HomeMy WebLinkAboutB5 Amendments to Administrative Citation AppealsCity of San Luis Obispo, Council Agenda Report, Meeting Date, Item Number
FROM: J. Christine Dietrick, City Attorney
Prepared By: Isaac Rosen, Legal Fellow
SUBJECT: CONSIDERATION OF PROPOSED AMENDMENTS TO CHAPTER 1.24 OF
THE SAN LUIS OBISPO MUNICIPAL CODE REGARDING APPEALS OF
ADMINISTRATIVE CITATIONS
RECOMMENDATION
Provide direction on the proposed amendments to Chapter 1.24 to establish a two tier
administrative citation appeals review process (Attachment 1).
REPORT-IN-BRIEF
On January 7, 2014, the City Attorney sought direction from the City Council on revising the
administrative citation appeals program. Specifically, the City Attorney requested direction on:
1) the form and process of administrative review for administrative citations; 2) who should
conduct the administrative review, and 3) whether the Council had any direction to provide on
how to allocate additional funds to the appeals program, if they are needed. At the conclusion of
the City Attorney’s presentation, the majority of the City Council directed staff to revise the
appeals program to provide two levels of administrative review, with the first level being
conducted by a qualified hearing officer, and the second level of administrative review
conducted either by the Construction Board of Appeals, or a newly created three member
Administrative Review Board (ARB), dependent on the type of Municipal Code violation. The
second level of administrative review, whether conducted by the Construction Board of Appeals
or the Administrative Review Board (ARB), would be the final decision making body, and the
decision would not be appealable to the City Council. The City Council also directed staff that
the first level of administrative review should be conducted by volunteers if possible.
Pursuant to prior direction from the City Council, staff is proposing changes to Chapter 1.24 and
seeks Council’s final input and direction on the proposed changes before proceeding with the
next steps toward program implementation. If the City Council agrees with the proposed changes
to Chapter 1.24, then City Staff will: 1) finalize an amending ordinance for Chapter 1.24 for
adoption by Council; 2) draft an ordinance to create the new ARB; 3) bring forward the
resolutions necessary to amend existing administrative enforcement guidelines and bylaws for
the Board of Appeal and draft bylaws for the ARB; 4) work with the City Clerk to recruit
volunteer hearing officers and ARB members; and 5) develop an administrative hearing training
program for hearing officers and ARB members, which can also be utilized to train members of
other City bodies with adjudicatory functions, such as the Planning Commission, ARC, CHC,
Personnel Board and Tree Committee.
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DISCUSSION
The Process of Issuing an Administrative Citation
Government Code section 53069.4 provides the City with the authority to impose administrative
penalties for violations of its Municipal Code. However, the statute provides that absent an
immediate health or safety threat, a city cannot immediately impose an administrative citation
unless the city has provided a reasonable period of time to remedy the violation. Over the years,
the implementation of this requirement has changed as staff has changed. Based on review of
prior versions of the administrative guidelines, initially, staff would send a notice of violation
(“NOV”), which documents the violation and advises the person of the conduct or condition that
constitutes a violation, and an administrative citation with the fine payment due thirty days after
the date of the NOV. If the violation was corrected before the thirty day period, then the
administrative citation was cancelled. As the City entered into proactive code enforcement, in
2012, Chapter 1.24 was changed to reflect the practice that staff would first send a notice to
correct a code violation. If the violation was not abated, then staff would follow up with a notice
of violation, which would trigger the code enforcement fee, and an administrative citation, with a
fine that would be due, even if the violation was abated. Currently, the practice is to attempt to
educate a property owner either verbally or with a door hanger about a violation. If the violation
is not abated, then staff sends a formal notice of violation. If the violation is still not abated, then
the code enforcement fee is levied and administrative citations sent. Proposed changes to Chapter
1.24 and subsequent policy changes to implement the ordinance will ensure that City practices
are uniformly consistent with adopted policies.
Feedback from the Construction Board of Appeals and Issuing City Departments
City staff presented to the Construction Board of Appeals on July 29, 2014, seeking feedback on
the proposed changes to Chapter 1.24, the Board’s proposed increased jurisdiction, and a
revision of the Board’s bylaws to better reflect an expanded role if Council approved proposed
changes to the administrative citation appeals program. As well, City staff sought to gauge
interest by sitting Construction Board of Appeals members on the possibility of serving
concurrently on the Administrative Review Board.
Among the Board members, several supported the proposed two-level administrative review of
administrative citations, particularly the possibility it presents for some issues that might
otherwise reach the Construction Board of Appeals to be resolved before requiring full Board
review. Other members expressed disapproval of the proposed changes as too much process or
too “bureaucratic.” However, there was general acknowledgement of the need for a defensible
record of City action and a uniform process for review of Council’s authority to broaden the
scope of the Board’s jurisdiction if deemed appropriate. Regardless of the amendments
ultimately adopted, a majority of Board members supported amending the Board’s bylaws to
better define both the current authority of the Board and to articulate the Board’s role as the
second and final decision maker for administrative citation review.
When city staff presented to Council on January 7, 2014, the changes to the administrative
citation appeals program was envisioned as dividing the second and final level of administrative
review between advisory bodies based on whether the underlying code violation was considered
technical or non-technical in nature. Further discussions with staff and the Construction Board of
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Appeals led City staff to conclude the best course of action to address the scope of the
administrative citation appeals program was maintaining the Construction Board of Appeals
current jurisdiction and clarifying that its jurisdiction includes review of administrative citations
for Title 15 code violations (housing, building and fire code violations), and the creation of a
separate advisory body to hear appeals of all other administrative citations.
Staff specifically discussed with the Board the possibility of expanding its jurisdiction to include
review of City enforcement actions and administrative citations for violations of Chapters 12.08
(Urban Stormwater Quality Management and Discharge Control) and 13.08 (Sewers). The
reasoning for that proposal to the Board was that those provisions are extensive and somewhat
complex and the Building Official felt the Board’s technical expertise in interpreting building,
housing and fire code provisions would be beneficial to the review of violations of these
additional code provisions. However, the Board expressed some concern about this expanded
role and did not feel that they would have expertise in these areas outside of the construction
context.
Following the feedback from the Board of Appeals, the City Attorney’s office did some
additional research regarding the current scope of jurisdiction and definition of duties of the
Board under the City’s Municipal Code, adopted Uniform codes, and bylaws. The City Attorney
also had follow up discussions with Utilities staff that have primary responsibility for
enforcement of the sewer regulations and some components of the storm water regulations.
Based on that follow up, the City Attorney has concluded that it may not be necessary to make
any modifications to the Board’s jurisdiction in order to permit the Board to review aspects of
sewer and storm water enforcement actions, including administrative citations issued by the
Building Department for violations of those regulations.
The Board’s current jurisdiction is to review appeals of decisions of the Chief Building Official,
typically on matters arising under Title 15 of the Municipal Code. However, to the extent that the
Chief Building Official is charged with enforcement of some aspect of the storm water or sewer
regulations, likely relating to construction standards, his actions and decisions, including
issuance of administrative citations, would be subject to review by the Board within its existing
jurisdiction. To the extent that Utilities staff is charged with sewer and storm water enforcement,
and opts to enforce via administrative citation for violations of provisions within their purview,
unrelated to Title 15 or the Building Official’s discretion, staff believes that such actions can be
reviewed by the Administrative Review Board. Feedback from Utilities staff was that those
matters on which the City would be proceeding independent of outside regulatory agencies via
administrative citation likely would be fairly straightforward matters of compliance or non-
compliance with a clearly articulated standard or requirement. To the extent that more complex
matters likely would be implicated, it is likely that there would be outside agency involvement
and enforcement actions outside the administrative citation process.
Thus, in light of the foregoing considerations, the current recommendation to Council is that the
Administrative Review Board will hear second tier appeals of all other administrative citations,
except those issued for or related to Title 15 code violations or another enforcement action
within the purview of the Building or Fire Official. In the event that a citation involves multiple,
related violations of regulations both within and outside the purview of the Building or Fire
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Officials, staff would propose to have the Board of Appeals review such citations in a
consolidated hearing, rather than separate consideration of multiple violations between the two
bodies. In other words, when a citation involves multiple violations that fall under the purview of
both the Board of Appeals and the ARB, the Board of Appeals will be the primary review
authority.
Reviewing the Administrative Citation
1. Proposed Structure and Purview of Reviewing Bodies
Per Council’s direction, proposed changes to Chapter 1.24 set up a two level administrative
review. The first level of review shall be conducted by a qualified hearing officer, referred to as
the Hearing Administrator in Chapter 1.24. The procedures for the Hearing Administrator to hear
an appeal of an administrative citation remain the same as prior procedures. In general, these
hearings are less formal, and provide an opportunity for the alleged violator to present his or her
side of the case. City staff is typically not present; instead, City staff forwards any
documentation of the administration to the Hearing Administrator to consider. The Hearing
Administrator then determines if the administrative citation should be upheld or revoked. The
Hearing Administrator does not have the authority to reduce the fine amount per violation.
Section 1.24.110 (K) proposes some clarification of the Hearing Administrator’s discretion in the
event that an administrative citation contains multiple code violations, which is often the case
with administrative citations that involve building code violations. A Hearing Administrator has
the authority to uphold some violations while dismissing other violations, which impacts the total
fine amount for an administrative citation, but does not give the Hearing Administrator the
discretion to alter the fine amount for citations that are upheld.
Section 1.24.120 establishes the second level of administrative review and specifies the hearing
body that will conduct the second level of review. As currently proposed, the Construction Board
of Appeals will continue to review decisions and interpretations of the Chief Building Official
and Fire Code Official arising under Title 15 of the City’s Municipal Code (Construction and
Fire Prevention Regulations, adopting uniform codes and local amendments), as well as any
other action or interpretation of the Building and/or Fire Code Officials. Chapter 1.24 will be
amended to make explicit that the Board of Appeals is the final appeals body for all
administrative citations that arise under Title 15 or are otherwise issued on matters within the
purview of the Building and Fire Code Officials. That authority is implicit in statutes defining
the Board’s current jurisdiction and the Board’s bylaws, but there is not explicit reference to
administrative citation appeal review. Discussions with the Board suggested that additional
clarity in the City’s adopted codes and the Board’s bylaws would be helpful in defining the
Board’s role. Appeals of all citations not connected with a Title 15 violation will be heard by the
ARB.
2. Appeals Procedures
The procedures for how the two boards conduct their hearings are proposed to be more formal
than the procedures before the Hearing Administrator. As proposed, Chapter 1.24 states that the
boards will follow the procedures for conducting the hearings as set forth in Sections 1301.2-
1301.6, 1302, 1303, 1304, 1305.1, 1305.7 and 1305.8 of the 1997 Uniform Housing Code, which
are incorporated by reference in Section 1.24.120(E) of the Municipal Code. (See Attachment 2)
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The provisions generally provide for standard notice and procedures for the conduct of hearings
and will provide both boards the authority to issue subpoenas to compel both document
production and witness testimony. Overall, these procedures will make the hearings in front of
the respective boards more uniform, and will allow for a more fully developed administrative
record in the event that a person seeks judicial review of an adverse decision. In addition, similar
to the Hearing Administrator, the boards will only have the authority to uphold or revoke the
administrative citation, or in the case of multiple violations, modify an administrative citation by
upholding some violations, but dismissing others. The boards will not have the authority to
modify the fine attached to the administrative citation(s) if they uphold the citations on appeal.
Section 1.24.140 provides that the decision of either Board is final and not subject to City
Council review. Appellants who disagree with final decisions of the respective boards may
pursue judicial review in one of two ways: 1) by filing an appeal with the Superior Court
pursuant to the procedures set forth in the statute authorizing administrative citation enforcement
(Govt. code Section 53069.4); or 2) filing a writ of mandamus in court to compel the City to
reverse its administrative enforcement action. The proposed review structure allows the City to
develop an adequate record and findings to defend itself if challenged via writ and also permits
the Council to receive ongoing information from staff regarding these types of code enforcement
actions that would not otherwise be possible, because of due process and impartiality concerns, if
Council served as the final decision making body on appeal.
Finally Section 1.24.130 of the proposed amendments provides for some variation from the
generally applicable process in instances where there are multiple related enforcement actions
requiring review by specified City bodies, such as the Planning Commission. Occasionally, an
administrative citation may be issued concurrent with and in addition to another related City
enforcement or review action. For example, Code Enforcement may issue an administrative
citation for violating a use permit condition, and at the same time, recommend to Planning staff
that a use permit issued by the Planning Commission be revoked or modified to abate the
nuisance. In such an example, the Planning Commission, as the permit issuing body, would be
required to conduct a noticed hearing the proposed modification or revocation of the use permit,
but under the generally applicable administrative citation review procedures in Chapter 1.24, the
administrative citation would be reviewed by the Administrative Review Board. To avoid this
type of division of review and potentially conflicting decisions on the same set of facts, Section
1.24.130 provides the City Manager with the authority to consolidate review of both the permit
action and the administrative citation in this example and send both aspects of the enforcement to
the Planning Commission for review/appeal.
Ability to Serve Simultaneously on Advisory Bodies
Typically, a member of one advisory body cannot serve as a member of another advisory body.
However, as it relates to the Administrative Review Board, Section 6.7.2.5 of the San Luis
Obispo Council Policies & Procedures states that members of an advisory body in which
technical expertise is often required, such as the Construction Board of Appeals, may
simultaneously serve on another advisory body. By allowing dual membership, the Council may
give preference to members of the Construction Board of Appeal or Planning Commission, but if
members of those boards are not interested in serving on the Administrative Review Board, then
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Council has the ability to appoint members from the general public who apply and qualify for the
positions.
CONCURRENCES
Community Development, Fire, Police Department and Utilities all concur with the proposed
modifications to Chapter 1.24.
FISCAL IMPACT
Assuming that volunteer hearing officers can be recruited and retained, no significant additional
costs are anticipated. There will be potentially significant staff resources necessary to complete
subsequent policy revisions and implement the program, including recruiting and training of
hearing officers and Administrative Review Board members, primarily in the City Attorney’s
Department and the Building Division. It is also anticipated that staff resources will be required
to produce reports and prepare information for the de novo review by the respective boards and
that the boards will require legal support from the City Attorney’s Office. It is anticipated that
report preparation and information compilation resources will be provided by the department that
originated the administrative citation.
ALTERNATIVES
No alternatives are being proposed at this time because the proposed changes are implementing
prior Council direction.
ATTACHMENTS
1. Legislative Draft of Proposed Amendments to Chapter 1.24 of the San Luis Obispo
Municipal Code.
2. Uniform Housing Code Hearing Procedure provisions
t:\council agenda reports\2014\2014-08-19\amendments to administrative citation appeals (dietrick)\car.adminciteappeals.2014.8.19.docx
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Attachment 1
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Chapter 1.24
ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES
Sections:
1.24.010 Purpose—Adoption of administrative aadministrative citation guidelines and appeals.
1.24.020 Applicability.
1.24.030 Definitions.
1.24.040 Maintaining public nuisances prohibited.
1.24.050 Abatement of unlawful conditions—Notice.
1.24.060 Extensions of time.
1.24.070 Amount of civil fines.
1.24.080 Manner of payment—Civil fines.
1.24.090 Appeal of administrative administrative citationcitations.
1.24.100 Hearing procedures for notice to correct.Procedure for director review of notices of
violations.
1.24.110 Hearing procedures for administrative citations. Procedures for administrative citation
appeals to hearing administrator.
1.24.120 Appeal decision.of hearing administrator’s decision.
1.24.130 Exception to administrative review as outlined in this chapter.
1.24.140 Right to judicial review.
1.24.140 150 Collection of unpaid fines.
1.24.010 Purpose—Adoption of administrative citation guidelines and appeals.
A. Purpose. The purpose of this chapter is to enable the city, acting as a charter city pursuant to Article
XI, Sections 5 and 7 of the State Constitution, to impose and collect civil administrative fines in
conjunction with the enforcement of provisions of this code. Notwithstanding the provisions herein, the
city has and shall continue to employ the philosophy of voluntary compliance when seeking compliance
with this code as may be required by law.
B. Administrative Guidelines Approved by the City Council. Concurrently with the adoption of the
ordinance establishing this chapter, the city shall prepare and promulgate administrative guidelines
which shall, among other things, establish policies for providing appropriate and adequate warnings
with respect to possible municipal code violations to those Ppersons who may receive an administrative
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Administrative citationCitation, to provide direction to city staff for the correct process of issuing an
administrative Administrative citationCitation, and to establish the proper format of the administrative
Administrative citationCitation, and for service of that administrative Administrative citation Citation
and for the appeal of the aAdministrative cCitation in a manner consistent with the requirements of this
Chapter, due process and any other applicable law (hereinafter referred to as the “administrative
Administrative citation Citation guidelines”). Such Aadministrative citation Citation guidelines shall be
expressly approved by a resolution of the city council prior to their adoption. (Ord. 1576 § 1 (part), 2012)
1.24.020 Applicability.
A. Enforcement of the Municipal Code. This chapter makes any violation of the provisions of the San Luis
Obispo Municipal Code, including but not limited to all construction, fire safety and property
maintenance codes adopted by reference and as amended pursuant to Title 15, subject to
administrative fines.
B. Administrative Authority. This chapter establishes the procedures for the imposition, enforcement,
collection, and review of civil administrative fines pursuant to State Government Code Section 53069.4
and pursuant to the city’s plenary police powers as a charter city.
C. Remedies Not Exclusive. The use of the administrative enforcement remedies provided by this
chapter is solely at the city’s discretion. By adopting this chapter, the city does not intend to limit its
discretion to choose the use of any other remedy, civil or criminal, or other administrative procedures,
for the abatement of such violations that the city may select in a particular case, including procedures
for the imposition of civil or criminal penalties.
D. Strict Liability of the Owner. Because serious code Code violations Violations may impact public
health, welfare, and safety and the adequacy and safety of housing, this chapter is intended to impose
strict civil liability upon the owners of real property (or the owner of a business where the violation is
caused by or relates to the operation of a business) for all violations of the San Luis Obispo Municipal
Code which may occur in the city of San Luis Obispo regardless of the existence of specific or general
intent or prior knowledge of such violations and, further, regardless of any intent (or lack thereof) to
violate the code. (Ord. 1576 § 1 (part), 2012)
1.24.030 Definitions.
The following definitions apply to the use of these terms for the purposes of this chapter:
A. Administrative Citation. Document issued by the director Director levying or assessing a civil fine as
set by council resolution as a penalty for a code Code violationViolation.
The director Director shall not issue an administrative citation pertaining to building, plumbing,
electrical, or other similar structural or zoning violations for a violation that does not create an
immediate danger to health and safety unless at least ten days prior to the issuance of the
administrative citation, the director Director served a notice to correctNotice of Violation.
B. Code Violation. Any violation of the San Luis Obispo Municipal Code.
C. Director. The department head, or his or her designee, responsible for enforcing the municipal code
with respect to his or her department.
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D. Hearing Administrator. The person appointed by the city administratorcity manager, or his or her
designee, to serve as the hearing officer for first level administrative hearings.
E. Issued. Giving, mailing, personally servingassessing, or posting an administrative Administrative
citation Citation to a person Person where “issuance” is deemed to have occurred on the earlier of the
date when in which thean administrative Administrative citation Citation is either personally served on a
personPerson or , the date it is mailed to a person Person by posting in the regular United States mail, or
the date it is physically posted on real property where a property related code Code violation Violation is
occurring and personal or mailed service has been unsuccessful. .
F. Notice to Correct. A type of notice of violation that pertains to building, plumbing, electrical, or other
similar structural or zoning violations, that do not create an immediate danger to health and safety. It
must be issued at least ten days prior to issuing any administrative citation pertaining to building,
plumbing, electrical, or other similar structural or zoning violations, that do not create an immediate
danger to health and safety being issued.
GF. Notice of Violation. An official city municipal code violationA written communication notice issued to
a personPerson(s) notifying them that they are in violation of the San Luis Obispo Municipal Code with
respect to certain real property or the operation of a certain business. It must be issued at least ten days
prior to issuance of an Administrative Citation when pertaining to building, plumbing, electrical, zoning,
storm water or other structural violations that does not create an immediate danger to health and
safety. Subsequent notices regarding the same type of violation, within any twelve-month period, may
be cause for imposing additional administrative fines without warning.
HG. Person. Any of the following:
1. An individual who causes a code Code violation Violation to occur.
2. An individual who maintains or allows a code Code violation Violation to continue, by his or her action
or failure to act in a lawful manner.
3. An individual whose agent, employee, or independent contractor causes a code Code violation
Violation by its action or failure to act in a lawful manner.
4. An individual who is an owner of real property where a property related code Code violation Violation
occurs.
5. An individual who is an owner of a business or who is the on-site manager of a business and who
normally works at the site when the business is open and is responsible for the activities at such
premises. For purposes of this subsection, “personPerson” includes a natural person or a legal entity
including but not limited to, the owners, majority stockholders, corporate officers, trustees, and general
partners of a legal entity. There shall be a legally rebuttable presumption that the record owner of a
parcel as listed on the county’s latest equalized property tax assessment rolls is the person responsible
for a code Code violation Violation on such parcel. In addition, where applicable, a commercial lessee,
sublessee, or operator of a business on a parcel shall be presumed responsible for code Code violations
Violations relating to the operation of the business (for example, sign ordinance violations) on that
parcel. (Ord. 1576 § 1 (part), 2012)
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H. The Construction Board of Appeals. A body The advisory body that conducts the second level of
administrative review of aAdministrative cCitations issued for violations of Title 15., Chapter 12.08, and
Chapter 13.08. If an aAdministrative cCitation is issued in ncludes a violation of Title 15 related to and in
conjunction with any other Administrative Citation, of the foregoing code violations and a Non-Technical
Code Violation(s), then the Construction Board of Appeals shall hearre the accompanying Non-Technical
Code Violation(s) also.
. Non-Technical Code Violation. Code Violation of the Municipal Code excluding violation of Title 15,
Chapter 12.08 and Chapter 13.08. .
KI. Non-Technical Enforcement Board of AppealsAdministrative Review Board. A three member board,
whose members shall be appointed by city council, that conducts the second level of administrative
review of aAdministrative cCitations issued for Non-Technical Code Violationsall Code Violations
excluding those pursuant to Title 15 violations. Members of this board may simultaneously serve on
another advisory body.
1.24.040 Maintaining public nuisances prohibited.
Pursuant to the authority of State Government Code Section 38771 and Sections 1.12.070 and 1.12.080,
any continuing violation of the San Luis Obispo Municipal Code constitutes a public nuisance.
Subsequent notices regarding the same type of violation, within any twelve-month period, may be cause
for imposing additional administrative fines without warning. Therefore, any person owning or having
possession of any real property in the city of San Luis Obispo who is in violation of any provision of the
San Luis Obispo Municipal Code may be determined to be maintaining a public nuisance; provided,
however, that it shall not be the intent of the city that this chapter preempt any private nuisance right of
action or any and all other legal remedies available to private parties to abate such nuisances. (Ord.
1576 § 1 (part), 2012)
1.24.050 Abatement of unlawful conditions—Notice.
A. Inspections. Whenever city staff has inspected a property and finds that conditions constituting a
violation of the municipal code exist thereon, the director Director may use the procedures set forth in
this chapter to abate such nuisance as authorized by law.
B. Notice of Violation and Administrative Citation Issuance. The director Director may issue a notice
Notice of violation Violation and/or administrative Administrative citation Citation for a violation to any
person Person or persons Persons whom the director Director deems appropriate if the Ddirector has
determined, through investigation, that a Code Vviolation exists. A person Person to whom a notice
Notice of violation Violation and and/or administrative Administrative citation Citation is issued shall be
liable for and shall pay to the city the administrative fine or fines described in the Administrative citation
Citation when due pursuant to the provision of this chapter.
C. Development Review Conditions. Every person who applies for and receives a permit, license, or any
type of land use approval (such as, but not limited to, a development review approval, a subdivision map
approval, a conditional or special use permit, a zoning requirement modification, a variance, or other
discretionary approval) shall comply with all mandatory approval conditions imposed upon the issuance
of the permit, license, or other such approval. If a person violates any condition of such permit, license,
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or similar land use approval, that person may be issued a notice Notice of violation Violation and/or
administrative Administrative citation Citation and may be held responsible for administrative fines
under the provisions of this chapter.
D. Continuing Violations. Except as provided elsewhere in the municipal code, each day a violation of
this code exists shall be a separate and distinct violation and may be subject to a separate administrative
fine. A notice Notice of violation Violation and/or administrative Administrative citation Citation may
charge a violation for one or more days on which a violation exists and for violation of one or more
applicable code sections.
E. Prior and Repeat Violations. The city Director may take into consideration the fact that a person has
been previously issued a notice Notice of violation Violation and/or administrative Administrative
citation Citation when the city Director is determining whether to accept an application or to grant any
permit, license or any similar type of land use approval for that person and such notice Notice of
violation Violation and/or administrative Administrative citation Citation may be used as evidence that
the person has committed acts that are not compatible with the health, safety, and general welfare of
other persons and businesses within the city. Subsequent notices regarding Repeated violations of
theof the same code provisiontype of violation, within any twelve-month period, may be cause for the
issuance of an Administrative Citation imposing additional administrative fines without a prerequisite
Notice of Violation Violation warning.
F. Contents of Notice of Violation and Administrative Citation. The director Director shall generally issue
a notice Notice of violation Violation and/or administrative Administrative citation Citation to the owner
or owners of the real property upon which the violation exists as the Person presumed under this
chapter to be responsible for the violation. The administrative guidelines as approved by the city council
pursuant to Section 1.24.010 hereof shall, among other things, identify those items of information which
must be contained in the notice Notice of Vviolation and/or administrative Administrative citation
Citation issued to persons Persons and alleging a violation of the municipal code.
G. Service of Notice. The notice Notice of violation Violation and/or administrative Administrative
citation Citation and any amended notice Notice of violation Violation and/or administrative
Administrative citation Citation shall be served by mail or personal service or posted on the property
where the Code Violation is occurring if personal or mailed service has been unsuccessful in the manner
provided for in the approved administrative guidelines. (Ord. 1576 § 1 (part), 2012)
H. Proof of Service. Proof of personal service of the notice Notice of violation Violation and/or
administrative Administrative citation Citation shall be documented as provided for in the approved
administrative guidelines. (Ord. 1576 § 1 (part), 2012)
1.24.060 Extensions of time.
If the director Director receives a request from any person required to comply with a notice Notice of
violationViolation, tThe director Director may grant an extension of any fine due date and abatement
deadline if the director Director determines that such an extension of time will not create or perpetuate
imminent danger to the public health and safety. The director Director shall have the authority to place
reasonable conditions on such an extension. (Ord. 1576 § 1 (part), 2012)
1.24.070 Amount of civil fines.
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A. Fine Schedule. The amount of fines for violating particular provisions of the code shall be set in a
schedule of fines adopted by resolution by the city council concurrently with the ordinance adopting this
chapter. The schedule may include escalating fine amounts for repeat code Code violations Violations
occurring within specified periods of time.
B. Due Date for Fines. Fines are due on the day specified in the administrative Administrative citation
Citation or, in the event of an appeal, as determined by the hearing Hearing administratorAdministrator,
Construction Board of Appeals or or Administrative Review Board. Non-Technical Enforcement Board of
Appeals . (Ord. 1576 § 1 (part), 2012)
1.24.080 Manner of payment—Civil fines.
A. Paid by Mail. Fines shall be paid to the city within thirty days of the due date. Payment shall be made
by check or money order. The directorDirector, for purposes of convenience and ease of processing,
may authorize payment to be made in accordance with any other method, including designating a
location within the city for such payments.
B. Further Violations. Payment of an administrative fine shall not excuse the person from correcting the
code Code Violation. The issuance of an administrative Administrative citation Citation or the payment
of a fine does not preclude the city from taking any other enforcement or legal action regarding a code
Code violation Violation that is not corrected, including issuing additional administrative Administrative
citation Citations or the initiation of criminal or superior court civil abatement proceedings. (Ord. 1576 §
1 (part), 2012)
1.24.090 Appeal of administrative administrative citationcitation.
A. Appeal to Hearing Administrator. Any person aggrieved by the action of the director Director in
issuing an administrative Administrative citation Citation pursuant to the provisions of this chapter may
appeal such citation to the hearing Hearing administratorAdministrator. If no appeal is filed within ten
days of the date of issuance of the administrative Administrative citationCitation, the administrative
Administrative citation Citation shall be deemed final.
B. Contested Appeals.
1. To contest a notice to correct, the person receiving the notice to correct (the “appellant”) shall
provide information on a form prescribed by the director (will we be seeking to create a uniform form
for 1st level of review) setting forth the reasons to contest the notice to correct. Failure to contest a
notice to correct shall deem the building official or director’s interpretation of a code as final.
21. To appeal an anNotice of Violation or administrative Administrative citationCitation, the appellant
shall file a signed written appealrequest following the appeal procedures outlined outlined within this
chapter. and as set forth in the Administrative Guidelines in the administrative citation. An appellant
may contest the administrative Administrative citation Citation by denying that the facts that gave rise
to a violation occurred, by denying that it was not corrected within the required correction period or, if
applicable, by establishing that he or she is not the owner of the real property or the owner of the
business at the time the violation should have been corrected. The written appeal shall state the action
appealed, the grounds for the appeal, and the relief requested. Failure to state the action appealed and
the grounds therefore shall result in the denial of the appeal.
B5 - 12
Attachment 1
7
C2. Receipt of an Appeal Request. To be effective, the appeal request must be received by the director
Director within ten days of the date the notice to correct or administrative Administrative citation
Citation was issued. Where a request is mailed by the appellant, the request shall be deemed filed on
the date received by the directorDirector. The director Director is authorized to designate an address on
the notice to correct or administrative Administrative citation Citation to which such appeal requests
shall be mailed. (Ord. 1576 § 1 (part), 2012)
1.24.100 Procedure for director review of notices of violation.
1.24.100 Hearing procedures for notice to correct.
A. The director Director shall review all contested Notices of Violation prior to the issuance of an
Administrative Citation. notices to correct. The director Director shall have the authority to uphold,
modify or revoke any contested notice to correctNotices of Violation.
B. After considering the information provided by the appellant on the form prescribed by the director,
the director shall issue a notice of decision. The notice of decision shall be mailed by first class and
certified mail, postage prepaid, return receipt requested, to the appellant or their designated
representative.
C. The director’s interpretation of the code shall be deemed final unless appealed to the appropriate
advisory or legislative body as prescribed elsewhere in the municipal code. (Ord. 1576 § 1 (part), 2012)
1.24.110 .Procedures for administrative citations appeals to hearing administrator.
A. Review by Director. The Director may review submitted appeals of contested Notices of Violations or
Administrative Citations prior to assigning them to the Hearing Administrator. The Director shall have
the authority to uphold, modify or revoke any contested Notice of Violation or Administrative Citation.
If the Director is able to resolve the appeal to the satisfaction of the appellant, then the appeal need not
be submitted to the Hearing Administrator.
AB. Applicable Hearing Administrator. For hearings involving violations of this codeCode Violations, the
hearing Hearing administrator Administrator shall be the person designated by the city manager, or his
or her designee, administrator to serve as the hearing officer.
C. Time and Place of Hearings. Hearings shall be conducted by a Hearing Administrator on the date,
time and place as specified by the Hearing Administrator.
DC.. Appeal of Records. The director Director shall ensure that the Notice of Violation oradministrative
Administrative citation Citation is delivered to the Hearing Administrator in sufficient time prior to the
appeal hearing. Before the hearing, the director Director shall also make available to the appellant a
copy of any additional information concerning the case Administrative Citation which will be provided to
the hearing Hearing administratorAdministrator.
B5 - 13
Attachment 1
8
ED. Presentation of Evidence. The appellant shall be given the opportunity to testify and to present
evidence relevant to the code Code violation Violation(s) specified in the Notice of Violation or
administrative Administrative citationCitation.
FE.. Use of Reports as Evidence. The Notice of Violation or administrative citation and documents or any
other reports prepared by city staff or by the director Director concerning a code Code violation
Violation or attempted correction of a code Code violation Violation(s) that are provided to the hearing
Hearing administrator Administrator shall be accepted by the hearing Hearing administrator
Administrator as prima facie evidence of the code Code violation Violation(s) and the facts stated in such
documents.
G. F. Staff Witnesses/Additional Evidence. Neither city staff nor any other representative of the city
shall be required to attend the appeal hearing, nor shall the hearing Hearing administrator
Administrator require that there be submitted any evidence, other than the administrative
Administrative citationCitation, that may exist among the public records of the city with respect to the
violation. However, any such appearance or submission may be made at the discretion of the
directorDirector.
H. G. Continuances. The hearing Hearing administrator Administrator may continue an appeal hearing if
a request is made showing good cause by the appellant or the directorDirector. All continuance requests
shall either: (1) be made in person at the hearing by the appellant or his or her representative if the
appellant is physically unable to attend, or (2) be made by a written request received from the director
Director or the appellant. If the continuance is granted, a new hearing date shall be set within thirty
days. If the continuance is denied, the hearing shall proceed then and there as scheduled, and if the
appellant is not present, the request(s) shall be deemed abandoned in accordance with subsection I J of
this section.
I. H. Rules of Evidence. The appeal hearing shall be conducted informally and the legal or formal rules of
evidence need not be followed. The hearing Hearing administrator Administrator does not have the
authority to issue a subpoena.
J. I. Failure to Appear. The failure of the appellant to appear at the hearing, unless the hearing was
continued per subsection G H of this subsection, shall constitute an abandonment of the appeal, and
shall constitute a failure to exhaust administrative remedies concerning the violations set forth in the
notice of Aadministrative Ccitation. (Ord. 1576 § 1 (part), 2012)
AK. Notice of Hearing Administrator’s Ddecision and Aappeal Ttimeline. After considering all the
evidence and testimony submitted at an appeal hearing, the hearing Hearing administrator
Administrator shall issue a notice of decision within two ten business days to either uphold or revoke
the administrative Administrative citation Citation based upon a conclusion of whether a violation
occurred. If an Administrative Citation charges two or more Code Violations, the Hearing Administrator
may modify the Administrative Citation by upholding one or more Code Violations or by but dismissing
one or more cCode vViolations. The Hearing Administrator does not have the authority to reduce or
modify a fine amount for a violation which has been upheld on appeal. The notice of decision shall be
mailed within one business day subsequent to the hearing Hearing administrator’s Administrator’s
issuance of the notice of decision by first class and certified mail, postage prepaid, return receipt
requested, to the appellant or their designated representative. The failure by the appellant to appear at
the appeal hearing shall be noted on the notice of decision by the hearing Hearing
B5 - 14
Attachment 1
9
administratorAdministrator. The hearing administrator may reduce or cancel the amount of any
administrative fine or revoke the administrative citation in unusual cases when extenuating
circumstances make doing so appropriate and in the interest of justice. The decision of the hearing
administrator shall be final.
1.24.120 Appeal of hHearing aAdministrator’s decision.
A. Appeal to Hearing Administrator. Any person aggrieved by the Hearing Administrator’s Ddecision may
appeal the Hearing Administrator’s dDecision to either the Construction Board of Appeals or the the
Administrative Review BoardNon-Technical Enforcement Board of Appeals, whichever has jurisdiction as
set forth in this section. HA. If no appeal is filed within ten days of the date of issuance of the ACthe
Hearing Administrator’s dDecision it AC shall be deemed final.
B. The Construction & Enforcement Board.
BB. The appellant may appeal the Hearing Administrator’s Decision by filing a written appeal with the
Director in the same manner as provided for in following the procedures to appeal and aAdministrative
Cicitation as set forth in Section 1.24.090(A)(1) and B.
CC. Jurisdiction to Hear the Appeal.
1. The Construction Board of Appeals shall conduct a de novo hearing on all aAdministrative cCitations
issuedappealed for violations of Title 15, Chapter 12.08, and Chapter 13.08. If an Notice of Violation or
Administrative Citation includes Code Violations separate from those found in Title 15, but which stem
from the same incident(s), violations then the Construction Board of Appeals shall simultaneously hear
all Administrative Citations during the same hearing.
for Non-Technical Code Violations, then the Construction Board of Appeals shall also hear the Non-
Technical Code Violations.
2. The Administrative Review Board Non-Technical Enforcement Board of Appeals shall conduct a de
novo hearing on all aAdministrative cCitations that chargeappealed, excluding Title 15 Code Violations,
and those Administrative Citations stemming from the same incident(s) as Title 15, as provided for in
1.24.120(C)(1).
solely Non-Technical Code Violations.
D. Time and Place of Hearings. Hearings shall be conducted by the board with jurisdiction to hear the
appeal of the Hearing Administrator’s dDecision on the date, time and place specified by the cChief
bBuilding oOfficial or issuing department director. Chair of the board with jurisdiction to hear the
appeal..
E. Procedures for Conduct of Hearing Appeals. The procedures for conducting the hearings shall be
those procedures as set forth in Sections 1301.4-1301.6, 1302, 1303, 1304, 1305.7 and 1305.8 of the
1997 Uniform Housing Code and Sections 601.4-6, 602, 603, 604, 605.7 and 605.8 as adopted by
reference by Section 15.02.010 of the mMunicipal cCode.
F. Failure to Appear. The failure of the appellant to appear at the hearing, unless the hearing was
continued per subsection 1.24.110 (G) of this section, shall constitute an abandonment of the appeal,
and shall constitute a failure to exhaust administrative remedies concerning the violations set forth in
the notice of aAdministrative cCitation.
Formatted: Not Highlight
B5 - 15
Attachment 1
10
G. Payment of Fine after Appeal Decision. The filing of an appeal shall suspend any fine assessed in the
administrative Administrative citationCitation. In the event that the administrative Administrative
citation Citation is revoked, no payment of the fine is due. In the event that the administrative
Administrative citation Citation is upheld, a new compliance deadline and fine due date shall be
established by the board with jurisdictionthe hearing administrator and indicated on the notice of
decision for the appeal.
H. Revocation of the Aadministrative Ccitation by the hearing Hearing administrator Administrator or
the Board shall void the administrative Administrative citation Citation fine. (Ord. 1576 § 1 (part), 2012)
I. Notice of Final Decision. After considering all the evidence and testimony submitted at an appeal
hearing, the board hearing the appeal shall issue a notice of decision within 60 days to either uphold or
revoke the aAdministrative cCitation based upon a conclusion of whether a violation occurred. If an
Administrative Citation charges two or more Code Violations, the board hearing the appeal may modify
the Administrative Citation by upholding one or more Code Violations while simultaneously but
dismissing one or more cCode vViolations. The board hearing the appeal does not have the authority to
reduce or modify a fine amount for a violation upheld on appeal. violation. HAThe failure by the
appellant to appear at the appeal hearing shall be noted on the notice of decision by the hHearing
aAdministrator.
1.24.1230 Exception to administrative review as outlined in this chapter.
In the event that an aAdministrative cCitation is issued in conjunction with a related city enforcement or
violation procedureaction, and the other cCity action requires review by another advisory body or city
council, the city manager, in his or her sole discretion, or in the sole discretion of the city manager’s
designee, may forwardconsolidate review of the aAdministrative cCitation with the review of the other
cCity action related to the Administrative Citation and refer review of all actions to the body with
jurisdiction over the most significant violation or enforcement action.
to the other advisory body or City Council.
1.24.130 140 Right to judicial review.
A. Notice of Final Decision. The notice of final decision is final, and is not subject to appeal pursuant to
Chapter 1.20 of the San Luis Obispo Municipal Code.
B. Applicability. Applicability of Government Code Section 53069.4. The appellant may seek judicial
review of the hearing administrator’snotice of final decision by filing a further appeal with the San Luis
Obispo superior court within twenty calendar days after the appellant receives a copy of the notice
notice of final decision, in accordance with the provisions of California Government Code Section
53069.4. The appeal filed with the court must also contain a proof of service showing a copy of the
appeal was served upon the hearing administratorcity clerk for the city of San Luis Obispo. The appellant
must pay to the superior court the appropriate court filing fee when the appeal is filed.
BC. Failure to Exhaust Administrative Appeal. No appeal is permitted from a decision where the
appellant is deemed to have abandoned the contest of the administrative Administrative Citation by an
unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal
hearing before the hearing Hearing administrator Administrator or board.
B5 - 16
Attachment 1
11
CD. Forwarding of Records to Superior Court. The city attorney, or the city attorney’s designee, shall
forward to the superior court within fifteen days of the court’s request, the pertinent administrative
Administrative Citation documents for any case appealed to that court. If the superior court revokes any
administrative Administrative citationCitation, the city will refund to the appellant the superior court
filing fee paid by the appellant. (Ord. 1576 § 1 (part), 2012)
1.24.140 Collection of unpaid unpaid fines fines.
A. City Remedies. The city, at its discretion, may pursue any and all legal, equitable, and administrative
remedies for the collection of unpaid civil administrative fines.
1. Remedies Cumulative. Pursuit of one remedy does not preclude the pursuit of any other remedies
until the total fines owed by a person under this chapter have been collected.
2. Refusal to Issue Permits. A city department may refuse to accept an application for a city permit or
license or to refuse to issue, extend, or renew to any person, who has unpaid delinquent fines, liens, or
assessments, any city permit, license, or other city approval pertaining to the property that is the subject
of a notice Notice of violation Violation and/or an unpaid Aadministrative Ccitation.
3. Suspension of Issued Permits. Notwithstanding any other provision of the code, any permit, license,
or any type of land use approval issued by the city to a personPerson who has unpaid administrative
Administrative citations Citations totaling five hundred dollars or more which remain delinquent for
thirty days or longer may be suspended by the department which issued the permit or other
entitlement. The suspension becomes effective ten days after the date the notice of the suspension is
placed by the issuing department in the United States mail, postage prepaid, addressed to the person,
and continues until the administrative delinquency is paid in full. The person Person may request an
appeal or review hearing pursuant to the specific permit, license, or other city approval procedures or
ordinance if such a request is filed before the ten-day period ends.
4. Criminal Remedies. The city attorney, at his or her discretion, may also issue a criminal citation or
complaint (infraction or misdemeanor) to any person for a code violation when the applicable fine has
not been paid.
B. Violations Constitute a Public Nuisance. The director Director may pursue the remedies described in
this section whether or not the city is pursuing any other action to terminate an ongoing code Code
violation Violation that was the basis for an administrative Administrative citation Citation or to
otherwise abate the violation or sanction the property owner. To compel code compliance, the city may
also seek to collect assessed fines by means of a nuisance abatement lien or special assessment against
the property where a property related violation occurred in accordance with the procedures in
Government Code Sections 38773.1 and 38773.5.
C. Lien Conditions. To recover any delinquent administrative fines as a lien or special assessment on real
property, the following conditions must be met:
1. The director Director must submit to and receive approval from the city council for a resolution
certifying the amounts of the liens and special assessments sought to be collected from each property
owner; and
B5 - 17
Attachment 1
12
2. The total amount of the delinquent fine against the property owner must be delinquent for sixty days
or more.
D. Lien Collections. The director Director is authorized to take any steps necessary to enforce collection
of the lien or special assessment, including but not limited to the following:
1. Request the county recorder to record a notice of any lien or special assessment certified by
resolution of the city council.
2. Request the county tax collector on behalf of the city to collect any special assessments certified by
resolution of the city council.
E. Notice of Lien Collection Procedures. All administrative Administrative citations Citations shall contain
a notice that unpaid fines are subject to the assessment and lien collection procedures of this chapter.
This notice shall satisfy the notice requirements of Government Code Sections 38773.1 and 38773.5
when an administrative Administrative citation Citation is served on the personPerson. In addition, the
director Director shall by first class mail send notice to each property owner at least ten days before the
city council considers the resolution to certify the amounts of the liens and special assessments stating
the date, time, and location of the meeting. The lien or special assessment shall be imposed on the date
the administrative Administrative citation Citation for the Ccode Vviolation is issued to the responsible
person Person and shall become effective upon the recording of a notice of lien or special assessment by
the cCounty rRecorder.
F. Contesting Certification of a Lien. A person Person may contest the amount or the validity of any lien
or special assessment for a civil fine at the public hearing when the city council considers the resolution
to certify the liens or assessments. Such contests shall be limited to the issue of the amount or validity
of the lien or assessment and may not consider whether the underlying code Code violation Violation
occurred. Pursuit of such a contest by a person is necessary to exhaust the administrative remedies
concerning a legal challenge to the validity of any such lien or special assessment. (Ord. 1576 § 1 (part),
2012)
B5 - 18
1997 UNIFORM HOUSING CODE
13011304.7.2
Chapter 13
PROCEDURES FOR CONDUCT OF HEARING APPEALS
SECTION 1301 —GENERAL in possession or under control. A subpoena need not be issued
when the affiduvil is defective in tiny particular.1301.1 Bearing Examiners. 'rbe board may appoint one or
more hearing examiners or designate one or more of its members 13113.2 Cases Referred to Examioer. In cases where a hearing
to serve as hearing examiners to conduct the hearings. 'file ex- is referred to:in examiner,all subpoenas shall be obtainedthrough
airliner hearing the case shall exercise all powers relating to the the examiner.
conduct of hearings until it is submitted to the build for decision.
1303.3 Penalties. Any person who refuses without lawful ex-
1301.2 Record. A record of the emiie proceedings shall be made cure to attendany hearing,Or to produce material evidence that the
by tape recording,or by tiny other means of permanent recording person possesses or controls as required by any subpoena served
determined to be appropriate by the board, upon such person as provided for herein,shall be guilty of a misde-
meanor.
13111.3 Reporting. The proceedings at the hearing shallalso he
reported by a phonographic reporter if requested by :m)• pun)'
SECTION 1304 —CONDUCT OF HEARINGthereto. A transcript of the proceedings shall be made available to
all parties upon request and upon payment of the fee prescribed 1314.1 Mulct. Hearings need not be conducted according to thetherefor.Such fees may be established by the board,but shall in no technical Riles rehiring to evidence and witnesses.event be greater thanthe cost involved.
1314.2 Orad Evidence. Oral evidence shall be taken only on1301AContinuance.. The board nug' giant continuances for oath or affiliation.
good cause shown: however, when it hearing examinohas been
assigned to srach hearing,no continuances may be granted except 1304.3 lien:say Evidence. I learsay evidencemay be used for
by the examiner for good cause shown so long its One matter re- the purpose of supplementing or explaining any direct evidence,
mains before the examiner: but shall not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions in courts of
1301.5 Oaths—Certification. In am proceedings under this competent jurisdiction in this state.
chapter,the board,any board member or tine hearing examiner has
the power to administer oaths and affirmations and to certify to ill- 1304.4 Admissibility or Evidence. Any relevant evidence shall
ficial acts.be admitted if it is the type of evidence on which responsible per-
sons are accustomed to rely in the conduct of serious affairs, re-
13111.6 Reasonable Dispatch. Tie board and its representatives gardless of the existence of any currtmoo law or statutoryode thin
shall proceed with reasonable dispatch to conclude any matter be- might make improper the admission of such evidence over Objec-
fore it. Due regard shall be shown for the convenience and neces- tion in civil actions in cootsof counpetent jurisdictions in this
sip•ofany parties Or their representatives. state.
13114.5 Exclusion of Evidence. Inclevani and unduly repefi-
SECTION 1302— FORM OF NOTICE OF HEARING tious evidence shall be excluded.
The notice to appellant shall be substantially in the following 1304.6 Rights of Parties. Each party shall have the following '
form, but may include other information: rights•annong others:
foil are Hereby notified that if hearing will be held before I. To call and ex[hill ine•wit messes on airy macer relevant to the
the board of appeals or name of hearing examiner)issues of the hearing.
at ... . . . . . . .. .. .on the clay of. ... . . .• 19 .. . .. .. .at the 2. To introducedocumentary and physical evidence.
hour. . . . .. .,upon the notice and order served upon you.)'Ott
may be present at the hearing. )Ott may be,but need not be,rep- 3. TO cross-examine opposing a•inesses on any mater rele-
resented by counsel. %'(,u truly present any relevant evidence vant to theissues of the hearing.
and will be given full opportunity to crOSS-examine all wit- I TO impeach any witness regardless of which party first
messes testifying against yot. YOU may request the issuance of called the witness to testify.
subpoenas to compel the auendance of witnesses and the pro- 5. -Ifo rebut the evidence.
duction of books-documents orotherthings by filing fill affida-
vit therefor with (board of appeals or name of hearing 6. To be represented by anyone who is lawfully permitted to
examiner). do so.
130.1.7 Oilicial Notice.
SECTION 1303—SUBPOENAS 1314.7.1 What may he noticed. In reaching it decision,official
notice may be taken.either beforeor:dtersubmission of the case1113.1 piling til'.U'lidacit. The board or examiner may obtain
for decision, of any fact that may be judicially noticed by thetheissuanceandserviceofasubpoenafortheattendanceOIwit-
coons til'this sues or ill official recrrds of the hoard or departtressesortheproductionofiltherevidenceatnherringuponthe
meats nail
Os
state Or
Of the city ecfit-rules and regulations of therequestofitmemberoftheKnolloruponthewriueuliefluidofboard.
any party.The issuance and service of such subpoena skull he ob-
tained upon the filing of an affidavit therefor that states the name 1314.71 Parties lir he nutieed. Parties present at the hearing
air(] address of the proposed witness, specifies the exact things shall be informed of the matters to be noticed,toll these matters
sought to be produced and the materiality thereof in detail tothe shall be noted in the record, refereed totherein, or appended
issues involved,and states that tie witness has the desired things thereto.
25B5 - 19
1304.7.3 1997 UNIFORMHOUSING CODE
1305.9
1304.7.3 Opportunity to refute. Parties present at the hearing 1305.3 Consideration of Report by Hoard—Nulice. The
shall be given a reasonable opportunity, on request, to refute the board shall fix a time,date andplace to consider the examiner's
officially noticed matters by evidence or by written or oral presen- report and proposed decision. Notice thereof shall be mailed to
union of authority,the manner of such refutation to be determined each interested party not less than five days prior to the date fixed,
by the board or hearing examiner. unless it is otherwisestipulated by all of the parties.
13414.7.4 luspection ol•l he premises. 'rhe board or the hearing 1305.4 Exceptions to Report. Not later than two days before
examiner may inspect any building or premises involved in the ap- the date set to consider the report,any party may Glc written ex-
peal during the course of the heaving, provider) that (i) notice of ceptions to any pan or all of the examiner's report and may attach
such inspection shall be given to the parties before the inspection thereto a proposed decision together with a written argument in
is made,(ii)the parties arc given an opportunity to be present dur- support of such decision. 13y leave of the board, anyparty may
ing the inspection,and(iii)the board or the hearing examiner shall present oral argument totheboard.
state for the recor(I upon completion of the inspection the material
facts observed and the conclusions drawn therefrom. Each party 1305.5 Disposition by the Board. The boardmay adopt or re-
shall then have it right to rebut or explain the maters so stated by ject the proposed decision in its entirety or may modify the pro-
the board or hearing examiner. posed decision.
1305.6 ProposedDecisionNat Adopted. If the proposed deci-
SECTION 1305—METHOD AND FORM OF DECISION cion is notadopted as provided in Section 1305.5,the board may
decide the case upon the entire record before it, with or without
13115.1 Hearing before Hoard Itself. When a contested case is takingadditional evidence,or may refer the case to the same or
henrd before the bowl itself,a member thereof who did not hear another hearing examiner to take additional evidence. If the case is
the evidence or has not read the entire record of the proceedings reassigned to a hearing examiner,the examiner shall prepare a re-
shall not vote on or take pan in the deaision• port :in(]proposed decision as provided in Section 1305.2 hereof
1305.2 1learing by Ihe Examiner. If a contested case is heard after tiny additional evidence is submitted.Consideration of such
by a hearing examiner alone,the examiner shall,within a reason- proposed decision by the boardshall comply with the provisions
able time (not to exceed 90 days from the date the hearing is of this section.
closed),submit a written report to the board.Such report shall con- 1305.7 Form of Decision. The decision shall be in writing and
twin a brief summary of the evidenceconsidered and state the ex- sh(dl contain findings of fact. a determination of the issues pres-
arniner's findings.conclusions and reconunen(lations.The report ented and the requirements to be complied with.A copy of the de-
also shall contain a proposed decision in such form that it may be cision shall be delivered tothe appellant personally or sent by
adorned by the board as its decision in the case.All examiner's re- ceniticd mail, postage prepaid, reurn receipt requested.
ports filed with the board shall be matters of public record.A copy
of each such report and proposed decision shall be mailed to each 1305.5 Effective Date of Recision. The effective(late of the de-
party on the date they are Filed with the boatd. cision shall he as stated therein.
26
B5 - 20
i
1997 UNIFORM HOUSING CODE 1301
1304.7.2
Chapter 13.
PROCEDURES FOR CONDUCT OF HEARING APPEALS
SECTION 1301 —GENERAL inossession or under control.p o rol. A subpoena need not be issued
when the affidavit is defective in any particular.1301.1 Hearing Examiners. The board may appoint one or
more hearing examiners or designate one or more of its members 1303.2 Cases Referred to Examiner. In cases where a hearing
to serve as hearing examiners to conduct the hearings. The ex- is referred to an examiner,all subpoenas shall be obtained through
aminer hearing the case sha`11 exercise all powers relating to the the examiner.
conduct of hearings until it is submitted to the board for decision.
1303.3 Penalties. Any} p erson who refuses without lawful ex-
1301.2 Record. A record o'f the entire proceedings shall be made cuse to attend any hearing,or to produce materialevidence that the
by tape recording,or by any other means of permanent recording person possesses or controls as required by any subpoena served
determined to be appropriate by the board.. upon such person as provided for herein;shall be guilty of a misde-
meanor.
1301.3 Reporting. The proceedings at the hearing shall also be
reportedby a phonographicreporter if requested by any party
thereto. A transcript of the proceedings shall be made available to SECTION 1304—CONDUCT OF HEARING
all parties upon request and;upon payment-of the fee prescribed 1304.1 Rules. Hearings need not be conducted according to thetherefor. Such fees may be established by the board,but shall In no technical rules relating to evidence and witnesses.event be greater tlian the cost involved.
1304.2 Oral Evidence. Oralevidence shall be taken only on1301.4 Continuances. The board may grant continuances for oathor affirnati.on.
good cause shown; however., when a hearingexaminer has been
assigned to such hearing,nolcontinuances may be granted except 1304.3 Hearsay EN'Tidence. Hearsay evidence may be used for
by the examiner for good cause shown so long as the matter re- the purpose of supplementing or explaining any direct evidence,
mains before the examiner. j but shall not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions in courts of
1301.5 Oaths—Certification.-In any proceedings under- this competent jurisdiction in this state.
chapter,the board,any board;memberor the hearing examiner has
the power to administer oaths and affirmations and to certify to of- 1304.4 Admissibility of Evidence. Any relevant evidence shall
ficial acts.be admitted If it is the type of evidence on which responsible per-
i sons are accustomed to rely In the conduct of serious affairs re-
1301.6 Reasonable Dispatch. The board and its representatives gardless of the existence of any common law or statutory rule that
shall proceed with reasonable dispatch to conclude any matter be- mightmakeimproper the admission of such evidence over objec-
fore it.Due regard shall be shown for the convenience and neces- tion in civil actionsin courts of competent jurisdictions in this
sity of any parties or their representatives. state.
j 1304.5 Exclusion of Evidence. Irrelevant and unduly repeti-
SECTION 1302— FORM OF NOTICE OF HEARING tious evidence shall be excluded.
1304.6 Rights of Parties. Each art' shall have the followin0Thenoticetoappellantshallbesubstantiallyinthefollow' b party C
form, but may include other information: rights,among others:
You are hereby notified that a hearing will be held before L To call and examineFwanesses on any matter relevant to the
the board of appeals 6 name of hearing examiner)issues of the hearing.
at. . . . . . . . . . . . . . on the da ofy . . . . . . . , 19 . . . . . . . ,at the 2. To introduce documentary and physical evidence.hour. . . . . . .,upon the notice and order served upon you.You
3. Tocross-examine opposing witnesses on any platter rele-ma} be present at the hearing.You may be,but need not be,rep-vant tothe issues of the hearing.resented by counsel.. You nray present any relevant evidence
and will be given full opportunity to cross-examine.all wit- 4. To impeach any witness regardless of which party first
nesses testifying against you.You may request the issuance'of called the witness to testify.
subpoenas to compel the attendance of witnesses and the pro- 5. To rebut the evidence.duction of books,documents or other things by filing an affida-
vit therefor with (board of appeals or name of hearing 6. To be represented by anyone who is lawfully permitted to
examiner). do so.
1304.7 Official Notice.
SECTION 1303—SUBPOENAS 1304.7.1 What may be noticed. In reaching a decision, official
notice may be taken,either beforeoraftersubmission of the case1303.1 Filing of Affidavit. The board or examiner may obtain for decision, of any fact that ma' be judicially noticed b' thetheIssuanceandserviceofasubpoenafortheattendanceofwit- 1
nesses or the production of other evidence at a hearing upon the courts of this state or of official records of the board or dep u-t-
request of a member of the board or upon the written demand of meats and ordinances of the city or rules and regulations of the
any party.The issuance and service of such subpoena shall be ob-.board.
tained upon the filing of an affidavit therefor that states the name 1304.7.2 Parties to be noticed. Partiespresent at the hearillg
and address of the proposed 1witness, specifies the exact things shall be informed of the platters to be noticed, andthese matters
sought to be produced and the materiality thereof in detail to the shall be noted in the record, referred to therein, or appended
issues involved,and states that the witness has the desired thingsthereto.
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1304.7.3 i 1997 UNIFORM HOUSINGCODE
1305.8
1304.7.3 Opportunity to refute. Parties present at the hearing 1305.3 Consideration of Report by Board Notice. The
shall be given a reasonable opportunity, on request,to refute the board shall fix a time,date andplace to consider the examiner's
officiallynoticed matters b evidence ory b} written or oral presen report and proposed decision. Notice thereof shall be mailed to
tation of authority,the manner of such refutation to be determined each interested partynot less than five days prior to the date fixed,
by the board or hearing examiner. unless it is otherwise stipulated by all of the parties.
1304.7.4 Inspection of the premises. The board or the hearing 1305.4 Exceptions to Report. Not later than two days before
examiner may inspect any.building or premises involved In the ap- the date set to consider the report,any party may file written ex-
peal during the course of the hearing, provided that(i)notice of ceptions to any part or all of the examiner's report and may attach
such inspection shall be given to thejparties before the inspection thereto a proposed decision together with a written argument in
is made, (ii) the parties are given an opportunity to be present dur- support of such decision: By leave of the board, any party may
ing the inspection,and(iii)the board for the hearing examiner shall present oral argument to the board.
state for the record upon completion of the Inspection the material
facts observed and the conclusions drawn therefrom. Each party 1305.5 Disposition by the Board. Theboardmay adopt or re-
shall then have a right to rebut or explain the matters so stated by ject the proposed decision in its entirety or may modify the pro-
the board or hearing examiner. posed decision.
1305.6 Proposed Decision Not Adopted. If the proposed deci-
SECTION 1305 METHOD AND FORM OF DECISION sion is not adopted as provided inSection 1305.5,the board may
1305.1 Hearing before Board Itself. When a contested case is
decide the case upon the entire record before it, with or without
taking additional evidence, or may refer the case to the same or
heard before the board itself,a member thereof who did not hear another hearing examiner to take additional evidence.If the case is
the evidence or has not read the entire record of the proceedings reassigned to a hearing examiner,the examiner shallprepare a re-
shall not vote on or take part in the decision. port and proposed decision as provided in Section 1305.2 hereof
1305.2 Hearing by the Examiner. If a contested case is heard after any additional evidence is submitted.Consideration of such
by a hearing examiner alone,the examiner shall,within a reason- proposed decision by the board shall comply with the provisions
able time (not to exceed 90 days from the date the hearing is of this section.
closed),submit a written report to the board.Such report shall con- 1305.7 ]Form of Decision. The decision shall be in writing andtainabriefsummaryoftheevidence!considered and statethe ex-I shall contain findings of fact, a determination of the issues pres-
aminer's flndlnas,conclusions and recommendations.The report ented and the requirements to be complied with.A copy of the de-
also shall contain a proposed decision In such form that it may be
adopted by the board as its decision in the case.All examiner's re-
clslon shall be delivered to the appellant personally'or sent by
certified mail,postage prepaid,return receipt requested.
ports filed with the board shall.be matters of public record.A copy
of each such report and proposed decision-shall be mailed to each 1305.8 Effective Date of Decision. The effective date of the de-
party on the date they are filed with the board. cision shall be as stated'therein.
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