County Prevented From Recoveing Criminal Code Enforcement Costs
Counties do not have the authority to recover the cost of investigation and criminal prosecution of code infractions, the Fourth District Court of Appeal has ruled. The court held that cities do have the power to recover the costs of criminal code enforcement activities, but state law treats counties differently.
"We must conclude that counties — unlike cities — do not presently have the power to ‘fix' fines, penalties and forfeitures for criminal violation of their ordinances, but are relegated to the fines and penalties set by general statute, except where the Legislature has expressly bestowed on the counties the power to impose additional penalties," Justice James Ward wrote for the court. In the area of code enforcement, the Legislature has not made such an exception.
The decision came in a case from San Bernardino County. In August 2000, a San Bernardino County court found William Thomas Minor Sr. guilty of three infractions of the county code. The county prosecuted Minor because he failed to clean up his rural property, on which he operated an unpermitted hog farm, had accumulated a great deal of trash and inoperative vehicles, and had built unpermitted, substandard structures.
The court ordered Minor to pay the county's Land Use Services Department $1,014 — equal to 19.5 hours of a code enforcement officer's time spent investigating the case, seeking compliance and preparing for trial. Minor appealed the conviction and fine to the San Bernardino County Superior Court's Appellate Division, which upheld the conviction but ruled that no statute authorized the county to recover the costs of criminal law enforcement in this instance.
The Fourth District decided to review the case on its own motion and reached the same conclusion. As a general rule, the court held, government may not recover the cost of law enforcement unless authorizing legislation provides for the recovery.
"Law enforcement is a quintessentially government function, and the government commands the requisite revenue to provide such services through the taxing power," Ward wrote. "It should come as no surprise, therefore, that the costs of law enforcement, carried out by the counties as an arm of the state, should be borne by the counties."
A San Bernardino County ordinance that authorizes the county to seek reimbursement for code enforcement prosecution conflicts with the state's general law, the court ruled. However, the law in question, Government Code § 36901, explicitly authorizes cities to set penalties for violation of penal ordinances. Legislative control over counties, which are "mere political subdivisions of the state," is greater than over cities, the court noted.
The county argued that the general law preemption only affects matters of statewide concern, and the county's recovery of code enforcement costs is not a statewide issue. But the court flatly rejected this argument.
The county also argued that the recovery ordinance is a zoning ordinance. The court was skeptical but said it did not matter even if the ordinance in question were a zoning ordinance. Again the court pointed to the difference between how the Government Code treats cities in § 36900, and how the Government Code handles counties in § 25132. Both sections set the maximum criminal penalties for code violation infractions and misdemeanors.
Ward quoted the lower court ruling, which cited § 36901: "‘The city legislative body may impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment or both.' … Even if we interpret § 36901 as authorizing cities to force criminal defendants to repay code enforcement costs, (an interpretation that is by no means obvious), no analogous statute exists empowering counties to impose ‘fines, penalties, and forfeitures.'"
The court concluded that the state law was unfair, but, "we must reluctantly conclude that the county's remedy lies with the Legislature, and not with the courts."
People v. Minor, No. E030458, 02 C.D.O.S. 1381, 2002 DJDAR 1655. Filed February 8, 2002.
For People: Matthew Marnell, San Bernardino Deputy County Counsel, (909) 387-5455.
For Minor: Linda Rose Fessler, (714) 967-0967.