HomeMy WebLinkAbout03- City Manager ORIGINAL
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Charles McNeely, Subject: A Workshop for the Mayor and
City Manager Common Council to discuss amending Chapter 9.92,
Administrative Citation Process, and Chapter 9.93,
Administrative Civil Penalties, of the San Bernardino
Date: January 13, 2011 Municipal Code.
MCC Date: January 18, 2011
Synopsis of Previous Council Action:
10-04-2010 Councilman Brinker requested that a special workshop of the Mayor and
Common Council be convened to provide the Council and staff with the
opportunity to thoroughly discuss options for the management of Administrative
Citations and Administrative Civil Penalties and to adopt a set of uniform policies
and procedures for the consistent application of citations by the City's multiple
enforcement divisions.
Recommended Motion:
Discuss and take possible action regarding Chapter 9.92, Ad im trative Citation Process, and
Chapter 9.93, Administrative Civil Penalties, of the San B ino Municipal C Oe.
Charles McNe ty
Contact Person: Bruce Dunams Phone: 5970
Supporting data attached: Staff Report Ward(s): Citywide
FUNDING REQUIREMENTS: Amount: N/A
Source:
Acct. Description:
Finance:
Council Notes:
Agenda Item No. 3
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STAFF REPORT
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TO: Mayor and Common Council
FROM: Charles McNeely, City Manager
SUBJECT: Workshop to discuss amending the Administrative Citation Process (Chapter
9.92) and Administrative Civil Penalty (Chapter 9.93) Sections of the Municipal
Code
MEETING DATE: January 18, 2011
Background:
At the meeting of October 4, 2010, Councilman Brinker requested that a special workshop of the
Mayor and Common Council be convened to provide the Mayor and Common Council and staff
the opportunity to thoroughly discuss options for the management of Administrative Citations
and Administrative Civil Penalties and to adopt a set of uniform policies and procedures for the
consistent application of citations by the City's multiple enforcement divisions.
Attached is an analysis of the background and history of the use of Administrative Citations and
Administrative Civil Penalties as code enforcement tools in the City of San Bernardino.
(Attachment 1) This analysis identifies four options for the Mayor and Common Council to
consider in adopting a uniform approach to the management and issuance of these mechanisms:
Option 1: Maintain the Status Quo
Option 2: Approve a Hybrid Option using both the Administrative Citations Process and
Administrative Civil Penalties Process
Option 3: Repeal Administrative Citations (Section 9.92 of the Municipal Code)
Option 4: Repeal Administrative Civil Penalties (Section 9.93 of the Municipal Code)
Recommendation:
Discuss and take possible action regarding Chapter 9.92, Administrative Citations Process and
Chapter 9.93, Administrative Civil Penalties, of the San Bernardino Municipal Code.
Attachments: Memorandum to the City Manager from Interim Code Compliance
Manager with attachments
Exhibit A: Chapter 9.92, Administrative Citation Ordinance
Exhibit B: Chapter 9.93, Administrative Civil Penalty Ordinance
Attachment 1
INTEROFFICE MEMORANDUM
TO: Charles McNeely, City Manager
FROM: Bruce Dunams, Interim Code Compliance Manager
SUBJECT: Administrative Citations and Administrative Civil Penalties
DATE: January 13, 2011
The City has established a number of municipal enforcement procedures including
Administrative Warrant and Criminal Citations; however, the primary tools are Administrative
Citations and Administrative Civil Penalties. On August 2, 2010, Councilman Brinker requested
that staff provide information regarding the management of Administrative Citations and
Administrative Civil Penalties ("ACPs") including when each type of citation is used, and for
what offenses. The memorandum, dated August 16, 2010 is attached (Attachment A). In the
memorandum, staff recommended that the item be referred to either the Legislative Review
Committee ("LRC"), or special Ad Hoc Committee with the sole intent of discussing the City's
municipal enforcement procedures in greater detail, and establishing a policy that will be
implemented consistently by all of the City's enforcement departments.
At the meeting of October 4, 2010, Councilman Brinker requested that a special workshop of the
Mayor and Common Council be convened to provide the Council and staff with the opportunity
to thoroughly discuss options for the management of Administrative Citations and ACPs and to
adopt a set of uniform policies and procedures for the consistent application of citations by the
City's multiple enforcement divisions. The workshop is scheduled for January 18, 2011.
On October 7, 2010, a meeting was held with the City Manager's Office, various enforcement
departments, and the City Attorney's Office to discuss ACPs; more specifically, the City's
authority to issue the citation for violations to the Yard Sale Ordinance. During this meeting the
City Attorney and his staff provided previously unknown insight on the history of the ACP
Ordinance. The discussion further centered around which violations to the San Bernardino
Municipal Code do or do not warrant an ACP, and the legality of the ACP program.
On January 12, 2011, a meeting was held with the City Attorney's Office to discuss the options
that would be presented to the Mayor and Common Council on January 18, 2011. During that
discussion it was agreed that in the event ACPs become the subject as the primary tool of
enforcement, a set fee schedule would need to be developed for violations from the most minor
nature to the most egregious. This would entail continued dialog among Enforcement
Departments issuing Administrative Citations and ACPs to structure a uniform process.
Page 1
,jam. ....
Further discussion at the meeting included:
• Consistency among the issuance of enforcement penalties;
• City Attorney to retain his prosecutorial obligations;
• Gain compliance with minimum enforcement: and
• Reduction in the amount of hearings.
BACKGROUND
The City Manager's staff has been researching the City's use of Administrative Citations and
ACPs since 2009. This research has exemplified the need for uniformity of enforcement methods
employed by the City's various enforcement divisions. The implementation of universal
administrative policies and procedures regarding Administrative Citations and ACPs will result
in staff being able to effectively assist residents, property owners and other concerned parties
who contact the City for assistance.
The current dual enforcement methods of Administrative Citations and Administrative Civil
Penalties have proven to be effective tools in gaining compliance to violations of the Municipal
Code. However, the differences in the administration, and the amounts of the citations, often
result in confusion among the staff and the community. For example, neighbors residing on the
same street with similar code violations can be issued different penalties for their violations: one
neighbor receives an ACP for $100 per day until reaching compliance and the other is issued a
one-time penalty $100, provided that progress is being made. There are a number of factors that
may decide the final citation amount, including additional citations for non-compliance, appeals
and reduced fines. The following analysis provides specific details of the process and procedures
regarding these two primary municipal enforcement methods.
Administrative Citations
Since the establishment of the City's Administrative Citation Ordinance in 2003, the process has
served as an effective tool to obtain compliance with the Municipal Code. Administrative
Citations are issued progressively for infractions to the Municipal Code and are payable to the
City.
Administrative Citations are used primarily by the City's Code Compliance Division to issue
"tickets" for minor violations (infractions) to the Municipal Code. Individuals who receive an
Administrative Citation may be required to pay a fine in the following amounts:
• After receiving a warning through the Notice of Violation process, a fine not exceeding
$100.00 per violation for the first Administrative Citation can be issued.
• A fine not exceeding $200.00 per violation for a second Administrative Citation for a
violation of the same ordinance if issued within a 12 month period.
• A fine not exceeding $500.00 per violation for a subsequent Administrative Citation
issued for violation of the same ordinance within a 12 month period.
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• A fourth violation of the same ordinance within the 12-month period is considered a
misdemeanor.
• A request for a criminal complaint can be filed through the City Attorney's Office at this
time.
A recent survey conducted through the California Association of Code Enforcement Officers,
illustrates that this enforcement method is utilized by most cities in the State (Attachment B).
This method is consistent with California State Law regarding penalties for infractions.
Administrative Civil Penalties
Administrative Civil Penalties were established in 2008 as a stronger enforcement tool to
address any violation (infraction or misdemeanor) of the Municipal Code. Unlike
Administrative Citations, there is no fixed penalty schedule for ACPs. Penalties for violations
may be issued for up to $1,000 per violation per day and are determined by factors identified in
the Municipal Code. The City Attorney's Office as well as the Police, Fire, Public Works and
Community Development Departments, issue ACPs; however, common practice for the Code
Compliance Division, Fire Prevention and Public Works is to first attempt to gain compliance
through Administrative Citations before issuing the more aggressive ACPs.
OPTIONS
Staff has identified a list of options that may be considered, each of which is presented with its
pros and cons. Please note that none of the options address the prosecution of the citations;
there is no intent to preclude the City Attorney from fulfilling his prosecutorial obligations.
The following alternatives are intended to illustrate the various opportunities for the direction of
the management of Administrative Citations and ACPs. These options are presented to provide
sufficient information for the Mayor and Common Council to engage in a discussion that will
result in a set of policies and procedures based on research, best practice and the most effective
and reasonable methods of enforcement of violations to the Municipal Code.
Option 1 — Status Quo
The first option presented is referred to as the "status quo' option. This option would result in
no action being taken and no new policy being adopted.
The "status quo' option requires no further action. However, continuing current enforcement
practices allows for the inconsistency of product which initiated this discussion, i.e. no cross
departmental guidelines for issuance and compliance with the Municipal Code.
Page 3
Option 2 —A Hybrid Option (Staff Recommendation)
Administrative Citations are identified in the Municipal Code as an appropriate method of
enforcement for minor violations. In addition, the Administrative Civil Penalties provide the
City with a more aggressive response to violations that are not remedied through Administrative
Citations, or are egregious violations to City and State health and safety codes and are
considered imminent hazards. Staff recognizes the value in both of these enforcement tools and
acknowledges that, if issued properly, they can be used together to successfully gain compliance
to violations.
Under the hybrid option, enforcement officers issue progressive Administrative Citations as an
initial attempt to gain compliance. If that is ineffective, officers then issue an ACP when
appropriate. There would be exceptions for violations that are more egregious or blatant health
and safety issues. As a result, the policy could identify uniformity of enforcement activities.
ACPs may also be used as an enforcement tool for foreclosed properties. A number of California
cities have adopted foreclosure policies to govern the city's efforts at ensuring banks and lenders
maintain foreclosed properties in the city. This action would need to be taken separately after
further analysis.
This hybrid option would function as follows:
• After receiving a warning through the Notice of Violation process, a fine not exceeding
$100.00 per violation for the first Administrative Citation can be issued.
• A fine not exceeding $200.00 per violation for a second Administrative Citation for a
violation of the same ordinance if issued within a 12 month period.
• A fine not exceeding $500.00 per violation for a subsequent Administrative Citation
issued for violation of the same ordinance within a 12 month period.
• A fourth violation of the same ordinance within the 12-month period is considered a
misdemeanor.
This process flow is for non-life safety or imminent hazardous condition situations and will be
utilized for everyday common code issues i.e. lawn maintenance, vehicle violations, minimum
trash and debris, illegal signage, minor building and zoning code issues.
Other violations which would warrant ACPs would be limited to:
• Excessive Noise Complaints (Section 8.54) of the San Bernardino Municipal Code;
Page 4
• A willful disregard of Fire Department notices or requirements putting life or property in
imminent danger such as the use of illegal fireworks, overcrowding venues or failure to
comply with previous administrative citations;
• Violation of Storm Water/National Pollutant Discharge Elimination System notices;
• Violation of an Administrative Hearing Order;
• Severe and imminent health and safety violations defined in the Uniform Housing Code
or the Uniform Code for the Abatement of Dangerous Buildings; and
• Open, unsecured and abandoned buildings.
In order to implement the hybrid option, both the Administrative Citation (section 9.92) and the
Administrative Civil Penalties (section 9.93) of the Municipal Code will be amended to ensure
consistent implementation. Enforcement authority for Administrative Citations and ACPs will
also be amended in the Municipal Code to clarify the implementing department. Additionally, if
this option is chosen, the pursuit of contracting services for elements of administrative purposes
will be required.
Option 3—Repeal Administrative Citations, Section 9.92 of the SBMC
The option of repealing Administrative Citations, Section 9.92 from the Municipal Code would
result in the City's use of ACPs as its primary method of enforcement for all violations,
misdemeanors and infractions, of the Code. This action would eliminate the problem of having
two diverse enforcement methods and create one uniform procedure. However, during its
research, staff found that every city in California has an Administrative Citation section in its
Municipal Code, with the same progressive citation amounts consistent with State law.
This is a concern among enforcement departments as to the appropriate application of the ACP
penalties; primarily for infractions. Consistency in product control in regard to administration of
services to the City's residences is in question.
Option 4—Repeal Administrative Civil Penalties, Section 9.93 of the SBMC
Administrative Citations, Section 9.92 of the Municipal Code, were adopted in 2003 as a
method for the City to gain compliance for minor violations to the Municipal Code.
Administrative Civil Penalties, Section 9.93 of the Code, were adopted in 2008 as an additional
tool for more egregious issues. This program replicated one utilized in the City of Riverside.
The City of Riverside does have an effective ACP program; however, it is used in a fashion that
is similar to the proposed hybrid theory; not as a primary enforcement tool. To illustrate, the
City of Riverside holds two citation hearings for citation appeals per month and generally has
Page 5
two — three ACP hearings on the docket; San Bernardino also holds two citation hearings a
month and often times has over twenty ACP hearings per day.
Repealing Administrative Civil Penalties from the Municipal Code would result in enforcement
officers using Administrative Citations, Administrative Warrants and Criminal Citations to gain
compliance. This action would eliminate the problem of having two diverse enforcement
methods and create one uniform procedure.
RECOMMENDATION
Staff recommends that the Mayor and Common Council review the options and adopt a
direction to unify the approach to the issuance of these code enforcement tools. In particular,
staff recommends that the Mayor and Common Council approve Option 2, the Hybrid Option,
and direct that further work be done to create a fee schedule to define the cases to be cited as
Administrative Citations and as Administrative Civil Penalties. This schedule will be used by
all departments to ensure consistency of application. Once the direction is determined, staff will
prepare either an ordinance to implement the changes to the Municipal Code or any internal
policy necessary to unify the issuance of Administrative Citations and ACPs.
Page 6
t •
• 02
Attachment A
CITY OF SAN BERNARDINO
CITY MANAGER'S OFFICE
INTEROFFICE MEMORANDUM
To: Mayor and Common Council
From: Charles McNeely, City Manager
Subject: Municipal Enforcement Procedures
Date: August 16, 2010
This memo is in response to a request from Mayor pro-tern Tobin Brinker at the August 2nd Council
Meeting regarding Administrative Citations and Administrative Civil Penalties, and the
administration of these programs. Specifically, Councilman Brinker requested staff to clarify what
citations are issued for various offenses and when.
Currently, the City of San Bernardino has many municipal enforcement procedures in place. The
primary enforcement programs are Administrative Citations codified in Section 9.92 of the San
Bernardino Municipal Code (SBMC) and Administrative Civil Penalties (ACP) codified in Section
9.93. Both of these citations may be issued for violations to the SBMC. Recently there has been an
increase in the amount of calls received by the City Manager's Office regarding citations issued by
the City to owner occupied residences for property maintenance violations. In addition,
Councilman Brinker made reference to a similar citation during his request of staff. Therefore,
many of the references to the following citation procedures are in context to such violations.
Administrative Citations
SBMC Section 9.92 states that Administrative Citations are an appropriate method of enforcement
for minor violations of the Municipal Code, and authorizes City Enforcement Officers to issue
citations for Chapters 5, S, 15 and 19 of the Municipal Code. Sections of the SBMC that are not
listed in 9.92 have language within their section that sets penalty and enforcement conditions.
Administrative Citations are used primarily by the City's Code Enforcement Division to issue
"tickets" for minor violations to the SBMC. Any person who receives an Administrative Citation
may be required to pay a fine in the following amounts:
• A fine not exceeding$100.00 per violation for the first administrative citation.
• A fine not exceeding $200.00 per violation for a second administrative citation for a violation
of the same ordinance if issued within a 12 month period.
• A fine not exceeding $500.00 per violation for a subsequent administrative citation issued for
violation of the same ordinance within a 12 month period.
Upon identifying a violation, an Enforcement Officer will attempt to educate the property owner
and/or responsible party by personal contact and/or a written Notice of Violations (NOV) that
identifies the violations and the corrective actions necessary to bring the property into compliance.
If compliance is not gained during a specified warning period, the first citation is issued.
Officers may work with residents to ensure that the improvement requirements are understood and
that the violations are corrected. If the responsible party mitigates, or shows good intent to mitigate
i
Attachment A
the violation, additional citations are not issued. However, if after 15 days of the initial citation there
is no progress made,additional fines are imposed.
Upon receipt of the Administrative Citation, the responsible party can either pay the citation or
request an appeal to an Administrative Hearing Officer. After hearing both parties' positions, the
Hearing Officer will issue a decision, which identifies the facts of the violation, and is used to
determine the final fine or penalty.
This Administrative Citation process and fee schedule is consistent with state law for violations
identified as infractions, and similar to programs used in other cities. The progressive nature of the
Administrative Citations allows the property owner a reasonable period of time to correct violations
prior to the imposition of additional, and more aggressive, fines or penalties.
Additional Code Enforcement Procedures
In addition to Administrative Citations, Enforcement Officers may utilize any of the following
procedures to gain compliance to violations.
Administrative Warrant p property and/or
The Administrative Warrant is an order from a Superior Court Judge to inspect a ro erty
abate nuisance found that pose a danger to the community. The warrants are requested by
affidavits prepared by the Officer and City Attorney's office to correct violations that pose a
danger to the residence and/local neighborhood.
Administrative HearinP
di
The Administrative Hearing can be used for several different enforcement procedures; to appeal
an Administrative Citation; recover costs after an Administrative Warrant; to justify activities
taken by an Officer or to obtain an Administrative Hearing Order requiring a property to be
brought into compliance with the SBMC,repaired or demolished.
Criminal Citation tCriminal Complaint g g persons in
Criminal Citations are utilized for aggressive panhandling, transient vending and P
control of properties in violation of the SBMC. Criminal complaints may also be issued to
persons in control of properties where existing violations are considered to be misdemeanors.
After all attempts to gain compliance through the Administrative Citation program are exhausted,
the Officer may elect to issue an ACP or a criminal citation. Officers also have the option of
bypassing the Administrative Citation process and issuing an ACP for more egregious health and
safety violations.
Administrative Civil Penalties
The Administrative Civil Penalty Program ("ACP") was presented to the Mayor and Common
Council by the City Attorney's Office in 2008, as a stronger enforcement tool to address any
violation of the SBMC (Staff Report and Resolution attached for reference).
A power point presentation to the Mayor and Common Council in June 2010 highlighted the ACP
program, which is administered through the City Attorney's Office. A sample of 100 ACP appeals
demonstrated that a majority of ACP's are issued by City Attorney's Office Investigators. In
addition, all citation letters, appeals, hearing schedules, follow-up, compliance determination, and
revenue collection is handled through that Office.
Unlike Administrative Citations, there is no fixed fine schedule for ACP's. Penalties for violations
may be issued for up to $1,000 per violation per day and are determined by one or all of the
following factors as listed in SBMC Section 9.93.040(C):
2
Attachment A
• The duration of the violation
• The frequency and/or occurrence of the violation
• The seriousness of the violation
• Whether the violation is considered an infraction or a misdemeanor by the SBMC
• The history of the violation
• The good faith effort of the party to comply
• The economic impact on the responsible party to comply
• The impact of the violation on the community
Upon identification of a property violation, an Enforcement Officer may issue a Notice of Violation
at a residence (sample attached for reference). This notice serves as a warning, informing the
property owner that failure to correct the violation(s) within 10 days will result in the issuance of an
ACP for up to $1,000 per violation per day. A property owner may contact the City Attorney's
Office to request up to three continuations. Officers will not return to discuss the violations or
corrective actions.
If compliance is not gained during the warning period, and if the responsible party has not contacted
the City Attorney's Office, an Officer returns to the property, photographs the violations and issues
the ACP. Although the Ordinance allows the citation to be issued for up to $1,000 per violation per
day, it is common for penalties be issued at$100.00 per violation per day.
Penalties begin to accrue on the date the ACP is issued and stop when either the violation is
remedied and confirmed by the City Attorney's Office, or when the penalties reach $100,000 the
maximum penalty allowed per property by state law.
The property owner is responsible for contacting the City Attorney's Office for a re-inspection once
they feel the violations are corrected. An Officer will return to the property, photograph the
violations, and submit them to a staff member in the City Attorney's Office. If it is determined that
the photos show compliance,the property owner will receive a bill from the City Attorney's Office,
for the assessed penalties. If it is decided that the photos do not show full compliance the penalties
continue to accrue until compliance is met.
Any responsible party may contest an ACP by submitting a Request for Administrative Hearing
Form to the City Clerk's Office within 15 days from the date of the ACP. If compliance has not
been met, daily fines continue to accrue during this process; which can often take up to 45 days. If
the responsible party fails to contact the City Attorney's Office within 15 days of the ACP being
issued, a hearing is automatically scheduled and the responsible party is sent a letter notifying them
of the hearing date.
After reviewing the cases, the Hearing Officer may issue and opinion reducing penalties lower than
the maximum allowable $1,000 fine. Some cases have been reduced to as little as $2.00 per
violation per day. The Hearing Officer sets the final penalty amount and the payment terms at the
hearing. The decision of the Hearing Officer is final and can only be appealed to the Superior Court.
As mentioned, ACPs may be issued for any violation of the SBMC. The following is a list of City
Enforcement Departments and regular ACP violations issued from each:
I
Attachment A
• SBPD —Noise Violations; "boom boxes" and house parties (misdemeanors)
• SBFD — Violations to the City Fire Code; severe overcrowding, multiple fire hazards, gross
negligence endangering citizens and firefighters, fireworks(misdemeanors)
• Public Works— Public safety issues; working in the public right-of-way without a permit or
without proper traffic safety control measures (misdemeanors)
• Community Development/Code Enforcement -Failing to comply to Administrative
Citations, egregious health and safety issues, and violation of a Hearing Order
(misdemeanors)
• City Attorney's Office — Violations to property in
codes; un-maintained
landscaping, improved surfaces, lack of landscaping(infractions)
as
Unpaid ACPs are considered a debt to the City and subject to all remedies for debt colle ti thous
allowed by law. The amount of the unpaid fine may be recorded as a lien upon real property
further hearing,in accordance to state law.
Since Fiscal Year 2009, approximately $2 million in fees has been collected from the City's
Enforcement Departments, and an additional $25,000 generated from illegal fireworks enforcement
activities. Currently,just over$1.5 million in revenue has been budgeted for FY 10/11.
Policy Comparison
Staff conducted a survey of California cities with citation programs similar to San Bernardino's
ACP program. Although there are few, the cities that do utilize ACP's, including San Diego,
Fontana, Santa Cruz and Riverside, use an escalating administrative citation process before
invoking the more aggressive citation. Other cities, such as Oroville, identify ACP violations and
fines in annual Council resolutions. Many cities have adopted ACP style citation programs for
Vacant and Foreclosed Properties; however do not use these citations for any other violations to
the municipal code.
The City of San Bernardino's ACP policy was modeled after the City of Riverside. Although the
language in the two City Ordinances is virtually identical, the execution of the programs is very
different. In addition, the City's internal implementation of ACP's varies significantly. Attachment
A is a comparison of how ACPs are administered by the City of Riverside's Code Enforcement
Division, the City of San Bemardino's Code Enforcement Division and the City Attorney's Office
investigators.
Recommendation
Section 9.93.040(D) authorizes the City Manager to establish procedures and a suggested penalty
schedule to be used as a guideline in determining the amount of ACP's in appropriate cases. The
City Manager's Office is finalizing this policy with the additional goal of eliminating the
inconsistency and duplication of services that currently exists. In addition, the City's new customer
service values will be incorporated to ensure that we are providing the best possible service, while
gaining compliance.
Staff recommends that this item be referred by the Mayor and Common Council to either the
Legislative Review Committee, or a special Ad Hoc Committee with the sole intent of discussing
the City's municipal enforcement procedures in greater detail, and establishing a policy that will be
implemented consistently by all of the City's Enforcement Departments.
4
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Attachment A
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: City Attorney's Office Subject: An Ordinance of the City of San
Bernardino Adding Chapter 9.93 to the San Bernardino
Municipal Code and Establishing Administrative Civil
Dept: City Attorney Penalties for violations of the Municipal Code-
Date: April 3,2008 Resolution of the Mayor and common CounCil
of the City of San Bernardino Directing the Disposition
of Administrative Civil Penalties Collected Pursuant to
San Bernardino Municipal Code Chapter 9.93 for
Violations of the San Bernardino Municipal Code.
MCC Date:April 7,2008
Synopsis of Previous Council AcdoQ:
October 1, 2007 - Council referred matter to the Legislative Review Committee.
October 16,2007- Legislative Review Committee unanimously moved this matter forward to the
Mayor and council with a recomrncndation for approval-
November
5,2007- Council tabled this matter. 22,2008.
November 19,2007- Council continued this matter to January
January 22,2008- Council continued this matter to March 17,2008.
March 4,2008- Legislative Review Committee recommended approval.
March 17,2008- Council continued this matter to April 7,2008
Legislative Review Committee recommends:
'That said Ordinance be laid over for final adoption and that said Resolution be adaptcd-
Contact person: o Jr Sr Deouty City Attornev Phone: S 5
Supporting data attached: Stafl' Ward: All -
FUNDING REQUIREMENTS: Amount:
Finance:
Source:
Council Notes:
Agenda Item No._
Xo . 50
py-o7- og
r--TmpEN0brdine+owWBMC9.93 RCA.4-7-N.wpd
Attachment A
STAFF REPORT
Conoco Meeting Date:April 7,2006
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: April 3,2008
AGENDA ITEM: An Ordinance of the City of San Bernardino AddinAChapter ve Civil Bernardino Municipal Code and Establishing
Penalties for Violations of the Municipal Code.
Resolution of the Mayor and Common Council of the City of San
Bernardino Directing the Disposition of Administrative Civil Penalties
Collected Pursuant to San Bernardino Municipal Code Chapter 9.93 for
Violations of the San Bernardino Municipal Code.
Attached is a proposed Ordinance adding Chapter 9.93, which establishes Administrative Civil
Penalties for any violation of the Municipal Code, and which is taken from a nearby city's ordinances.
Pursuant to Chapter 1.12,currently any violation of the San Bernardino Municipal Code may be
prosecuted as a misdemeanor unless the offense is designated as an infraction by the Municipal Code. The the co
maximum punishment for a misdemeanor violation of the Municipal Code is imprisonme semen forman
jail not exceeding six months and/or a fine not exceeding $1,000• The maximum p
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
Currently,Chapter 9.92 provides that certain minor violations of the Municipal Code may also be
enforced by issuance of an Administrative Citation,where an Adminis6rative Fine in thc same amounts
as an infraction fine, may be assessed for each day a violation exists and for each section payable Ci certain
chapters of the Municipal Code violated. The Administrative Citation fines are payab
San Bernardino.
The proposed Ordinance adding Chapter 9.93,establishes a stronger enforcement tool to address
any violation 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 m�unp�1O�on per
day can be assessed, which are payable to the City of San Bernardino. 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 for Administrative Civil Penalties at$1,000 per violation.
State law,at Government Code Section 53069.4,states that these administrative fines or penalties,where
the violation would otherwise be an infraction,shall not exceed the maximum fine or penalty amounts for
infractions. Government Code Section 53069.4 is silent regarding the maximum administrative fine or
a
Attachment A
Page 2
Staff Report Chapter 9.93 to the San
Agenda Item: An Ordinance of the City of San Bernardino Adding hap
Bernardino Municipal Code and Establishing Administrative Civil Penalties for
Violations of the Municipal Code.
Resolution of the Mayor and Common Council of the City of San Bernardino
Directing the Disposition of Administrative Civil Penalties Collected Pursuant to
San Bernardino Municipal Code Chapter 9.93 for Violations of the San Bernardino
Municipal Code.
April 3 2008
penalty amounts where the violation would otherwise be a misdemeanor. Our Office currently has an
Opinion request pending with the California Attorney General,which may resolve this issue. On March
28,2008,the Attorney General's Office called our office and informed us that our Opinion request has j ust
been reassigned to another Deputy Attorney General with directions to make it a first priority. Until the
Attorney General's Opinion is issued,it is uncertain whether this proposed Ordinance is valid.
At the October 1, 2007 Council Mating, the City Attorney presented a previous draft of the
proposed Ordinance adding Chapter 9.93. At the City Attorney's request,it was referred to the Legislative
Review Committee. On October 16,2007,the Legislative Review Committee discussed this previous
draft of the proposed Ordinance and voted unanimously to move the proposed Ordinance forward to the
Mayor and Council with a recommendation for approval.
Since that time,the Council has twice continued this matter. On March 4,2008,the Legislative
Review Committee reviewed this matter and unanimouslyrecommended approval in conjunction with the
proposed Ordinance adding Chapter 8.6 1,repealing Section 8.60.140,and amending Section 8.60.150 of
the San Bernardino Municipal Code regarding Fireworks, which is also on the April 7, 2008 Council
Meeting Agenda.
The proposed Resolution requires that all revenues collected as Administrative Civil Penalties
imposed pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the San Bernardino
Municipal Code,except for violations of Chapter 8.60 and 8.61 regarding fireworks,be deposited into a
specific Trust Account until the Mayer and Common Council takes action to appropriate such funds. The
proposed Resolution directs that Administrative Civil Penalties collected for violations of Chapter 8.60
and 8.61 regarding fireworks,be deposited in the City's General Fund.
Legislative Review Committee recommends: That said Ordinance be laid over for final adoption and that
said Resolution be adopted.
Attachment A
I AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE
2 SAN BERNARDINO MUNICIPAL CODE�'AND ODEAD����L
PENALTIES FOR VIOLATIONS O
3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
4 Common Council of the City of San Bernardino at a meeting thereof,held on the
day of .2008,by the following vote,to wit:
5
6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
7
ESTRADA
8
9 BAXTER
10 BRINKER
11
12 DERRY
13 KEY
14
JOHNSON
15
16 MC CAMMACK -
17
18
City Clerk
19
20 The foregoing Ordinance is hereby approved this—day of _,2008.
21
22 PATRICK J. MORRIS,Mayor
23 City of San Bernardino
24 Approved as to form:
25 JAMES F.PENMAN
26 City Attorney •. ,�
17 ai L %i"*-Af
28 cAg5 G..,A t o t r ro -s • j
10
i ..
Attachment A
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DIRECTING THE DISPOSITION OF ADMINIS'T'RATIVE CIVIL
3 PENALTIES COLLECTED FR VIOLATIONS OF THE SAN BERNARDINO MUNICIPAL CODE. E
CHAPTER 9.93
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY O
5 SAN BERNARDINO AS FOLLOWS:
6
SECTION 1. That all revenues collected as a result of Administrative Civil Penalties
7
imposed pursuant to San Bernardino Municipal Code Chapter 9.93 for violations of the San
s fireworks,shall
Bernardino Municipal Code,except for violations of Chapter 8.60 and 8.61 regarding
9
be deposited into a specific Trust Account created by the City Treasurer or hivber designee solely for
10
the purpose of accounting for these City Funds. All revenues collected as a result of Administrative
11
Civil Penalties imposed for violations of San Bernardino Municipal Code Chapter 8.60 and 8.61
12
regarding fireworks,shall be deposited in the City's General Fund.
13
SECTION Z. That all revenues held in the Trust Account established pursuant to Section
14
1 above,shall be held in said account until such time as the Mayor and Common Council take action
15
to appropriate the funds.
16
17
18
19
20
21
22
23
24
25
26
27
28 P.\EMPEN01Re0004+.dminictrstivt Civil Penalties-Rnolution.wpd
1
Attachment A
Y
i
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DIRECTING THE DISPOSITION OF ADMMSTRATWE CIVIL
2 PENALTIES COLLECTED PURSUANT OF HE SAN BERNARD O MUNICIPAL CODE.
CHAPTER 9.93 FOR
3
4 b the Mayor and
I HEREBY CERTIFY that the foregoing Resolution was duly adopted Y
5 meeting theroo�held on the_day
Common Council of the City of San Bernardino at a
6
of .2008,by the following vote,to wit-
7
e COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12 DERRY
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17 Rachel Clark,City Clerk
16 , 2008.
The foregoing Resolution is hereby approved this,_day of
19
20
21 PATRICK J.MORRIS, Mayor
22 City of San Bernardino
23 Approved as to form:
24
JAMES F.PENMAN
25 City Attorney .y
CA
2 8 F:%EWEN0Utes0S\Adm1ai9Wivc Civil Penalties-RosotaCon.wpd
Attachment A
CITY OF SAN BXRNARDINO
ADMINISTRATIVE CIVIL PENALTIES PROGRAM
$00 NORTM "0" ST., drr FLOOR, SAN ■tRNgRDIN4, CA atsa 1"001
taoel�sa-ea�esr+ara t9oa►Issa-s�se
ineI 2010
Rye: Notice of Violation fbr property located at San
Reraardiso,Calllbr ass,
Dear Mr.and Mrs.
This letter shall serve as notice that the following violations exist on your property located at
Son Bernardino,California:
.San Bernardinr,Municipal Cndo g 15.24.040(AKI)6 lack of landscaping(portions of Aunt
yard aide yard.and parkway are bare dirt and in need of ground cover):
San Beriwndino AAodc47at Coati IS 15.24.040(A)(2)-unmaintained landscaping(romalning
front and aide yards In need of trimming,irrigation and malntenanee);
-Van Bernardino Municipal Code 115.24.040(A)(3)-weeds and overgrown vepadon(weeds
and overgrown vegetation throughout property in need of removal,inciuding woods on bars
on west side of building in need of removal);
-San A rnardow Municipal C.'ode J 15.24.040(AX4).trash,debris and improperly stored
items(trash,litter,debris,and other improperly stored items throughout the property In need
of removal,Including trash and tires on west side orbullding in need of removal);
San Bernardino Municipal Code§ 15.24.040(A)(7)•condition of structure(structure in need
of repair,Including fascia in need of paint,air conditioning unit in need of repair/removal);
San Bernardino A funlelpal Code j 15.24.04((A)(Oy graffiti(graffiti on structure In now of
removal,including graffiti on bars on west side of building);and
F5ta1R{na'•RWdmInlMwls c�h/t�aw11MV.NflMWa�L.NwA, __
Attachment A
San Bermardlno Municipal Code 012.32.030•addmaa numbers required(building numbers
must be posted on the property and visible fiom the public right of way,including building
numbers posted on damaged mailbox In need of repair).
These violations must be corrected within]S days of the date of this letter. Failure to cot'rect
these violations and comply with the San Bernardino Municipal Code will resuh in an
Administrative Civil Penalty being issued to you. ne Maximum penalty is$1.000.00 per day per
violation until the violations are eotrxted and vorifled by the City. t/'you need more dw to cornett
rbe viaosdont.please cadl to n xem as exrrrra/ors. Eaotursdoxs pray be fm►rW 0 k)W as Pm call
to reqNeat one artd yon are making phyOwl proem on the"CKy to coma the vkddkas.
.,... , .. - ---.,......._._., _,...... ..._.. ,. - _.1 J mie .G mina._w�. ........-.��......._._...
del Iva Analyst
MCIRORRUd+einIp"t a OW1 PwiA9N1E.vf"W&mfi4j!tmlfed
Attachment A
CITATION NO.• Date: Time
CITY OF SAN BERNARDINO
ADMINISTRATIVE CIVIL PENALTIES NOTICE AND ORDER
DAILY AMOUNT of ADMINISTRATIVE PENALTIES: $
FACTORS c6NSIDERED PURSUANT TO SSMC§9.93.040(check all that apply):
(1)duration;,_,_(2)frequency;_(3Wousness;_(4)misdemeanor,`(S)history_(6)od
Wth effort to comply;_(7)economic impact;—Mimpact on community.
DATE PENALTIES BEGIN TO ACCRUE:
CONTINUOUS VIOLATION? ( )YES ( )NO
*If yes is checked,the Responsible Party shall 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. Penalties will continue to accrue until the
violations arse corrected.
DRIVER'S LICENSE: FIRST: MIDDLE: LAST: DOB:
VIOLATION ADDRESS:
MAILING ADDRESS:
MUNICIPAL CODE SECTION VIOLATED: VIOLATION DESCRIPTION:
CORRECTIVE ACTION REQUIRED:
NAME AND SIGNATURE OF ISSUING OFFICER:
DEPARTMENT
READ REVERSE SIDE FOR IMPORTANT INFORMATION
Ne:Ciy AUPMY COPY YeOow: DvaWad eo'y Pk&-Mon eo►y,UoNgl CAWS Mugu CAW:Rupwible Fxty/Site COPY
Attachment A
IMPORTANT INFORMATION ABOUT YOUR RIGHTS
PLEASE READ CAREFULLY
City of San Bernardino Municipal Code Chapter_9.93 provides for the assessment of Administrative Civil
Penalties for Municipal Code Violations. 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§9.93.040. The maximum rate shall be$1,000.00
per day. The maximum amount of Administrative Civil Penalties shall not exceed$100,000 per parcel or
structure for any related series of violations. Responsible Party has the burden of notifying the City Attorney's
Office once all violations have been corrected in order to stop the daily accrual of penalties.
Administrative Civil Penalties can be issued in addition to criminal citations,administrative citations,or any
other civil action. Issuance of one type of enforcement action does not preclude the use of any other
enforcement provided for under the San Bernardino Municipal Code.
Right to a Hearing:
An Administrative Hearing will be scheduled when the Responsible Party requests a Hearing within 15
days from the date of the Notice and Order,or if the Responsible Party fails to comply with the terms of the
Administrative Civil Penalties. Failure to comply includes failure to pay the assessed Administrative Civil
Penalties within 15 days,failure to commence and complete corrections by the established deadlines or failure
to refrain from continuing violations of the Municipal Code.
Requests for Hearing must be made in writing to the City Clerk, 300 North"D"Street,San Bernardino,
California 92418. Please include a copy of the Notice and Order with your request.
How to pay penalties:
The amount of the penalty is indicated on the front of this Notice and Order. Payment may be made in
person or by mail to:
City Attorney's Of1'!ee
300 North D Street,61"Floor
San,BernRrdino,CA 92418
(909)384-5355
Payment should be made by personal check,cashier's check,or money order,payable to the City of San
Bernardino. Be sure to write the citation number on your check or money order and enclose a copy of the
Notice and Order.
If you have any questions regarding corrective actions that are needed,please call the department that issued the
Notice and Order listed on the front of this form.
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Chapter 9.92 Exhibit A
ADMINISTRATIVE CITATION PROCESS
Sections:
9.92.010 Legislative Findings and Statement of Purpose.
9.92.020 Administrative Law Officer.
9.92.030 Use of Administrative Citation.
9.92.040 Violation; Authority; Fines.
9.92.050 Service Procedures.
9.92.060 Contents of Citation.
9.92.070 Satisfaction of the Administrative Citation.
9.92.080 Request for Hearing on an Administrative Citation.
9.92.090 Failure to Pay Fines.
9.92.100 Publication and Availability of Rules and Regulations.
9.92.110 Representation at Hearings.
9.92.120 Conduct of Hearings.
9.92.130 Orders.
9.92.140 Disposition of Fines.
9.92.150 Punishment of Violations by Imprisonment.
9.92.160 Administrative Adjudication Procedures Not Exclusive.
9.92.170 Applicability of Administrative Adjudication Procedures.
9.92.180 Appeals.
9.92.190 Severability.
9.92.010 Legislative Findings and Statement of Purpose.
The Mayor and Common Council hereby finds that there is a need for an
alternate method of enforcement for minor violations of the Municipal Code and
applicable state codes. An appropriate method of enforcement for minor violations is
an Administrative Citation Program as authorized by Government Code§53069.4.
9.92.020 Administrative Law Officer.
The position of Administrative Law Officer is hereby created. The appointment,
qualifications, disqualification, and powers of the Administrative Law Officer shall be
the same as those provided for the Administrative Hearing Officer as stated in San
Bernardino Municipal Code Chapter 9.93.
(Ord. MC-1270, 5-19-08; Ord. MC-1150, 9-15-03)
9.92.030 Use of Administrative Citation.
A. Use of the administrative citation authorized by this chapter is limited to code
enforcement violations found in Chapters 5, 8, 15, and 19 of the San
Bernardino Municipal Code.
9.92.040 Violation; Authority; Fines.
A. Any person violating any provision of Chapters 5, 8, 15 or 19 of the San
Bernardino Municipal Code may be issued an administrative citation by a Code
Enforcement Officer, or other authorized officer, as provided in this Title.
B. Each and every day a violation of any provision of Chapters 5, 8, 15 or 19 of the
San Bernardino Municipal Code exists constitutes a separate and distinct
offense. Each section of Chapters 5, 8, 15 and 19 of the San Bernardino
Municipal Code violated constitutes a separate and distinct violation.
[Rev. November 2, 20091 9-33
C. Any fine assessed by means of an administrative citation issued by the Code
Enforcement Officer, or other authorized officer, shall be payable directly to the
City of San Bernardino.
D. Any person who receives an administrative citation shall be required to pay a
fine in the following amounts:
(1) A fine not exceeding One Hundred Dollars ($100.00) for the first
administrative citation;
(2) A fine not exceeding Two Hundred Dollars ($200.00) for a second
administrative citation for violation of the same ordinance if issued
within a twelve (12) month period;
(3) A fine not exceeding Five Hundred Dollars ($500.00) for any
subsequent administrative citation issued for violation of the same
ordinance within a twelve (12) month period.
9.92.050 Service Procedures.
In any case where an administrative citation is issued, service of the citation
shall be made by complying with the following:
A. Personal Service. The Code Enforcement Officer, or other authorized officer,
shall attempt to locate and personally serve the responsible person and obtain
the signature of the responsible person on the administrative citation. If the
responsible person refuses orfails to sign the administrative citation,the refusal
to sign shall not affect the validity of the administrative citation or of subsequent
proceedings; or, if the responsible person cannot be contacted and personally
served after reasonable efforts to do so have failed, service may be effected by
certified mail.
B. Mail and Posting. The responsible person shall be served by certified mail,
return receipt requested. Simultaneously,the citation shall be sent by first class
mail and posted on the violating property. If the citation is sent by certified mail
and returned unsigned,then service shall be deemed effective pursuant to first
class mail, provided the citation sent by first class mail is not returned.
9.92.060 Contents of Citation.
A. Each administrative citation shall contain the following information:
(1) Date, approximate time and address or definite description of the
location where the violation(s) was/were observed;
(2) The Code section(s) violated and a description of the violation(s);
(3) The amount of fine for the violation(s);
(4) An explanation of how the fine shall be paid and the time period by
which it shall be paid;
[Rev. November 2, 2009] 9-34
(5) Identification of rights to a hearing, including the time within which the
hearing may be requested; and
(6) The name and signature of the Code Enforcement Officer, or other
authorized officer, issuing the citation.
B. If the violation is one which is continuing, a Notice to Correct the violation and
an Explanation of Consequences for failing to correct the violation shall be
issued concurrently with the citation. Failure to issue the Notice to Correct
and/or explanation of consequences for failure to correct violations shall not
affect the validity of the administrative citation or of subsequent proceedings.
9.92.070 Satisfaction of the Administrative Citation.
Upon receipt of a citation, the responsible person must:
A. Pay the fine to the City within fifteen (15) days from the issue date of the
administrative citation; or
B. File a Request for Hearing pursuant to §9.92.080.
C. All fines assessed shall be payable to the City of San Bernardino. Payment of
a fine shall not excuse or discharge the failure to correct the violation(s) nor
shall it bar further enforcement action by the City.
9.92.080 Request for Hearing on an Administrative Citation.
A. Time to file a Request for Hearing. Any recipient of an administrative citation
may contest the citation by completing a Request for Hearing form and
returning it to the City Clerk within fifteen (15)days from the date the citation is
served or deemed to have been served. A failure to file a timely Request for
Hearing shall be deemed a waiver of the right to a hearing on the citation and
a failure to exhaust administrative remedies.
B. Hearing Procedure:
1. No hearing to contest an administrative citation before the
Administrative Law Officer shall be held unless and until a Request for
Hearing form has been completed and submitted and the citation being
contested has been reviewed and approved by the City Attorney, or
his/her designee.
2. After receipt of the Request for Hearing form and review and approval
of the citation by the City Attorney, or his/her designee, a hearing before
the Administrative Law Officer shall be set for a date that is not less
than fifteen (15) days and not more than sixty (60) days from the date
that the request for hearing is filed in accordance with the provisions of
this Chapter. The applicant shall be notified of the time and place set
for the hearing at least ten (10) days prior to the date of hearing.
3. If the City Attorney, or his/her designee declines to approve the citation,
said citation shall be dismissed and the City Attorney, or his/her
[Rev. November 2, 2009] 9-35
k
designee, shall notify the applicant in writing that the citation has been
dismissed and therefore, there is no need for a hearing.
4. The City Attorney, or his/her designee shall approve or dismiss the
citation within no more than three (3)working days of the receipt of the
Request for Hearing form by the City Attorney's Office.
s
5. The applicant shall be given the opportunity to testify and present
evidence concerning the administrative citation.
}
1
4
6. The formal rules of evidence shall not apply.
C. The administrative citation and any additional documents submitted by the
Code Enforcement Officer, or other authorized officer, shall constitute prima
facie evidence of the respective facts contained in those documents
D. The Code Enforcement Officer, or other authorized officer, shall submit the
written report concerning the administrative citation to the Administrative Law
Officer for consideration at the hearing, and a copy of this report shall also be
served by mail on the person requesting the hearing at least ten (10)days prior
to the date of the hearing.
E. At least ten (10) days prior to the hearing, the recipient of an administrative
citation shall be provided with copies of all reports and other documents
submitted or relied upon by the Code Enforcement Officer, or other authorized
officer.
F. The Administrative Law Officer may continue the hearing and request additional
information from the issuing Code Enforcement Officer, or other authorized
officer, or from the recipient of the administrative citation prior to issuing
findings of fact and statement of decision.
G. Any person who has filed a "Request for Hearing" form and has been notified
of the time and date for a hearing pursuant to this Chapter who does not appear
at said hearing and does not seek a continuance prior to the hearing shall be
deemed to have waived the right to be present at the hearing and the hearing
shall proceed in his/her absence.
H. Administrative Law Officer's Decision. After considering all of the testimony
and evidence submitted at the hearing, the Administrative Law Officer may
immediately issue a verbal decision or may issue a written decision within ten
(10) working days of the hearing. The decision shall include any conditions
pertaining to the correction of the violation(s) and any time limits set for said
corrections.
1. If a verbal decision is issued at the hearing, a written decision shall be
prepared by the Administrative Law Officer and mailed to the applicant
within ten (10) working days.
2. The effective date of the decision shall be the mailing date of the written
decision to the applicant.
[Rev. November 2, 2009] 9-36
9.92.090 Failure to Pay Fines.
Failure of any person to pay a fine assessed by the administrative citation within
the time specified on the citation, or designated by the Administrative Law Officer as
a result of a hearing, shall result in the recording of a lien on the property that is the
subject of the citation in the amount of said fine.
9.92.100 Publication and Availability of Rules and Regulations.
The rules and regulations promulgated for the conduct of administrative
adjudication hearings shall be published and kept on file in the office of the City Clerk,
where they shall be available to the public for inspection and copying at nominal rates
during normal business hours.
9.92.110 Representation at Hearings.
A. City representation. The case for the City shall be presented by the City
Attorney or his/her designee.
B. Respondent representation. The case for the respondent may be presented by
the respondent or attorney for the respondent. An attorney shall present a
written appearance form signed by the respondent under penalty of perjury
indicating that such attorney is authorized to act and to bind the respondent to
any orders entered by the Administrative Law Officer.
9.92.120 Conduct of Hearings.
A. Generally. The Administrative Law Officer shall conduct the hearings in an
orderly manner and insist upon proper decorum by all persons present at the
hearings. The intent of the hearings is to provide the City and the respondent
a full and fair presentation of the issues.
B. Testimony and Evidence. The strict laws of evidence shall not apply.
1. Testimony. Hearsay testimony may be admitted and relied upon by the
Administrative Law Officer in making a determination.
2. Evidence. Relevant documents may be received into evidence without
formal proof of authenticity. The Administrative Law Officer shall
determine the weight, if any, to be afforded documents received into
evidence.
C. Transcript of proceedings. The City shall determine the manner in which the
transcript of proceedings shall occur. Either party may request that the
proceedings be taken and transcribed by a certified court reporter. The City
may, at its cost, record the proceedings. If a recording is made, a respondent
may obtain a transcript at the respondent's cost.
D. Continuances. All administrative law hearings shall be conducted on the date
set for hearing. For good cause shown, a postponement may be granted in the
discretion of the Administrative Law Officer, or the office of the City Attorney
may stipulate to a continuance. The purpose of administrative law hearings is
[Rev. November 2, 2009] 9-37
x
to provide prompt resolution of alleged Code or ordinance violations and,
accordingly,the request for and the grant of continuances shall be limited to the
extent fairness permits.
9.92.130 Orders.
A. Generally. The Administrative Law Officer shall issue orders, including a final
order, in accordance with Section 9.92.080(H).
B. Compliance Bond. In order to ensure that Code or ordinance violations are
remedied or fines are paid in a timely manner, an Administrative Law Officer,
upon issuing a final determination of liability, may on a case by case basis,
require a respondent to post with the City a compliance bond or,as appropriate,
to consent to the granting and recording of a lien against titled property.
Whenever it is necessary for the City to make repairs or otherwise expend
funds relating to a Code or ordinance violation for which a bond was posted, or
whenever fines or costs remain unpaid after a respondent has exhausted or
failed to exhaustjudicial review procedures,the Administrative Law Officer may,
after giving the parties notice and opportunity to be heard, issue an order
permitting the City to draw against the bond in an appropriate amount, or to
foreclose on the lien. The Administrative Law Officer shall order the bond or
the titled property or proceeds from the titled property, less the costs incurred
by the City, returned to the respondent upon proof of compliance with the
applicable code provisions and payment of applicable fines or costs.
C. Violations of orders. Any person, having received notice and an opportunity for
a hearing as provided in this chapter shall, if the order is not complied with or
if the order is not stayed by a court of competent jurisdiction, prior to its
effective date, be in violation of said hearing order, which shall constitute a
misdemeanor or an infraction. Violation of a hearing order shall be punishable
as provided in Section 1.12.010 for each offense. Each day that the violation(s)
continue(s) shall be considered a separate and distinct offense. In a
prosecution under this section, it shall not be a defense that a person came into
compliance with an order, sought judicial review of it, or made efforts to comply
with an order, subsequent to its effective date.
9.92.140 Disposition of fines.
All fines and other monies paid to the City in accordance with this article shall
be remitted to the City and deposited in the appropriate City account as designated by
the Mayor. The allocation of revenues deposited in this account shall be determined
by the Mayor and Common Council.
9.92.150 Punishment of Violations by Imprisonment.
In no case may the Administrative Law Officer conduct an administrative
adjudication hearing for an alleged violation of the ordinances of the City or this code
where the requested remedy is a punishment of imprisonment. Nothing in this Chapter,
however, shall preclude the City from seeking the remedy of imprisonment in a court
of law, including imprisonment for failure to comply with the order of an Administrative
Law Officer, pursuant to Section 9.92.080(c).
[Rev. November 2, 2009] 9-38
9.92.160 Administrative Adjudication Procedures Not Exclusive.
Notwithstanding any other provisions of this article, the authority of the
Administrative Law Officer to conduct administrative hearings in accordance with this
chapter shall not preclude the City from seeking any remedies for Code or ordinance
violations through the use of any other administrative procedure or court proceeding.
9.92.170 Applicability of Administrative Adjudication Procedures.
A. Notwithstanding any other provision of the ordinances of the City or this Code,
all provisions of this Code or ordinances, except for those specified in
subsection (c) of this section, may be enforced by instituting an administrative
adjudication hearing with the Administrative Law Officer as provided in this
article.
B. Notwithstanding any other provision of the ordinances of the City or this Code,
any enforcement action, including but not limited to license or permit
suspension or revocation, which may be exercised by another department of
the City may also be exercised by the Administrative Law Officer as provided
in this article.
9.92.180 Appeals.
A. Any party to an administrative adjudication hearing may appeal from an adverse
ruling to the Board of Building Commissioners.
1. The appeal shall be filed with the City Clerk within ten (10) days
following the date of the written decision of the Administrative Law
Officer and shall include the payment of all applicable appeal fees. The
appeal shall be in writing and set forth (a) the specific action appealed
from, (b)the specific grounds for the appeal, and (c)the relief or action
sought from the Board of Building Commissioners. In the event any
notice of appeal fails to set forth all information required by this section,
the City Clerk shall return the same to applicant with a statement that
it is deficient, and the applicant shall be allowed ten (10) days after the
City Clerk mails the appeal application in which to re-file the appeal.
2. The decision of the Board of Building Commissioners shall be final and
conclusive and shall not be subject to appeal to the Mayor and
Common Council. Pursuant to Code of Civil Procedure §1094.6, any
action to review the decision of the Board of Building Commissioners
shall be commenced not later than the ninetieth day after the date the
Board's order is adopted.
9.92.190 Severability.
The provisions of this Chapter are severable, and, if any sentence, section or
other part of this Chapter should be found to be invalid, such invalidity shall not affect
the remaining provisions, and the remaining provisions shall continue in full force and
effect.
(Ord. MC-1148, 08-04-03)
[Rev. November 2, 2009] 9-39
Exhibit B
Chapter 9.93
ADMINISTRATIVE CIVIL PENALTIES
Sections:
9.93.010 Purpose and Intent.
9.93.015 Definitions.
9.93.020 Administrative Civil Penalties.
9.93.030 Administrative Civil Penalties Notice and Order;
Procedures.
9.93.035 Service of Notices.
9.93.040 Determination of Administrative Civil Penalties.
9.93.050 Administrative Costs.
9.93.060 Failure to Comply with Administrative Civil Penalties Notice
and Order.
9.93.070 Administrative Hearing; Declaration of Purpose.
9.93.080 Administrative Hearing; Request and Notice.
9.93.090 Appointment and Qualifications of Administrative Hearing
Officer.
9.93.100 Disqualification of Administrative Hearing Officer.
9.93.110 Powers of Administrative Hearing Officer.
9.93.120 Administrative Hearing; Procedures.
9.93.130 Failure to Attend Administrative Hearing.
9.93.140 Administrative Hearing Order.
9.93.145 Liability of Responsible Parties.
9.93.150 Failure to Comply with the Administrative Hearing Order.
9.93.160 Judicial Review.
9.93.170 Collection of Unpaid Administrative Citation Fines,
Administrative Civil Penalties, and Administrative Costs.
9.93.180 Severability.
9.93.190 CEQA Exemption.
9.93.010 Purpose and Intent.
The Mayor and Common Council has determined that the enforcement of the
San Bernardino Municipal Code throughout the City is an important public service and
is vital to the protection of the public's health, safety and quality of life. The Mayor and
Common Council has determined a need for alternative methods of code enforcement
and that a comprehensive code enforcement system uses a combination of judicial and
administrative remedies to gain compliance with code regulations. The Mayor and
Common Council finds a need to draft precise regulations that can be effectively
applied in judicial and administrative proceedings and further finds that there is a need
to establish uniform procedures for the proper application of administrative code
enforcement remedies and administrative hearings to resolve administrative code
enforcement cases and appeals.
9.93.015 Definitions.
The following definitions shall apply in the interpretation and enforcement of this
Chapter.
A. "Administrative Costs"shall mean all costs incurred by or on behalf of the City
[Rev. November 2, 2009] 9-40
from the first discovery of the violation of the San Bernardino Municipal Code
through the appeal process and until compliance is achieved, including but not
limited to, staff time in investigating the violation, inspecting the property where
the violation occurred, preparing investigation reports, sending notices,
preparing for and attending any appeal hearing, attorneys'fees, and fees paid
to the Administrative Hearing Officer. "Administrative Costs"shall not mean the
Administrative Civil Penalties assessed pursuant to this chapter.
"Administrative Costs" shall not mean late payment charges that accrue, or
collection costs incurred, as a result of unpaid Administrative Civil Penalties.
B. "Administrative Hearing Officer" shall mean any person assigned by the City
Manager, or his/her designee, to preside at Administrative Hearings.
C. "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.
D. "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.
E. "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 property where the
violation exists.
(2) The person or persons in charge of the business or premises where the
violation exists.
(3) The person or persons using or occupying 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 are a business entity, the manager or on-site
supervisor where the violation exists shall also be a Responsible Party.
9.93.020 Administrative Civil Penalties.
A. Any person violating any provision of the Municipal Code may be subject to the
assessment of Administrative Civil Penalties payable to the City of San
Bernardino, pursuant to the administrative procedures provided in this Chapter.
B. The assessment of Administrative Civil Penalties established in this Chapter is
in addition to any other administrative or judicial (civil or criminal) remedy
established by law which may be pursued to address any violation of the
Municipal Code.
C. For the purposes of assessing Administrative Civil Penalties, each and every
[Rev. November 2, 2009] 9-41
day a violation of any provision of the Municipal Code exists shall constitute a
separate and distinct violation.
D. 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 Chapter. Administrative Civil Penalties may be
recovered by assessment of a lien or subsequent legal action brought by the
City.
E. 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 Hearing Officer pursuant to the criteria listed in Section
9.93.040 of this Chapter. The maximum rate shall be $1,000 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.
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 Administrative Civil
Penalties.
F. The Administrative Civil Penalties Notice and Order shall identify the date when
the civil penalties began to accrue and the 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 Administrative Civil Penalties reaches 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.
[Rev. November 2, 2009] 9-42
H. When the violation(s) pertains to building, plumbing, electrical or other similar
structural or zoning issues, that do not create an immediate danger to health
or safety,the Administrative Civil Penalties Notice and Order shall provide that
Administrative Civil Penalties shall not be imposed if the Responsible Party
corrects all of the violations within seven days after service of the Administrative
Civil Penalties Notice and Order.
I. The Administrative Civil Penalties Notice and Order shall describe all remedial
action required to permanently correct outstanding violations and establish time
frames for completion.
J. The Administrative Civil Penalties Notice and Order shall enumerate any other
consequences pursuantto this Chapter,if the Responsible Party fails to comply
with the terms and deadlines as prescribed in the Administrative Civil Penalties
Notice and Order.
K. 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.
L. The Administrative Civil Penalties Notice and Order shall be served upon the
Responsible Party by any one of the methods of service as set forth in Section
9.93.035.
M. The Administrative Civil Penalties Notice and Order shall identify appropriate
hearing procedures as required by this Chapter.
9.93.035 Service of Notices
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 of the property.The form
of the notice shall be approved by the City Manager or his/her designee,
with the advice of the City Attorney.
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.
[Rev. November 2, 2009] 9-43
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
at a daily rate, an Enforcement Officer may consider some or all of the following
factors:
(1) The duration of the violation;
(2) The frequency of recurrence of the violation;
(3) The seriousness of the violation;
(4) Whether the violation is designated as an infraction, a misdemeanor, or
either an infraction or a misdemeanor, by the Municipal Code;
(5) The history of the violation;
(6) The good faith effort by the Responsible Party to comply;
(7) The economic impact of the penalty on the Responsible Party; and
(8) The impact of the violation upon the community.
D. The City Manager has the authority to establish procedures and a suggested
penalty schedule for Enforcement Officers or Administrative Hearing Officers
to use as a guideline in determining the amount of Administrative Civil Penalties
in appropriate cases.
9.93.050 Administrative Costs.
An Enforcement Officer or Administrative Hearing Officer is authorized to
assess any reasonable Administrative Costs in addition to the Administrative Civil
Penalties.
9.93.060 Failure to Comply with Administrative Civil Penalties Notice and Order.
The City Manager shall assign an Administrative Hearing Officer and establish
a date, time, and place for the Administrative Hearing in accordance with this Chapter
when the Responsible Party requests a Hearing or if the Enforcement Officer requests
a Hearing when 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
[Rev. November 2, 2009] 9-44
of the Municipal Code.
9.93.070 Administrative Hearing; Declaration of Purpose.
It is the purpose and intent of the Mayor and Common 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 of the violation, an adequate
explanation of the evidence and reasons supporting the administrative enforcement
action, and an opportunity to 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.
9.93.080 Administrative Hearing; Request and Notice.
A. Any Responsible Party may contest the Administrative Civil Penalties Notice
and Order by completing a Request for Administrative Hearing Form and
returning it to the City Clerk within fifteen (15) days from the date the
Administrative Civil Penalties Notice and Order was served. The City Manager,
or his/her designee, shall then send a copy of the Request for Administrative
Hearing Form to the Enforcement Officer and the City Attorney, and assign an
Administrative Hearing Officer and schedule a date, time and place for the
hearing.
B. No hearing shall be held unless and until the Administrative Civil Penalties
Notice and Order has been reviewed and approved by the City Attorney, or
his/her designee.
C. The City Attorney, or his/her designee, shall approve or dismiss the
Administrative Civil Penalties Notice and Order within three (3) business days
of the receipt of the Request for Administrative Hearing Form by the City
Attorney's Office.
D. If the City Attorney, or his/her designee, declines to approve the Administrative
Civil Penalties Notice and Order, it shall be dismissed, and the City Attorney,
or his/her designee,shall notify the Responsible Party in writing of the dismissal
and the cancellation of the hearing.
E. The hearing before the Administrative Hearing Officer shall be set not less than
fifteen (15) days and not more than sixty (60) days from the date that the
Request for Administrative Hearing Form is filed with the City Clerk.
F. Written notice of the time and place of the hearing shall be served at least
fifteen (15) days prior to the date of the hearing on the Responsible Party, the
Enforcement Officer, and the City Attorney.
G. 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.
H. The notice of hearing shall be served by any of the methods of service listed in
Section 9.93.035 of this Chapter.
[Rev. November 2, 2009] 9-45
r
E
I
I. A failure to file a timely Request for Administrative Hearing shall be deemed a
waiver of the right to a hearing on the Administrative Civil Penalties Notice and
Order and a failure to exhaust administrative remedies.
9.93.090 Appointment and Qualifications of Administrative Hearing Officer.
An Administrative Hearing Officer(s) shall be appointed by the Mayor and
Common Council. The term of the Administrative Hearing Officer(s) shall be three (3)
years. The number of Administrative Hearing Officer positions and compensation shall
be approved by the Mayor and Common Council. The employment, performance
evaluation, compensation and benefits of the Administrative Hearing Officer shall not
be directly or indirectly conditioned upon the amount of Administrative Civil Penalties
or Administrative Costs upheld, awarded, imposed, or assessed by the Administrative
Hearing Officer. The Administrative Hearing Officer(s) shall be an attorney admitted
and eligible to practice law in the State of California in accordance with State law, or
a judge retired from the California court system, or a commissioner retired from the
California court system.
9.93.100 Disqualification of Administrative Hearing Officer.
Any person designated to serve as an Administrative Hearing Officer is subject
to disqualification for bias, prejudice, interest, or for any other reason for which a judge
may be disqualified in a California State court of law. Rules and procedures for the
disqualification of an Administrative Hearing Officer shall be promulgated by the City
Manager or his/her designee.
9.93.110 Powers of Administrative Hearing Officer.
A. The Administrative Hearing Officer shall have all powers necessary to conduct
fair and impartial hearings, including but not limited to the power to:
(1) Hold conferences for settlement or simplification of the issues;
(2) Administer oaths and affirmations;
(3) Hear testimony;
(4) Rule upon motions, objections, and the admissibility of evidence;
(5) Preserve and authenticate the record of the hearing and all exhibits and
evidence introduced at the hearing;
(6) Regulate the course of the hearing in accordance with this Chapter or
other applicable law;
(7) Issue a final order which includes findings of fact and conclusions of
law; and
(8) Impose Administrative Civil Penalties and assess Administrative Costs
and issue orders that are consistent with the applicable violation. In no
event shall an Administrative Hearing Officer have the authority to
impose a penalty of imprisonment.
[Rev. November 2, 2009] 9-46
9
3
i
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3
B. The Administrative Hearing Officer shall only consider evidence that is relevant
to the following issues:
(1) Whether a violation of the Municipal Code existed on the dates
specified in the Administrative Civil Penalties Notice and Order and
whether the Responsible Party caused, maintained, or permitted said
violation; and
(2) Whether the amount of the Administrative Civil Penalties and
Administrative Costs assessed by the Enforcement Officer pursuant to
the procedures and criteria outlined in this Chapter was reasonable.
C. The Administrative Hearing Officer may continue a hearing based on good
cause shown by one of the parties to the hearing or if the Administrative
Hearing Officer independently determines that due process has not been
adequately afforded.
D. The Administrative Hearing Officer has continuing jurisdiction over the subject
matter of an Administrative Hearing for the purposes of granting a continuance,
ensuring compliance with an Administrative Hearing Order, modifying an
Administrative Hearing Order, or where extraordinary circumstances or new
evidence exists, granting a new hearing.
E. The Administrative Hearing Officer may require a Responsible Party to post a
Performance Bond to ensure compliance with an Administrative Hearing Order.
9.93.120 Administrative Hearing; Procedures.
A. Administrative Hearings are intended to be informal in nature. Formal rules of
evidence and discovery do not apply, except that findings shall not be based
solely on hearsay evidence. Other than copies of citations, notices, orders, and
inspection reports served on the Responsible Parties as part of the
enforcement action giving rise to the hearing, no pre-hearing discovery shall be
permitted.
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 Hearing 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.
9.93.130 Failure to Attend Administrative Hearing.
Any Responsible Party whose property or actions are the subject of an
Administrative Hearing and who fails to appear at the hearing shall be deemed to have
waived his/her right to a hearing and the adjudication of the issues related to the
hearing,and shall be deemed to have failed to exhaust his/her administrative remedies,
[Rev. November 2, 2009] 9-47
i
provided that proper notice of the hearing as required by this Chapter has been
provided.
9.93.140 Administrative Hearing Order.
A. Within five (5) business days after the presentation of all evidence and
testimony, including any relevant evidence and testimony presented by the
Responsible Party, the Administrative Hearing Officer shall issue an
Administrative Hearing Order which affirms or rejects the Administrative Civil
Penalties Notice and Order or which modifies the daily 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
Hearing Officer may increase or decrease the total amount of civil penalties and
costs that were assessed by the Administrative Civil Penalties Notice and
Order.
B. The Administrative Hearing Officer may issue an Administrative Hearing Order
that requires the Responsible Party to cease from violating the Municipal Code
and to make necessary corrections.
C. As part of the Administrative Hearing Order, the Administrative Hearing Officer
may establish specific deadlines for the payment of civil penalties and costs
and condition the total or partial assessment of Administrative Civil Penalties
on the Responsible Party's compliance by specified deadlines.
D. The Administrative Hearing Officer may issue an Administrative Hearing Order
which imposes additional Administrative Civil Penalties that will continue to be
assessed until the Responsible Party complies with the Administrative Hearing
Officer's decision and corrects the violation.
E. The Administrative Hearing Officer may schedule subsequent review hearings
as may be necessary or as requested by a party to the hearing to ensure
compliance with the Administrative Hearing Order.
F. The Administrative Hearing Order shall be served on all parties by any one of
the methods listed in Section 9.93.035 of this Chapter.
G. The Administrative Hearing Order shall become final on the date of service of
the Order, unless any party files a written request for reconsideration or
modification with the City Manager within fifteen days after the date of service
of the Order.
H. A requestfor reconsideration or modification of an Administrative Hearing Order
may only be based upon an error of law or new evidence not available to the
requesting party at the time of the Administrative Hearing. The decision of the
Administrative Hearing Officer on the request for reconsideration or modification
shall become final on the date of service of the decision by any one of the
methods listed in Section 9.93.035 of this Chapter.
9.93.145 Liability of Responsible Parties.
For the purposes of this Chapter, each Responsible Party shall be jointly and
[Rev. November 2, 2009] 9-48
severally liable for any and all Administrative Civil Penalties,Administrative Costs, and
other penalties and costs imposed under this Chapter.
9.93.150 Failure to Comply with the Administrative Hearing Order.
A. Upon the failure of the Responsible Party to comply with terms and deadlines
set forth in the Administrative Hearing Order,the Enforcement Officer may use
all appropriate legal means to recover the Administrative Civil Penalties and
Administrative Costs and obtain compliance with the Administrative Hearing
Order.
B. Afterthe Administrative Hearing Officer issues an Administrative Hearing Order,
the Enforcement Officer shall monitor the violations and determine compliance.
C. It is unlawful for a party to an Administrative Hearing,who has been served with
a copy of the final Administration Hearing Order pursuant to this Chapter,to fail
to comply with the Order. Failure to comply with a final Administrative Hearing
Order, except for nonpayment of Administrative Civil Penalties, may be
prosecuted as an infraction or misdemeanor at the discretion of the City
Attorney.
9.93.160 Judicial Review.
The decision of the Administrative Hearing Officer shall be final and conclusive
and shall not be subject to appeal to the Mayor and Common Council. Once an
Administrative Hearing 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 other applicable State law.
9.93.170 Collection of Unpaid Administrative Citation Fines,Administrative Civil
Penalties, and Administrative Costs.
A. Unpaid Administrative Civil Penalties and Administrative Costs 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
Civil Penalties or Administrative Costs are not paid within the prescribed time,
after the time for judicial review has concluded, the amount of the fines,
penalties, or costs 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.
B. Unpaid Administrative Civil Penalties and Administrative Costs 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.
9.93.180 Severability.
The provisions of this Chapter are severable, and, if any sentence, section or
other part of this Chapter should be found to be invalid, such invalidity shall not affect
the remaining provisions, and the remaining provisions shall continue in full force and
effect.
[Rev. November 2, 2009] 9-49
9.93.190 CEQA Exemption.
The adoption of this ordinance is exempt from the provisions of the California
Environmental Quality Act pursuant to Section 15061(b)(3) of the Guidelines for
Implementation of the California Environmental Quality Act(Title 15, California Code
of Regulations, commencing with Section 15000), as it can be seen with certainty that
there is no possibility that the activity will have a significant effect on the environment.
(Ord. MC1268,4-21-08)
[Rev. November 2, 2009] 9-50
J
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: James F. Penman, City Attorney
FROM: Jamie J. Cimino, Administrative Analy
DATE: January 18, 2011
RE: Administrative Civil Penalties' Citation Totals
cc: Jolena E. Grider, Assistant City Attorney
CUMULATIVE TOTALS
Per your request, I have compiled a report with the most current totals for Administrative Civil Penalties
(ACP) for the 2010/2011 fiscal year.
[See Chart 1. Cumulative Fiscal Year Totals]
Entered Into Rec. at MCC/CDC Mto: 8 zee/
by.
Agenda' em No:
Id
by: -41111
City CI rk/CDC Secretary
City of San Bernardino
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DEPARTMENTAL TOTALS
Below is a departmental breakdown of the Administrative Civil Penalties totals for the current fiscal year.
These totals are what was used to calculate the Cumulative Total. It should also be noted that payments
are an option, so the collected total does not equal the total awarded. In addition,the "Awarded to date"
category is what has been awarded by the Hearing Officer through the entirety of the program. Because
many of the penalties are accumulating on a daily basis these figures will not be accurate beyond
November 30, 2010.
City Attorney's Office
Collected December 2010: $47,683.81
Total Collected FY 10/11: $323,777.81
Awarded to date: $5,229,436.10
Police Department
Collected December 2010: $4,255.92
Total Collected FY 10/11: $30,719.80
Awarded to date: $331,659.00
Code Enforcement
Collected December 2010: $10,591.66
Total Collected FY 10/11: $116,317.30
Awarded to date: $1,366,282.00
Fire Department
Collected December 2010: $32,958.32
Total Collected FY 10/1 l: $43,177.28
Awarded to date: $331,173.00
Community Development
Collected December 2010: $1,000.00
Total Collected FY 10/11: $2,000.00
Awarded to date: $34,750.00
Public Works
Collected November 2010: $0.00
Total Collected FY 10/11: $1,000.00
Awarded to date: $0.00
F;/Grider\AdniiiiistrativeCivi]Penalties\JJCACPMemos\ACPtotals.12.3 1.10