Phone tax collected by LA prior to the passage of Prop S, one that could cost the City of LA hundreds of millions of dollars.

There’s no doubt that LA has to pay its bills and that LA’s residents are obligated to pay for the services that it receives. But at no time does this simple relationship result in a carte blanche for City Departments to levy fees, fines, and penalties that exceed their authority under the law.

Consider the Department of Transportation’s track record for entering the private property of an East Hollywood property owner during the middle of the night to cite motor vehicles parked on a cement parking space. These citations took place over the course of several years and it was only the tenacious resistance of the property owner that resulted in the LADOT acknowledging that it had no jurisdiction.

The LADOT churned out two tickets per visit on a single resident, forcing the property owner to spend an inordinate amount of time fighting a Pyrrhic battle that consumed incredible amounts of time, demonstrating the flaw in a cost-recovery system that rewards complaint-driven City Departments that generate revenue, not justice.

Consider the Department of Building & Safety and its track record for uneven application of the law, one that is selective in its enforcement and loose with citations, fees, and penalties. Claiming the protection of a complaint-driven process, Building & Safety is able to justify its myopic application of code, one that underscores all that is wrong with the City Attorney’s ACE program. Selective enforcement is not justice, its revenue enhancement.

Consider the Department of City Planning and its claim to fame as a department that is almost fully funded through cost-recovery measures, a Mayoral mandate that is responsible for turning departments into predatory parasites that consume the host.

City Planning sells variances; it’s as simple as that. When Building & Safety cites a resident, it levies an initial fee for the experience, approximately $350. As the resident embarks on the bureaucratic journey, the next fee is $550 that is levied when they take too long to successfully navigate City Hall. Eventually, they are told to pay $4800 to City Planning for a variance and all is forgiven. This is the simple complaint-driven collection of tolls and it has nothing to do with public safety, just revenue enhancement.

Consider the Los Angeles Housing Department and its creative approach to the generation of revenue. Upon receiving a complaint, they conduct an investigation and charge the property owner a complaint inspection fee of $169 plus a processing fee of $32.50 and then levy an additional penalty of $503.75 if the bill isn’t paid within 30 days. Harsh!

The LAHD then charges $128 for an appeal and has a track record for cyclical behavior that requires the property owner to meet with inspectors and hearing officers, all while generating inspection fees, processing fees, and late fees, regardless of the outcome. A property owner may prevail if they are willing to invest the time but it’s a lose-lose proposition. Pay the fees and move along, there’s no justice here!

Consider the Bureau of Engineering and its authority to issue permits that are then overseen by the Department of Building & Safety and can require a variance from City Planning and are inspected by LAHD if they are for rental properties and then incur the wrath of the LADOT if there is an opportunity to cite vehicles, all resulting in a bureaucratic maze that charges the property owner every time they pass “Sorry, that’s not within our jurisdiction!”

Consider LA's Office of Finance and its heavy handed approach to revenue collection. Entertainment Industry professionals are often paid as independent contractors, a process that is documented with a 1099 form. The City of LA tracks those forms and then assumes that anyone receiving one is conducting a business. (Typically, they're day-players who are working but without the benefits that come with getting paid as employee) The business license is free, but there are penalties and interest if you file after Feb 28, something that people don't discover until they file their taxes, due April 1.

Imagine their surprise when they get blindsided by the City of LA with a fine for filing late for a license that they didn't know they needed, a $4000 surprise. Of course, that notice is void if the person is simply an employee getting paid as a contractor but the $4000 bill assumes otherwise and leaves it up to the employee to figure out.

Consider the City Attorney, defender of the cost-recovery scheme and proponent of an even leaner, meaner complaint-driven Administrative Citation Enforcement (ACE) program that would speed up selective enforcement and revenue generation at the expense of justice.

While the City Attorney’s office refines its ACE program and embarks on its PR tour of neighborhood councils, it also continues to support the City Hall toll collectors by issuing its own threats that come with a penalty of $1,925 and warn that non-compliance can result actions that include “Seizing property, Attaching wages, Additional court actions.”

A resident of LA shouldn’t have to hire a lawyer just to deal with City Hall and a property owner in LA shouldn’t have to fight city departments for years in order to protect their investment.

There are enough threats to the quality of life in Los Angeles without having municipal cost-recovery predators levying fees and fines that exceed their authority under the law.

LA’s bureaucratic machine argues jurisdictional limitations when it’s time to perform but then duplicates the fees and penalties when it’s feeding time.

Mayor Villaraigosa’s cost-recovery mandate is not only limited by law, it is limited by common sense. Departments that dispense city services based on the potential for cost recovery will favor those who can afford the fee, will penalize those who fear the fee, and will break the backs of those who play by the rules.

This is no way to run a Great City.

(Stephen Box is a grassroots advocate and writes for CityWatch. He can be reached at: Stephen@thirdeyecreative.net .)