Ordinance No. 1165289
ORDINANCE NO. 1165
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, ADDING SECTION 12 -12.1, "PLACEMENT OF UNAUTHORIZED
CONTAINERS PROHIBITED" TO ARTICLE III, "PROHIBITED ACTS," OF "CHAPTER 12,
"SOLID WASTE MANAGEMENT," OF THE CYPRESS MUNICIPAL CODE, TO
ESTABLISH A CONTAINER IMPOUND PROCEDURE FOR UNAUTHORIZED
PLACEMENT OF CONTAINERS IN THE CITY OF CYPRESS WITHOUT A
FRANCHISE, CONTRACT, PERMIT, OR OTHER CITY AUTHORIZATION
WHEREAS, the City of Cypress ( "City) regulates the collection and disposal of waste
within City limits pursuant to Chapter 12 Solid Waste Management of the City of Cypress
Municipal Code ( "Municipal Code "); and
WHEREAS, pursuant to Section 12 -12 of the Municipal Code, no person shall collect
any solid waste, recyclable materials, or green waste from any premises within the City without
a franchise, contract, permit, or other written authorization from the City; and
WHEREAS, Section 12 -12 of the Municipal Code conveys, no person shall construct or
operate a solid waste management enterprise or facility including, but not limited to a material
recovery facility, landfill, composting facility, or buy -back recycling center, or collect any form of
solid waste in the City, without first satisfying all applicable City requirements for land use
approval, business license, franchise, permit and any other approvals required under any local,
state or federal law; and
WHEREAS, pursuant to Section 12 -12 of the Municipal Code, in order to protect public
health, safety, and wellbeing, to prevent the spread of vectors, to carry out the responsibilities
of the City as provided by law, and to plan for the management of vehicle traffic and mitigate
adverse environmental impact, the City Council may authorize one or more solid waste
collectors, whether by exclusive or non - exclusive franchise, license, permit, contract or
otherwise, to make arrangements with owners, occupants, or persons otherwise responsible for
the day -to -day operation of any premises within the City, for the collection, transfer, disposal,
and /or recycling of solid waste; and
WHEREAS, pursuant to Article V of Chapter 12 of the Municipal Code, the City Council
may award one or more franchises, permits, licenses or contract for the collection of solid
waste, recyclable material and /or green waste, from all or any portion of any category of
premises in the City upon determination that the public health, safety and well -being so require;
WHEREAS, the City is currently served by a franchised waste collector that pays the
City franchise fees and provide assurances of compliance with all appropriate licenses and
permits as required by the City pursuant to Chapter 12, Article V, Section 12 -19 and California
State mandates for the diversion of waste away from landfills through recycling and other
measures; and
WHEREAS, unauthorized waste collectors do not pay franchise fees and the City has no
mechanism to ensure that they comply with the California State mandate to divert waste away
from landfills through recycling and other measures; and
WHEREAS, the City does not have a method for notifying waste collectors without a
franchise, contract, permit, or other written authorization from the City to remove unauthorized
containers; and
WHEREAS, the imposition of a monetary fine for the unauthorized operation of a waste
collector, which generates large profits for the unauthorized collectors, would not serve as a
sufficient deterrent to unauthorized containers; and
WHEREAS, it is believed that impoundment of unauthorized containers through an
impound and release procedure would be an effective deterrent against potential violators;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CYPRESS, CALIFORNIA,
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The recitals set forth above are true and correct and are incorporated
herein by this reference.
Section 2. The Cypress Municipal Code, at Section 12 -1, entitled "Definitions," shall
be amended to add subsection (k) to read in its entirety as follows:
"(k) Unauthorized Container shall mean any cart, bin, can, dumpster or other
container utilized in the unlawful collection or transport of waste by a
waste collector without a franchise, contract, permit, or other written
authorization from the City as required pursuant to Chapter 12 of the
Cypress Municipal Code."
Section 3. Section 12 -12.1, "Placement of Unauthorized Containers Prohibited," to
Article III, "Prohibited Acts," of Chapter 12, "Solid Waste Management," of the Cypress
Municipal Code is hereby added as follows:
"(a) Unauthorized Containers. No person, unless exempt from provisions of
Chapter 12 as described in Section 12 -2, other than a solid waste
collector with a franchise, contract, permit, license or other written
authorization from the City, may place a container for collection,
transportation, and /or disposal of solid waste within the City. All
unauthorized containers shall be subject to removal and impound by
order of the City Manager or the City Manager's designee.
(b) Notice of Violation. Upon discovery of an unauthorized container,
determined to be used in collection or transport of waste by a waste
collector in violation of this Chapter, the City shall diligently attempt to
identify the owner of the unauthorized container, and shall serve upon the
owner of the unauthorized container a written notice of violation by
overnight mailing, with proof of delivery, and by posting a copy of the
notice of violation upon the unauthorized container.
In the case where an owner's mailing address is unknown, the City shall
serve the owner by posting a copy of the notice of violation upon the
unauthorized container.
If the owner's electronic mail address and /or telephone number are
known, then City shall endeavor to provide notice of violation through
electronic mail or telephonically; however, failure to notify the owner by
electronic mail or telephone shall not invalidate the notice.
(c) Notice of Violation for Unmarked Unauthorized Containers. If the
unauthorized container is not identified with the name and /or contact
information of the waste collector servicing or owning it, the City shall
conduct a diligent investigation to identify the owner of any unmarked
unauthorized container. When despite reasonable efforts, the identity of
the owner of an unmarked unauthorized container cannot be determined,
the City shall serve the notice of violation by posting it upon the
unmarked unauthorized container. The City shall take a photograph that
shows the notice affixed to the unauthorized container. The owner shall
be deemed to have been served at the time the notice if affixed to the
unmarked unauthorized container. For the purpose of this section,
unmarked unauthorized containers shall mean unauthorized containers
with insufficient information to identify and contact the owner of the
unauthorized container (e.g., lack of owner name, working phone
number, valid address).
(d) Impound.
(1) The owner of unauthorized containers shall remove the
unauthorized container(s) placed within city limits within twenty
four (24) hours of receipt of a notice of violation, as provided in
this Section.
Failure to remove such unauthorized container(s) shall result in
the city causing said containers to be impounded at the owner's
sole expense, which shall include all impound towing, dump
(emptying), storage, and administrative processing costs.
(2) The owner of an unauthorized container may appeal such
impoundment as provided in subsection (i).
(3)
Unauthorized containers not reclaimed from impoundment within
thirty (30) days and whose impoundment is not contested
pursuant to subsection (i) of this section shall become property of
the city to be sold or disposed of as determined by the city.
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(4) The owner of an unauthorized container shall be responsible to
reimburse the City for the actual costs of the impoundment,
dumping, storage, and administrative processing of impounded
unauthorized containers. All amounts due to the City for the cost
of the impoundment, dumping, storage, and administrative
processing shall be paid before an impounded unauthorized
container is returned to the owner. The costs incurred by the City
for impoundment, dumping, storage, and administrative
processing shall constitute a debt owed to the City by the owner,
who shall be liable therefore in any action by the City for recovery
of such amounts.
(e) Notice After Impoundment. Upon impoundment, the City shall serve upon
such owner written notice after impoundment by overnight mail, with
return receipt, if mailing address is known. If electronic mail and /or
telephone number are known, then City shall endeavor to provide notice
after impoundment through electronic mail or telephonically; however,
failure to notify the owner by electronic mail or telephone shall not
invalidate the notice.
(f) Violations.
(g)
(1) Violations of this section shall also be punishable as set forth in
Sections 1 -7 and 1 -12 of Chapter 1 of the Cypress Municipal
Code.
(2) The City may utilize any and all other remedies as otherwise
provided by law to enforce the provisions of this section.
Delegation. The City Manager may delegate to a franchised, permitted,
or licensed waste collector the authority to impound and /or store
unauthorized container and to collect fees and charges levied by the City.
Such a franchised, permitted, or licensed waste collector shall comply
with the requirements of this Section and shall coordinate with the City in
carrying out this Section.
(h) Terminate Use. Upon the posting of notice of violation on unauthorized
container, any person using the unauthorized container shall immediately
cease placing solid waste in the unauthorized container.
(1) Administrative Hearing.
(1) Request for Hearing. The responsible party may contest the
basis of the impoundment of an unauthorized container owned by
him /her, or that he /she is the responsible party, by filing a written
request with the City Manager or designee identified in the notice
of violation for a hearing within five (5) business days from the
date of notice, accompanied by the entire costs of impoundment
owed pursuant to subsection (d), if any, and a fee set by
resolution of the council that covers the costs of the administrative
hearing. The City Manager or designee shall set a date for a
hearing before the Hearing Officer to occur within thirty (30)
calendar days from the date of the request. Notice shall be given
to the responsible party at least 10 days in advance of such
hearing. For the purposes of this subsection (i), "responsible
party" shall be defined as the owner of an unauthorized container.
(2) Administrative Order. Within ten (10) business days of the
conclusion of the hearing, the Hearing Officer shall provide the
responsible party with his /her decision in writing (referred to as
"administrative order"). The Hearing Officer shall provide the
responsible party with the administrative order by personal
service or by certified mail, return receipt requested, to the
responsible party's last known business address.
(i) The administrative order shall contain the Hearing
Officer's reasons for the decision and the procedure
described in Section 1 -12.2 of the Municipal Code for
seeking judicial review.
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(3)
(ii) A decision in favor of the responsible party shall 232
result in the City promptly returning any impound fees paid
by the responsible party and any container that was
determined to be unlawfully impounded.
(iii) A decision in favor of the City shall result in the
responsible party complying with the administrative order
or seeking judicial review of the administrative order, as
described in Section 1 -12.2.
Failure to Attend Administrative Hearing. The responsible party's
failure to appear at a hearing shall constitute a waiver of the right
to a hearing, a forfeiture of the impound fees, and a failure to
exhaust administrative remedies.
(j) The City Manager or his designee may establish such administrative
policies and procedures, including administrative hearing procedures, for
the purpose of carrying out this Section.
Section 4. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance
is, for any reason, held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council of the City of Cypress hereby declares that it would have adopted
this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses,
phrases, or portions thereof may be declared invalid or unconstitutional.
Section 5. This Ordinance shall be in full force and effect thirty (30) days after its
passage.
Section 6. The City clerk shall certify to the passage and adoption of this Ordinance
by the City council of the City of Cypress and shall cause a summary of this ordinance to be
published in accordance with Government Code § 36933.
FIRST READING at a regular meeting of the City Council of the City of Cypress held on
the 28th day of August, 2017 and finally adopted and ordered posted at a regular meeting held on
the 11th day of September, 2017.
ATTEST:
Ofta•ai/11
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
MAYOR OF THE CITY OF CYPRESS
I, DENISE BASHAM, City Clerk of the City of Cypress, DO HEREBY CERTIFY that the
foregoing Ordinance was duly adopted at a regular meeting of said City Council held on the 11th
day of September, 2017, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Berry, Johnson, Peat, Morales and Yarc
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
tot )6(1),J.P,a-rvi
CITY CLERK OF THE CITY OF CYPRESS