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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Dept: CITY ATTORNEY
Subject: An Ordinance of the City of San Bernardino
Adding Chapter 9.93 to the San Bernardino Municipal
Code and Establishing Administrative Civil Penalties for
Violations of the Municipal Code.
Date: September 28, 2007
MCC Date: October I, 2007
Synopsis of Previous Council Action:
None.
Recommended motions:
That the matter be referred to the Legislative Review Committee.
J.~
es F. Penman, City Attorney
Contact person: Henrv EmDefio. Jr.. Sr. DeDutv City Attornev Phone: 5255
Supporting data attached: Staff ReDort
Ward:
All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No. 01
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STAFF REPORT
Council Meeting Date: October 1, 2007
TO:
FROM:
DATE:
AGENDA ITEM:
Mayor and Common Council
James F. Penman, City Attorney
September 28, 2007
An Ordinance of the City of San Bernardino Adding Chapter 9.93 to
the San Bernardino Municipal Code and Establishing Administrative
Civil Penalties for Violations of the Municipal Code
Attached is a draft of a proposed Ordinance adding Chapter 9.93, which establishes
Administrative Civil Penalties for any violation of the Municipal Code.
Pursuant to Chapter 1.12, any violation of the Municipal Code may be prosecuted as a
misdemeanor unless the offense is designated as an infraction by the Municipal Code. The
maximum punishment for a misdemeanor violation of the Municipal Code is imprisonment in the
county jail not exceeding six months and/or a fine not exceeding $1,000. The maximum punishment
for an infraction violation of the Municipal Code is a fine not exceeding $100 for a first violation,
a fine not exceeding $200 for a second violation within one year, and a fine not exceeding $500 for
each additional violation within one year. Upon conviction of a fourth violation within one year, the
violator is guilty of a misdemeanor. These fines are payable to the Court.
Pursuant to Chapter 9.92, certain minor violations of the Municipal Code may also be
enforced by issuance of an Administrative Citation, where a separate infraction violation may be
cited for each day a violation exists and for each section of certain chapters of the Municipal Code
violated. The Administrative Citation fines are payable to the City of San Bernardino.
The proposed Ordinance adding Chapter 9.93 establishes another enforcementtool to address
violations of the Municipal Code. Code Enforcement Officers, or any other City employee with
authority to enforce the Municipal Code, can issue an Administrative Civil Penalties Notice and
Order. Based on criteria listed in Section 9.93.040, Administrative Civil Penalties up to $2,500 per
violation per day can be assessed, which are payable to the City of San Bernardino. The maximum
amount of Administrative Civil Penalties is set at $100,000 per parcel or structure for any related
series of violations. The proposed Ordinance sets the maximum rate of Administrative Civil
Penalties at $2,500 per violation. State law, at Government Code Section 53069.4, may limit this
amount to $1,000 per violation. Our Office currently has an Opinion request pending with the
California Attorney General, which may resolve this issue. The Mayor and Council may want to
assess the maximum rate of$I,OOO per violation, which we feel is legally defensible.
We recommend that the Mayor and Council refer this matter to the Legislative Review
Committee for further discussion.
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Sections:
9.93.010
9.93.015
9.93.020
9.93.030
9.93.035
9.93.040
9.93.050
9.93.060
9.93.070
9.93.080
9.93.090
9.93.100
9.93.110
9.93.120
9.93.130
9.93.140
9.93.150
9.93.160
9.93.170
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Chapter 9.93
ADMINISTRATIVE CIVIL PENALTIES
Administrative Civil Penalties.
Definitions.
Authority.
Administrative Civil Penalties Notice and Order;
Procedures.
Service of Notices.
Determination of Administrative Civil Penalties.
Administrative Costs.
Failure to Comply with Administrative Civil Penalties
Notice and Order.
Administrative Hearing; Declaration of Purpose.
Administrative Hearing; Notice.
Qualifications of Administrative Law Officer.
Disqualification of Administrative Law Officer.
Powers of Administrative Law Officer.
Administrative Hearing; Procedures.
Failure to Attend Administrative Hearing.
Administrative Enforcement Order.
Failure to Comply with the Administrative Enforcement
Order.
Judicial Review.
Collection of Administrative Citation Fines and
Administrative Civil Penalties.
Section 9.93.010 Administrative Civil Penalties. <:, <\
< .
The assessment of Administrative Civil Penalties establis~~:thi,;eN;iPter is
in addition to any other administrative or judicial (civil or crimi~lt~emElJ!,y~stablished
by law which may be pursued to address any violation of the Mun~1 Code.
Section 9.93.015
Definitions.
The following definitions shall apply in the interpretation and enforcement of
this Chapter.
A. "Administrative Law Officer" shall mean any person appointed by the City
Manager, or his/her designee, to preside at Administrative Hearings.
B. "Enforcement Officer" shall mean any Code Enforcement Officer or other
City employee or agent of the City with the authority to enforce any provision
of the Municipal Code.
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C. "Person" shall mean any individual or entity, including but not limited to any
corporation, company, partnership, association, trust, or any other form of
business entity.
D. "Responsible Party" shall mean any person or persons in charge of the
business, premises, or location, or the person or persons responsible for the
event or incident, and shall include any of the following:
(1) The person or persons who own the business or p~~iM"are the
violation exists. 'v",/!~" 'Ite:..
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(2) The person or persons in charge of the business or pre~itl'~wh~:l
the violation exists. .; ",. ':;"
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(3) The person or persons using the premises where the violation exists.
(4) If any of those persons are minors, the parent or guardians of such
minor(s) shall be the Responsible Party.
(5) If the person or persons is a business entity, the manager or on-site
supervisor where the violation exists shall also be a Responsible
Party.
City Attorney
Section 9.93.020 Authority. D RAFT
A. Any person violating any provision of the Municipal Code may oe sU~ject to the
assessment of Administrative Civil Penalties payable to the City of
San Bernardino, pursuant to the administrative procedures provided in this
Chapter.
B. For the purposes of assessing Administrative Civil Penalties, each and every
day a violation of any provision of the Municipal Code exists, constitutes a
separate and distinct violation.
C. Administrative Civil Penalties may be directly assessed by means of an
Administrative Civil Penalties Notice and Order issued by an Enforcement
Officer, as provided in this Title. Administrative Civil Penalties may be
recovered by assessment of a lien or subsequent legal action brought by the
City.
D. Administrative Civil Penalties for violations of any provision of the Municipal
Code shall be assessed at a daily rate determined by the Enforcement Officer,
or by the Administrative Law Officer pursuant to the criteria listed in Section
9.93.040 of this Chapter. The maximum rate shall be $2,500 per violation per
day. The maximum amount of Administrative Civil Penalties shall not exceed
$100,000 per parcel or structure for any related series of violations.
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Section 9.93.030
Administrative Civil Penalties Notice and Order;
Procedures.
A. Whenever an Enforcement Officer determines that a violation of one or more
provisions of the Municipal Code or applicable state law has occurred or
continues to exist, a written Administrative Civil Penalties Notice and Order may
be issued to the Responsible Party.
B. The Administrative Civil Penalties Notice and Order shall identify laws or code
sections violated and describe how each section has been violated.
C. The Administrative Civil Penalties Notice and Order shall identify the dates and
locations of the violations.
D. The Administrative Civil Penalties Notice and Order shall establish a daily
amount of Administrative Civil Penalties. The Enforcement Officer shall
determine the daily amount of Administrative Civil Penalties pursuant to the
criteria in Section 9.93.040 of this Chapter.
E. The Administrative Civil Penalties Notice and Order shall identify the factors
used in determining the duration and daily amount of Administraev~ ~rll
Penalties. .1 y orney
F. The Administrative Civil Penalties Notice and Order shall identify GAA FT
the civil penalties began to accrue and a date when the assessment of
Administrative Civil Penalties ended, unless the violation is continuous. In the
case of continuous violations, there shall be an ongoing assessment of
Administrative Civil Penalties at the daily rate established in the Administrative
Civil Penalties Notice and Order until the violations are corrected, or until such
time that the total amount of such Administrative Civil Penalties reach the
maximum amount allowed by this Chapter.
G. If the Enforcement Officer determines that the violations are of a continuous
nature, the Administrative Civil Penalties Notice and Order shall demand that
the Responsible Party cease and desist from further action causing the
violations and commence and complete all action to correct the outstanding
violations under the guidance of the appropriate City Departments.
H. The Administrative Civil Penalties Notice and Order shall describe all remedial
action required to permanently correct outstanding violations and establish time
frames for completion.
I. The Administrative Civil Penalties Notice and Order shall enumerate any other
consequences should the Responsible Party fail to comply with the terms and
deadlines as prescribed in the Administrative Civil Penalties Notice and Order.
J. More than one Administrative Civil Penalties Notice and Order may be issued
against the same Responsible Party if they encompass either different dates,
separate or different violations, or different locations.
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K. The Administrative Civil Penalties Notice and Order shall be served upon the
Responsible Party by anyone of the methods of service as set forth in Section
9.93.035.
L. The Administrative Civil Penalties Notice and Order shall identify appropriate
hearing procedures as required by this Chapter.
City Attorney
Section 9.93.035 Service Of Notices D R A F~r
A. Whenever a notice is required to be given under this Chapter, the notice shall
be served by any of the following methods unless different provisions are
otherwise specifically stated to apply:
(1) Personal service; or
(2) Certified mail, postage prepaid, return receipt requested.
Simultaneously, the same notice may be sent by regular mail. If a
notice that is sent by certified mail is returned unsigned, then service
shall be deemed effective pursuant to regular mail, provided the notice
that was sent by regular mail is not returned; or
(3) Posting the notice conspicuously on or in front ofthe property. The form
of the notice shall be approved by the City Attorney and the City
Manager or his/her designee.
B. Service by certified or regular mail in the manner described above shall be
effective on the date of mailing.
C. The failure of any person with an interest in the property to receive any notice
served in accordance with this section shall not affect the validity of any
proceedings taken under this Chapter.
Section 9.93.040
Determination of Administrative Civil Penalties.
A. In determining the date when Administrative Civil Penalties start to accrue, an
Enforcement Officer may consider the date when the City first discovered the
violation as evidenced by the issuance of a Notice of Violation or any other
written correspondence.
B. The assessment of Administrative Civil Penalties shall end when all corrections
or other action required by the Administrative Civil Penalties Notice and Order
have been completed.
C. In determining the amount of the Administrative Civil Penalties to be assessed
on a daily rate, an Enforcement Officer may consider some or all of the
following factors:
(1) The duration of the violation.
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(2) The frequency of recurrence of the violation.
(3) The seriousness of the violation.
(4) Whether the violation is also designated as an infraction or a
misdemeanor by the Municipal Code.
(5) The history of the violation.
(6) The Responsible Party's conduct after issuance of the Administrative
Civil Penalties Notice and Order.
(7) The good faith effort by the Responsible Party to comply.
(8) The economic impact of the penalty on the Responsible Party.
(9) The impact of the violation upon the community.
(10) Any other factors that justice may require.
D.
The City Manager has the authority to establish procedures and a penalty
schedule for Enforcement Officers or Administrative Law Officers to use as a
guideline in determining the amount of Administrative Civil Penalties in
appropriate cases.
Section 9.93.050
Administrative Costs.
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An Enforcement Officer or Administrative Law Officer is authorized to assess
any reasonable administrative costs. Administrative costs may include scheduling and
processing of the hearing and all subsequent actions related to the hearing.
Section 9.93.060
Failure to Comply with Administrative Civil Penalties
Notice and Order.
The City Manager shall appoint an Administrative Law Officer and establish a
date, time, and place for the Administrative Hearing in accordance with this Chapter
9.93 when the Responsible Party requests a Hearing or if the Responsible Party fails
to comply with the terms of the Administrative Civil Penalties Notice and Order. Failure
to comply includes failure to pay the assessed Administrative Civil Penalties, failure to
commence and complete corrections by the established deadlines or failure to refrain
from continuing violations of the Municipal Code.
Section 9.93.070 Administrative Hearing; Declaration of Purpose.
It is the purpose and intent of the City Council to afford due process of law to
any person who is directly affected by an administrative enforcement action. Due
process of law includes: adequate notice, an adequate explanation ofthe evidence and
reasons supporting the administrative enforcement action, and an opportunity to
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present evidence and reasons opposing the administrative enforcement action in the
Administrative Hearing. These procedures are also intended to establish a forum to
efficiently, expeditiously and fairly resolve issues raised in any administrative
enforcement action. City Attorney
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Section 9.93.080 Administrative Hearing; Notice. . . K j><\ r N
A. Where an administrative enforcement remedy or proceeding authorized by
Chapter 9.93 provides for a hearing, the Enforcement Officer or the
Responsible Party may request the City Manager, or his/her designee, to
appoint an Administrative Law Officer and schedule a date, time and place for
the hearing.
B. Written notice of the time and place of the hearing shall be served at least ten
calendar days prior to the date of the hearing on the Responsible Party.
C. The format and contents of the hearing notice shall be in accordance with rules
and policies promulgated by the City Manager, or his/her designee.
D. The notice of hearing shall be served by any of the methods of services listed
in Section 9.93.035 of this Chapter.
Section 9.93.090
Qualifications of Administrative Law Officer.
A. The City Manager or his/her designee shall promulgate rules and procedures
as are necessary to establish a pool of qualified persons who are capable of
acting on behalf of the City as Administrative Law Officers.
B. The City Manager is authorized to develop poliCies and procedures relating
to the qualifications, appointment and compensation of hearing officers,
hearing officer powers, hearing procedures, scope of the hearing, and other
matters relating to Administrative Hearings.
Section 9.93.100
Disqualification of Administrative Law Officer.
Any person designated to serve as an Administrative Law Officer is subject to
disqualification for bias, prejudice, interest, or for other reason for which a judge may
be disqualified in a court of law. Rules and procedures for the disqualification of an
Administrative Law Officer shall be promulgated by the City Manager or his/her
designee.
Section 9.93.110
Powers of Administrative Law Officer.
A. The Administrative Law Officer shall only consider evidence that is relevant to
the following issues:
(1)
Whether the Responsible Party has caused or maintained a violation of
the Municipal Code that existed on the dates specified in the Notice and
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Order; and
(2) Whether the amount of the Administrative Civil Penalties assessed by
the Enforcement Officer pursuant to the procedures and criteria
outlined in this Chapter Section 9.93 was reasonable.
B. The Administrative Law Officer may continue a hearing based on good cause
shown by one of the parties to the hearing or if the Administrative Law Officer
independently determines that due process has not been adequately afforded.
C. The Administrative Law Officer has continuing jurisdiction over the subject
matter of an Administrative Hearing for the purposes of granting a continuance,
ensuring compliance with an Administrative Enforcement Order, modifying an
Administrative Enforcement Order, or where extraordinary circumstances exist,
granting a new hearing.
D.
The Administrative Law Officer may require a Responsible Party to post a
Performance Bond to ensure compliance with an Administrative; ~1t1rpement
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Administrative Hearing; Procedures.
Section 9.93.120
A. Administrative Hearings are intended to be informal in nature. Formal rules of
evidence and discovery do not apply. The procedure and format of the
Administrative Hearing shall follow the procedures promulgated by the City
Manager or his/her designee.
B. The City bears the burden of proof at an Administrative Hearing to establish the
existence of a violation of the Municipal Code.
C. The standard of proof to be used by the Administrative Law Officer in deciding
the issues at an Administrative Hearing is by a preponderance of the evidence.
D. Each party shall have the opportunity to cross-examine witnesses and present
relevant evidence in support of that party's case.
Section 9.93.130
Failure to Attend Administrative Hearing.
Any person whose property or actions are the subject of an Administrative
Hearing and who fails to appear at the hearing is deemed to waive the right to a
hearing and the adjudication of the issues related to the hearing provided that proper
notice of the hearing as required by this Chapter has been provided.
Section 9.93.140 Administrative Enforcement Order.
A. After the presentation of all evidence and testimony, the Administrative Law
Officer shall issue an Administrative Enforcement Order which affirms or rejects
the Administrative Civil Penalties Notice and Order or which modifies the daily
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rate or duration of the Administrative Civil Penalties depending upon the review
of the evidence and application of the criteria in Section 9.93.040 of this
Chapter. The Administrative Law Officer may increase or decrease the total
amount of civil penalties and costs that are assessed by the Administrative Civil
Penalties Notice and Order.
B. The Administrative Law Officer may issue an Administrative Enforcement Order
that requires the Responsible Party to cease from violating the Municipal Code
and to make necessary corrections.
C. As part of the Administrative Enforcement Order, the Administrative Law Officer
may establish specific deadlines for the payment of penalties and costs and
condition the total or partial assessment of Administrative Civil Penalties on the
Responsible Party's ability to complete compliance by specified deadlines.
D. The Administrative Law Officer may issue an Administrative Enforcement Order
which imposes additional Administrative Civil Penalties that will continue to be
assessed until the Responsible Party complies with the Administrative Law
Officer's decision and corrects the violation.
E. The Administrative Law Officer may schedule subsequent review hearings as
may be necessary or as required by a party to the hearing to ensure
compliance with the Administrative Enforcement Order.
F. The decision of the Administrative Law Officer shall be entitled "Administrative
Enforcement Order" and shall be issued in accordance with the rules and
procedures promulgated by the City Manager or his/her designee.
G. The Administrative Enforcement Order shall become final on the date of service
of the order.
H. The Administrative Enforcement Order shall be served on all part~s tfy~~y, one
of the methods listed in Section 9.93.035 of this Chapter. i'Ji i""">. -"i!/o,~,.,
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Section 9.93.150 Failure to Comply with the Administrative Enforce'n(~~j:;',~
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A. Upon the failure of the Responsible Party to comply with terms and deadlines
set forth in the Administrative Enforcement Order, the Enforcement Officer may
use all appropriate legal means to recover the Administrative Civil Penalties,
administrative costs and obtain compliance with the Administrative
Enforcement Order.
B. After the Administrative Law Officer issues an Administrative Enforcement
Order, the Enforcement Officer shall monitor the violations and determine
compliance.
C. It is unlawful for a party to an Administrative Enforcement Hearing, who has
been served with a copy of the final Administration Enforcement Order
pursuant to this Chapter, to fail to comply with the order. Failure to comply with
a final Administrative Enforcement Order may be prosecuted as an infraction
or misdemeanor at the discretion of the City Attorney.
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Section 9.93.160
Judicial Review.
Once an Administrative Enforcement Order becomes final as provided in this
Chapter, the time in which judicial review of the Order must be sought shall be
governed by California Code of Civil Procedure Section 1094.6 or such sertign as may
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Citation Fines and
Section 9.93.170
Collection of Administrative
Administrative Civil Penalties.
Administrative citation fines and civil penalties shall be a debt to the City and
subject to all remedies for debt collection as allowed by law. When a violation involves
privately owned real property and the administrative citation fines or civil penalties are
unpaid within the prescribed time, the amount ofthe fines or penalties may be recorded
as a lien upon and against the real property without further hearing, subject to notice
of the lien as required by law.
Unpaid administrative citation fines or civil penalties involving privately owned
real property may also constitute assessment liens and be collected as special
assessments by the San Bernardino County Treasurer-Tax Collector as set forth in
Chapter 3.68 of the Municipal Code.
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