HomeMy WebLinkAbout10-City Attorney ORIGINAL
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: Q/�.(---z:e-c,� q1-7 0
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FAEMPENO\Ordinances\SBMC 9.93 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
F:AEMPEN0\0rdinances\S13MC 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 8.61,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
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
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.
Recommended motions:
Continue this matter until the California Attorney General issues an Opinion which we anticipate
may be in January 2008.
Js F. Penman, City Attorney
Contact person: Henry Empeiio, Jr., Sr. DepuV Ci1y Attorney Phone: 5255
Supporting data attached: Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes: ,p It Q
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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 Report.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.I 1-19-07.wpd
C (OPY
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
F:\EMPENO\Ordinances\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
Penalties Notice and Order issued by an Enforcement Officer, as provided in this Chapter.
27 Administrative Civil Penalties may be recovered by assessment of a lien or subsequent legal
28 action brought by the City.
FAEMPEN0\0rdinances\9.93 Ordinance..vpd 2
1 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
8 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
I. 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
F:1,EMPEN0\Ordinances\9.93 Ordinance.wpd 3
I 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 Ordinance.wpd 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.
F:'\EMPEN0\0rdinances\9.93 Ordinance.wpd 5
1 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
F:\EMPENO\Ordinances\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
8 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
28 assessment of Administrative Civil Penalties on the Responsible Party's compliance by
F:\EMPENO\Ordinances\9.93 Ordinance.Nvpd 7
1 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
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.
B. After the Administrative Hearing Officer issues an Administrative Hearing Order,the
19 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
FAEMPENO\Ordinances\9.93 Ordinance.wpd 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.
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F:\EMPENO\Ordinances\9.93 Ordinance.wpd 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
o
27
28 it C-43 C,-,A t tA r z:e, -t • ��
F:\EN1PEN0\0rdinances\9.93 Ordinance.wpd 10
0
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 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.
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28 F:\EMPENO\Resos\Administrative Civil Penalties-Resolution.wpd
1
f '
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 A
28 FAEMPENO\Resos\Administrative Civil Penalties-Resolution.wpd
2