Title
Public Hearing to Consider COVID-19 Related Response and Enforcement Activities; and
Adoption of an Urgency Ordinance Amending the Alameda Municipal Code By Adding a New Article 24-13 (Public Health) Providing for Enforcement of Alameda County Health Officer Orders and Directives. (Planning, Building and Transportation/City Attorney)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
Recognizing the immediate adverse impacts of the novel coronavirus (COVID-19) pandemic on public health, safety and the general welfare of the Alameda community, staff and the City Council have instituted a variety of measures to provide protection and relief for Alameda residents and businesses. In response to the COVID-19 pandemic, the City Council has:
• Declared the existence of a local emergency to ensure the availability of mutual aid and an effective City of Alameda (City) response to the pandemic;
• Adopted ordinance amendments establishing new temporary zoning rules for businesses, deferring payment of Business License taxes and Business Improvement Area (BIA) fees for sixty (60) days to assist local businesses with immediate cash flow needs and deferring remittance of March, April, and May 2020 Transient Occupancy Taxes (TOTs) for sixty (60) days to assist local hotels and other businesses that are required to remit TOT with their immediate cash flow needs;
• Established protections for Alameda tenants threatened with eviction during the pandemic and established emergency rent-related relief, including an evictions moratorium;
• Initiated plans for the reconfiguration of Park Street and Webster Street to provide additional space for local business to continue to operate and allow for physical distancing for employees and customers. In July, Park Street was reconfigured and in early August, the Webster Street reconfiguration was completed; and
• Allocated $600,000 to fund emergency relief grants to small businesses impacted by COVID-19 and created the Alameda Strong Relief Fund to provide additional assistance to our local businesses, nonprofits, and low-income renters.
In addition to the City Council’s actions, staff has also been working consistently over the last few months to enforce, educate and encourage compliance with the County Health Orders, including those orders or directives related to essential businesses, prohibited activities, physical distancing, and the use of masks. This report provides an overview of these efforts and recommends that the City Council adopt an urgency ordinance amending the Alameda Municipal Code (AMC) to more clearly provide for enforcement remedies, including the issuance of administrative citations and financial penalties for violations of the Alameda County Health Officer Orders and Directives.
BACKGROUND
Since March 2020, City staff have been working to ensure maximum possible compliance by Alameda residents, businesses, and contractors with the public health restrictions and regulations established by the State of California and the Alameda County Health Department adopted in response to the pandemic.
Overall, staff has observed a relatively high compliance rate.
City staff and City Council continue to work daily to improve compliance with the health orders to reduce future infections in Alameda. These enforcement activities may be generally summarized and described in three general categories:
• Construction and Business Regulations,
• Recreation and Parks Use, and
• Individual Use of Masks.
Construction and Business Operations
The City’s Code Enforcement and Police personnel have been working since March, when the County’s initial Health Order was enacted, to ensure that the orders related to construction and business activities are followed in Alameda. This work includes contacting business and contractors that are operating in violation of provisions of the Health Orders, and when, necessary using the City Building Permit Department to rescind or deny permits for construction. To date, the vast majority of businesses and contractors contacted by the City staff have been responsive and cooperative, but in a few cases, staff has had to threaten actions such as revocation of a building permit or a conditional use permit, if the business does not alter its activities to comply with the requirements of the most recent County Health Orders the proposed ordinance will provide the code enforcement staff with an additional enforcement tool that may be used as a “last resort” if the educational efforts or the normal regulatory tools (revocation of building permits, land use permits, or business licenses) are not effective with a specific business or contractor.
Park and Recreation Facility Use
Controlling the use of large public spaces, such as City parks and waterfront recreational areas has proven to be a more difficult task. Since the first days of the Shelter in Place order in March, City staff has worked to prevent the use of the City’s large, unfenced public open space by the public for activities in conflict with the County Health Order regulations regarding group activities, group sports, playground equipment, physical distancing, and the use of masks.
Where possible, City staff have restricted use with physical barriers or removal of facilities to discourage use and violations of the health orders. Basketball hoops have been removed/blocked, fences erected, caution tape applied, and where possible, facilities locked. Despite these efforts, people routinely remove barriers or go around them to play on high-touch facilities, and Alameda residents and visitors continue to meet in large groups to play team sports, such as soccer and baseball in City parks.
To assist with education and compliance, the City has established an “Ambassador Program” comprised of City staff and volunteers to walk the parks and inform the public of the restrictions and encourage compliance with physical distancing and mask wearing regulations. The Program is geared toward education, and neither City staff nor volunteers have enforcement authority or powers. The Ambassador Program staff and the Police Department staff routinely offer free masks to Alameda residents and visitors found without masks in City Parks and on City streets.
City staff has been in constant contact with the East Bay Regional Parks District about enforcement of the Health Order regulations at the State operated Shoreline Beach facilities and Crab Cove. In partnership with the District staff, City staff have been trying to persuade residents and visitors to the State Beach to comply with Health Order regulations regarding physical distancing, masks, and limitations on large groups. These efforts have been only partially successful.
Despite constant efforts by City staff to inform the public, some residents and visitors continue to violate the physical distancing, mask, and group sport limitations of the County Health Order in City parks. As described in more detail below, the proposed ordinance will provide staff with an additional enforcement tool that may be used as a “last resort” if the educational efforts are not effective with particular individuals. However, staff is also considering other strategies for City Council’s consideration to address compliance issues in City parks. Those strategies are also described in more detail below.
Use of Masks by the General Public
Enforcing the use of a mask, when required, by a member of the public when walking, exercising, or bicycling on a City street or in a park is the most difficult challenge for the City. City staff can educate members of the public who do not wear masks and we can offer them a free mask, but there are little to no other tools that the City staff can employ to enforce these regulations other than of the use of a citation and the associated financial penalties, as set forth in the proposed ordinance.
Existing Enforcement Authority
State and Local laws currently contain a number of enforcement provisions that potentially could be utilized. For example, violation of any health order is a misdemeanor under state law and could subject the violator to criminal citation and prosecution. See California Health and Safety Code Section 120275. However, state law criminal enforcement should be a remedy of last resort, given the severe consequences it carries. Additionally, existing law grants the City Attorney the authority to prosecute any violation of a local law by filing a civil action, either in the name of the City or the People of the State of California, as appropriate. See AMC Section 1-5.3(b). State law grants the City Attorney additional civil enforcement authority, either on his own initiative (see, e.g., CCP Section 731) or with consent of the District Attorney (see e.g., B&P Section 17204). However, a violation of a County Health Order arguably does not violate any current provision of the AMC, thus limiting the City’s civil remedies. Additionally, commencement of a civil prosecution is an extremely resource intensive effort and, like criminal prosecution, often inappropriate unless lesser enforcement options (e.g., administrative citations) are exhausted and the violation remains serious. Administrative citation, the least intrusive and in most instances the most appropriate of all available remedies, is unfortunately not currently available for County Health Order violations. This proposed ordinance seeks to address this deficiency.
DISCUSSION
Implementing and enforcing the evolving and sometimes confusing County Health Orders will require constant City attention and effort. Staff is ready and able to continue these efforts and to improve these efforts for as long as it takes to beat this virus and the State, County and City Council decide that the health restrictions are no longer needed.
Although the proposed ordinance would strengthen enforcement tools, City staff expect to use such tools in a manner consistent with lessons learned of these last few months. What we have learned over the last five months is that enforcement requires flexibility, willingness to try new strategies, and sensitivity. City staff is mindful of the fact that the health and economic impacts of this pandemic disproportionately harm certain income levels, ethnic groups, and sectors of the economy. Not every household, for example, has the luxury of working from home and receiving a paycheck in the mail. Many residents, business owners, and employees cannot work from home. Many jobs require working in groups. We have also found that those with easy and frequent access to on-line services and computers are better informed and better able to navigate life in this pandemic than those that don’t have the financial resources or knowledge to operate their lives and educate themselves about the ever-changing pandemic regulations through on-line services. For these reasons, staff continues to believe that the City’s Health Order enforcement activities should continue to be prioritized as follows:
Education
Continued efforts to inform and educate the public remain a top priority, and perhaps the single most effective strategy for Health Order compliance. To date, education efforts include visits and phone calls from City staff in response to complaints about non-compliance, creating a dedicated website with information and resources, establishing a weekly email update on COVID-19, messaging using AC Alert, regular content on social media, designing and placing vinyl banners at all City parks and matching posters in store windows, creating street banners (coming soon!), creating video PSAs, and an insert will be included in this month’s Alameda Municipal Power bill.
Support
Another important priority is to provide support to the community in its effort to combat this disease while operating their businesses and maintaining mental health through recreation and outdoor activities, in compliance with applicable law, regulations or orders. The City should continue to provide safe spaces such as the “slow streets program” and the “commercial streets program” so that the community can continue to support local businesses and can continue to exercise and outdoor activities in a safe and physically distanced manner.
Support of the community can also take the form of continuing to provide free masks, where and when needed, in addition to providing hand cleaning stations at strategic locations.
Enforcement
As a “last resort,” when education and support have failed to achieve compliance, certain instances may require enforcement. As set forth more fully below, if the proposed ordinance is adopted, failure to comply may subject violators to administrative, criminal and civil penalties. The Administrative Citation fines are based on existing fines and penalties for ordinary AMC violations. The City’s enforcement posture would remain unchanged: compliance is the ultimate goal. Accordingly, City staff would seek to first educate/offer support, issue serialized warnings where appropriate. When such efforts fail, Staff plans to utilize Administrative Citations to compel compliance in appropriate cases. Staff expects that referral to the City Attorney’s Office for criminal or civil prosecution, if any, will be reserved for cases that either present extremely serious and flagrant violations and/or where lesser enforcement options have been fully exhausted
Additional Tools and Strategies
Staff is also requesting City Council direction on all three suggestions:
Further physical limitations on the use of large public park areas. To prevent use of large grass fields and baseball fields by large groups of people to play soccer games and baseball games, staff is considering placing large water filled “k-rails” on these playing fields. These large barriers, which are normally used in roads, will make it very difficult for groups to play soccer or baseball on these fields, but they will allow small groups to sit, picnic, or play on these same fields. These k-rails will need to be purchased, and they will kill the grass under them, which will require time and resources to regenerate after they are removed, but they should prevent large gatherings-soccer and baseball games-from occurring.
Use sprinkler systems to prevent all use of large public park areas. The existing sprinkler system could be timed to operate during the weekend daytime hours when most large groups are meeting to play soccer and baseball in violation of the Health Order. If the sprinkler system is programed to run periodically through the day, it will disrupt these games and the use of the field for group sports activities. Although less expensive than purchasing k-rails, this strategy will also discourage use of these space by small groups and those that are complying with Health Orders or directives. While this could be used, staff is not inclined to use this methodology due to it eliminating the use of parks for individuals who are in compliance as well as possible operational unintended consequences.
Use of Citations and Financial Penalties. Given the remedies concerns expressed above, City staff have prepared a draft ordinance amendment that would make clear that violations of any County Health Order constitutes violations of City law. This amendment then permits the City to authorize and implement criminal, civil, and administrative remedies. Mostly importantly, the proposed ordinance permits the City to issue administrative citations for Health Order violations punishable by a fine of $250.00 for a first violation, $500 for a second violation, and $1,000 for a third and any subsequent violation. These administrative citation fine amounts already exist in the AMC and apply to all violations of the AMC. The proposed ordinance also clarifies the City’s authority to pursue civil and/or criminal prosecution for violations.
As described above, staff considers the citation strategy as a “last resort” generally only applicable to businesses or individuals that have already received education and a warning from the City or other governmental agencies (e.g., the County). If after all other strategies have failed and the business or individual refuses to adjust their behavior to comply with the Health Order, thereby jeopardizing public health and safety, then City staff does believe that the City must have the tools in place to ensure compliance through financial penalties or risk of incarceration.
The City can and does also utilize a “warning citation” procedure. Warning citations are serialized and tracked. There is no monetary fine associated with the warning citation, but it does record the persons/business personal information and documents the code that was violated. The violator receives a copy of the warning citation, and the department copy is routed for tracking. Therefore the City can use the warning citation as a tool to escalate its “education” of the individual or business, before issuing a citation with penalties. If noncompliance persists, despite the warning citation, then the City would have the authority to issue a citation with financial penalties, as authorized by the proposed ordinance.
Staff did consider whether the $250.00 to $1,000 fine amounts are excessive and whether the range should be reduced to $50.00 to $250 for example. Staff decided against recommending such a reduction because one of the primary purposes of any citation is to act as a deterrent, and that the goal is to persuade the individual or business to comply before the need to issue a citation. Thus, placing the fine amount on par with any other ordinary AMC violation, may prove to be more effective as a deterrent. Additionally, specifically making County Health Order violations less costly than any other violations of the AMC may send the wrong message and cause the public to wrongly perceive that Health Order violations are less serious or less important than any other violations of local law. Any such misperception could further hinder the City, Region and State’s critical efforts to suppress the spread of COVID 19.
ALTERNATIVES
The Council may:
• Adopt the ordinance as recommended.
• Adopt the ordinance with revisions.
• Choose to not adopt the ordinance and encourage compliance with County Health Orders using other means.
FINANCIAL IMPACT
There is no financial impact from the proposed action to adopt the ordinance amendment.
Enforcing the Health Orders does require General Fund expenditures, and issuing citations does require staff resources. Citations are appealable under the AMC, similar to how AMC violations are appealed. When appealed, the City must conduct appeal hearings before a Hearing Officer, who are paid on an as needed hourly basis. The General Fund pays for Hearing Officer and staff time to participate in the appeal hearing.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This action is consistent with the AMC. AMC Chapter 2-24 defines a local emergency as “the actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and property within this jurisdiction.”
Section 3-12 of the City Charter authorizes the City Council, with a four-fifths vote, to adopt, as an urgency measure, an ordinance for the immediate preservation of the public peace, health or safety without following the procedures otherwise required prior to adoption of an ordinance.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) applies only to projects that have the potential for causing a significant effect on the environment. This action is not a project under Public Resources Code section 21065 and CEQA Guidelines section 15378.
CLIMATE IMPACTS
There is no climate impact associated with this action.
RECOMMENDATION
Adopt an Urgency Ordinance Amending the Alameda Municipal Code By Adding a New Article 24-13 (Public Health) Providing for Enforcement of Alameda County Health Officer Orders and Directives.
CITY MANAGER RECOMMENDATION
The City Manager recommends approval of the proposed ordinance to provide an additional compliance tool. While other options are listed, we would like to continue to use administrative discretion on timing of use of different tools due to potential unintended impacts to individuals who are in compliance.
Respectfully submitted,
Andrew Thomas, Planning, Building and Transportation Director
John D. Lê, Assistant City Attorney
Financial Impact section reviewed,
Nancy Bronstein, Interim Finance Director
cc: Eric Levitt, City Manager