Ordinance No. 1101463
ORDINANCE NO. 1101
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, ADDING ARTICLE V TO CHAPTER 20 OF THE
CYPRESS MUNICIPAL CODE IMPLEMENTING THE EMERGENCY RESPONSE
COST RECOVERY PROGRAM
WHEREAS, the City Council has the authority to adopt regulations to protect the
public health, safety, general welfare, and convenience of its citizens; and
WHEREAS, the City Council seeks to discourage drivers from operating motor
vehicles while under the influence of alcohol and /or drugs; and
WHEREAS, the City Council seeks to encourage safe and responsible use of
public streets; and
WHEREAS, the City Council finds and determines that intentional wrongful
conduct by persons who operate motor vehicles, including, but not limited to those
persons driving while intoxicated (DUIs), impose a burden upon City services above and
beyond the regular services normally required for law enforcement; and
WHEREAS, the City Council finds and determines that persons who willfully
conduct themselves in a manner which imposes an extraordinary burden on the public
resources by requiring an emergency response by the police department, fire
department, paramedics and other emergency public services should bear a share of
the costs of the emergency services; and
WHEREAS, the City Council finds and determines that an Emergency Response
Cost Recovery Program is of the utmost importance to the promotion of the general
welfare and safety of the people of Cypress because it is designed and intended to
encourage safe and responsible conduct by requiring such persons to pay part of the
cost to the City for responding to emergency incidents caused by their intentional
wrongful conduct; and
WHEREAS, the City Council recognizes the authority for an Emergency
Response Cost Recovery Program pursuant to Sections 53150 through 53159 of the
California Government Code.
NOW, THEREFORE, the City Council of the City of Cypress does hereby ordain
to add Section V to Chapter 20 of the Cypress Municipal Code as follows:
Section 20 -25. Findings:
The City of Cypress (the "City ") finds and declares the following:
1. The City seeks to discourage drivers from operating motor vehicles while
under the influence of alcohol and /or drugs.
2. The City seeks to encourage careful and responsible conduct by persons
using public streets.
3. Driving under the influence of alcohol and /or drugs is intentional wrongful
conduct.
4. Intentional wrongful conduct by persons who operate motor vehicles imposes
a burden upon City services above and beyond the regular services normally required
for law enforcement.
5. Persons who willfully conduct themselves in a manner which imposes an
extraordinary burden on the public resources by requiring an emergency response by
the police department, fire department, paramedics and other emergency public
services should bear a share of the costs of the emergency services.
6. The establishment of an Emergency Response Cost Recovery Program is of
the utmost importance to the promotion of the general welfare and safety of the people
of the City of Cypress because it is designed and intended to encourage safe and
responsible conduct by requiring such persons to pay part of the cost to the City for
responding to emergency incidents caused by their intentional wrongful conduct.
Section 20 -26. Establishment of Emergency Response Cost Recovery Program:
There is hereby established an Emergency Response Cost Recovery Program
(hereinafter the "Program ") in accordance with California Government Code Sections
53150 - 53159, or as hereinafter amended, which allows for the collection of emergency
response costs against:
(1) Any persons whose negligent operation of a motor vehicle, while under the
influence of an alcoholic beverage and /or drug proximately causes any incident
resulting in any emergency response; and
(2) Any person whose intentional wrongful conduct while in the operation of a
motor vehicle, proximately causes any incident resulting in an emergency response.
Section 20 -27. Definitions:
For the purpose of this part, unless the context clearly requires a different
meaning, the words, terms and phrases hereinafter set forth shall have the meanings
given them in this Section:
(a) "DUI Suspect" means any person who operates a motor vehicle, and, when
so operating is subject to the law and any duty imposed by law in the operation of said
motor vehicle, and who does so over the legal limit and under the influence of an
alcoholic beverage or any drug, or the combined influence of an alcoholic beverage and
any drug.
(b) "Program Manager" means the assigned lieutenant or captain to the Program
by the Chief of Police of the Cypress Police Department.
(c) "Emergency Response Incident" means a situation proximately caused by a
person that results in an emergency response including those incidents listed in Section
20 -28 below or any incident wherein costs can be recovered as authorized by law. This
definition is not limited to traffic accidents by DUI suspects and includes such acts as
the abandonment of a vehicle over active railroad tracks by a DUI suspect. On the
other hand, an incident is more than a simple DUI arrest that does not require an
emergency response, such as where a DUI suspect's car is involved in an accident with
only minor damage and no injuries. (California Highway Patrol v. Superior Court (2006)
135 Cal.App.4th 488, 500, 504)
Section 20 -28. Payment to the City for an Emergency Response:
(A) A motorist arrested for driving under the influence of alcohol and /or drugs
( "DUI ") will be billed only if all of the following criteria are met:
(1) A person is driving under the influence. A person is under the influence
of an alcoholic beverage or any drug, or the combined influence of an alcoholic
beverage and any drug, when as a result of drinking an alcoholic beverage or
using a drug, or both, his or her physical or mental abilities are impaired to a
degree that he or she no longer has the ability to operate a motor vehicle with the
caution characteristic of a sober person of ordinary prudence under the same or
similar circumstances; and
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(2) Negligent operation of a motor vehicle is evidenced by either a collision
or the commission of a moving violation as defined under the Vehicle Code,
Sections 21100, et seq.; and
(3) The incident evidenced by an accident or a moving violation was
proximately caused by driving under the influence of alcohol and /or drugs; and
(4) The incident necessitated an emergency response, which entailed the
use of emergency lights and siren by police or fire units responding to the
incident.
(B) A person who makes a false police report will be billed only if the following
criteria are met:
(1) The person is 18 years of age or older; and
(2) The person is convicted of making a false police report, in violation of
Section 148.3 of the Penal Code; and
(3) The false police report proximately causes an appropriate emergency
response.
(C) A person will be billed for the following conduct:
(1) Subject to paragraphs (3) and (4) below, a person who enters into an
area that is closed to the public will be billed only if the following criteria are met:
(a) The person intentionally, knowingly and willfully enters into an
area that is closed or has been closed to the public by competent authority
for any reason, or an area that a reasonable person under the
circumstances should have known was closed to the public. Posting a
sign, placing a barricade, a restraining or retaining wall, roping off an area,
or any other device is sufficient indication that an area is closed to the
public due to danger of injury, for the public's safety, or for any other
reason; and
(b) An emergency response is required to search for or rescue the
person, or if the person was operating a vehicle, any of his passengers,
plus the expense for the removal of any inoperable vehicle.
(2) Subject to paragraphs (3) and (4) below, a person who drives onto a
road that is covered by water will be billed only if the following criteria are met:
(a) The person drives a vehicle on a public street or highway that is
temporarily covered by a rise in water level, including ground water or
overflow of water, and that is barricaded by any of the means described in
subdivision (C)(1) above, because of flooding, and
(b) An emergency response is required to remove from the public
street or highway, the driver, or any passenger in the vehicle that has
become inoperable.
(3) Unless otherwise provided by law, this subsection (C) shall apply to all
persons, regardless of whether the person is on foot, or is operating a motor
vehicle, bicycle, all- terrain vehicle, or any other vehicle of any description.
(4) This section (C) shall not apply to any person who is authorized by the
landowner, lessor, or manager of the closed area, to be in the closed area, and
further shall have no application to any federal, state, or local government official
who is in the closed area as part of his or her official duty, nor to any public utility
performing services consistent with its public purpose, nor to any person acting in
concert with a government authorized search or rescue. A person who was
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1 attempting to rescue another person or an animal shall not be liable for expenses
of an emergency response under this subsection (C).
V
Section 20 -29. Items Recoverable for Emergency Response Incidents:
The City will bill persons violating Section 20 -28 an amount not to exceed twelve
thousand dollars ($12,000), or any additional amount subsequently authorized by
Government Code Section 53155, but only for the direct costs to the City of the
particular Emergency Response Incident including, but not limited to:
(a) Costs of materials used by officers during the response to the Emergency
Response Incident, including laboratory fees, costs of repairing or replacing
City property used, damaged or destroyed due to the person's actions.
(b) The salary costs for the time spent by officers, at a rate established by the
City, for time spent: traveling to and from the incident scene, obtaining
medical assistance, investigating the cause of the incident, removing
vehicles, conducting sobriety tests, transporting the person from the scene
and booking him or her and performing chemical tests on the person, time
spent during the arrest and detention of the person, time spent writing
customarily required reports (including all accident and reports that are a
consequence of the incident) and the follow -up investigation necessary to
complete those reports.
(c) In accordance with the California Court of Appeal's decision in California
Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, no amount
will be charged for an incident that does not require an emergency
response, such as where a DUI suspect's car is involved in an accident with
only minor damage and no injuries.
Section 20 -30. Collection of Items Recoverable for Emergency Response
Incidents:
(A)
(B)
Before any sum for an Emergency Response Incident is sought by the
City from a person, the City shall provide, through its Finance Department
Director (or his or her designee), written notice via personal delivery,
overnight express or certified U.S. mail, return receipt requested, to the
person at his or her last known address explaining the basis behind the
City's determination that Government Code Sections 53150 et seq. and
the enforcement procedures herein apply to the incident allegedly caused
by the person. That notice shall further provide, in substantially the
following form, the following:
"If you contest these charges for any reason, please contact me
immediately in writing within thirty (30) calendar days of the date of this
letter for a hearing concerning your responsibility for these charges.
Through this hearing, you can appeal this determination, but YOU MUST
RESPOND WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE
OF THIS LETTER OR YOU WILL WAIVE YOUR RIGHT TO CONTEST
THIS DETERMINATION and the City will proceed to collect this sum from
you as authorized by law, including Government Code Section 53154 and
53159. You may also contact this office within thirty (30) calendar days of
this letter to arrange a suitable payment plan to be secured by a
promissory note."
If no response is received by the person to the above notice within the
period provided above, the City will treat the emergency response costs
as a civil debt of that person which is collectible by the City in the same
manner as a contract obligation. Therefore, the City need not wait until
there is a conviction before billing the person, unless otherwise provided
for in this Code or by law. However, if the person responds to the above
notice within the time provided and contests the costs assessed against
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him or her in any way, then the City shall utilize the appeal procedure set
forth under Section 20 -31, below, for any determination by the City that is
not agreed upon by the City and the person, including the appropriate
payment plan, if any, or time for payment requested by the person.
(C) If the emergency response cost bill is not paid within sixty (60) days after
the initial bill is mailed by the City or if arrangements are not made for
partial payment during the sixty (60) day period, then the bill will be
considered delinquent and may be referred to a collection agency.
(D) If the person refuses to pay the City or collection agency, the City may
pursue recovery as provided by law. This action should generally not be
initiated until after any pending criminal charges have been adjudicated.
(1) As an alternative, in all appropriate cases, the City will seek to have
payment of the bill imposed as a condition of probation as permitted
by law.
(2) As an alternative, in all appropriate cases, where the person has
not made restitution, the City will request the Department of Motor
Vehicles to place a hold on the person's vehicle registration as
permitted by law.
(E) When applicable, if a person whom the City believes is subject to
emergency response cost recovery is acquitted of the subject criminal
charges after a trial or if those charges against the person are dismissed
for lack of evidence, the City will, upon receipt of written proof of the
foregoing acquittal or dismissal, immediately cease any and all collection
efforts for any unpaid sums and refund any amount collected from that
person.
Section 20 -31. Appeal Process:
(A) Any person receiving a bill under this policy may appeal the bill to the
Program Manager within thirty (30) calendar days of the billing date by
filing with the Finance Department Director (or his or her designee) a
written notice of appeal. After an appeal is made, the Program Manager
will review the bill to determine if the person meets each of the criteria set
forth in this Program and applicable law to support being charged for the
incident and, if so, the Program Manager will also review the bill for
accuracy. If the bill is found to be in error in any respect, then the bill will
be corrected, or if appropriate, cancelled. The decision of the Program
Manager shall be rendered within seven (7) business days of the receipt
of the written notice of appeal. Any bill still in dispute after being appealed
to the Program Manager may then be appealed to the City Manager.
(B) Any person aggrieved by the decision of the Program Manager shall have
the right to appeal the bill to the City Manager by filing with the City Clerk
within five (5) business days after the decision of the Program Manager, a
written notice of appeal setting forth the grounds thereof. The City
Manager, or a designated representative, shall schedule the time and
place for a hearing on the contested bill within ten (10) business days
following the filing of an appeal with the City Clerk. The appellant shall be
given notice of said hearing at least ten (10) business days prior to the
hearing date. Said notice may be by personal service, overnight express
or by certified mail, return receipt requested.
(C) At the time and place set forth in said notice, or at any time to which the
matter may be continued by the mutual consent of the parties, the City
Manager, or a designee who has no prior involvement in the matter, shall
hear the applicant and all witnesses together with any proper documentary
evidence offered in support of the appeal. The City Manager, or a
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designee, shall at the conclusion of the hearing make findings of fact
based upon the evidence submitted and determine whether grounds exist
for amending or canceling the bill. If, from the totality of the evidence
presented, the City Manager, or a designee, finds grounds exist for the
amendment or cancellation of the bill, the amendment or cancellation
thereof shall be ordered. If, following the hearing, the City Manager, or a
designee, determines from the totality of the evidence presented that no
proper grounds exist for the amendment or cancellation of the bill, the
appellant shall be ordered to pay the bill in full within thirty (30) days from
that date.
(D) The foregoing action taken by the City Manager, or a designee, shall be
final and conclusive.
The City Clerk of the City of Cypress shall certify the passage and adoption of this
ordinance and the same shall be posted as required by law and shall take effect as
provided by law.
FIRST READING at a regular meeting of the City Council of said City held on the
25th day of August, 2008 and finally adopted and order posted at a regular meeting held
on the 8th day September, 2008.
MAYOR OF THE CITSf'OF CYPRESS
AT ST:
LAlM
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA
COUNTY OF ORANGE ) SS
I, DENISE BASHAM, City Clerk of the City of Cypress, DO HEREBY CERTIFY
that the foregoing was duly adopted at a regularly scheduled meeting of said City
Council held on the 8th day of September, 2008, by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: Bailey, Luebben, Narain, Mills and Seymore
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS: None
CITY CLERK OF THE CITY OF CYPRESS