HomeMy WebLinkAbout08-19-2014 b5 ppp appealConsideration of Proposed Changes to Chapter
1.24 of the San Luis Obispo Municipal Code
Creating Uniformity in the Administrative Citation
Appeals Program
Presented By:
Isaac Rosen
City Attorney’s Department
January 7th, 2014 Council Meeting:
•The City Attorney’s office sought direction on revising the administrative citation appeals
program (predominantly found in San Luis Obispo Municipal Code Chapter 1.24) to ensure
all issuing City departments had a streamlined approach, and met the required standards
under federal and state mandated due process.
•The City is empowered to make, “any violation of any ordinance enacted by the local
agency subject to an administrative fine or penalty.” (Government Code section 53069.4)
•The local agency must set forth administrative procedures governing the “imposition,
enforcement, collection and administrative review” of any administrative fines
(53069.4(a)(1))
•The administrative procedures must provide for a reasonable time “to correct or
otherwise remedy the violation prior to the imposition of administrative fines or
penalties”
•The administrative citation must ultimately be judicially appealable
January 7th, 2014 Council Meeting:
•Due Process: Required under both the California and federal Constitution. When a local
agency takes action which may affect a liberty or property interest (such as the imposition of
a civil fine or property maintenance action), certain threshold requirements must be met:
1.Adequate notice of the violation charged and adequate notice of the hearing itself;
2.The opportunity to be heard before a fair and impartial decision-maker;
3.The opportunity for appellant to rebut or refute all evidence and analysis considered
by the decision-making individual or body
4.An “ethical wall” requiring a City attorney not serve concurrently in a prosecutorial
capacity (including advising code enforcement staff) in front of a legislative or
advisory body the City attorney regularly advises
•The City Attorney and Assistant City Attorney may perform separate duties on the
same matter provided they are screened off from each other’s work product
•However, the current decentralized structure leaves some advisory bodies
without legal counsel (see: Planning Commission appeals)
January 7th, 2014 Council Meeting:
•STAFF’S REQUEST FOR COUNCIL’S DIRECTION:
1.Provide direction on the form and process for administrative review of administrative
citations from issuing City departments;
•Council’s Direction: Establish two levels of administrative review for the appeal of
administrative citations
2.Provide direction on who should conduct the administrative review
•Council’s Direction: The first level of administrative review would be conducted
by a trained Hearing Administrator. The second and final level of administrative
review would be split, either heard by the Building Construction Board of
Appeals or by a newly created three-member advisory body to hear appeals “non-
technical in nature.” The second level of administrative review would be
judicially reviewable, by judicial appeal or writ of mandate to the Superior Court
3.Consider whether direction should be provided on how to allocate additional funds
to the appeals program, if needed
•Council’s Direction: That volunteer hearing officers be recruited and retained, so
no significant additional financial resources would be required
Construction Board of Appeals Meeting,
July 29th, 2014:
•Staff’s recommendation to the Board: a party appealing a hearing administrator’s
ruling would have the second and final level of administrative review heard by either
the Board of Appeals, with expanded jurisdiction for “technical violations,” or a newly
created three member body for violations “non-technical in nature.”
•The Construction Board of Appeals’ current jurisdiction is set forth in Municipal Code
section 15.04.020(J): review appeal decisions of the Chief Building Official relative to
the city’s adopted Codes. Expanded jurisdiction for matters deemed technical in
nature would include Chapter 12.08 (Stormwater Management & Discharge) and
Chapter 13.08 (Sewers
FEEDBACK:
•The Board expressed reservations on the proposed expanded
jurisdiction in matters outside their construction skills and
background
•Chief Building Official’s actions and decisions as they relate to aspects of storm water
and sewer regulations (generally, related to construction standards) would still be
subject to review by Construction Board of Appeals
•Following the Board’s feedback, staff concluded that the nature of Title 12
(Stormwater) and Title 13 (Sewers) were straightforward enough to be reviewed by
a body without technical expertise. Utilities primarily issues administrative
citations as an enforcement tool on more straightforward matters of compliance or
non-compliance with a clearly articulable standard, making review by the ARB
plausible.
Revised Proposed Amendments to Chapter 1.24:
Administrative Citation Issued:
Department Director may review and dismiss
Administrative Citation prior to appeal [1.24.100(A)]
First Level of Administrative Review:
The Hearing Administrator will provide the
appellant the opportunity to testify and present
relevant evidence [1.24.110(E)]; the charging
document and any other reports prepared by City
staff will be used as prima facie evidence of the
charged offense (City staff will not be required to
attend) [1.24.110(F)]
Appellant Seeks to Appeal Hearing Administrator’s Decision
The Construction Board of Appeals or Administrative Review
Board will hear the appeal de novo based on jurisdiction
[1.24.120(C)]
Construction Board of Appeals Administrative Review Board
Second & final level of administrative
review for all Title 15 (Housing;
Building; Fire) Code Violations and all
other related Code Violations stemming
from the same incident [1.24.120(C)(1)]
Second & final level of administrative
review for all other Administrative
Citation appeals, excluding those
stemming from Title 15 and related
Code Violations [1.24.120(C)(2)]
After the notice of final decision by either the Construction Board
of Appeals or Administrative Review Board, appellant may seek
judicial review [1.24.140]
Three members shall be appointed by
City Council [1.24.030(I)]
City Council
Policies &
Procedures Section
6.7.2.5 allows
members of a
technical body to
serve concurrently
on another
advisory body
Revised Proposed Amendments to Chapter 1.24:
Other Important Municipal Code Changes:
Construction Board of Appeals Administrative Review Board
1.24.110: Procedures for Administrative Citation Appeals to Hearing Administrator:
1.24.030 (F): Notice of Violation:
•Clarifies language to reflect process providing a Notice of Violation
prior to issuance of an Administrative Citation. The Notice of Violation
gives the party time to correct the code violation prior to issuance of an
Administrative Citation, as required under Government Code section
53069.4
•Prior to requiring a party to appeal Administrative Citation(s), the Director of the issuing
department has discretion to dismiss any erroneously issued Notices of Violation (if the Code
Violations alleged were found not to occur) or Administrative Citations (if the method of
service or process was invalid) [City Attorney seeking further input]
1.24.110 (K): Notices of Hearing Administrator’s decision and appeal timeline:
•The Hearing Administrator has the discretion to dismiss or uphold specific charged
violations within the Administrative Citation based on the evidence presented, but not to
alter fines for upheld citations.
Revised Proposed Amendments to Chapter 1.24:
Other Important Municipal Code Changes:
Construction Board of Appeals Administrative Review Board
1.24.120(E): Procedures for Conduct of Hearing Appeals [Second
level of Administrative Review]:
•These procedures include: the ability of the boards to issue subpoenas for witnesses, the
ability of either party to call, examine or cross-examine witnesses and admissibility of any
relevant evidence
•Provides the procedures for the second level administrative review hearings conducted by
the Construction Board of Appeals or Administrative Review Board, with practices
consistent with the Uniform Housing Code and Uniform Code for the Abatement of
Dangerous Buildings, adopted by reference by Municipal Code section 15.02.010
1.24.120 (I): Notice of Final Decision [Second level of administrative review]:
•Same authority as that of the Hearing Administrator: discretion on appeal for the board to
dismiss or uphold specific charged violation -- but not to alter the fines attached.
Revised Proposed Amendments to Chapter 1.24:
Other Important Municipal Code Changes:
Construction Board of Appeals Administrative Review Board
1.24.130: Exceptions to administrative review as outlined in this chapter:
•City Manager or designee retains discretion to have an alternate body, including the city
council, hear the Administrative Citation if it is a part of another city enforcement action
within the jurisdiction of that alternate body.
1.24.140: Right to judicial review (A):
•After two levels of administrative review, and a replete administrative record, a party would
then be able to appeal the board’s decision by writ or appeal to Superior Court. The decision
by the board would not be subject to further Council appeal.
Next Steps:
If City Council agrees with the proposed changes
to Chapter 1.24 --
1.1. City Staff will finalize an amending ordinance for Chapter 1.2.4 for adoption by
Council;
2.Draft an ordinance to create the new Administrative Review Board and draft the board’s
bylaws;
3.Bring forward the resolutions necessary to amend existing administrative enforcement
guidelines and bylaws for the Construction Board of Appeals ;
4.Develop an administrative hearing training program for hearing officers and for
Administrative Review Board members (with the goal that the program could be used by
other City bodies with adjudicatory functions, i.e.: Planning Commission, Architectural
Review Commission)
End of Presentation
Questions & Public Comment