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HomeMy WebLinkAboutMC-1268 Adopted: April 21, 2008 Effective: May 22, 2008 I ORDINANCE NO. Me-1268 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 9.93.015 9.93.020 9.93.030 9.93.035 9.93.040 9.93.050 9.93.060 9.93.070 9.93.080 9.93.090 9.93.100 9.93.110 9.93.120 9.93.130 9.93.140 9.93.145 9.93.150 9.93.160 9.93.170 9.93.180 9.93.190 Purpose and Intent. Definitions. Administrative Civil Penalties. Administrative Civil Penalties Notice and Order; Procedures. Service of Notices. Determination of Administrative Civil Penalties. Administrative Costs. Failure to Comply with Administrative Civil Penalties Notice and Order. Administrative Hearing; Declaration of Purpose. Administrative Hearing; Request and Notice. Appointment and Qualifications of Administrative Hearing Officer. Disqualification of Administrative Hearing Officer. Powers of Administrative Hearing Officer. Administrative Hearing; Procedures. Failure to Attend Administrative Hearing. Administrative Hearing Order. Liability of Responsible Parties. Failure to Comply with the Administrative Hearing Order. Judicial Review. Collection of Unpaid Administrative Citation Fines, Administrative Civil Penalties, and Administrative Costs. Severability. CEQA Exemption. Purpose and Intent. The Mayor and Common Council has determined that the enforcement ofthe 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 oflife. 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. 11 12 13 14 15 16 17 18 19 20 21 22 Section 9.93.010 23 28 f:\EMPENO\Ordinances\9.930rdinance.wpd I MC-1268 1 Section 9.93.015 Definitions. 2 3 A. 4 5 6 7 8 B. 9 C. 10 11 D. 12 E. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The following definitions shall apply in the interpretation and enforcement of this Chapter. "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 and until compliance is achieved, including but not limited to, staff time in investigating the violation, inspecting the property where the violation occurred, preparing investigation reports, sending notices, preparing for and attending any appeal hearing, attorneys' fees, and fees paid to the Administrative Hearing Officer. "Administrative Costs' shall not mean the Administrative Civil Penalties assessed pursuant to this chapter. "Administrative Costs" shall not mean late payment charges that accrue, or collection costs incurred, as a result of unpaid Administrative Civil Penalties. "Administrative Hearing Officer" shall mean any person assigned by the City Manager, or his/her designee, to preside at Administrative Hearings. "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. "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. "Responsible Party" shall mean any person or persons in charge of the business, premises, or location, or the person or persons responsible for the event or incident, and shall include any of the following: (1) (2) (3) (4) The person or persons who own the business or property where the violation exists. The person or persons in charge of the business or premises where the violation exists. The person or persons using or occupying the premises where the violation exists. If any of those persons are minors, the parent or guardians of such minor(s) shall be the Responsible Party. (5) Ifthe person or persons are a business entity, the manager or on-site supervisor where the violation exists shall also be a Responsible Party. Section 9.93.020 Administrative Civil Penalties. A. Any person violating any provision of the Municipal Code may be subject to the assessment of Administrative Civil Penalties payable to the City of San Bernardino, pursuant to the administrative procedures provided in this Chapter. The assessment of Administrative Civil Penalties established in this Chapter is in addition to any other administrative or judicial (civil or criminal) remedy established by law which may be pursued to address any violation of the Municipal Code. 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. Administrative Civil Penalties may be directly assessed by means of an Administrative Civil Penalties Notice and Order issued by an Enforcement Officer, as provided in this Chapter. Administrative Civil Penalties may be recovered by assessment of a lien or subsequent legal action brought by the City. B. c. D. F:\EMPENO\Ordinances\9.930rdinancc.wpd 2 MC-1268 1 E. Administrative Civil Penalties for violations of any provision of the Municipal Code shall be assessed at a daily rate determined by the Enforcement Officer, or by the Administrative Hearing Officer pursuant to the criteria listed in Section 9.93.040 of this Chapter. The maximum rate shall be $1 ,000 per violation per day. The maximum amount of Administrative Civil Penalties shall not exceed $100,000 per parcel or structure for any related series of violations. 2 3 4 Section 9.93.030 Administrative Civil Penalties Notice and Order; Procedures. Whenever an Enforcement Officer determines that a violation of one or more provisions of the Municipal Code or applicable state law has occurred or continues to exist, a written Administrative Civil Penalties Notice and Order may be issued to the Responsible Party. The Administrative Civil Penalties Notice and Order shall identify laws or code sections violated and describe how each section has been violated. The Administrative Civil Penalties Notice and Order shall identify the dates and locations of the violations. The Administrative Civil Penalties Notice and Order shall establish a daily amount of Administrative Civil Penalties. The Enforcement Officer shall determine the daily amount of Administrative Civil Penalties pursuant to the criteria in Section 9.93.040 of this Chapter. The Administrative Civil Penalties Notice and Order shall identify the factors used in determining the duration and daily amount of Administrative Civil Penalties. The Administrative Civil Penalties Notice and Order shall identify the date when the civil penalties began to accrue and the date when the assessment of Administrative Civil Penalties ended, unless the violation is continuous. In the case of continuous violations, there shall be an ongoing assessment of Administrative Civil Penalties at the daily rate established in the Administrative Civil Penalties Notice and Order until the violations are corrected, oruntil such time that the total amount of Administrative Civil Penalties reaches the maximum amount allowed by this Chapter. If the Enforcement Officer determines that the violations are of a continuous nature, the Administrative Civil Penalties Notice and Order shall demand that the Responsible Party cease and desist from further action causing the violations and commence and complete all action to correct the outstanding violations under the guidance ofthe appropriate City Departments. When the violation(s) pertains to building, plumbing, electrical or other similar structural or zoning issues, that do not create an immediate danger to health or safety, the Administrative Civil Penalties Notice and Order shall provide that Administrative Civil Penalties shall not be imposed if the Responsible Party corrects all of the violations within seven days after service of the Administrative Civil Penalties Notice and Order. The Administrative Civil Penalties Notice and Order sha1l describe all remedial action required to permanently correct outstanding violations and establish time frames for completion. The Administrative Civil Penalties Notice and Order shall enumerate any other consequences pursuant to this Chapter, ifthe Responsible Party fails to comply with the terms and deadlines as prescribed in the Administrative Civil Penalties Notice and Order. More than one Administrative Civil Penalties Notice and Order may be issued against the same Responsible Party if they encompass either different dates, separate or different violations, or different locations. F:\EMPENO\Ordinances\9.930rdinancc.wpd 3 MC-1268 1 2 3 4 5 6 7 8 9 10 11 B. 12 13 14 15 A. 16 17 B. 18 C. 19 20 21 22 23 24 25 26 27 28 The Administrative Civil Penalties Notice and Order shall be served upon the Responsible Party by anyone of the methods of service as set forth in Section 9.93.035. The Administrative Civil Penalties Notice and Order shall identify appropriate hearing procedures as required by this Chapter. Section 9.93.035 Service Of Notices A. Whenever a notice is required to be given under this Chapter, the notice shall be served by any ofthe following methods unless different provisions are otherwise specifically stated to apply: L. M. (I) (2) Personal service; or Certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned; or 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 ofthe City Attorney. Service by certified or regular mail in the manner described above shall be effective on the date of mailing. (3) C. The failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this Chapter. Section 9.93.040 Determination of Administrative Civil Penalties. In determining the date when Administrative Civil Penalties start to accrue, an Enforcement Officer may consider the date when the City first discovered the violation as evidenced by the issuance of a Notice of Violation or any other written correspondence. 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. In determining the amount ofthe Administrative Civil Penalties to be assessed at a daily rate, an Enforcement Officer may consider some or all of the following factors: (I) The duration of the violation; (2) The frequency of recurrence ofthe violation; (3) The seriousness of the violation; (4) Whether the violation is designated as an infraction, a misdemeanor, or either an infraction or a misdemeanor, by the Municipal Code; (5) The history of the violation; (6) The good faith effort by the Responsible Party to comply; (7) The economic impact of the penalty on the Responsible Party; and (8) The impact of the violation upon the community. F:\EMPENO\Ordinances\9.930rdinance.wpd 4 MC-1268 1 D. 2 The City Manager has the authority to establish procedures and a suggested penalty schedule for Enforcement Officers or Administrative Hearing Officers to use as a guideline in determining the amount of Administrative Civil Penalties in appropriate cases. 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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 B. 20 C. 21 22 D. 23 24 E. 25 26 F. 27 28 Failure to Comply with Administrative Civil Penalties Notice and Order. The City Manager shall assign an Administrative Hearing Officer and establish a date, time, and place for the Administrative Hearing in accordance with this Chapter when the Responsible Party requests a Hearing or if the Enforcement Officer requests a Hearing when the Responsible Party fails to comply with the terms of the Administrative Civil Penalties Notice and Order. Failure to comply includes failure to pay the assessed Administrative Civil Penalties, failure to commence and complete corrections by the established deadlines or failure to refrain from continuing violations of the Municipal Code. Section 9.93.070 Administrative Hearing; Declaration of Purpose. It is the purpose and intent of the Mayor and Common Council to afford due process oflaw to any person who is directly affected by an administrative enforcement action. Due process of law includes: adequate notice of the violation, an adequate explanation of the evidence and reasons supporting the administrative enforcement action, and an opportunity to present evidence and reasons opposing the administrative enforcement action in the Administrative Hearing. These procedures are also intended to establish a forum to efficiently, expeditiously and fairly resolve issues raised in any administrative enforcement action. Section 9.93.080 Administrative Hearing; Request and Notice. A. Any Responsible Party may contest the Administrative Civil Penalties Notice and Order by completing a Request for Administrative Hearing Form and returning it to the City Clerk within fifteen (15) days from the date the Administrative Civil Penalties Notice and Order was served. The City Manager, or hislher designee, shall then send a copy of the Request for Administrative Hearing Form to the Enforcement Officer and the City Attorney, and assign an Administrative Hearing Officer and schedule a date, time and place for the hearing. Section 9.93.060 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. The City Attorney, or hislher designee, shall approve or dismiss the Administrative Civil Penalties Notice and Order within three (3) business days of the receipt of the Request for Administrative Hearing Form by the City Attorney's Office. Ifthe City Attorney, or hislherdesignee, declines to approve the Administrative Civil Penalties Notice and Order, it shall be dismissed, and the City Attorney, or hislher designee, shall notify the Responsible Party in writing of the dismissal and the cancellation of the hearing. The hearing before the Administrative Hearing Officer shall be set not less than fifteen (15) days and not more than sixty (60) days from the date that the Request for Administrative Hearing Form is filed with the City Clerk. Written notice of the time and place ofthe hearing shall be served at least fifteen (15) days prior to the date of the hearing on the Responsible Party, the Enforcement Officer, and the City Attorney. F:\EMPENO\Ordinances\9.930rdinance.wpd 5 MC-1268 G. The format and contents of the hearing notice shall be in accordance with rules and policies promulgated by the City Manager, or his/her designee. 2 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 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 hislher designee. Section 9.93.110 Powers of Administrative Hearing Officer. A. The Administrative Hearing Officer shall have all powers necessary to conduct fair and impartial hearings, including but not limited to the power to: (1) Hold conferences for settlement or simplification of the issues; (2) Administer oaths and affirmations; (3) Hear testimony; (4) Rule upon motions, objections, and the admissibility of evidence; (5) Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing; (6) Regulate the course of the hearing in accordance with this Chapter or other applicable law; (7) Issue a final order which includes findings of fact and conclusions of law; and (8) Impose Administrative Civil Penalties and assess Administrative Costs and issue orders that are consistent with the applicable violation. In no event shall an Administrative Hearing Officer have the authority to impose a penalty of imprisonment. 14 15 16 17 18 19 20 21 22 23 24 25 B. The Administrative Hearing Officer shall only consider evidence that is relevant to the following issues: 26 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 caused, maintained, or permitted said violation; and 28 F:\EMPENO\Ordinances\9.930rdinance.\vpd 6 KC-1268 I 2 3 C. 4 Whether the amount of the Administrative Civil Penalties and Administrative Costs assessed by the Enforcement Officer pursuant to the procedures and criteria outlined in this Chapter was reasonable. The Administrative Hearing Officer may continue a hearing based on good cause shown by one of the parties to the hearing or if the Administrative Hearing Officer independently determines that due process has not been adequately afforded. (2) 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 an Administrative Hearing Order, modifying an Administrative Hearing Order, or where extraordinary circumstances or new evidence exists, granting a new hearing. 6 7 E. The Administrative Hearing Officer may require a Responsible Party to post a Performance Bond to ensure compliance with an Administrative Hearing Order. 8 9 Section 9.93.120 Administrative Hearing; Procedures. 10 Administrative Hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply, except that findings shall not be based solely on hearsay evidence. Other than copies of citations, notices, orders, and inspection reports served on the Responsible Parties as part ofthe enforcement action giving rise to the hearing, no pre-hearing discovery shall be permitted. The City bears the burden of proof at an Administrative Hearing to establish the existence of a violation of the Municipal Code. The standard ofproofto be used by the Administrative Hearing Officer in deciding the issues at an Administrative Hearing is by a preponderance of the evidence. D. Each party shall have the opportunity to cross-examine witnesses and present relevant evidence in support of that party's case. Section 9.93.130 Failure to Attend Administrative Hearing. A. II 12 13 B. 14 c. 15 16 17 18 Any Responsible Party whose property or actions are the subject of an Administrative Hearing and who fails to appear at the hearing shall be deemed to have waived his/her right to a hearing and the adjudication of the issues related to the hearing, and shall be deemed to have failed to exhaust his/her administrative remedies, provided that proper notice ofthe hearing as required by this Chapter has been provided. Section 9.93.140 Administrative Hearing Order. A. Within five (5) business days after the presentation of all evidence and testimony, including any relevant evidence and testimony presented by the Responsible Party, the Administrative Hearing Officer shall issue an Administrative Hearing Order which affirms or rejects the Administrative Civil Penalties Notice and Order or which modifies the daily rate or duration of the Administrative Civil Penalties depending upon the review of the evidence and application of the criteria in Section 9.93.040 of this Chapter. The Administrative Hearing Officer may increase or decrease the total amount of civil penalties and costs that were assessed by the Administrative Civil Penalties Notice and Order. B. The Administrative Hearing Officer may issue an Administrative Hearing Order that requires the Responsible Party to cease from violating the Municipal Code and to make necessary corrections. 19 20 21 22 23 24 25 26 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 assessment of Administrative Civil Penalties on the Responsible Party's compliance by 28 F:\EMPENO\Ordinances\9.930rdinance.wpd 7 Me-1268 specified deadlines. The Administrative Hearing Officer may issue an Administrative Hearing Order which imposes additional Administrative Civil Penalties that will continue to be assessed until the Responsible Party complies with the Administrative Hearing Officer's decision and corrects the violation. The Administrative Hearing Officer may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the Administrative Hearing Order. The Administrative Hearing Order shall be served on all parties by anyone of the methods listed in Section 9.93.035 of this Chapter. The Administrative Hearing Order shall become final on the date of service of the Order, unless any party files a written request for reconsideration or modification with the City Manager within fifteen days after the date of service of the Order. A request for reconsideration or modification of an Administrative Hearing Order may only be based upon an error oflaw or new evidence not available to the requesting party at the time of the Administrative Hearing. The decision of the Administrative Hearing Officer on the request for reconsideration or modification shall become final on the date of service of the decision by anyone of the methods listed in Section 9.93.035 of this Chapter. 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 17 Upon the failure of the Responsible Party to comply with terms and deadlines set forth in the Administrative Hearing Order, the Enforcement Officer may use all appropriate legal means to recover the Administrative Civil Penalties and Administrative Costs and obtain compliance with the Administrative Hearing Order. B. After the Administrative Hearing Officer issues an Administrative Hearing Order, the Enforcement Officer shall monitor the violations and determine compliance. C. It is unlawful for a party to an Administrative Hearing, who has been served with a copy ofthe final Administration Hearing Order pursuant to this Chapter, to fail to comply with the Order. Failure to comply with a final Administrative Hearing Order, except for nonpayment of Administrative Civil Penalties, may be prosecuted as an infraction or misdemeanor at the discretion of the City Attorney. Section 9.93.160 Judicial Review. A. 18 19 20 21 22 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 Penalties, and Administrative Costs. Unpaid Administrative Civil Penalties and Administrative Costs shall be a debt to the City 27 28 A. F:\EMPENO\Ordinances\9.930rdinance.wpd 8 MC-1268 1 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 the San Bernardino County Treasurer-Tax Collector as set forth in Chapter 3.68 of the Municipal Code. 5 6 7 Section 9.93.180 Severability. The provisions of this Chapter are severable, and, if any sentence, section or other part of this Chapter should be found to be invalid, such invalidity shall not affect the remaining provisions, and the remaining provisions shall continue in full force and effect. 8 9 10 Section 9.93.190 CEQA Exemption. The adoption of this ordinance is exempt from the provisions ofthe California Environmental Quality Act pursuant to Section 15061(b)(3) of the Guidelines for Implementation of the California Environmental Quality Act (Title 15, California Code of Regulations, commencing with Section 15000), as it can be seen with certainty that there is no possibility that the activity will have a significant effect on the environment. 11 12 13 14 15 /// /// 16 17 18 19 20 21 22 23 24 25 26 27 28 F:\EMPENO\Ordinances\9.930rdinance.wpd 9 Me-1268 2 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. 3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j t. reg:u 12r meeting thereof, held on the 21st day of April ,2008, by the following vote, to wit: 4 5 6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 ESTRADA X 8 9 BAXTER ~ 10 BRINKER X 11 12 DERRY X ~ 13 KELLEY X ~ 14 JOHNSON X IS 16 MC CAMMACK X 17 18 V t.vJd VAu.-Ic City Clerk The foregoing Ordinance is hereby approved this .:l~~ay of April , 2008. 19 20 21 ~- AT CKJ.Mo~aYOr City of San Bernardino 22 23 Approved as to form: 24 25 JAMES F. PENMAN City Attorney 26 27 (1,,<4:... -6 "U~I~./f- ~'.~ ~ ~ 28 ~~ <VZ'5 ~1~ r~ 1) ~'. /7-/ F:\EMPENO\Ordinances\9.930rdinancc.wpd 10