Can Counties Really Charge $10,000 Per Violation of County Zoning Ordinances?

As you may or may not be aware, Humboldt County is charging $10,000 per day per violation of County Codes related to unlicensed cannabis cultivation. Such violations include grading violations, building permit violations, and violations of the cannabis ordinance. The question is whether the County can really impose such a stiff penalty and what statute authorizes such a penalty? The short answer is likely no, the County does not have authority under the California Government Code to impose such a penalty.
 
The statute that authorizes the imposition of civil penalties by counties in an administrative action is Government Code section 53069.4. The statute provides that where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Government Code section 25132 and subdivision (b) of section 36900.
 
The statute governing the imposition of fines and penalties for counties is Government Code Section 25132. That section only provides a penalty schedule for infractions. There is no statute that authorizes counties to impose fines, penalties and forfeitures outside of the imposition of civil penalties provided for in section 53069.4.
 
The statute governing the imposition of fines and penalties for cities is found in Government Code sections 36900 and 36901. Government Code section 36900 provides for a fine schedule if the violation is made an infraction by ordinance. Section 36901 empowers cities to impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment, or both. However, the fine shall not exceed one thousand dollars ($1,000) and imprisonment may not exceed six months. As stated above, there is no analogous statute for counties to impose fines, penalties and fees outside of the administrative code enforcement procedure provided for in section 53069.4.
 
A case interpreting these statutes is People v. Minor 96 Cal. App. 4th 29. The Minor case involved an appeal from a conviction of infractions of the San Bernardino County Code for accumulation of trash, rubbish and junk on defendant’s land, having a non-permitted structure, and maintaining a hog farm on the property without a conditional use permit. The court found defendant guilty, required him to bring the property into compliance, and ordered him to repay the costs of investigating, analyzing and prosecuting the action. The appellate court held that counties are not authorized by the legislative scheme to add costs of enforcement as a penalty in prosecutions of code infractions.
 
The court analyzed the statutory scheme and found that Government Code section 25132 is the sole statutory authority for counties to impose penalties for enforcement of ordinances. See generally Minor, at pg. 38-39. The Court reasoned that where there is no other enabling legislation for imposition of fines, fees, or penalties, counties are limited to penalties provided for by the general law. In this case, the Court found that when Government Code section 25132 and Penal Code section 19 (providing for $1,000 fines for misdemeanor violations) are read together, the “statutes do the following: First, they create a default classification of misdemeanors for code violations; second, they authorize counties to classify the violations as infractions if they choose to do so; and, finally, they set the respective punishments for both infraction and misdemeanor code violations.” Minor at pg. 39. The Court continued, stating “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 statutes, except where the Legislature has expressly bestowed on the counties the power to impose additional penalties.” Minor, at pg. 42.
 
Given the express language in Government Code section 53069.4 limiting the imposition of administrative penalties to those penalties outlined in Government Code section 25132 and the Minor court’s reasoning that Government Code section 25132 and Penal Code section 19 must be read together to set the amount of penalties for misdemeanor violations, the imposition of penalties over $1,000 for misdemeanor violations of county code is not authorized since there is no “enabling legislation” to allow the county to fix additional penalties. Therefore, the imposition of additional penalties for misdemeanor violations would violate California Constitution, Article XI, section 7 which provides, “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with the general laws.”

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