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05-A Administrative WarrantsAGENDA INFORMATION SHEET PROJECT: Ordinance authorizing the Municipal Court Judge to issue to code inspectors administrative search warrants for health, fire, and code inspections. BACKGROUND: City Council has previously adopted a comprehensive ordinance regarding the abatement of the nuisances of high grass and weeds and the accumulation of rubbish on private property. The ordinance provides for criminal cases to be filed in the Municipal Court. Council is currently considering an ordinance regulating dangerous structures and establishing a building and standards commission to review properties presented by City code inspectors for possible demolition or repair. Priar to filing any criminal case, or presenting any property to the building and standards commission, code inspectors will have to inspect the premises in question to determine if violations exist, and if so, to document those violations for presentation either to a court ar to the building and standards commission. The Fourth Amendment to the Constitution of the United States provides thatan individual is to be free from unreasonable searches and seizures ofhis person or property. Consequently, in order to enter onto or into premises not ordinarily open to the pubic, an agent of the State, in this instance, a code inspector for the City of Paris, should, in order to be able to conduct a thorough investigation, have a search warrant supported by probable cause to believe a violation exists and issued by a court. Atthis time, code inspectors have documented violations ofthe weed and rubbish ordinance by conducting their inspections from public property, from private property on which they have been given permission to enter (e.g., a next door neighbor's yard), or from portions of the property ordinarily open to the public (e.g., sidewalks, front porches). While this has posed few problems in enforcing the weeds and rubbish ordinance, thoroughly investigating substandard structures will most often require enhy into the structure itself. DESCRIPTION: The attached proposed ordinance authorizes the Municipal Court Judge to issue administrative search warrants for health, fire, and code inspections. The Texas Code of Criminal Procedure specifically authorizes search warrants for this purpose, and the Texas Attorney General's office has opined that a home rule city may adopt an ordinance authorizing its municipal courts to issue administrative warrants for such purposes. No seizure of property or arrest of persons is authorized under such a warrant; it merely allows a code inspectar to enter onto and into property and structures so that a proper inspection can be made. RECOMMENDED ACTION: Consideration and adoption of attached ordinance concurrent with adoption of the dangerous buildings ordinance. STAFF CONTACT: Larry W. Schenk, City Attorney; Stephanie H. Harris, Assistant City Attorney COST: There is no meaningful cost associated with passage of the ordinance. SCHEDULE: Consider in conjunction with dangerous sh-uctures ordinance. This ordinance should be in place by the time the code inspection department begins investigations under the new ordinance if adopted. Council should consider adopting this ordinance even if Council declines to adopt the dangerous structures ordinance as such warrants will be invaluable in the myriad of other health and safety violations various City inspectors are called upon to investigate. COUNCIL DATE: Consider at regular meeting of City Council on May 6, 2002. DRAFT J:Wttorney~arrisAOr~anttsW~strative 6earch Warrants FINAL.wptl May 10, 2002 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AMENDING CHAPTER 18, ARTICLE II OF THE CODE OF ORDINANCES OF THE CITY OF PARIS BY ADOPTING THERETO SECTION 18-24, ENTITLED "ADMINISTRATIVE SEARCH WARRANTS"; GRANTING THE MUNICIPAL COURT OF THE CITY OF PARIS, PARIS, TEXAS, AUTHORITY TO ISSUE SUCH WARRANTS; ESTABLISHING PROCEDURES FOR APPLICATION FOR OBTAINING SAID WARRANTS; DESIGNATING CITY OFFICIALS WHO MAY APPLY FOR SAID WARRANTS; SETTING STANDARDS FOR ISSUANCE OF WARRANTS; PROVIDING PROCEDURES FOR EXECUTING WARRANTS; MAHING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris, Paris, Texas, in conjunction with other governmental entities, private groups, and private individuals, has supported and participated in a community-wide beautification program intended to remove junk, litter, and other unsightly materials, generally improve blighted areas of the City, protect and preserve the public health, safety, and welfare, and generally improve the overall appearance of the community; and, WHEREAS, in pursuit of such goals, the City Council desires to protectthe public health and safety at the same time protecting the rights of individual property owners; and, WHEREAS, Section 54.004 of the Local Government Code authorizes home-rule cities to enforce ordinances necessary to protect health, life, and property and to preserve the good government, order, and security of the City and its inhabitants; and, WHEREAS, Section 54.012 (6) of the Local Government Code authorizes municipalities to bring civil actions for the enforcement of ordinances relating to dangerously damaged or deteriorated structures or improvements; and, WHEREAS, Section 54.012 (7) of the Local Government Code authorizes municipalities to bring civil actions for the enforcement of ordinances relating to conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents; and, Page 1 of 6 WHEREAS, Section 54.032 (3) ofthe Local GovernmentCode authorizes the quasi- judicial enforcement of ordinances which relate to dangerously damaged or deteriorated buildings or improvements; and, WHEREAS, Section 54.032 (4) ofthe Local GovernmentCode authorizes the quasi judicial enforcement of ordinances which relate to conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents; and, WHEREAS, Section 54.032 (5) ofthe Local GovernmentCode authorizes the quasi judicial enforcement of ordinances which relate to a building code ar to the condition, use, or appearance of property in a municipality; and, WHEREAS, Section 54.033 of Subchapter C of Chapter 54 ofthe Local Government Code authorizes the creation of a building and standards commission to hear and determine cases alleging violations of ordinances concerning damaged or deteriorated structures or procedures, and the City Council of the City of Paris desires to create and implement such a building and standards commission to enforce this ordinance; and, WHEREAS, Subchapter A of Chapter 217 of the Local Government Code authorizes a home-rule city to enforce all ordinances necessary to prevent and summarily abate and remove nuisances; and. WHEREAS, the City Council has adopted ordinances relating to the abatement ofthe above- described nuisance conditions; and , WHEREAS, it is necessary far the effective enforcement of these ordinances for City code inspectors to enter onto private property for the purpose of investigating and documenting such nuisances; and, WHEREAS, it is necessary in many instances that City code inspectors obtain search warrants to enter onto property or enter structures located thereon in order to complete such investigations; and, WHEREAS, the Code of Criminal Procedure, Article 18.05 authorizes the issuance of warrants for fire, health, and code inspections; and, WHEREAS, the City of Paris is a home rule city; and, WHEREAS, the Office of the Attorney General of Texas has opined that a home rule city can enact an ordinance providing for administrative search warrants for fire, health and code inspections to be issued by a municipal court judge; NOW, THEREFORE, Page 2 of 6 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved. Section 2. That there is hereby adopted to the Code of Ordinances ofthe City ofParis, Paris, Texas, Section 18-24 to Chapter 18, Article II, entitled "Administrative Search Warrants," to read as follows: "Sec. 18-24. Adrriinistrative Search Warrants (a) Definitions. For purposes of this section: Code Inspector shall mean the code inspectors of the City of Paris, Paris, Texas, as the same shall be designated by the City Manager ofthe City of Paris. Municipal Court Judge shall mean the duly appointed Judge of the Municipal Court of the City of Paris. Search warrant shall mean a written order, issued by the Municipal Court Judge and directed to any code inspector, commanding him or her to enter onto specified property, including sh-uctures, to determine the presence of a violation or violations of any ordinance or ordinances ofthe City of Paris, Paris, Texas. (b) Interference. Any person interfering with the execution of a lawful search warrant issued pursuant to this section shall be guilty of a misdemeanor, the penalty for which is not to exceed $500.00. (c) Conflicts. Nothing in this section shall be construed to conflict with any state or federal law, and the authority granted herein shall be in addition to any rights granted by state or federal law. (d) Authority to seek and issue search warrant. Code inspectors are hereby authorized to seek and obtain search warrants from the Municipal Court Judge, as provided in this section, before making any inspection incidental to the enforcement of any provision in this Code. The Municipal Court Judge is hereby authorized to issue such warrants subject to the requirements of this section. No warrant issued under this section shall include the authority to make arrests ar to seize tangible property, and no code inspector executing such a warrant is authorized to make any arrests or seize any tangible property. Page 3 of 6 (e) Probable cause. No search warrant shall be issued pursuantto this section except on the presentation of evidence of probable cause to believe that a violation or violations are present in the premises sought to be inspected. In determining probable cause, the Municipal Court Judge is not limited to evidence of specific knowledge, but may consider any of the following: (1) The age and general condition of the premises; (2) Previous violations or hazards found present in the premises; (3) The type of premises; (4) The purposes for which the premises are used; and (5) The presence of hazards or violations in the general condition of premises near the premises sought to be inspected. (f) Affidavit required A sworn affidavit setting forth substantial facts towards establishing probable cause shall be filed in every instance in which a search warrant is requested. (g) Contents ofwarrant. A search warrantissued pursuantto this section shall be sufficient if it contains the following requisites: (1) That it run in the name of'The State of Texas; (2) That it identify, as near as may be, the premises to be inspected; (3) That it command a code inspectar to inspectforthwith the premises described; and (4) That it be dated and signed by the Municipal Court Judge. (h) Execution. A code inspectar to whom a search warrant is delivered shall execute it without delay and forthwith return it to the Municipal Court Judge. It must be executed within three (3) days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the Municipal Court Judge. On searching the place ordered to be searched, the code inspector executing the warrant shall present a copy of the warrant to the owner of the place, if he is present on the premises to be searched. If the owner of the place is not present but a person who is present is in possession of the place, the code inspector shall present a copy of the warrant to the person. If neither the owner nor a person in possession of the property is present when the code inspector executes the warrant, the code inspector shall leave a copy of a warrant at the place by affixing it to the front door of the building or Page 4 of 6 premises inspected. In every instance, enhy shall be effected using the minimum force necessary according to the circumstances. (i) Computation of time for execution of warrant. The time allowed for the execution of a search warrant shall be three (3) whole days, exclusive of the day of its issuance and of the day of its execution. The Municipal Court Judge shall endorse on such search warrant the date and hour of the issuance of the same. (j) Power of code inspector executing warrant. In the execution of the search warrant, the code inspector may call to his or her aid any peace officer or any number of citizens in the City of Paris, who shall be bound to aid in the execution of the warrant. (k) Return ofwarrant. Upon returning the search warrant, the code inspector shall state on the back of the warrant, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the Municipal Court Judge a copy of the report resulting from that inspection. (1) Records. The Municipal Court Judge shall keep arecord of all proceedings had before the Court in the cases of search warrants as part of the official records of the Court." Section 3. That any person violating subsection (b) of Sec. 18-24 of the Code of Ordinance shall be guilty of a Misdemeanor and, upon conviction, shall be fined in any sum not to exceed $500.00. Section 4. That it is hereby declared to be the intention of the City Council of the City of Paris thatthe sections, paragraphs, sentences, clauses, and phrases ofthis ordinance are severable and, if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this ordinance, and such remaining provisions shall remain in full force and effect. Section 5. That all other ordinances or parts of ordinances in conflict herewith and not expressly addressed herein are hereby repealed to the extent of such conflict only. Section 6. That this ordinance shall become effective on June 1, 2002. PASSED AND ADOPTED this 13th day of May, 2002. Michael J. Pfiester, Mayor Page 5 of 6 ATTEST: Mattie Cunningham, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney Page 6 of 6