Temecula’s recently approved E-Verify ordinance

ORDINANCE NO. 10AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING THE TEMECULA MUNICIPAL CODE

BY ADDING A NEW CHAPTER 5.06, LAWFUL HIRING COMPLIANCE, AMENDING SECTIONS 5.04.270, 5.04.280 AND 5.04.300, ADDING SECTION 5.04.310 AND REPEALING SECTION 5.04.200 REQUIRING EMPLOYERS TO VERIFY WITH THE WORK AUTHORIZATION STATUS OF NEWLY HIRED WORKERS UNDER FEDERAL LAW AS A CONDITION OF RECEIVING A BUSINESS LICENSE, PROVIDING FOR REMEDIES FOR VIOLATIONS AND PROVIDING FOR APPEALS OF ADMINISTRATIVE DECISIONS CONCERNING SUCH REQUIREMENTS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY ORDAIN AS FOLLOWS: Section 1.

Chapter 5.06, Lawful Hiring Compliance, is hereby added to the Temecula Municipal Code to read as follows: Chapter 5.06 Lawful Hiring Compliance Sections: 5.06.010 - Definitions.

5.06.020 - Knowingly employing undocumented workers.

5.06.030 - Verification of employment eligibility.

5.06.040 - Violations.

5.06.050 - Appeal.

5.06.060 - Severability.

5.06.010 - Definitions.

Except as otherwise expressly set forth herein, the following words and terms as used in this chapter shall have the following meanings: A.

"City clerk" means the city clerk of the city and his or her

designee(s).

B. "City manager" means the city manager of the city or his or her designee responsible for administering this chapter.

C.

"Employ" means hiring an employee after January 31, 2011.

D. "Employee" means any person who provides services or labor within the city for an employer for wages or any other remuneration. An independent contractor is not an employee for the purpose of this chapter.

E. "Employer" means any person that is (1) transacting business in the city, (2) employs one or more employees in the city and (3) is required to obtain a business license certificate under Title 5 of this code.

F. "E-verify program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, as amended, and operated jointly by the United States Department of Homeland Security and the United States Social Security Administration, or a successor electronic verification of work authorization program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work authorization status of newly hired employees pursuant to the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603.

G. "Independent contractor" means any individual or entity that carries on an independent business, that contracts to do a piece of work according to the individual's or entity's own means and methods and that is subject to control only as to results. Whether an individual or entity is an independent contractor is determined on a case-by-case basis through various factors, including whether the individual or entity: 1.

2.

3.

4.

5.

6.

7.

Supplies the tools or materials.

Makes services available to the general public.

Works or may work for a number of clients at the same time.

Has an opportunity for profit or loss as a result of labor or service provided.

Invests in the facilities for work.

Directs the order or sequence in which the work is completed.

Determines the hours when the work is completed.

H. "Knowingly employ an undocumented worker" means the actions described in Section 1324a of Title 8 of the United States Code. This term shall be interpreted consistently with Section 1324a of Title 8 of the United States Code and any applicable federal rules and/or regulations.

I. "Person" means all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, businesses, trusts, societies and individuals transacting and carrying on any business in the city other than as an employee.

J. "Transacting business" means engaging in any activity for profit within the city, including, but not limited to providing goods or services, whether the business is physically located within the city or located outside the city with a

substantial amount of business transacted within city limits.

K. "Undocumented worker" means a worker who does not have the legal right or authorization under federal law to work in the United States as described in Section 1324a(h)(3) of Title 8 of the United States Code.

5.06.020 - Knowingly employing undocumented workers.

An employer shall not knowingly employ an undocumented worker. If, in the case when an employer uses a contract, subcontract, or other independent contractor agreement to obtain labor of workers in the city, the employer knowingly contracts with an undocumented worker or with a person who employs an undocumented worker to perform the labor, the employer violates this Section 5.06.020.

5.06.030 - Verification of employment eligibility.

A. After January 1, 2011, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program.

B. An employer shall maintain records sufficient to establish that it has complied with the requirement set forth in subsection (A) of this Section 5.06.030 with respect to each employee and shall retain such records for the duration of such employee's employment; provided, however, that an employer shall retain and maintain such records for a longer period of time if required by an applicable state or federal law, regulation or rule. The records maintained pursuant to this Section 5.06.030 shall be immediately made available to the city for inspection and audit upon written notice to the employer by the City Manager.

C. The City Manager may establish such regulations as necessary or convenient to implement the provisions of this chapter, including but not limited the certification of compliance with the requirements of this chapter as part of the application process for a business certificate or the renewal of a business certificate pursuant to Chapter 5.04 of this Code.

5.06.040 - Violations.

A. On a finding of a first violation of this chapter, the city manager shall demand that the employer terminate the employment of all undocumented workers in the city hired in violation of this ordinance and demand that the employer sign a declaration under penalty of perjury within ten (10) business days stating that the employer has terminated the employment of all undocumented workers in the city and that the employer will comply with the requirements of this chapter.

B. On a finding of a second violation of this chapter, the city manager may revoke any license or business certificate that has been issued

to and that is held by an employer pursuant to Title 5 of this Code, including, without limitation, a business certificate issued pursuant to Chapter 5.04 of this Code.

For the purpose of this Section 5.06.040, a second violation shall be a violation that occurs within twenty-four (24) months of a finding of a first violation.

C. Notwithstanding any other provision of this code, the penalty for a violation of this Chapter 5.06 shall be limited to the penalties set forth in this Section 5.06.040.

5.06.050 - Appeal.

If an employer is aggrieved by any decision of the City Manager regarding the finding of a violation or the revocation of a license issued pursuant to Title 5 of this code, the employer may appeal the decision pursuant to the provisions of Section 5.04.310.

5.06.060 - Severability.

This Chapter and the various parts, sections and clauses thereof are declared severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid, the remainder of this chapter shall not be affected thereby. The City Council declares that it would have passed this Chapter and each part thereof, regardless of the fact that one or more parts thereof be declared unconstitutional or invalid.

Section 2.

Section 5.04.270 of the Temecula Municipal Code is herby amended to read as follows: 5.04.270 Right to revoke.

Every certificate granted under this Chapter is granted and accepted by all parties with the express understanding that the city council may revoke the certificate if it is in the best interest of the health, welfare or safety of the public to do so and grounds for such revocation exist as noted in Section 5.04.280 of this Code.

Section 3.

Section 5.04.280 of the Temecula Municipal Code is hereby amended to read as follows: 5.04.280 Grounds for denial or revocation.

A certificate required by this Chapter may be denied or revoked pursuant to this Chapter only upon one or more of the following grounds: A. Proper application as prescribed in this Chapter has not been made or information submitted is false; or B.

The prescribed fee for such certificate has not been paid; or

C. D. state or federal law; or

Delinquent certificate fees have not been paid; or The conduct of the business has been or is contrary to local,

E. The business has been or is in violation of the provisions of Chapter 5.06 of this Code.

Section 4.

Section 5.04.300 of the Temecula Municipal Code is herby amended to read as follows: 5.04.300 Violation—Penalties.

A. Any person who fails to apply for and receive a certificate prior to the start of business, or has not applied for the renewal of an existing certificate prior to expiration of the certificate shall pay the applicable fee, plus a penalty fee not to exceed twice the normal registration fee.

B. Any person who fails to file for a certificate as provided in this Chapter within thirty calendar days after being informed to do so, or fails to pay the applicable fee, or violates any of the other provisions of this Chapter, or knowingly or intentionally misrepresents any material fact to any officer or employee of the City in procuring the certificate provided in this Chapter, or continues to operate a business after the business registration certificate has been revoked, is guilty of a violation of this code that may be enforced pursuant to the enforcement provisions set forth in Title 1 of this code.

C. Notwithstanding any other provision of this code, the penalty for a violation of Chapter 5.06 of this Code shall be limited to the penalties set forth in Section 5.06.040.

Section 5.

Section 5.04.310 is hereby added to the Temecula Municipal Code to read as follows: 5.04.310 Appeal of denial, revocation or other action relating to a business license.

A. Any person aggrieved by the denial of an application for a business certificate, denial of an application for renewal of a business certificate, revocation or suspension of a business certificate, or any other decision of an administrative officer or agency with respect to the issuance or refusal to issue a certificate ("Administrative Decision"), may appeal the Administrative Decision by filing an appeal in the Office of the City Clerk within fifteen (15) calendar days from the date notice of the Administrative Decision was mailed to the applicant or licensee. If the fifteenth (15th) day falls on a Saturday, Sunday or City holiday, the appeal may be filed on the next day the City Hall is open. The appeal document must be actually received in the Office of the City Clerk within the applicable time period and not just mailed within

such time. The person who files such an appeal shall be known as the "Appellant." The provisions of Chapter 2.44 shall not be applicable to an appeal of the Administrative Decision.

1.

The written appeal shall be accompanied by an appeal fee in an amount as set by City Council resolution. The appeal shall set forth the Administrative Decision being appealed and the reasons why the decision should be reversed or modified. The City Clerk shall promptly forward a copy of the appeal to the City Manager.

2.

In the event an appeal is timely filed, an Administrative Decision concerning the denial of renewal of a license or business certificate, or the suspension or revocation of a license or business certificate shall not be effective until a final decision by the Hearing Officer has been made pursuant to this Section. Failure of any person to file an appeal in accordance with the provisions of this Section shall constitute a waiver of that person's right to an appeal. If no timely appeal is filed, the Administrative Decision shall become effective upon expiration of the period for filing an appeal.

3.

Upon receipt of a timely appeal, the City Clerk shall make arrangements for the selection of a Hearing Officer to conduct the Appeal Hearing. The Hearing Officer shall be a person knowledgeable in municipal affairs, including but not limited to, attorneys, retired judges, a reputable firm providing mediators and arbitrators, local government officials, or the State Office of Administrative Hearings (or its successor office). Not less than fifteen (15) days prior to the Appeal Hearing, the City Clerk shall notify the City Manager and the Appellant of the name of the Hearing Officer who has been selected to hear the appeal. Within ten (10) days of the date of mailing the notice of the Hearing Officer, the Appellant may request the City Clerk recuse a hearing officer for reasons of actual prejudice against the party's cause. The City Clerk shall then request a mediation and arbitration firm or the Office of Administrative Hearings as the designated Hearing Officer for the Appeal Hearing. The Hearing Officer shall be fair and impartial and shall have no bias for or against the City or the Appellant.

4.

At the Appeal Hearing, the Hearing Officer shall receive oral and written evidence from the Director of Finance and the Appellant. a.

The evidence presented need not comply with the strict rules of evidence set forth in the California Evidence Code but shall be the type of evidence upon which reasonable and prudent people rely upon in the conduct of serious affairs. b.

The Hearing Officer shall have broad authority to control the proceedings and to provide for cross examination of witness in a fair and impartial manner. The Hearing Officer shall have authority to administer oaths to those persons who will provide oral testimony.

c.

The City Manager shall have the burden of proof to establish by clear and convincing evidence the facts upon which his or her decision is based. d.

The Appeal Hearing shall be recorded by audio recording. Any party may, at its sole cost and expense, utilize the services of a certified court reporter to prepare the verbatim record of the hearing. If a court reporter is used, the transcript prepared shall be made available for purchase to both parties. e.

The Hearing Officer may continue the Appeal Hearing from time to time, but only upon written motion of a party showing good cause for the continuance. The party requesting the continuance shall pay the costs of the Hearing Officer, if any, for the cancelled hearing.

1.

The Hearing Officer may uphold, modify

or reverse the Administrative Decision.

2.

Within ten (10) days of the conclusion of the Appeal Hearing, the Hearing Officer shall render his or her decision and make written findings supporting the decision. The Hearing Officer shall send the decision to the City Clerk. Upon receipt of the Hearing Officer’s Decision, the City Clerk shall notify the City Manager and the Appellant of the decision and provide them with a copy of the Hearing Officer Decision, along with a proof of mailing.

3.

The Hearing Officer's decision shall be final and conclusive as to the City and the Appellant and no appeal to the City Council from the hearing Officer's Decision shall be available. Any legal action challenging the Hearing Officer’s decision shall be filed within ninety (90) days of the date of the proof of service of mailing of the Hearing Officer’s opinion, pursuant to § 1094.5, et seq. of the California Code of Civil Procedure.

B. Any notices which either party may desire to give to the other party in connection with the Appeal under this Section must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, first class mail, postage prepaid, addressed to the address to the City at City Hall or to the Appellant at the address set forth in the notice of appeal. Notice shall be effective on the date of personal delivery or the date when the notice was deposited in the mail or reputable document delivery service.

C. If the Hearing Officer overturns the Administrative Decision or substantially modifies it in favor of the Appellant, the appeal fee shall be refunded to the Appellant.

D. The City Manager shall have the authority to establish all appropriate administrative regulations for the fair and efficient implementation of

this section, conducting hearings and rendering decisions pursuant to this Section, 5.04.310.

E. Notwithstanding the procedures set forth in this Section, the City Manager shall have the authority to enter into settlement agreements with an Appellant that that justice may require and that are consistent with the purposes of this Title.

Section 6.

Section 5.04.200 of the Temecula Municipal Code, Certificate Appeal of Denial, is hereby repealed.

Section 7.

This Ordinance and the various parts, sections and clauses thereof are declared severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid, the remainder of this Ordinance shall not be affected thereby.

The city council declares that it would have passed this Ordinance and each part thereof, regardless of the fact that one or more parts thereof be declared unconstitutional or invalid.

Section 8.

The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this day of , .

Jeff Comerchero, Mayor

ATTEST:

_________________________________ Susan W. Jones, MMC City Clerk [SEAL]

STATE OF CALIFORNIA COUNTY OF RIVERSIDE CITY OF TEMECULA

) ) ss )

I, Susan W. Jones, MMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 10was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 13th day of July, 2010, and that thereafter, said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof held on the day of , , the following vote: AYES:

COUNCIL MEMBERS:

NOES:

COUNCIL MEMBERS:

ABSENT:

COUNCIL MEMBERS:

ABSTAIN:

COUNCIL MEMBERS:

Susan W. Jones, MMC City Clerk