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HomeMy WebLinkAboutItem 2b: Ordinance 2281 Regarding Cost Recovery for Abatement of Nuisances oI ARc 1 """V ,Vg % tY of % ° STAFF REPORT Office of the City Attorney Date: February 15, 2011 TO: HONORABLE MAYOR AND CITY COUNCIL nn FROM: STEPHEN P. DEITSCH, CITY ATTORNEY d 44 P. SUBJECT: ORDINANCE NO. 2281 AMENDING CHAPTER 4B OF ARTICLE I AND CHAPTER 4 OF ARTICLE IX OF THE ARCADIA MUNICIPAL CODE REGARDING COST RECOVERY FOR ABATEMENT OF NUISANCES Recommended Action: Introduce SUMMARY At the City Council meeting on February 1, 2011, the City Council ( "Council ") discussed a proposed ordinance amending Article I Chapter 4B and Article IX Chapter 4 of the Arcadia Municipal Code ( "AMC ") regarding cost recovery for abatement of nuisances. Members of the Council inquired about provisions in the proposed ordinance that would allow the prevailing party to recover its attorneys' fees incurred in an abatement action if the City, on a case by case basis, elects to recover such fees at the initiation of the action. The City Council requested the City Attorney prepare an alternative ordinance for consideration, without the case by case City election limitation. The alternative ordinance would automatically result in the ability of the prevailing party to recover attorneys' fees in every nuisance abatement action or proceeding (the City would not have the right to make the election). Including this proposed new alternative ordinance, the City Council has three options regarding amendments to the current cost recovery provisions in the Arcadia Municipal Code: it could (1) decline to adopt any amendments to the Arcadia Municipal Code, (2) vote to adopt the originally proposed ordinance containing the City's case by case election limitation, or (3) adopt this new alternative ordinance providing that the prevailing party in all cases will automatically recover attorneys' fees. 1 DISCUSSION Government Code Sections 38773 through 38773.5 authorize the City to enact an ordinance to abate nuisances at the expense of the property owner. This includes recovery of actual abatement costs, staff costs and attorneys' fees. However, the law mandates that attorneys' fees be recoverable by the "prevailing party ", whether that is the City or, in rare cases, the defendant. Section 38773.5(b) authorizes the City to limit its exposure for potential defense attorneys' fees by limiting such recovery to actions or proceedings in which the City elects, at the initiation of the individual action or proceeding, to seek recovery of its own attorneys' fees. This case by case election (by the City) limitation is optional. The City may include or exclude it from its ordinance authorizing recovery of attorneys' fees. Pursuant to the City Council's request, the attached alternative proposed ordinance excludes this limitation. As such, the prevailing party in every nuisance abatement action or proceeding would be entitled to recover its attorneys' fees. In the event a defendant prevails, the City could be required to pay the defendant's attorneys' fees. However, as mandated by Government Code Section 38773.5(b), such recovery would still be capped at the amount of attorneys' fees incurred by the City in that action or proceeding. An action or proceeding would include any administrative, criminal, civil or other judicial action to abate a nuisance, including appeals of administrative citations. This may also include any action by the City to foreclose on a lien or otherwise collect a debt arising from a nuisance abatement action. FISCAL IMPACT Both proposed alternative ordinances may result in increased recovery of costs incurred by the City in nuisance abatement actions. However, the newly proposed alternative ordinance which does not contain the election limitation may result in reduced net cost recovery in the event of a prevailing defendant. RECOMMENDATION It is recommended the City Council consider introducing one of the two following alternative ordinances: 1. Ordinance No. 2281 amending Chapter 4B of Article 1 and Chapter 4 of Article IX of the Arcadia Municipal Code regarding cost recovery for abatement of nuisances including the City's ability to limit recovery of attorneys' fees to actions in which it elects, at initiation of the action or proceeding, to recover its own fees, or 2 2. Ordinance No. 2281 amending Chapter 4B of Article 1 and Chapter 4 of Article IX of the Arcadia Municipal Code regarding cost recovery for abatement of nuisances without the City's ability to limit recovery of attorneys' fees to actions in which it elects, at initiation of the action or proceeding, to recover its own fees. APPROVED: Donald Penman City Manager Attachments: Ordinance No. 2281 [proposed new alternative ordinance] and Staff report dated February 1, 2011 and Ordinance No. 2281 [earlier proposed staff report and proposed alternative ordinance] 3 ORDINANCE NO. 2281 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING CHAPTER 4B OF ARTICLE I AND CHAPTER 4 OF ARTICLE IX OF THE ARCADIA MUNICIPAL CODE REGARDING COST RECOVERY FOR ABATEMENT OF NUISANCES. WHEREAS, California Code of Civil Procedure Section 1033.5 authorizes the City of Arcadia (the `City') to recover costs enumerated therein when said costs are authorized by statute, contract, or law; and WHEREAS, California Government Code Sections 38773 and 38773.1 authorize the City to provide for abatement of nuisances at the expense of persons creating, causing, committing, or maintaining them, and provide for recovery via placement of liens on property by following certain procedures; and WHEREAS, California Government Code Section 38773.5 authorizes the City to recover costs of abatement via a special assessment on property by following certain procedures; and WHEREAS, California Government Code Section 38773.5(b) authorizes the City to provide for the recovery of attorney's fees in any action, administrative proceeding or special proceeding to abate a public nuisance; and WHEREAS, enforcement of the Municipal Code and maintenance of the community character requires the City to spend resources for abatement of public nuisances; and WHEREAS, the City desires to recover the costs of abatement to the maximum extent permitted by law so as to decrease the burden on limited City resources; and WHEREAS, the City Council desires to amend the current ordinances to provide for such maximum recovery. 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Article I, Chapter 4B, Section 1450, subsection C of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(C) In any administrative proceeding to abate a nuisance pursuant to this Chapter, or in any subsequent appeal of an administrative proceeding to a court, the prevailing party may recover its reasonable attorneys' fees. In no administrative proceeding or subsequent judicial action shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the judicial action or administrative proceeding." SECTION 2. Article I, Chapter 4B, Section 1453 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "1453. RECOVERY OF ADMINISTRATIVE PENALTIES AND COSTS. The City may collect assessed administrative penalties, fines and costs by use of all available legal means, including recordation of a lien pursuant to Section 1456 or imposition of a special assessment pursuant to Sections 9406.4 through 9406.9. Filing of the statement referred to in Section 9406.3 shall not be required for special assessments under this Chapter." SECTION 3. Article IX, Chapter 4, Section 9403, Subsection C of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(c) In any judicial action, or administrative or special proceeding brought by the City to abate a public nuisance pursuant to this Chapter or to otherwise enforce this Chapter, the prevailing party shall be entitled to recover its reasonable attorneys' fees. In no action or proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding. A judicial action includes, but is not limited to, any civil or criminal action, inspection or abatement warrant, administrative proceeding, or appeal from an administrative proceeding." SECTION 4. Article IX, Chapter 4, Section 9406.2 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9406.2. NOTICE TO ABATE VIOLATION: APPEAL. (a) Within ten (10) days after the date of posting, publishing, serving, or mailing of a notice, whichever shall be the last, the owner, agent of the owner, lessee, occupant, or person in possession of the premises who may have been served with a notice to abate, any person with a legal interest in the property, land or lots, building, structure, or improvement or otherwise affected by such notice may appeal to the Council on the 2 requirements of such notice. Such appeal shall be in writing, shall include payment of a filing fee in the amount established by resolution of the City Council, and shall state the objections of the person filing the same, shall be filed with the City Clerk, and shall be presented to the Council by the Clerk at its next regular meeting. The Council shall thereupon proceed to hear and pass upon the appeal, and its decision thereon shall be final and conclusive. The Council shall thereupon determine by resolution whether the Building Official shall proceed in accordance with the notice as given or as modified by the Council, or not at all, and its decision thereon shall be final and conclusive. If an appeal is filed the time to complete the work as set forth in the notice to abate shall be tolled the number of days that elapse from the filing of the appeal to the hearing date. (b) In the event an appeal is not properly and timely filed or is otherwise unsuccessful, the notice to abate may be recorded on the affected parcel pursuant to Government Code Section 38773.5(e). A courtesy copy may also be sent to any applicable financial institution." SECTION 5. Article IX, Chapter 4, Section 9406.4 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9406.4. NOTICE OF EQUALIZATION OF ASSESSMENT. Within ten (10) days after the filing of the statement referred to in Section 9406.3 of this Article, the City Clerk shall cause notice of the special assessment to be served by certified mail upon the owner as identified in the records of the county assessor or recorder. If the property owner's identity cannot be determined, then notice shall be posted on the property described in the notice and shall also be sent to the property by first class mail. The notice shall be in substantially the following form: NOTICE RE EQUALIZATION OF ASSESSMENT FOR: (INSERT DESCRIPTION OF ACTION TO BE TAKEN TO ABATE PROHIBITED CONDITION) NOTICE IS HEREBY GIVEN that the City Council of Arcadia, California, will, on (date), in the Council Chambers of the City Hall beginning at the hour of p.m. of said day, hear any protest or objection to the cost of (describe proposal action to be taken) as and located on (street address, assessor's parcel number and legal description) in the City of Arcadia, California, for the purpose of correcting, modifying, or confirming the said costs and assessing the same against the said property. Failure to make any objection will be deemed to be a waiver of any objection or protest to any and all procedures concerning the same. The property on which the assessment is placed may be sold after three years by the tax collector for unpaid delinquent assessments. A statement showing all 3 premises affected and charges against the same and /or the cost and proposed assessment for such action is on file in the office of the City Clerk at the City Hall and is open to public inspection. Dated City Clerk of the City of Arcadia." SECTION 6. Article IX, Chapter 4, Section 9406.9 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9406.9. RIGHT OF CITY TO SUE FOR ASSESSMENTS AND COSTS. (a) The City may sue in any court of competent jurisdiction for the amount of the assessment, penalties, fees and costs owed to the City, and the satisfaction of any judgment thereby obtained shall cancel any lien or assessment. (b) The City may recover its costs and attorneys' fees incurred in any action initiated pursuant to this Section." SECTION 7. Article IX, Chapter 4, Section 9406.11 of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "9406.11. RECOVERY BY LIEN. As an alternative to the assessment procedure provided in this Chapter, the City may recover any nuisance abatement costs incurred, including reasonable attorneys' fees, pursuant to the procedure in Sections 1456 through 1459 of this Code, except that notice of the lien shall be served on the owner of record prior to recordation of the lien in the manner and form provided by Government Code Section 38773.1." SECTION 8. Article IX, Chapter 4, Section 9407.3, Subsection D of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(d) Treble Costs of Abatement. Upon entry of a second or subsequent civil, criminal or administrative judgment within a two -year period finding that an owner of property is responsible for a condition declared by this Code to constitute a public nuisance, the court or administrative body may order the owner to pay treble the costs of the abatement. Such costs may be recovered by any means authorized by this Code or other law." 4 SECTION 9. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be declared unconstitutional. SECTION 10. The City Clerk shall certify the adoption of this Ordinance and shall cause a copy of same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty -first (31 day after its adoption. Passed, approved and adopted this day of , 2011. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: C1 1") Stephen P. Deitsch City Attorney 5 of A Rc 7:5 Augu.1 1. 1903 "4` „n,ty otv STAFF REPORT Office of the City Attorney Date: February 1, 2011 TO: HONORABLE MAYOR AND CITY COUNCIL (� . FROM: STEPHEN P. DEITSCH, CITY ATTORNEY Ent F . J .e-tEi-f.4 SUBJECT: ORDINANCE NO. 2281 AMENDING ARTICLE I CHAPTER 4B AND ARTICLE IX CHAPTER 4 OF THE ARCADIA MUNICIPAL CODE REGARDING COST RECOVERY FOR ABATEMENT OF NUISANCES. Recommended Action: Introduce SUMMARY The City incurs expenses in enforcing the Arcadia Municipal Code ( "AMC ") and pursuing abatement of public nuisances. While the AMC currently provides for recovery of staff and abatement costs, State law authorizes recovery of attorneys' fees in any action to abate a nuisance. The proposed amendment expands the City's ability to recover nuisance abatement costs to the maximum extent provided by law and also includes additional tools for enforcement. DISCUSSION The AMC provides various mechanisms for the City to abate public nuisances, ranging from improper maintenance of property to hazardous conditions and blight. Such enforcement efforts occasionally require litigation or administrative proceedings in order to secure compliance. State law allows the City to recover virtually all nuisance abatement costs, including staff costs and attorneys' fees, incurred in these enforcement efforts. Government Code Sections 38773 through 38773.5 authorize the City to enact an ordinance to abate nuisances at the expense of the property owner. This includes actual abatement costs, staff costs and attorneys' fees. However, the law mandates that attorneys' fees be recoverable by the "prevailing party ", whether that is the City or, in rare cases, the defendant. In order to limit any potential liability for a defendant's attorneys' fees, the proposed ordinance allows for recovery of fees only in circumstances in which the City elects, at the initiation of the proceeding or case, to recover its own fees. Further, any fees that may be recovered by a defendant are capped at the amount incurred by the City. While most nuisance abatement litigation involves little risk of a defendant prevailing, this safeguard will allow the City to pursue riskier cases while maintaining the option to seek recovery of attorneys' fees. With this proposed ordinance, the City will have the ability to seek full recovery of its expenses in virtually all property related nuisance abatement cases. The proposed ordinance specifically allows for cost recovery in any administrative, criminal, civil or other judicial action to abate a nuisance, including appeals of administrative citations. Such expenses can be recovered by recording a lien on the affected parcel or by placement of a special assessment on the tax rolls. The proposed ordinance updates these provisions in the AMC to comply with statutory requirements. It also authorizes the City to recover any attorneys' fees incurred in a lawsuit to collect assessed fines, fees, penalties and costs. Finally, the proposed ordinance expands the City's enforcement ability by imposing treble abatement costs for repeat violators, and by authorizing the City to record notices to abate nuisances on the title of affected properties. This will provide additional incentives for compliance. FISCAL IMPACT The proposed ordinance may result in increased recovery of costs incurred by the City in nuisance abatement actions. RECOMMENDATION It is recommended that the City Council introduce Ordinance No. 2281 amending Article I Chapter 4B and Article IX, Chapter 4 of the Arcadia Municipal Code regarding cost recovery for abatement of nuisances. APPROVED: <Doy u..6.9_ � a Donald Penman City Manager Attachment: Ordinance No. 2281 ORDINANCE NO. 2281 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING CHAPTER 4B OF ARTICLE I AND CHAPTER 4 OF ARTICLE IX OF THE ARCADIA MUNICIPAL CODE REGARDING COST RECOVERY FOR ABATEMENT OF NUISANCES. WHEREAS, California Code of Civil Procedure Section 1033.5 authorizes the City of Arcadia (the 'City') to recover costs enumerated therein when said costs are authorized by statute, contract, or law; and WHEREAS, California Government Code Sections 38773 and 38773.1 authorize the City to provide for abatement of nuisances at the expense of persons creating, causing, committing, or maintaining them, and provide for recovery via placement of liens on property by following certain procedures; and WHEREAS, California Government Code Section 38773.5 authorizes the City to recover costs of abatement via a special assessment on property by following certain procedures; and WHEREAS, California Government Code Section 38773.5(b) authorizes the City to provide for the recovery of attorney's fees in any action, administrative proceeding or special proceeding to abate a public nuisance; and WHEREAS, enforcement of the Municipal Code and maintenance of the community character requires the City to spend resources for abatement of public nuisances; and WHEREAS, the City desires to recover the costs of abatement to the maximum extent permitted by law so as to decrease the burden on limited City resources; and 1 WHEREAS, the City Council desires to amend the current ordinances to provide for such maximum recovery. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Article I, Chapter 4B, Section 1450, subsection C of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(C) In any administrative proceeding to abate a nuisance pursuant to this Chapter, or in any subsequent appeal of an administrative proceeding to a court, the City may elect at the initiation of such individual proceeding to recover its incurred attorneys' fees; however, upon such election, the attorneys' fees shall be awarded to the prevailing party. In no administrative proceeding or subsequent judicial action shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the judicial action or administrative proceeding." SECTION 2. Article I, Chapter 4B, Section 1453 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "1453. RECOVERY OF ADMINISTRATIVE PENALTIES AND COSTS. The City may collect assessed administrative penalties, fines and costs by use of all available legal means, including recordation of a lien pursuant to Section 1456 or imposition of a special assessment pursuant to Sections 9406.4 through 9406.9. Filing of the statement referred to in Section 9406.3 shall not be required for special assessments under this Chapter." 2 SECTION 3. Article IX, Chapter 4, Section 9403, Subsection C of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(c) In any judicial action, or administrative or special proceeding brought by the City to abate a public nuisance pursuant to this Chapter or to otherwise enforce this Chapter, the prevailing party shall be entitled to recover reasonable attorneys' fees; provided that, pursuant to Government Section 38773.5, attorneys' fees shall only be available in a judicial action or proceeding in which the City has elected, at the commencement of such action or proceeding, to seek recovery of its own attorneys' fees. In no action or proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding. A judicial action includes, but is not limited to, any civil or criminal action, inspection or abatement warrant, administrative proceeding, or appeal from an administrative proceeding." SECTION 4. Article IX, Chapter 4, Section 9406.2 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "NOTICE TO ABATE VIOLATION: APPEAL. (a) Within ten (10) days after the date of posting, publishing, serving, or mailing of a notice, whichever shall be the last, the owner, agent of the owner, lessee, occupant, or person in possession of the premises who may have been served with a notice to abate, any person with a legal interest in the property, land or lots, building, structure, or improvement or otherwise affected by such notice may appeal to the Council on the requirements of such notice. Such appeal shall be in writing, shall include payment of a filing fee in the amount established by resolution of the City 3 Council, and shall state the objections of the person filing the same, shall be filed with the City Clerk, and shall be presented to the Council by the Clerk at its next regular meeting. The Council shall thereupon proceed to hear and pass upon the appeal, and its decision thereon shall be final and conclusive. The Council shall thereupon determine by resolution whether the Building Official shall proceed in accordance with the notice as given or as modified by the Council, or not at all, and its decision thereon shall be final and conclusive. If an appeal is filed the time to complete the work as set forth in the notice to abate shall be tolled the number of days that elapse from the filing of the appeal to the hearing date. (b) In the event an appeal is not properly and timely filed or is otherwise unsuccessful, the notice to abate may be recorded on the affected parcel pursuant to Government Code Section 38773.5(e). A courtesy copy may also be sent to any applicable financial institution." SECTION 5. Article IX, Chapter 4, Section 9406.4 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9406.4. NOTICE OF EQUALIZATION OF ASSESSMENT. Within ten (10) days after the filing of the statement referred to in Section 9406.3 of this Article, the City Clerk shall cause notice of the special assessment to be served by certified mail upon the owner as identified in the records of the county assessor or recorder. If the property owner's identity cannot be determined, then notice shall be posted on the property described in the notice and shall also be sent to the property by first class mail. The notice shall be in substantially the following form: 4 NOTICE RE EQUALIZATION OF ASSESSMENT FOR: (INSERT DESCRIPTION OF ACTION TO BE TAKEN TO ABATE PROHIBITED CONDITION) NOTICE IS HEREBY GIVEN that the City Council of Arcadia, California, will, on (date), in the Council Chambers of the City Hall beginning at the hour of p.m. of said day, hear any protest or objection to the cost of (describe proposal action to be taken) as and located on (street address, assessor's parcel number and legal description) in the City of Arcadia, California, for the purpose of correcting, modifying, or confirming the said costs and assessing the same against the said property. Failure to make any objection will be deemed to be a waiver of any objection or protest to any and all procedures concerning the same. The property on which the assessment is placed may be sold after three years by the tax collector for unpaid delinquent assessments. A statement showing all premises affected and charges against the same and /or the cost and proposed assessment for such action is on file in the office of the City Clerk at the City Hall and is open to public inspection. Dated City Clerk of the City of Arcadia." SECTION 6. Article IX, Chapter 4, Section 9406.9 of the Arcadia Municipal Code is hereby amended to read in its entirety as follows: "9406.9. RIGHT OF CITY TO SUE FOR ASSESSMENTS AND COSTS. (a) The City may sue in any court of competent jurisdiction for the amount of the assessment, penalties, fees and costs owed to the City, and the satisfaction of any judgment thereby obtained shall cancel any lien or assessment. (b) The City may elect to recover its costs and attorneys' fees incurred in any action initiated pursuant to this Section." SECTION 7. Article IX, Chapter 4, Section 9406.11 of the Arcadia Municipal Code is hereby added to read in its entirety as follows: 5 "9406.11. RECOVERY BY LIEN. As an alternative to the assessment procedure provided in this Chapter, the City may recover any nuisance abatement costs incurred, including reasonable attorneys' fees, pursuant to the procedure in Sections 1456 through 1459 of this Code, except that notice of the lien shall be served on the owner of record prior to recordation of the lien in the manner and form provided by Government Code Section 38773.1." SECTION 8. Article IX, Chapter 4, Section 9407.3, Subsection D of the Arcadia Municipal Code is hereby added to read in its entirety as follows: "(d) Treble Costs of Abatement. Upon entry of a second or subsequent civil, criminal or administrative judgment within a two -year period finding that an owner of property is responsible for a condition declared by this Code to constitute a public nuisance, the court or administrative body may order the owner to pay treble the costs of the abatement. Such costs may be recovered by any means authorized by this Code or other law." SECTION 9. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be declared unconstitutional. 6 SECTION 10. The City Clerk shall certify the adoption of this Ordinance and shall cause a copy of same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty - first (31 day after its adoption. Passed, approved and adopted this day of , 2011. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: C P. b-e,tel, Stephen P. Deitsch City Attorney 7