Loading...
HomeMy WebLinkAbout50-City Attorney — -- COPY 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 Dept: City Attorney Municipal Code and Establishing Administrative Civil 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 Action: 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 recommendation for approval. November 5,2007 - Council tabled this matter. November 19, 2007 - Council continued this matter to January 22,2008. 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 adopted. Contact person: Henry Empeno,Jr., Sr. Deputy City Attorney Phone: 5255 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. FAEMPEN0\0rdinances1SBMC 993 RCA.4-7-08.wpd STAFF REPORT Council Meeting Date: April 7, 2008 TO: Mayor and Common Council FROM: City Attorney's Office DATE: April 3, 2008 AGENDA ITEM: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the San Bernardino Municipal Code and Establishing Administrative Civil Penalties for Violations of the Municipal Code. 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 maximum punishment for a misdemeanor violation of the Municipal Code is imprisonment in the county jail not exceeding six months and/or a fine not exceeding $1,000. The maximum punishment for an infraction violation of the Municipal Code is a fine not exceeding $100 for a first violation, a fine not exceeding$200 for a second violation within one year, and a fine not exceeding$500 for each additional violation within one year. Upon conviction of a fourth violation within one year,the violator is guilty of a misdemeanor. These fines are payable to the Court. 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 Administrative Fine in the same amounts as an infraction fine, may be assessed for each day a violation exists and for each section of certain chapters of the Municipal Code violated. The Administrative Citation fines are payable to the City of San Bernardino. The proposed Ordinance adding Chapter 9.93, establishes 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$1,000 per violation per day can be assessed, which are payable to the City of San Bernardino. The maximum amount of Administrative Civil Penalties is set at$100,000 per parcel or structure for any related series of violations. The proposed Ordinance sets the maximum rate 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 FAEMPENO\Ordinances\SBMC 9.93 Staff Report.4-7-08.wpd Page 2 Staff Report Agenda Item: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the San Bernardino Municipal Code and Establishing Administrative Civil Penalties for Violations of the Municipal Code. 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 just 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 Meeting, 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 unanimously recommended 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 Mayor 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. FAEMPENO\Ordinances\SBMC 9.93 Staff Report.4-7-08.wpd I ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL 3 PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE. 4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 5 Section 1. Chapter 9.93 Administrative Civil Penalties, is hereby added to the San 6 Bernardino Municipal Code to read as follows: 7 Chapter 9.93 8 ADMINISTRATIVE CIVIL PENALTIES 9 Sections: 10 9.93.010 Purpose and Intent. 9.93.015 Definitions. 11 9.93.020 Administrative Civil Penalties. 9.93.030 Administrative Civil Penalties Notice and Order; Procedures. 12 9.93.035 Service of Notices. 9.93.040 Determination of Administrative Civil Penalties. 13 9.93.050 Administrative Costs. 9.93.060 Failure to Comply with Administrative Civil Penalties Notice and Order. 14 9.93.070 Administrative Hearing; Declaration of Purpose. 9.93.080 Administrative Hearing; Request and Notice. 15 9.93.090 Appointment and Qualifications of Administrative Hearing Officer. 9.93.100 Disqualification of Administrative Hearing Officer. 16 9.93.110 Powers of Administrative Hearing Officer. 9.93.120 Administrative Hearing; Procedures. 17 9.93.130 Failure to Attend Administrative Hearing. 9.93.140 Administrative Hearing Order. 18 9.93.145 Liability of Responsible Parties. 9.93.150 Failure to Comply with the Administrative Hearing Order. 19 9.93.160 Judicial Review. 9.93.170 Collection of Unpaid Administrative Citation Fines,Administrative Civil 20 Penalties, and Administrative Costs. 9.93.180 Severability. 21 9.93.190 CEQA Exemption. 22 Section 9.93.010 Purpose and Intent. 23 The Mayor and Common Council has determined that the enforcement of the San Bernardino 24 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 25 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 26 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 27 procedures for the proper application of administrative code enforcement remedies and administrative hearings to resolve administrative code enforcement cases and appeals. 28 FAEMPEN0\0rdinances\9.93 Ordinance.wpd 1 I Section 9.93.015 Definitions. 2 The following definitions shall apply in the interpretation and enforcement of this Chapter. 3 A. "Administrative Costs"shall mean all costs incurred by or on behalf of the City from the first discovery of the violation of the San Bernardino Municipal Code through the appeal process 4 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, 5 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 6 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 7 Administrative Civil Penalties. 8 B. "Administrative Hearing Officer" shall mean any person assigned by the City Manager, or his/her designee, to preside at Administrative Hearings. 9 C. "Enforcement Officer" shall mean any Code Enforcement Officer or other City employee or 10 agent of the City with the authority to enforce any provision of the Municipal Code. 11 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. 12 E. "Responsible Party"shall mean any person or persons in charge of the business,premises, or 13 location, or the person or persons responsible for the event or incident, and shall include any of the following: 14 (1) The person or persons who own the business or property where the violation exists. 15 (2) The person or persons in charge of the business or premises where the violation exists. 16 (3) The person or persons using or occupying the premises where the violation exists. 17 (4) If any of those persons are minors, the parent or guardians of such minor(s) shall be 18 the Responsible Party. 19 (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. 20 Section 9.93.020 Administrative Civil Penalties. 21 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 22 administrative procedures provided in this Chapter. 23 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 24 be pursued to address any violation of the Municipal Code. 25 C. For the purposes of assessing Administrative Civil Penalties, each and every day a violation of any provision of the Municipal Code exists shall constitute a separate and distinct violation. 26 D. Administrative Civil Penalties may be directly assessed by means of an Administrative Civil 27 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 28 action brought by the City. F:\EMPENO\Ordinances\9.93 Ordinance.wpd 2 I E. Administrative Civil Penalties for violations of any provision of the Municipal Code shall be 2 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 3 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 4 violations. Section 9.93.030 Administrative Civil Penalties Notice and Order; Procedures. 5 A. Whenever an Enforcement Officer determines that a violation of one or more provisions of the 6 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. 7 B. The Administrative Civil Penalties Notice and Order shall identify laws or code sections g violated and describe how each section has been violated. 9 C. The Administrative Civil Penalties Notice and Order shall identify the dates and locations of the violations. 10 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 11 Administrative Civil Penalties pursuant to the criteria in Section 9.93.040 of this Chapter. 12 E. The Administrative Civil Penalties Notice and Order shall identify the factors used in determining the duration and daily amount of Administrative Civil Penalties. 13 F. The Administrative Civil Penalties Notice and Order shall identify the date when the civil 14 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 15 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 16 time that the total amount of Administrative Civil Penalties reaches the maximum amount allowed by this Chapter. 17 G. If the Enforcement Officer determines that the violations are of a continuous nature, the 18 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 19 to correct the outstanding violations under the guidance of the appropriate City Departments. H. When the violation(s)pertains to building,plumbing, electrical or other similar structural or 20 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 21 imposed if the Responsible Party corrects all of the violations within seven days after service of the Administrative Civil Penalties Notice and Order. 22 1. The Administrative Civil Penalties Notice and Order shall describe all remedial action 23 required to permanently correct outstanding violations and establish time frames for completion. 24 J. The Administrative Civil Penalties Notice and Order shall enumerate any other consequences 25 pursuant to this Chapter,if the Responsible Party fails to comply with the terms and deadlines as prescribed in the Administrative Civil Penalties Notice and Order. 26 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 27 violations, or different locations. 28 FAEMPEN0\0rdinances\9.93 Ordinance.wpd 3 1 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. 2 M. The Administrative Civil Penalties Notice and Order shall identify appropriate hearing 3 procedures as required by this Chapter. Section 9.93.035 Service Of Notices 4 A. Whenever a notice is required to be given under this Chapter,the notice shall be served by any 5 of the following methods unless different provisions are otherwise specifically stated to apply: 6 (1) Personal service; or (2) Certified mail, postage prepaid, return receipt requested. Simultaneously, the same 7 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 8 notice that was sent by regular mail is not returned; or 9 (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 10 Attorney. 11 B. Service by certified or regular mail in the manner described above shall be effective on the date of mailing. 12 C. The failure of any person with an interest in the property to receive any notice served in 13 accordance with this section shall not affect the validity of any proceedings taken under this Chapter. 14 Section 9.93.040 Determination of Administrative Civil Penalties. 15 A. In determining the date when Administrative Civil Penalties start to accrue, an Enforcement 16 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. 17 B. The assessment ofAdministrative Civil Penalties shall end when all corrections or other action 18 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, 19 an Enforcement Officer may consider some or all of the following factors: 20 (1) The duration of the violation; 21 (2) The frequency of recurrence of the violation; 22 (3) The seriousness of the violation; (4) Whether the violation is designated as an infraction, a misdemeanor, or either an 23 infraction or a misdemeanor,by the Municipal Code; 24 (5) The history of the violation; 25 (6) The good faith effort by the Responsible Party to comply; 26 (7) The economic impact of the penalty on the Responsible Party; and 27 (8) The impact of the violation upon the community. 28 FAEMPEN0\0rdinances\9.93 Ordinancempd 4 I 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 2 determining the amount of Administrative Civil Penalties in appropriate cases. 3 Section 9.93.050 Administrative Costs. 4 An Enforcement Officer or Administrative Hearing Officer is authorized to assess any reasonable Administrative Costs in addition to the Administrative Civil Penalties. 5 Section 9.93.060 Failure to Comply with Administrative Civil Penalties Notice and 6 Order. The City Manager shall assign an Administrative Hearing Officer and establish a date,time, 7 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 8 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 9 corrections by the established deadlines or failure to refrain from continuing violations of the 10 Municipal Code. Section 9.93.070 Administrative Hearing; Declaration of Purpose. 11 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 12 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 13 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 14 administrative enforcement action. 15 Section 9.93.080 Administrative Hearing; Request and Notice. A. Any Responsible Party may contest the Administrative Civil Penalties Notice and Order by 16 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 17 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 18 an Administrative Hearing Officer and schedule a date, time and place for the hearing. 19 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. 20 C. The City Attorney, or his/her designee, shall approve or dismiss the Administrative Civil 21 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. 22 D. If the City Attorney,or his/her designee,declines to approve the Administrative Civil Penalties 23 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. 24 E. The hearing before the Administrative Hearing Officer shall be set not less than fifteen (15) 25 days and not more than sixty (60) days from the date that the Request for Administrative Hearing Form is filed with the City Clerk. 26 27 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 28 Attorney. FAEMPEN0\0rdinances\9.93 Ordinance.wpd 5 I G. The format and contents of the hearing notice shall be in accordance with rules and policies 2 promulgated by the City Manager, or his/her designee. 3 H. The notice of hearing shall be served by any of the methods of service listed in Section 9.93.035 of this Chapter. 4 I. A failure to file a timely Request for Administrative Hearing shall be deemed a waiver of the 5 right to a hearing on the Administrative Civil Penalties Notice and Order and a failure to exhaust administrative remedies. 6 Section 9.93.090 Appointment and Qualifications of Administrative Hearing Officer. 7 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 8 Administrative Hearing Officer positions and compensation shall be approved by the Mayor and Common Council. The employment, performance evaluation, compensation and benefits of the 9 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 10 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 11 from the California court system, or a commissioner retired from the California court system. 12 Section 9.93.100 Disqualification of Administrative Hearing Officer. 13 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 14 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. 15 Section 9.93.110 Powers of Administrative Hearing Officer. 16 A. The Administrative Hearing Officer shall have all powers necessary to conduct fair and impartial hearings, including but not limited to the power to: 17 (1) Hold conferences for settlement or simplification of the issues; 18 (2) Administer oaths and affirmations; (3) Hear testimony; 19 (4) Rule upon motions, objections, and the admissibility of evidence; 20 (5) Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing; 21 (6) Regulate the course of the hearing in accordance with this Chapter or other applicable law; 22 (7) Issue a final order which includes findings of fact and conclusions of law; and 23 (8) Impose Administrative Civil Penalties and assess Administrative Costs and issue orders that are consistent with the applicable violation. In no event shall an 24 Administrative Hearing Officer have the authority to impose a penalty of imprisonment. 25 B. The Administrative Hearing Officer shall only consider evidence that is relevant to the 26 following issues: 27 (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 28 caused, maintained, or permitted said violation; and FAEMPEN0\0rdinances\9.93 Ordinance.wpd 6 1 (2) Whether the amount of the Administrative Civil Penalties and Administrative Costs 2 assessed by the Enforcement Officer pursuant to the procedures and criteria outlined in this Chapter was reasonable. 3 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 4 determines that due process has not been adequately afforded. 5 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 6 an Administrative Hearing Order, modifying an Administrative Hearing Order, or where extraordinary circumstances or new evidence exists, granting a new hearing. 7 E. The Administrative Hearing Officer may require a Responsible Party to post a Performance g Bond to ensure compliance with an Administrative Hearing Order. 9 Section 9.93.120 Administrative Hearing; Procedures. 10 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. 11 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 12 discovery shall be permitted. 13 B. The City bears the burden of proof at an Administrative Hearing to establish the existence of a violation of the Municipal Code. 14 C. The standard of proof to be used by the Administrative Hearing Officer in deciding the issues 15 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 16 evidence in support of that party's case. 17 Section 9.93.130 Failure to Attend Administrative Hearing. Any Responsible Party whose property or actions are the subject of an Administrative Hearing 18 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 19 his/her administrative remedies,provided that proper notice of the hearing as required by this Chapter 20 has been provided. Section 9.93.140 Administrative Hearing Order. 21 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 22 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 23 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 24 Officer may increase or decrease the total amount of civil penalties and costs that were assessed by the Administrative Civil Penalties Notice and Order. 25 B. The Administrative Hearing Officer may issue an Administrative Hearing Order that requires 26 the Responsible Party to cease from violating the Municipal Code and to make necessary corrections. 27 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 2g assessment of Administrative Civil Penalties on the Responsible Party's compliance by F:\EMPENO\Ordinances\9.93 Ordinance.wpd 7 I specified deadlines. 2 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 3 Responsible Party complies with the Administrative Hearing Officer's decision and corrects the violation. 4 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 5 Administrative Hearing Order. 6 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. 7 G. The Administrative Hearing Order shall become final on the date of service of the Order, 8 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. 9 H. A request for reconsideration or modification of an Administrative Hearing Order may only 10 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 11 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. 12 Section 9.93.145 Liability of Responsible Parties. 13 For the purposes of this Chapter, each Responsible Party shall be jointly and severally liable 14 for any and all Administrative Civil Penalties, Administrative Costs, and other penalties and costs imposed under this Chapter. 15 Section 9.93.150 Failure to Comply with the Administrative Hearing Order. 16 A Upon the failure of the Responsible Party to comply with terms and deadlines set forth in the 17 Administrative Hearing Order,the Enforcement Officer may use all appropriate legal means to recover the Administrative Civil Penalties and Administrative Costs and obtain compliance 18 with the Administrative Hearing Order. 19 B. After the Administrative Hearing Officer issues an Administrative Hearing Order,the Enforcement Officer shall monitor the violations and determine compliance. 20 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. 21 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 22 discretion of the City Attorney. Section 9.93.160 Judicial Review. 23 The decision of the Administrative Hearing Officer shall be final and conclusive and shall not 24 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 25 sought shall be governed by California Code of Civil Procedure Section 1094.6, or other applicable State law. 26 Section 9.93.170 Collection of Unpaid Administrative Citation Fines,Administrative Civil 27 Penalties, and Administrative Costs. 28 A. Unpaid Administrative Civil Penalties and Administrative Costs shall be a debt to the City F:\EMPENO\Ordinances\9.93 Ordinancempd 8 I 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 2 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 3 property without further hearing, subject to notice of the lien as required by law. 4 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 5 the San Bernardino County Treasurer-Tax Collector as set forth in Chapter 3.68 of the Municipal Code. 6 7 Section 9.93.180 Severability. The provisions of this Chapter are severable,and,if any sentence, section or other part of this 8 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. 9 10 Section 9.93.190 CEQA Exemption. The adoption of this ordinance is exempt from the provisions of the California Environmental 11 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 12 15000), as it can be seen with certainty that there is no possibility that the activity will have a 13 significant effect on the environment. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F:\EMPENO\Ordinances\9.93 Ordinancempd 9 I AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE 2 SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE. 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 5 day of , 2008,by the following vote, to wit: 6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 ESTRADA 8 9 BAXTER 10 BRINKER 11 12 DERRY 13 KELLEY 14 JOHNSON 15 16 MC CAMMACK 17 18 19 City Clerk 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 FAEMPEN0\0rdinances\9.93 Ordinance.wpd 10 / 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DIRECTING THE DISPOSITION OF ADMINISTRATIVE CIVIL 3 PENALTIES COLLECTED PURSUANT TO SAN BERNARDINO MUNICIPAL CODE CHAPTER 9.93 FOR VIOLATIONS OF THE SAN BERNARDINO MUNICIPAL CODE. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 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 8 Bernardino Municipal Code,except for violations of Chapter 8.60 and 8.61 regarding fireworks,shall 9 be deposited into a specific Trust Account created by the City Treasurer or his/her 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 2. 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 N 27 28 FAEMPENO\Resos\Administrative Civil Penalties-Resolution.wpd 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DIRECTING THE DISPOSITION OF ADMINISTRATIVE CIVIL 2 PENALTIES COLLECTED PURSUANT TO SAN BERNARDINO MUNICIPAL CODE CHAPTER 9.93 FOR VIOLATIONS OF THE SAN BERNARDINO MUNICIPAL CODE. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof, held on the_day 6 of , 2008, by the following vote, to wit: 7 8 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 18 The foregoing Resolution is hereby approved this_day of , 2008. 19 20 21 PATRICK J. MORRIS, Mayor 22 City of San Bernardino 23 Approved as to form: 24 JAMES F. PENMAN 25 City Attorney 27 F 28 FAEMPEWResos\Administrative Civil Penalties-Resolution.wpd 2 COPY CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: An Ordinance of the City of San Bernardino City Attorney Adding Chapter 9.93 to the San Bernardino Municipal Code and Establishing Administrative Civil Penalties for Dept: CITY ATTORNEY Violations of the Municipal Code. Date: November 16, 2007 i MCC Date: November 19, 2007 Synopsis of Previous Council Action: 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 recommendation for approval. November 5, 2007 - Council tabled this matter. i Recommended motions: Continue this matter until the California Attorney General issues an Opinion which we anticipate may be in January 2008. A." Js F. Penman, City Attorney Contact person:_Henry Empeno,Jr., Sr. Deputy City Attorney Phone: 5255 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: 11 / a -YM,u-" 12 2-14 Ir Agenda Item No._ FAEMPENO\Ordinances\SBMC 9.93 RCA.I I-19-07.wpd STAFF REPORT Council Meeting Date: November 19, 2007 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: November 16, 2007 AGENDA ITEM: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the San Bernardino Municipal Code and Establishing Administrative Civil Penalties for Violations of the Municipal Code The Mayor and Council have asked the City Attorney's Office to review what other cities are doing to address violations of their municipal codes, and to bring forward for Mayor and Council consideration similar ordinances. In response to the Mayor and Council's request, 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 maximum punishment for a misdemeanor violation of the Municipal Code is imprisonment in the county jail not exceeding six months and/or a fine not exceeding $1,000. The maximum punishment for an infraction violation of the Municipal Code is a fine not exceeding $100 for a first violation, a fine not exceeding$200 for a second violation within one year,and a fine not exceeding$500 for each additional violation within one year. Upon conviction of a fourth violation within one year,the violator is guilty of a misdemeanor. These fines are payable to the Court. Pursuant to Chapter 9.92,certain minor violations of the Municipal Code may also be enforced by issuance of an Administrative Citation,where an Administrative Fine in the same amounts as an infraction fine, may be assessed for each day a violation exists and for each section of certain chapters of the Municipal Code violated. The Administrative Citation fines are payable to the City of San Bernardino. The proposed Ordinance adding Chapter 9.93 establishes another enforcement tool to address violations of the Municipal Code. Code Enforcement Officers,or any other City employee with authority to enforce the Municipal Code, can issue an Administrative Civil Penalties Notice and Order. Based on criteria listed in Section 9.93.040, Administrative Civil Penalties up to $1,000 per violation per day can be assessed, which are payable to the City of San Bernardino. The maximum amount of Administrative Civil Penalties is set at$100,000 per parcel or structure for any related series of violations. The proposed Ordinance sets the maximum rate for Administrative Civil Penalties at$1,000 per violation,although one nearby city sets this maximum rate at $2,500 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 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. The Attorney General's Office has informed us that their Opinion may not be issued until January 2008. Until the Attorney General's Opinion is issued, we have reservations regarding the validity of this proposed Ordinance. FAEMPENO\Ordinances\SBMC 9.93 Staff RepUt.I1-19-07.wpd Page 2 Staff Report Agenda Item: An Ordinance of the City of San Bernardino Adding Chapter 9.93 to the San Bernardino Municipal Code and Establishing Administrative Civil Penalties for Violations of the Municipal Code November 16, 2007 On October 16,2007,the Legislative Review Committee discussed the proposed Ordinance adding Chapter 9.93 after referral by the Mayor and Council. The Legislative Review Committee, voted unanimously to move this matter forward to the Mayor and Council with a recommendation for approval. Recommended motion: Continue this matter until the California Attorney General issues an Opinion which we anticipate may be in January 2008. FAEMPENO\Ordinances\SBMC 9.93 Staff Report.]1-19-07.wpd I ORDINANCE NO. 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL 3 PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE. 4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 5 Section 1. Chapter 9.93 Administrative Civil Penalties,is hereby added to the San Bernardino 6 Municipal Code to read as follows: 7 Chapter 9.93 8 ADMINISTRATIVE CIVIL PENALTIES 9 Sections: 10 9.93.010 Administrative Civil Penalties. 9.93.015 Definitions. 11 9.93.020 Authority. 9.93.030 Administrative Civil Penalties Notice and Order; Procedures. 12 9.93.035 Service of Notices. 9.93.040 Determination of Administrative Civil Penalties. 13 9.93.050 Administrative Costs. or 9.93.060 Failure to Comply with Administrative Civil Penalties Notice and Order. 14 9.93.070 Administrative Hearing; Declaration of Purpose. 9.93.080 Administrative Hearing; Notice. 15 9.93.090 Qualifications of Administrative Law Officer. 9.93.100 Disqualification of Administrative Law Officer. 16 9.93.110 Powers of Administrative Law Officer. 9.93.120 Administrative Hearing; Procedures. 17 9.93.130 Failure to Attend Administrative Hearing. 9.93.140 Administrative Enforcement Order. 18 9.93.150 Failure to Comply with the Administrative Enforcement Order. 9.93.160 Judicial Review. 19 9.93.170 Collection of Administrative Citation Fines and Administrative Civil Penalties. 20 Section 9.93.010 Administrative Civil Penalties. 21 The assessment of Administrative Civil Penalties established in this Chapter is in addition to 22 any other administrative or judicial (civil or criminal) remedy established by law which may be pursued to address any violation of the Municipal Code. 23 Section 9.93.015 Definitions. 24 The following definitions shall apply in the interpretation and enforcement of this Chapter. 25 A. "Administrative Law Officer" shall mean any person appointed by the City Manager, or 26 his/her designee, to preside at Administrative Hearings. 27 B. "Enforcement Officer"shall mean any Code Enforcement Officer or other City employee or agent of the City with the authority to enforce any provision of the Municipal Code. 28 FAEMPEN0\0rdinances\9.93 Ordinancempd 1 I C. "Person" shall mean any individual or entity, including but not limited to any corporation, company, partnership, association, trust, or any other form of business entity. 2 D. "Responsible Party"shall mean any person or persons in charge of the business,premises, or 3 location, or the person or persons responsible for the event or incident, and shall include any of the following: 4 5 (1) The person or persons who own the business or property where the violation exists. 6 (2) The person or persons in charge of the business or premises where the violation exists. (3) The person or persons using the premises where the violation exists. 7 (4) If any of those persons are minors, the parent or guardians of such minor(s) shall be 8 the Responsible Party. 9 (5) If the person or persons is a business entity, the manager or on-site supervisor where the violation exists shall also be a Responsible Party. 10 Section 9.93.020 Authority. 11 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 12 administrative procedures provided in this Chapter. 13 B. For the purposes of assessing Administrative Civil Penalties, each and every day a violation 14 of any provision of the Municipal Code exists, constitutes a separate and distinct violation. C. Administrative Civil Penalties may be directly assessed by means of an Administrative Civil 15 Penalties Notice and Order issued by an Enforcement Officer, as provided in this Title. Administrative Civil Penalties may be recovered by assessment of a lien or subsequent legal 16 action brought by the City. 17 D. Administrative Civil Penalties for violations of any provision of the Municipal Code shall be assessed at a daily rate determined by the Enforcement Officer,or by the Administrative Law 18 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 19 shall not exceed$100,000 per parcel or structure for any related series of violations. 20 Section 9.93.030 Administrative Civil Penalties Notice and Order; Procedures. 21 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 22 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 23 violated and describe how each section has been violated. 24 C. The Administrative Civil Penalties Notice and Order shall identify the dates and locations of the violations. 25 D. The Administrative Civil Penalties Notice and Order shall establish a daily amount of 26 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. 27 E. The Administrative Civil Penalties Notice and Order shall identify the factors used in 28 determining the duration and daily amount of Administrative Civil Penalties. FAEMPEN0\0rdinances\9.93 Ordinancempd 2 I F. The Administrative Civil Penalties Notice and Order shall identify the date when the civil 2 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 3 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 4 time that the total amount of Administrative Civil Penalties reaches the maximum amount allowed by this Chapter. 5 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 6 and desist from further action causing the violations and commence and complete all action 7 to correct the outstanding violations under the guidance of the appropriate City Departments. H. The Administrative Civil Penalties Notice and Order shall describe all remedial action 8 required to permanently correct outstanding violations and establish time frames for completion. 9 I. The Administrative Civil Penalties Notice and Order shall enumerate any other consequences 10 should the Responsible Party fail to comply with the terms and deadlines as prescribed in the Administrative Civil Penalties Notice and Order. 11 J. More than one Administrative Civil Penalties Notice and Order may be issued against the 12 same Responsible Party if they encompass either different dates, separate or different violations, or different locations. 13 K. 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. 14 L. The Administrative Civil Penalties Notice and Order shall identify appropriate hearing 15 procedures as required by this Chapter. Section 9.93.035 Service Of Notices 16 A Whenever a notice is required to be given under this Chapter,the notice shall be served by any 17 of the following methods unless different provisions are otherwise specifically stated to apply: 18 (1) Personal service; or (2) Certified mail, postage prepaid, return receipt requested. Simultaneously, the same 19 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 20 notice that was sent by regular mail is not returned; or 21 (3) Posting the notice conspicuously on or in front of the property. The form of the notice 22 shall be approved by the City Attorney and the City Manager or his/her designee. B. Service by certified or regular mail in the manner described above shall be effective on the 23 date of mailing. 24 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 25 Chapter. 26 Section 9.93.040 Determination of Administrative Civil Penalties. 27 A. In determining the date when Administrative Civil Penalties start to accrue, an Enforcement 28 Officer may consider the date when the City first discovered the violation as evidenced by the FAEMPEN0\0rdinances\9.93 Ordinancempd 3 I issuance of a Notice of Violation or any other written correspondence. 2 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. 3 C. In determining the amount of the Administrative Civil Penalties to be assessed on a daily rate, 4 an Enforcement Officer may consider some or all of the following factors: 5 (1) The duration of the violation. 6 (2) The frequency of recurrence of the violation. (3) The seriousness of the violation. 7 4 Whether the violation is also designated gnated as an infraction or a misdemeanor by the 8 Municipal Code. 9 (5) The history of the violation. (6) The Responsible Party's conduct after issuance of the Administrative Civil Penalties 10 Notice and Order. 11 (7) The good faith effort by the Responsible Party to comply. 12 (8) The economic impact of the penalty on the Responsible Party. 13 (9) The impact of the violation upon the community. 14 (10) Any other factors that justice may require. D. The City Manager has the authority to establish procedures and a penalty schedule for 15 Enforcement Officers or Administrative Law Officers to use as a guideline in determining the 16 amount of Administrative Civil Penalties in appropriate cases. 17 Section 9.93.050 Administrative Costs. An Enforcement Officer or Administrative Law Officer is authorized to assess any reasonable 18 administrative costs.Administrative costs may include scheduling and processing of the hearing and 19 all subsequent actions related to the hearing. Section 9.93.060 Failure to Comply with Administrative Civil Penalties Notice and 20 Order. 21 The City Manager shall appoint an Administrative Law Officer and establish a date,time,and place for the Administrative Hearing in accordance with this Chapter 9.93 when the Responsible Party 22 requests a Hearing or if the Responsible Party fails to comply with the terms of the Administrative Civil Penalties Notice and Order.Failure to comply includes failure to pay the assessed Administrative 23 Civil Penalties,failure to commence and complete corrections by the established deadlines or failure to refrain from continuing violations of the Municipal Code. 24 Section 9.93.070 Administrative Hearing; Declaration of Purpose. 25 It is the purpose and intent of the City Council to afford due process of law to any person who is directly affected by an administrative enforcement action. Due process of law includes: adequate 26 notice,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 27 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. 28 FAEMPENO\Ordinances\9.93 Ordinance.wpd 4 I Section 9.93.080 Administrative Hearing; Notice. 2 A. Where an administrative enforcement remedy or proceeding authorized by Chapter 9.93 provides for a hearing,the Enforcement Officer or the Responsible Party may request the City 3 Manager, or his/her designee,to appoint an Administrative Law Officer and schedule a date, time and place for the hearing. 4 B. Written notice of the time and place of the hearing shall be served at least ten calendar days prior to the date of the hearing on the Responsible Party. 5 C. The format and contents of the hearing notice shall be in accordance with rules and policies 6 promulgated by the City Manager, or his/her designee. D. The notice of hearing shall be served by any of the methods of services listed in Section 7 9.93.035 of this Chapter. Section 9.93.090 Qualifications of Administrative Law Officer. 8 A. The City Manager or his/her designee shall promulgate rules and procedures as are necessary 9 to establish a pool of qualified persons who are capable of acting on behalf of the City as Administrative Law Officers. 10 B. The City Manager is authorized to develop policies and procedures relating to the qualifications, appointment and compensation of hearing officers, hearing officer powers, 11 hearing procedures, scope of the hearing, and other matters relating to Administrative 12 Hearings. Section 9.93.100 Disqualification of Administrative Law Officer. 13 Any person designated to serve as an Administrative Law Officer is subject to disqualification 14 for bias,prejudice,interest,or for other reason for which a judge may be disqualified in a court of law. Rules and procedures for the disqualification of an Administrative Law Officer shall be promulgated 15 by the City Manager or his/her designee. Section 9.93.110 Powers of Administrative Law Officer. 16 A. The Administrative Law Officer shall only consider evidence that is relevant to the following 1'7 issues: 18 (1) Whether the Responsible Party has caused or maintained a violation of the Municipal Code that existed on the dates specified in the Notice and Order; and 19 (2) Whether the amount of the Administrative Civil Penalties assessed by the Enforcement 20 Officer pursuant to the procedures and criteria outlined in this Chapter Section 9.93 was reasonable. 21 B. The Administrative Law Officer may continue a hearing based on good cause shown by one of the parties to the hearing or if the Administrative Law Officer independently determines that 22 due process has not been adequately afforded. 23 C. The Administrative Law Officer has continuing jurisdiction over the subject matter of an Administrative Hearing for the purposes of granting a continuance,ensuring compliance with 24 an Administrative Enforcement Order, modifying an Administrative Enforcement Order, or 25 where extraordinary circumstances exist, granting a new hearing. D. The Administrative Law Officer may require a Responsible Party to post a Performance Bond 26 to ensure compliance with an Administrative Enforcement Order. 27 Section 9.93.120 Administrative Hearing; Procedures. 28 A. Administrative Hearings are intended to be informal in nature. Formal rules of evidence and FAEMPEN0\0rdinances\9.93 Ordinance.wpd 5 I discovery do not apply. The procedure and format of the Administrative Hearing shall follow the procedures promulgated by the City Manager or his/her designee. 2 B. The City bears the burden of proof at an Administrative Hearing to establish the existence of 3 a violation of the Municipal Code. 4 C. The standard of proof to be used by the Administrative Law Officer in deciding the issues at an Administrative Hearing is by a preponderance of the evidence. 5 D. Each party shall have the opportunity to cross-examine witnesses and present relevant 6 evidence in support of that party's case. Section 9.93.130 Failure to Attend Administrative Hearing. 7 Any person whose property or actions are the subject of an Administrative Hearing and who 8 fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the issues related to the hearing provided that proper notice of the hearing as required by this Chapter has 9 been provided. Section 9.93.140 Administrative Enforcement Order. 10 A. After the presentation of all evidence and testimony, the Administrative Law Officer shall 11 issue an Administrative Enforcement Order which affirms or rejects the Administrative Civil Penalties Notice and Order or which modifies the daily rate or duration of the Administrative 12 Civil Penalties depending upon the review of the evidence and application of the criteria in Section 9.93.040 of this Chapter. The Administrative Law Officer may increase or decrease 13 the total amount of civil penalties and costs that are assessed by the Administrative Civil Penalties Notice and Order. 14 B. The Administrative Law Officer may issue an Administrative Enforcement Order that requires the Responsible Party to cease from violating the Municipal Code and to make necessary 15 corrections. 16 C. As part of the Administrative Enforcement Order, the Administrative Law Officer may establish specific deadlines for the payment of penalties and costs and condition the total or 17 partial assessment of Administrative Civil Penalties on the Responsible Party's ability to complete compliance by specified deadlines. 18 D. The Administrative Law Officer may issue an Administrative Enforcement Order which imposes additional Administrative Civil Penalties that will continue to be assessed until the 19 Responsible Party complies with the Administrative Law Officer's decision and corrects the violation. 20 E. The Administrative Law Officer may schedule subsequent review hearings as may be necessary or as required by a party to the hearing to ensure compliance with the Administrative 21 Enforcement Order. 22 F. The decision ofthe Administrative Law Officer shall be entitled"Administrative Enforcement Order" and shall be issued in accordance with the rules and procedures promulgated by the 23 City Manager or his/her designee. G. The Administrative Enforcement Order shall become final on the date of service of the order. 24 H. The Administrative Enforcement Order shall be served on all parties by any one of the 25 methods listed in Section 9.93.035 of this Chapter. Section 9.93.150 Failure to Comply with the Administrative Enforcement Order. 26 A. Upon the failure of the Responsible Party to comply with terms and deadlines set forth in the 27 Administrative Enforcement Order, the Enforcement Officer may use all appropriate legal means to recover the Administrative Civil Penalties, administrative costs and obtain 28 compliance with the Administrative Enforcement Order. F:\EMPENO\Ordinances\9.93 Ordinancempd 6 I B. After the Administrative Law Officer issues an Administrative Enforcement Order, the 2 Enforcement Officer shall monitor the violations and determine compliance. C. It is unlawful for a party to an Administrative Enforcement Hearing,who has been served with 3 a copy of the final Administration Enforcement Order pursuant to this Chapter, to fail to comply with the order.Failure to comply with a final Administrative Enforcement Order may 4 be prosecuted as an infraction or misdemeanor at the discretion of the City Attorney. Section 9.93.160 Judicial Review. 5 Once an Administrative Enforcement Order becomes final as provided in this Chapter,the time 6 in which judicial review of the Order must be sought shall be governed by California Code of Civil 7 Procedure Section 1094.6 or such section as may be amended from time to time. Section 9.93.170 Collection of Administrative Citation Fines and Administrative Civil 8 Penalties. 9 Administrative citation fines and civil penalties shall be a debt to the City and subject to all remedies for debt collection as allowed by law. When a violation involves privately owned real 10 property and the administrative citation fines or civil penalties are unpaid within the prescribed time, the amount of the fines or penalties may be recorded as a lien upon and against the real property 11 without further hearing, subject to notice of the lien as required by law. 12 Unpaid administrative citation fines or civil penalties involving privately owned real property may also constitute assessment liens and be collected as special assessments by the San Bernardino 13 County Treasurer-Tax Collector as set forth in Chapter 3.68 of the Municipal Code. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F:\EMPENO\Ordinances\9.93 Ordinancempd 7 1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING CHAPTER 9.93 TO THE 2 SAN BERNARDINO MUNICIPAL CODE AND ESTABLISHING ADMINISTRATIVE CIVIL PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE. 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 5 day of , 2007, by the following vote, to wit: 6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 ESTRADA 8 9 BAXTER 10 BREWER 11 12 DERRY 13 KELLEY 14 JOHNSON 15 16 MC CAMMACK 17 18 19 City Clerk 20 The foregoing Ordinance is hereby approved this_ day of , 2007. 21 22 23 PATRICK J. MORRIS, Mayor 24 City of San Bernardino Approved as to form: 25 26 JAMES F. PENMAN 27 City Attorney 28 FAEMPEN0\0rdinances\9.93 Ordinance.wpd 8